TaxTMI 
TaxTMI 
2023 (11) TMI 1448
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....rder dated 08.07.2022 by Learned Additional Sessions Judge 2. Briefly Stated facts of the case are: i. The present FIR has been registered on the basis of the complaint of the Complainant Ms. Aditi Singh alleging therein that on 15.06.2023 she received a call from one landline number on her mobile phone in which the caller introduced himself as a senior officer in the Ministry of Law and proposed to help her in securing bail for her husband who was running in Judicial Custody in cases related to M/s Religare Enterprises Ltd. It is alleged that the said caller demanded a sum of Rs. 20 crores from the complainant for getting the work done and conveyed the modalities regarding the delivery of money. The caller further through his associates extorted money from the complainant on multiple occasions. The extorted money was to the tune of Rs. 217 Crores. ii. It is alleged upon conducting technical surveillance on the cell phone used by said caller, the identity of the caller was found to be Sukash Chander Shekhar, who was already lodged in Rohini Jail as UTP in the case of allegedly taking money from AIADMK leader TTV Dinakaran under the guise of assisting ....
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....ndia as well as foreign countries. It was further stated that Deepak started working with him and from June 2020 to July 2021 around Rs 90-100 Crore was sent through Hawala, out of which about 10-12 crores rupees were delivered to Mumbai, Pune, Chennai and Hyderabad. It was also stated that the details of his contacts in Dubai such as Shetti, Rajiv Khurana, Rahul Kumar, and Pankaj helped him in transferring the funds from Delhi to Dubai and in Delhi who received the money are Lalu, Govind, Tiwari, Vishnu Vijay and Raju Online. It was further disclosed that his work in Beadenpura was done by one Pappu Sardarji and in Chandni Chowk, Raju@ Lambu used to handle it. 4. During investigation, It was also revealed that apart from this, fake companies of his men have been formed in Dubai, Singapore, Hongkong, U.S.A, etc. He sent money through banking channels from fake companies and got it back to India through telegraphic transfer. He further disclosed that he used to contact his employees and associates through mobile phones taken on fake identities and he used to contact them through WhatsApp, Signal App, etc. He also used virtual I digital numbers. It was also confessed that he had e....
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....re, the bail application of the present applicant/accused was dismissed. SUBMISSION ON BEHALF OF THE PETITIONER 8. Mr. Vikas Pahwa, learned senior counsel for the petitioner, submitted that there is no evidence to establish any nexus between the petitioner and the offences alleged in the FIR. It has been submitted that the petitioner is a law-abiding citizen who has been wrongfully and maliciously dragged into criminal proceedings arising out of the FIR. Learned Senior counsel further submits that the prosecution has also failed to prove through evidence the petitioner's role with the crime syndicate. It has been submitted that the primary allegation against the petitioner is that he orchestrated Hawala operations, but there is no independent evidence/documents to establish the fact. It has been submitted that the main accused Sukash Chandra Shekhar (A-1) used the company and has no nexus with the petitioner. 9. Learned Senior counsel submitted that the allegations against the petitioner are being in possession of large sums of cash, but not a single unaccounted rupee or immovable/moveable assets has been found by the two leading investigating agencies (EOW and ED). It....
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....ires the applicant to have abetted the criminal activity and before the commission of criminal activity. It has been also submitted that the essential ingredient to attribute Section 3 (2) of MCOCA is "knowledge". It has been submitted therefore it is necessary for the prosecution to establish that the petitioner knew about the crime alleged. Learned Counsel further submits that there is no CDR between Deepak Ramanai and the petitioner, the only evidence the prosecution has been able to show is that there is a number saved as „dolly'. Reliance has been placed upon Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294. 14. Learned Senior Counsel submitted that the petitioner is a senior citizen aged about 69 years with heart ailments, suffering from prolonged geriatric illness i.e., asthma, diabetes, hypertension etc. since 2020 and requires medical treatment and attention from time to time. It has been submitted that the petitioner has been in custody even after the investigation is complete and not a shred of evidence apart from the coerced disclosure statements has been found against the Petitioner. It has further been submitted that the continuous d....
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.... out either singly or jointly with the objective of gaining pecuniary benefits to constitute it to be an organized crime [S. 2(1)(e)], which when having been carried out in a planned manner in a group is an organized crime carried out by an organized crime syndicate [S. 2(1) (9]. Ld. Senior PP also submitted that the distinguishing feature of MCOCA, as distinct from a standalone act of crime, stems from the continuity factor attached to unlawful activity, as would be evident from the definitions quoted hereafter. 20. Mr. Sanjay Jain learned SPP submitted that mere facilitation with the organised crime syndicate is sufficient to constitute an offence under MCOCA. It has been submitted that the investigation agency could register a fresh FIR under the MCOCA, however, it was deemed prudent to add the provisions of MCOCA in the same FIR rather than registering a new FIR. 21. Learned SPP further submitted that it has been sought to be contended on behalf of the applicant that unlike Leena Paulose, B. Mohanraj raj, Kamlesh Kothari, whose bail applications have been dismissed by this Hon'ble Court, there is no material on record to show that the applicant had any link with the f....
