TaxTMI 
TaxTMI 
2005 (4) TMI 566
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.... One Abdul Karim Ladsa Telgi (hereinafter referred to as 'Telgi') was arrested and proceeded against for alleged commission of offence of printing counterfeit stamps and forgery in various States including the State of Maharashtra. He was lodged in Bangalore Jail since November, 2001. During the Appellant's tenure as Commissioner of Police, Pune, fake stamp papers worth Rs. 2.98 lacs were seized whereupon a first information report bearing C.R. No. 135 of 2002 came to be registered at Bund Garden Police Station, Pune under Sections 120-B, 255, 249, 260, 263(a) and (b), 478, 472 and 474 read with Section 34 of the IPC. The said offence was being investigated by one Mr. Deshmukh but having regard to the magnitude thereof, three teams lead by one Mr. S.M. Mushrif, Addl. Commissioner of Police (Crime) were formed. The said Mr. Mushrif is said to be a brother of a Minister of the Government of Maharashtra. On or about 16.07.2002, however a proposal was mooted to invoke Section 3 of the MCOCA and upon obtaining the opinion of Senior Public Prosecutor therefor, the same was invoked. One Mr. Mulani, Assistant Commissioner of Police (Crime Branch) had been included in the fie....
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....ongri Police Station, Mumbai. A copy of this complaint was also received by the applicant, who was then working as Jt. Commissioner of Police, Mumbai and bears his signature on it. The said complaint was forwarded by the applicant to Anti Corruption Bureau, Mumbai. (b) In the affidavit dated 29.10.2002 filed by the applicant in his capacity as Commissioner of Police, Pune before the Maharashtra State Administrative Tribunal (MAT) against Mulani he has categorically affirmed that conduct of Mulani was found to be highly suspicious in sensational murder case of one Faizulla Khan. (c) On 6.9.2002, the Investigation was handed over to DCP Jay Jadhav as by then the provisions of MCOCA were invoked against two of the Accused in C.R. No. 135/2002. New teams were formed for the investigation under MCOCA. While forming the team, the applicant included Mulani's name in the investigation team in connection with the investigation of C.R. No. 135/2002 (Page No. 12694 of chargesheet) though he was specifically told by DCP Jay Jadhav not to include him in the team (statement of CDP Jay Jadhav Page 11941 of the Chargesheet). It was on the pretext that PI Deshmukh was too overburdened being i....
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....statement of the Director General of Police, Maharashtra Shri S.C. Malhotra. The filing of the chargesheet was hurried through by the applicant (Reference statement of Kishore Jadhav - Page 11947). II. On this background, on and from 1.1.2003 the applicant was posted as Commissioner of Police, Mumbai. (a) The applicant was well aware about various cases of stamps scam which were pending in Mumbai, while he was working as Jt. Commissioner, Mumbai during the year on 8.6.2002, he had sent a wireless message calling for the details of these cases. (b) On 9.1.2003, DIG Jaiswal alongwith Addl. D.G. Karnataka Shri Kumar personally met and informed the applicant about Telgi enjoying all comforts in his flat at Cuffe Parade, Mumbai. He ought to have immediately taken coercive action and ensured its implementation. (c) Thereafter, a written report (Page 12181) dated 10.1.2003 was sent by DIG Jaiswal setting out in detail the facts noticed by him during their visit to Cuffe Parade flat. On this letter, the applicant had made a noting that API Kamat and the constables be placed under suspension with immediate effect. However, the record shows that they were not suspended till 15.1.2003 an....
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.... on 6.9.2002, Mulani was not neutralized till 30th September, 2002 although the Appellant had received an information from the Additional Chief Secretary, Ashok Basak that Mulani had been contacting Telgi telephonically who was then lodged in Central Jail. (ii) "Instead, he allowed Mulani to continue in the investigation team even after 6.9.02, this lapse on the part of the applicant under any circumstances cannot be termed as innocent, innocuous and inadvertent. This observation becomes stronger if we look at the subsequent events, i.e. overtacts of the applicant after 6.9.02. After 6.9.02 Mulani was continued in the investigation team. He was sent to Bangalore all alone on 18.9.02. When a proposal was placed before the applicant to recommend names of officers for rewards for their outstanding role in the fake stamps case consisting of nine names, the applicant on 10.10.02 included the name of Mulani in his own handwriting in the said list of officers. This cannot be termed as innocent dereliction of duties. At every stage it, prima facie, shows that there was a calculated attempt on the part of the applicant to continue Mulani in the investigation team and see that he is project....
