Bombay High Court
Rushikesh @ Banda Somnath Kashid vs The State Of Maharashtra on 6 July, 2021
Author: Prakash D. Naik
Bench: Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.3087 OF 2019
Rushikesh @ Banda Somnath Kashid,
Age 23 years, r/o.At Post Medad, Ta.Baramati,
District Pune, presently lodged in Yerwada
Central Prison. Applicant
versus
The State of Maharashtra Respondent
Mr.Hrishikesh Mundargi i/by Ms.Swarali Joglekar for applicant
Mr.S.R.Agarkar, APP, for State.
CORAM : PRAKASH D. NAIK, J.
DATE : 6th July 2021
PC :
1. The applicant is seeking bail in R No.I-189 of 2018 registered
with Saswad Police Station for offences under Sections 395, 341, 392
r/w 34 and 120-B of Indian Penal Code. Subsequently Sections 3(1)
(ii), 4(4) of MCOC Act were invoked against accused. The applicant
was arrested on 2nd June 2018.
2. The case of prosecution is that on 22nd May 2018 the first
informant was instructed by his employer to pick up a consignment
from company and transport the same to Fursungi, Pune. The
informant proceeded in his truck to pick up the consignment. The
consignment consisted of 924 boxes of Whiskey. Each box contained
48 bottles. The total cost of the consignment was Rs.55,25,740/-.
The first informant was driving the vehicle carrying the consignment.
He went to the petrol pump. He met another truck driver.
Thereafter he proceeded to deliver the consignment. The informant
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proceeded through Lonand-Nira-Jejuri-Saswad road and reached at
Kharad village. A person on motorcycle intercepted the vehicle of
complainant Two persons assaulted the informant. Two more
unknown persons came on motorcycle and assaulted him. The
informant was taken to unknown location. He was brought back to
the truck after some time. Subsequently he noticed that the
consignment was missing from truck. He went to Jejuri Police
Station and lodged the report. Several accused arrested during the
course of investigation. The confessional statement of accused were
recorded u/s.18 of MCOC Act. Charge sheet was filed against
applicant and other accused.
3. The applicant preferred application for bail before Special
Judge under MCOC Act. The said application was rejected by order
dated 13th February 2019. It is pertinent to note that in paragraph
14 of the said order the learned Special Judge has observed that
besides present offence, Crime No.330 2013 was registered against
applicant with Baramati Taluka Police Station for offence u/s.326 IPC
and after the trial he has been acquitted. There was no other charge
sheet against applicant. In such circumstances applicability of
provisions of MCOC Act is doubtful. Learned Judge, however,
further observed that there is strong evidence against applicant to
show his involvement in commission of offence of dacoity and some
of the accused are absconding, and considering the nature of offence
and the manner in which it is committed, the application was
rejected.
4. Learned counsel for applicant has submitted that the applicant
is in custody since last three years. No other case is pending against
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applicant. The provisions of MCOC Act are not attracted against
applicant. He is not involved in any other case. There is no evidence
to establish that the applicant was a member of crime syndicate
headed by main accused Prakash Gaikwad. In the past one case was
registered against him which was also not with the gang leader and
the said case has also resulted in acquittal. The gang leader has been
granted bail by the Sessions Court and while granting bail to him it
has been observed that there is no cogent evidence against him to
show his involvement in the offence and in spite of antecedents
against him, bail was granted to him. It is further submitted that
prosecution is relying upon alleged recovery at the instance of
applicant. However, one of the co-accused (accused no.9 Chetan
Gaikwad) has been granted bail, although the prosecution is relying
upon recovery at his instance. The accused no.6 Sudhir Gaikwad
and accused no.7 Tushar Vibhute were also granted bail. Prosecution
is also relying upon identification of applicant. However, pursuant to
the alleged identification parade, statement of the identifying witness
was recorded, which has not attributed specific overt act to the
applicant. The prosecution is also relying upon confessional
statement of applicant which has been retracted by him on the
ground that he was assaulted and forced to confess the crime.
Learned Special Judge while granting bail to the gang leader had
taken into consideration the factum of confession of applicant and it
was observed that the same cannot be used against the said co-
accused.
5. Learned APP submitted that there is sufficient evidence
showing involvement of applicant in the offence. The provisions of
MCOC Act are applied in this case. There are restrictions in granting
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bail to a person who has been prosecuted under the provisions of
MCOC Act. The distinguishing feature between applicant and the co-
accused who are granted bail, is that they were not identified and
there is confessional statement of applicant recorded u/s.18 of
MCOC Act. The issue relating to retraction cannot be considered at
this stage and it will have to be appreciated during trial. The
prosecution has filed an affidavit-in-reply opposing application for
bail.
6. As stated above, the applicant is in custody for a period of
about three years. There is no progress in the trial. The prosecution
is relying upon confessional statement of applicant which was
purportedly recorded u/s.18 of MCOC Act. On the basis of
confessional statement the prosecution case is that the applicant is a
member of crime syndicate headed by accused Prakash Gaikwad.
Thus, to invoke the provisions of MCOC Act, it has been alleged that
applicant is a member of crime syndicate headed by aforesaid
accused. I have perused the affidavit filed by prosecution and the
chart produced by prosecution which is part of charge sheet, which
indicate the number of cases registered against accused and
conviction of other accused with the gang leader. Undisputedly no
case is registered against applicant along with gang leader. The
order granting bail to gang leader Prakash Gaikwad mentions that
there were about six cases registered against him. He has criminal
antecedents. However, there is no material on record to show that
he along with co-accused has committed offence. In the absence of
any other evidence bail cannot be deprived to him merely because of
criminal antecedents. The allegations in the FIR would indicate
involvement of four persons. The accused nos.1 and 2 were arrested.
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The part of stolen property was recovered. At the instance of
applicant 212 boxes of Whiskey were recovered. The fact remains
that whether applicant can be further detained on account of
invocation of provisions of MCOC Act. Since the gang leader has
been granted bail with an observation that his involvement is not
prima facie established, the applicant cannot be detained further on
the assertion that as a member of crime syndicate headed by the co-
accused, the said offence was committed. Other accused, as stated
above, were also granted bail by Special Court. Charge has not been
framed and it is not clear as to when trial would commence.
Considering these aspects, there is no impediment in granting bail to
the applicant in spite of embargo under Section 21(4) of MCOC Act.
Hence, I pass following order :
ORDER
(i) Bail Application is allowed and disposed of;
(ii) The applicant is directed to be released on bail in connection with CR No.I-189 of 2018 registered with Saswad Police Station on executing PR bond in the sum of Rs.50,000/- with one or more sureties in the like amount;
(iii) The applicant shall report Saswad Police Station once in three months on first Saturday of the month between 11 am and 1 pm till further orders;
(iv) The applicant shall regularly attend Trial Court on the dates of hearing, unless exempted by the Special Court.
(PRAKASH D. NAIK, J.) MST ::: Uploaded on - 08/07/2021 ::: Downloaded on - 08/07/2021 22:05:16 :::