Bombay High Court
Tayyab Mansoor Shaikh vs The State Of Maharashtra on 28 November, 2018
Author: Prakash D. Naik
Bench: Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.1175 OF 2017
Tayyab Mansoor Shaikh, Age 37 years,
Occ.Service, R/o.Building No.21/A,
Lallu Bhai Compound, Room No.711,
Govandi, Mumbai-400 042.
(Presently lodged at Taloja Jail) Applicant
versus
The State of Maharashtra Respondent
Mr.Shantanu R. Phanse for applicant.
Mr.A.R.Kapadnis, APP, for State.
Mr.Walanke, ACP, Wadala Police Station, present.
CORAM : PRAKASH D. NAIK, J.
DATE : 28th November 2018
PC :
1. The applicant is seeking bail in connection with CR No.50 of
2015 registered with Sewree Police Station for offences punishable
under Sections 379, 461, 427 and 285 of Indian Penal Code.
Subsequently the provisions of Maharashtra Control of Organized
Crime Act,1999 (`MCOC Act') were invoked. The applicant was
arrested on 3rd August 2016.
2. The prosecution case is that the complainant is working as
senior manager in Bharat Petroleum Corporation Limited (`BPCL').
On 12th May 2015 the police attached to Byculla Police Station had
intimated the BPCL that there is an oil leakage behind Star Talkies,
Dockyard, Mumbai and that they should verify whether the pipeline
belongs to BPCL company. The staff of BPCL then reached the spot
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and in order to find out the source of oil leakage, the complainant
instructed to dig a hole. After digging hole it was noticed that one
inch plastic pipe passing towards main pipeline of the company was
inserted. It was noticed that it was a case of pilfering the base oil of
BPCL. Hence the FIR was lodged with the police station for the
aforesaid offences as well as for the offence under Section 15(2) of
Petroleum and Mineral Pipeline Act, 1962 read with Section 3 of
Prevention of Damage to Government Property Act, 1984. During
the course of investigation accused were arrested. The applicant was
granted bail by the Court of learned Magistrate, However, since the
provisions of MCOC Act were invoked, the applicant was re-arrested
and since then he is in custody. On completing the investigation
charge sheet is filed.
3. Learned counsel for applicant submitted that there is no
substantive evidence against the applicant. The provisions of MCOC
Act are not attributed to the applicant. He was granted bail in
respect to the offences registered vide FIR lodged on 12 th May 2015.
The applicant is not connected with the alleged crime syndicate.
There is no other case registered against the matter. He has not
participated in the crime with co-accused in any other case, who are
involved in this case. It is further submitted that there is no cogent
evidence to show the involvement of the applicant in the crime. The
prosecution has relied upon the confessional statement of the co-
accused to show the involvement of applicant as a plumber, who had
fixed the motor to the pipeline which was used for pilfering the base
oil of company. It is submitted that the confessional statement of the
co-accused Samiullah Baig was retracted by him on 28 th April 2016.
The memorandum statement relied upon by the prosecution showing
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the place of incident wherein alleged motor was fixed is not
admissible in evidence. There is no recovery of any nature from the
applicant and there is no other evidence to show his involvement in
the crime.
4. Learned APP submitted that the applicant was involved in
serious crime of pilfering the base oil. The co-accused are involved
in several cases and they are members of crime syndicate who are
continuously committing crimes and indulging in continued unlawful
activities. The confessional statement of the co-accused has shown
involvement of the applicant. It is further submitted that the
investigating officer has also collected evidence in the nature of
memorandum statement showing the place where the alleged motor
was fixed. Learned APP relied upon affidavit filed by Commissioner
of police wherein antecedents of other accused being involved in
several cases are reflected. It is submitted that the applicant is a
member of a gang and had indulged into the act of pilfering the base
oil with co-accused.
5. I have perused the charge sheet which is annexed to this
application. It is pertinent to note that the offence u/s 379 of IPC
and other offences were registered on 12 th May 2015. The applicant
was granted bail. The prosecution was relying upon the confessional
statement of the co-accused recorded u/s 18 of MCOC Act wherein
purportedly role was attributed to the applicant as a person who has
assisted the co-accused in fixing the motor. The applicant is allegedly
the plumber. However, it is pertinent to note that except the
confessional statement and the alleged memorandum statement,
there is no cogent evidence to establish that the applicant is a
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member of organized crime syndicate. As stated above, the
confessional statement was retracted by the co-accused. The
applicant was granted bail earlier, however, he was re-arrested on 3 rd
August 2016 and since then the applicant is in custody for more than
two years. There are no reported antecedents against the applicant.
In the light of nature of evidence relied upon by the prosecution, the
fetters imposed vide Section 4(4) of MCOC Act would not preclude
the court from granting bail to the applicant. In the light of aforesaid
circumstances, case for grant of bail is made out.
6. Hence, I pass following order :
ORDER
(i) Criminal Bail Application No.1175 of 2017 is allowed and disposed off;
(ii) The applicant is directed to be released on bail in connection with MCOC Special Case No.10 of 2016 registered with Sewree Police Station, on furnishing PR bond in the sum of Rs.25,000/- with one or more sureties in the like amount;
(iii) The applicant shall report Sewree Police Station once in a month on every first Saturday between 10 am and 12 noon till conclusion of trial;
(iv) The applicant shall attend the Trial Court regularly on the dates of hearing, unless exempted by the Special Court;
(v) The applicant shall not tamper with the evidence.
(PRAKASH D. NAIK, J.) MST ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 10:12:51 :::