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....gi was allegedly not kept in custody and was staying in his own flat or hotel and only on or about 9th January, 2003 when Mr. Jaiswal upon visting the flat of Mr. Telgi found out the same and brought it to the notice of the Appellant orally whereupon the order of suspension was passed on telephone by him. On 10th January, 2003 which happened to be a Friday, Jaiswal addressed a letter to the Chief Secretary, Maharashtra with a copy to the Appellant which was received in his Office on 12th January, 2003 and on that day itself an order of suspension was passed but the Joint Commissioner actually placed Kamat and others on suspension on 15th January, 2003. (c) Even during the raids made in the Bhiwandi Godown on the night of 9th January, 2003 seizure of stamps worth Rs. 820 crores was made, out of which some were found to be genuine ones and, thus, such seizures whether directed against Telgi or Sheikh having resulted in demolition of Telgi empire, the Appellant cannot be said to have aided or abetted the commission of any offence. In any event, having regard to the finding of the learned Single Judge that the Appellant thereby did not aid or abet Telgi who was proceeded against under....
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....ary proceeding, our attention was invited to the fact that the Special Investigation Team (SIT) was constituted on 2nd November, 2002 in the following terms: "Government Resolution : Government has decided to create a Special Investigation Team (S.I.T.) to make in-depth investigation and follow- up of action in bogus stamp case headed by Shri S.K. Jaiswal, Deputy Inspector General of Police S.R.P.F., Mumbai. He will be assisted by one Deputy Commissioner of Police, one Assistant Commissioner of Police, and three inspectors of Police. The names of these team members will be decided by the Director General of Police. The infrastructural support in terms of manpower, vehicle and communication, etc., will be provided by the Pune City Police. The team will report to Shri A.K. Agarwal, Additional Director General of Police, C.I.D., Pune. The Special Investigation Team will also look into the charges made by Shri Mushrif, Additional Commission of Police, Pune." Mr. Jaiswal found the Appellant's guilt of dereliction of duty as early as on 3rd April, 2003 and despite the limited jurisdiction of the Special Investigation Team, he exceeded his brief implicating the Appellant. In this ....
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....e history of the case and not for the purpose of grant of any reward. Mr. A. Sharan, the learned Addl. Solicitor General appearing on behalf of the CBI, on the other hand, would contend that the Appellant had known Telgi both as a scamster as well as a person for a long time, as would appear from the statement of one Mr. R.S. Mopalwar, an IAS officer It was urged that from the statement of Mr. Maheshgauri, it would appear that the Appellant met Telgi alone, apparently for the purpose of interrogation, but no record thereof is available. The said statement is supported by Smt. Supriya Patil Yadav and Shri Vasant Koregaonkar, an affidavit of Mr. Mushrif in the Public Interest Litigation by Shri Anna Hazare. According to the learned counsel the Appellant has helped those officers who did not want to make Telgi's wife, daughter and brother as accused by dragging his feet. Mr. Sharan would contend that Mulani had in fact been involved in the investigating team work, as would appear from the notesheet file of investigation, inasmuch as he had interrogated some witnesses. Our attention has also been drawn to the answers given by the Appellant himself in response to the questionnair....
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.... to prevent their commission would be an indispensable aid to law enforcement and the administration of justice. 2. The existing legal frame work i.e. the penal and procedural laws and the adjudicatory system were found to be rather inadequate to curb or control the menace of organized crime. Government, therefore, decided to enact a special law with stringent and deterrent provisions including in certain circumstances power to intercept wire, electronic or oral communication to control the menace of the organized crime. It is the purpose of this act to achieve these objects." Section 2 is the interpretation clause. Section 2(1)(a), (d), (e) and (f) whereof read thus: "2(1) In this act, unless the context otherwise requires,; (a) "abet", with its grammatical variations and cognate expressions, includes, - (i) the communication or association with any person with the actual knowledge or having reason to believe that such person is engaged in assisting in any manner, an organised crime syndicate; (ii) the passing on or publication of, without any lawful authority, any information likely to assist the organised crime syndicate and the passing on or publication of or distributi....
