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(b) The offence came to be registered under CR No. 130/2008 in Azad Nagar Police Station, Malegaon under Sections 302, 307, 326, 324, 427, 153-A and 120-B of the Indian Penal Code, 1860 (in short ‘the IPC’) read with Sections 3, 4, 5 and 6 of the Explosive Substances Act read with Sections 3, 5 and 25 of the Arms Act, 1959.
(c) During the course of investigation, the samples collected from the place of offence were sent to the Forensic Science Laboratory at Nasik and the same were found to be containing Cyclonite (RDX) and Ammonium Nitrate. On 18.10.2008, the provisions of Sections 15, 16, 17, 18, 20 and 23 of the Unlawful Activities (Prevention) Act, 1967 (Amended) 2004, (in short ‘the UAP Act’) were invoked and the case was entrusted to Deputy Superintendent of Police, (HQ), Nasik Rural. On 26.10.2008, the Anti-Terrorist Squad (ATS), Mumbai took charge of the investigation and on 29.11.2008, the provisions of Maharashtra Control of Organized Crime Act, 1999 (in short ‘the MCOC Act) were added.

(f) After completion of the investigation, on 20.01.2009, the ATS, Mumbai, filed charge sheet under Sections 302, 307, 326, 324, 427, 153A read with Section 120B of the IPC and Sections 3, 5 and 25 of the Arms Act and Sections 15, 16, 17, 18, 20 and 23 of the UAP Act, Sections 3(1)(i), 3(1)(ii), 3(2), 3(3), 3(5) of the MCOC Act, Sections 3, 4, 5 and 6 of the Explosive Substances Act.

(g) The appellant came to be arrested on 05.11.2008 in connection to the said offence. The appellant herein preferred a Bail Application being No. 42 of 2008 before the Special Judge under MCOCA for Greater Mumbai. By order dated 31.07.2009, the Special Judge discharged the appellant and other co-accused from the offences under MCOC Act and directed to transfer the case to the regular court at Nasik. The State Government, being aggrieved by the order dated 31.07.2009, filed an appeal being 866 of 2009 before the High Court. A Division Bench of the High Court, vide order dated 19.07.2010, set aside the order dated 31.07.2009 and restored the bail application filed by the appellant herein for hearing on merits. The appellant herein went in appeal before this Court and filed Criminal Appeal Nos. 1969-1970 of 2010. It would be appropriate to mention here that after filing of the charge sheet by ATS, Mumbai, the investigation of the same was started by the National Investigation Agency, (NIA), New Delhi as per the order of the Government of India dated 01.04.2011 and on 13.04.2011, the NIA re-registered the offence in respect of the said incident as CR No. 5/11.

(h) This Court, in Prasad Shrikant Purohit vs. State of Maharashtra and Another (2015) 7 SCC 440, dismissed the criminal appeals filed by the appellant herein while restoring the Bail Application No. 42 of 2008 to the file of the Special Judge for passing orders on merits. On the question of applicability of the MCOC Act, this Court has observed as under:-

“95. In the light of our above conclusions on the various submissions, we are convinced that in respect of the appellant in Criminal Appeal No. 1971 of 2010, namely, A-7, there is no scope even for the limited purpose of Section 21(4)(b) to hold that application of MCOCA is doubtful. We have held that the said appellant A-7 had every nexus with all the three crimes, namely, Parbhani, Jalna and Malegaon and, therefore, the bar for grant of bail under Section 21 would clearly operate against him and there is no scope for granting any bail. Insofar as the rest of the appellants are concerned, for the purpose of invoking Section 21(4)(b), namely, to consider their claim for bail, it can be held that for the present juncture with the available materials on record, it is not possible to show any nexus of the appellants who have been proceeded against for their involvement in Malegaon blast with the two earlier cases, namely, Parbhani and Jalna. There is considerable doubt about their involvement in Parbhani and Jalna and, therefore, they are entitled for their bail applications to be considered on merits.” Vide order dated 12.10.2015, the Special Judge, rejected the bail application of the appellant herein. Aggrieved by the decision dated 12.10.2015, the appellant herein preferred a Criminal Appeal being No. 138 of 2016 before the High Court. During the pendency of the aforesaid appeal before the High Court, the NIA submitted supplementary charge sheet dropping the charges under MCOCA against all the accused persons including the appellant herein. In view of the supplementary charge sheet by the NIA, the High Court permitted the appellant herein to file fresh bail application.

Rival contentions:-

6) Mr. Harish Salve, learned senior counsel for the appellant herein contended before this Court that in view of the supplementary report filed by the NIA, dropping the charges in respect of the offences under the MCOC Act, it has to be held that there is no prima facie case against the appellant herein.

Learned senior counsel further contended that earlier, the bail applications were rejected mainly on the basis of the confessional statements of the co-accused under the MCOC Act and now, as the charges under the MCOC Act have been dropped, the confessional statements of the co-accused are required to be excluded from consideration and in their absence thereof, there is no incriminating material against the appellant herein so as to deny him the benefit of bail. Learned senior counsel further contended that during investigation by NIA, PW-79, PW-112 and PW-55 have retracted their previous statements made before the ATS. The fact that the material witnesses have retracted from their statements while complaining about the harassment and torture meted out by the officers of the ATS, clearly indicate that the investigation carried out by the ATS was not fair but it was tainted. The statements and confessions have been extracted subjecting the witness and co-accused to the torture and duress, under the threats of implicating them falsely. Learned senior counsel contended that in view of the withdrawal of those statements and confessions, there remains nothing on record to implicate the appellant herein with the alleged offence.