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.... provides for modified application of certain provisions of the Code of Criminal Procedure, sub-section (4) whereof is as under: "(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond, unless (a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and (b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail." Section 24 reads, thus: "24. Whoever being a public servant renders any help or support in any manner in the commission of organised crime, as defined in Clause (e) of Section 2, whether before or after the commission of any offence by a member of an organised crime syndicate or abstains from taking lawful measures under this act or intentionally avoids to carry out the directions of any Court or of the superior police officers in this respect, shall be punished with imprisonment of either description for a term which may extend to thr....
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.... both before or after the commission of an offence by a member of an organised crime syndicate or abstains from taking lawful measures under this Act. Interpretation clauses contained in Sections 2(d), 2(e) and 2(f) are inter-related. An 'organised crime syndicate' refers to an 'organised crime' which in turn refers to 'continuing unlawful activity'. As at present advised, it may not be necessary for us to consider as to whether the words "or other lawful means" contained in Section 2(e) should be read "ejusdem generis"/ "noscitur-a-sociis" with the words (i) violence, (ii) threat of violence, (iii) intimidation or (iv) coercion. We may, however, notice that the word 'violence' has been used only in Section 146 and 153A of the Indian Penal Code. The word 'intimidation' alone has not been used therein but only Section 506 occurring in Chapter XXII thereof refers to 'criminal intimidation'. The word 'coercion' finds place only in the Contract Act. If the words 'unlawful means' is to be widely construed as including any or other unlawful means, having regard to the provisions contained in Sections 400, 401 and 413 of the ....
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....gal concept which is now well-settled having regard to several decisions of this Court in Kehar Singh and others Vs. The State (Delhi Admn.) [AIR 1988 SC 1883], State of Karnataka Vs. L. Muniswamy and others [AIR 1977 SC 1489] and P.K. Narayanan Vs. State of Kerala [1995 (1) SCC 142]. In Kehar Singh (supra), it is stated: "275. From an analysis of the section, it will be seen that Section 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be, in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his co-conspirator. Once such prima facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it. It is true that the observations of Subba Rao, J., in Sardar Sardul Singh Caveeshar v. State of Maharashtra [(1964) 2 SCR....
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....ourt held: "7. In a criminal case the onus lies on the prosecution to prove affirmatively that the accused was directly and personally connected with the acts or omissions attributable to the crime committed by him. It is a settled position of law that act or action of one of the accused cannot be used as evidence against another. However, an exception has been carved out under Section 10 of the Evidence Act in the case of conspiracy. To attract the applicability of Section 10 of the Evidence Act, the court must have reasonable ground to believe that two or more persons had conspired together for committing an offence. It is only then that the evidence of action or statement made by one of the accused could be used as evidence against the other." It was observed: " In short, the section can be analysed as follows : (1) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have bee....
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....ht to book. The Act is deterrent in nature. It provides for deterrent punishment. It envisages three to ten years of imprisonment and may extend to life imprisonment. Death penalty can also be imposed if somebody commits a murder. Similarly, fines ranging between three to ten lakhs can be imposed. Presumption of innocence is a human right. [See Narendra Singh and Another Vs. State of M.P., (2004) 10 SCC 699, para 31] Article 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exist cogent grounds therefor. Sub-Section (4) of Section 21 must be interpreted keeping in view the aforementioned salutary principles. Giving an opportunity to the public prosecutor to oppose an application for release of an accused appears to be reasonable restriction but Clause (b) of Sub-section (4) of Section 31 must be given a proper meaning. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the Court to record such a finding? Would there b....
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....d by the learned Judicial Commissioner and we are clearly of the opinion, for reasons which need not be restated here, that they were correctly arrived at. But those findings merely make out that the appellants proceeded to execute the work in flagrant disregard of the relevant Rules of the G.F.R. and even of ordinary norms of procedural behaviour of government officials and contractors in the matter of execution of works undertaken by the government. Such disregard however has not been shown to us to amount to any of the offences of which the appellants have been convicted. The said findings no doubt make the suspicion to which we have above adverted still stronger but that is where the matter rests and it cannot be said that any of the ingredients of the charge have been made out. Apart from the findings and evidence referred to earlier in paragraph, no material has been brought to our notice on behalf of the State such as would indicate that the bills or the summaries in question were false in any material particular." In C. Chenga Reddy and Others Vs. State of Andhra Pradesh [AIR 1996 SC 3390], it is stated: "55. The learned counsel appearing for all the appellants als....
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....rt is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions co....
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....egard to these allegations because they go to the very root of the right of the accused to seek bail. The non- consideration of these vital facts as to the allegations of threat or inducement made to the witnesses by the respondent during the period he was on bail has vitiated the conclusions arrived at by the High Court while granting bail to the respondent. The other ground apart from the ground of incarceration which appealed to the High Court to grant bail was the fact that a large number of witnesses are yet to be examined and there is no likelihood of the trial coming to an end in the near future. As stated herein above, this ground on the facts of this case is also not sufficient either individually or coupled with the period of incarceration to release the respondent on bail because of the serious allegations of tampering with the witnesses made against the respondent." In Jayendra Saraswathi Swamigal Vs. State of T.N. [(2005) 2 SCC 13], this Court observed: "16. The considerations which normally weigh with the Court in granting bail in non-bailable offences have been explained by this Court in State v. Capt. Jagjit Singh (1962) 3 SCR 622: AIR 1962 SC 253 and ....
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....to the object and purport of the Act, the Court may take recourse to principles of 'purposive construction' only when two views are possible. The High Court, in our considered view, considered the matter from a wrong perspective. Only because the Appellant had the power, the same would not by itself lead to a conclusion that he was a privy to the crime. As regard Mulani's visit to Bangalore, it is accepted that on all occasions he was accompanied by other officers. The purpose of such visit was to have a high level conference so as to enable the Government of Maharashtra to obtain custody of Telgi. On 9.7.2002, Mulani visited Bangalore in the company of the Appellant. On 23.7.2002, he visited in the company of Appellant as also the Additional Chief Secretary, Shri Basak. Those two visits were prior to 6.9.2002. On 11th September, 2002, he went to Bangalore in the company of Shri Sampat Kadam as the case of Telgi was fixed on that day. He is said to have been sent by Shri Mushrif. Dr. Jai Vasantrao Jadhav in his investigation note dated 15.12. 2003 stated: "On 09/09/2002 Mushrif sahib called me to his office and told me the story of his trip to Bangalore. He himself ha....
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....indicated hereinbefore. Only those persons whose names are referred in the list were to receive award. The names of Mulani, Yadav and Davies were directed to be included in the text which would mean mentioning of their names in the history of case, as evidently they were involved in the investigation throughout. Furthermore, the name of Mulani alone was not added but names of two other officers were also added. We may further notice that the Appellant by letter dated 22.11.2002 addressed to the Director General of Police made serious complaints against Mr. Mushrif stating: "The request of Additional Commissioner of Police Mr. Mushrif for removing the names of near relatives of Mr. Abdul Kareem Ladsab Telgi, his wife and daughter because of their financial partners. Thus, being a supervising officer it was his duty to collect evidence during the investigation and to take proper decision like the Investigating Officer, being a Supervisory Officer. It appears that Shri Mushrif has neglected these things intentionally. Prior to this also Shri Mushrif has written letters to the Investigating Officers to obstruct the investigation directly or indirectly, which came to be noticed becau....
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.... by the State before the Maharashtra State Administration Tribunal, that transfer of Mulani was not by way of penalty but on administrative grounds. The State Government through Shri Ashok Basak also could have suspended Mulani. It does not appear from the records that apart from field work and searching for the accused Mulani took any part in investigation between 6.9.2002 and 30.9.2002. Mr. Mushrif in answer to the questionnaire categorically stated that four teams were formed for investigation and Mulani was in the team of field work. He, having been brought by Mr. Mushrif, had been working earlier. Mr. Mushrif accepts that the Appellant had asked him to supervise the investigation of the teams. He had drawn a broad outline as to how to proceed systematically: "On 12.6.2002 I had drawn a broad outline as to how to proceed systematically. My concept was as under: (a) A team for appraised of seized evidence paperwork. (b) Investigation team (c) Field work" It is also noteworthy that in the said statement, in certain matters, the Appellant's role was described as under: "12. CP's source information led to the registration of Cr. No. 135/2002. When you received inform....
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....ial Branch from Crime Branch, he stated: "8. With reference to paras 6(5)(v) of the application, I say that this was a very sensational murder case and the applicant was the immediate supervisory officer of its investigation. But as the main culprit could not be arrested, the case was transferred to State C.I.D. by the C.I.D. It transpired that the deceased Faizulla Khan along with two other persons had met the applicant in his office a couple of hours before his assignation. But this vital information was not disclosed by the applicant anywhere in the investigation, though he was the immediate Supervisory Officer of the case. Thus, his conduct was found to be highly suspicious in this sensational case. Under these circumstances it was not desirable to keep the applicant in the Crime Branch. This is one of the reasons for his transfer out of the Crime Branch. 17. With reference to para 6(13) of the application, I say the allegations in this para are denied as the applicant has been retained as A.C.P., Pune City. However, there is no stay granted to the internal orders issued by the respondent no. 2 of the applicant. Neither the applicant has prayed in his O.A. No. 863/2002 that h....
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....d statement of Shri Maheshgauri, question No. 50 whereof reads as under: "50) Did CP ever interrogate Telgi in prison? Did CP ever record his statement on the tape recorder? Are you aware about it? Ans: - CP did interrogate Telgi in camera in his own chamber. We were present in chamber of CP when AKL Telgi was ushered in by either Mulani or PI Deshmukh. By we I mean DCP Koregaokar was also present when Telgi entered. CP said, "rwgh oks gS uk tks cWkEcs gWkLihVy ds nxsZ is vk;k djrk Fkk uk" Then we moved out. I do not know if the conversation was tape recorded." If the Appellant was knowing Telgi, there was no reason to seek to identify Telgi by reference to a person who used to visit Bombay Hospital, Dargah. Our attention has also been drawn to the report of the brain mapping test of Telgi. In the said report, it is stated: "Pursuant to the request made vide letter cited under reference, accused Mr. Karim Telgi was brought for polygraph examination on 20th December 2003. The cited suspect was first interviewed and interrogated. It was found during the interrogation and the interview that the suspect appeared to be concealing some of the relevant information and not truthful to ....
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.... contention of Mr. Manohar that the Commissioner of Police may not like to interrogate an accused person as regard his political connections, if any, in presence of others, but the line of interrogation was revealed by Telgi immediately after he came out of his chamber. It further appears from the record that even Mushrif had interrogated Telgi exclusively. Furthermore, it appears that it is Mushrif who wanted to keep wife, daughter and brother of Telgi out of the chargesheet, as would appear from the statement of Mr. Kishore Eknath Yadav to the following effect: "Names of accused Fathima and Javed were mentioned in the case diary as suspects however full names and addresses of these accused could not be made accused. Because the information is not available against them and they are only servants, such instructions were issued by Addl. Commissioner of police during the time of beginning of the investigation and on other occasions. It was further stated: "Although for the said purpose note was made for seeking written orders, Honourable Additional Commissioner of Police has not made any specific order. Apart from this who should be made accused or not was the primary right of D....
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....tation of the technique? (e) Whether it is generally accepted by the Community? And (f) Whether the technique has been introduced or conducted independently of the litigation? In a case involving an issue as to whether on-job-exposure to the manufacturers products promoted small cell lung cancer, the U.S. Supreme Court in General Electric Co. Vs. Robert K. Joiner [522 US 139 L.Ed. 2d] following Daubert (supra), held that in cases involving the issue of expert evidence the appellate court should only consider whether there is any abuse of discretion in admitting such evidence by the trial courts and should not go into reviewing the evidence itself as it is for the trial courts to assume the "gate keeper's role" in screening such evidence to ensure whether it is not only relevant but also reliable. This was further expanded in Kumho Tire Co. Ltd. Vs. Carmichael [(1999) 119 S.Ct. 1167] whereby the 'gate keeping' obligation of the Trial Judge to ensure the relevancy and reliability for admitting the evidence extended not only to scientific but also to all kinds of expert evidence. In R. Vs. Watters [(2000) All ER (D) 1469], it was held : "DNA evidence may have a great ....