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....quirements of recording the statements and the other aspects including retraction can be gone into only at the stage of the trial and not before. 25. learned senior counsel/SPP further submitted that the Applicant has alleged that the statement u/s. 18 of MCOCA cannot be the beginning or the end of the case against the Applicant and there ought to be independent material corroborating Section 18 statements. It would here be pertinent to mention that the investigating agency has not traced any documentary evidence in their files, which would corroborate the statement made on behalf of the accused, that the Section 18 statement of accused Avtar Singh Kochhar @ Dolly had been retracted on the same day when it was made. It has been submitted that there is a settled position of law by the Hon'ble Supreme Court as well as the recent Judgment rendered by this Hon'ble Court in the bail applications of 3 other co-accused, which made it clear that the validity of Section 18 statements i.e. whether admissible or not, whether the same were duly retracted or not are to be seen at the stage of trial and not during bail. 26. Learned SPP further submitted that the Applicant has alleg....
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....ers mentioned in the boxes; that these employees, after collection would ensure that the cash reaches Raj Kumar Chaurasia @Lambu (presently untraceable); that subsequent in point in time, the cash so collected by the aforesaid employees working in the network of Avtar Singh Kochar @Dolly, would be delivered at the direction of Avtar Singh Kochar @Dolly to various destinations, instructed by the mastermind of the syndicate i.e. Sukash Chandrashekhar, through Hawala network, in India as well as abroad. 28. Reliance has also been placed upon the confessional statement under Section 18 MCOCA of the petitioner and Sukash Chandrashekhar and Deepak Ramnani and the statement under Section 161 Cr.P.C. of i. Nitesh Nath (Landlord of Beadenpura Office) ii. Abhishek Sharma (Landlord of Kunncha Mahajani, Chandni Chowk office) iii. Harish (Employee) iv. Narender (Employee) v. Paramjeet (Employee) vi. Ramesh (Employee) vii. Rohit (Employee) viii. Sant Lal (Employee). FINDINGS AND CONCLUSION 29. Before proceeding to analyze the contentions of the parties which have been recorded herein above, it is necessary to refer to the relevant provisions of the MCOC Act. In order to understand the r....
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....lf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence; 2(e) "organised crime" means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency; 2(f) "organised crime syndicate" means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime;" 32. In the State of Gujrat vs. Sandeep Omprakash Gupta, 2022 SCC OnLine SC 1727 the Apex Court whilst dealing with a case under the Gujarat Control of Terrorism and Organized Crime Act, 2015; which has similar provisions as that in MCOC Act, inter alia held as under: "In understanding the ambit of the enactment, emphasis must be given to three definitions: ....
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....e". Section 3 provides for the punishment for organised crime. Sub-section (1) of Section 3 covers 'whoever commits an offence of organised crime'. Sub- section (2) covers whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organised crime or any act preparatory to organised crime. Sub-section (3) covers whoever harbours or conceals or attempts to harbour or conceal any member of an organised crime syndicate. Sub-section (4) covers any person who is a member of an organised crime syndicate. Sub-section (5) covers whoever holds any property derived or obtained from the commission of an organised crime or which has been acquired through the funds of an organised crime syndicate. Section 4 punishes the possession of unaccountable wealth on behalf of a member of an organised crime syndicate. 23. For charging a person of organised crime or being a member of organised crime syndicate, it would be necessary to prove that the persons concerned have indulged in: (i) an activity, (ii) which is prohibited by law, (iii) which is a cognizable offence punishable with imprisonment for three ....
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....he operation of Section 24 of MCOCA providing for punishment of public servant failing in discharge of their duty. However, the court taking overall view of the matter with reference to the facts from the prima facie opinion that the High Court might not have been correct while coming to the conclusion that the appellant committed an offence under Section 3(2) as well as Section 24 of MCOC Act; the interim bail granted to the appellant was continued. In this case, it was inter alia held as under: "24. The Statement of Objects and Reasons clearly states as to why the said Act had to be enacted. Thus, it will be safe to presume that the expression "any unlawful means" must refer to any such act which has a direct nexus with the commission of a crime which MCOCA seeks to prevent or control. In other words, an offence falling within the definition of organised crime and committed by an organised crime syndicate is the offence contemplated by the Statement of Objects and Reasons. There are offences and offences under the Penal Code, 1860 and other penal statutes providing for punishment of three years or more and in relation to such offences more than one charge-sheet may be fi....
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....ion that these conditions are cumulative and not alternative. It was reiterated in Sandeep Omprakash Gupta (supra) that the satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds and the expression "reasonable grounds" means something more than prime facie grounds. It was further inter alia held that it contemplates substantial provable causes for believing that the accused is not guilty of the alleged offence. 38. In Sandeep Omprakash Gupta (supra) the judgement of Ranjitsing Brahmajeetsing Sharma (Supra) was also cited with approval which reads as under: "29. The Court should bear in mind the principles enunciated in the case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Another reported in (2005) 5 SCC 294. We quote paras 43, 44 and 46 resply: " 43. Section 21(4) of MCOCA does not make any distinction between an offence which entails punishment of life imprisonment and an imprisonment for a year or two. It does not provide that even in case a person remains behind the bars for a period exceeding three years, although his involvement may be in terms of Section 24 of the Act, the court is prohib....
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....t is not necessary to show that the petitioner had any link with the foundational allegation of extortion or with the mastermind of the Syndicate. It has further been submitted that mere membership/nexus/facilitation in the organized crime syndicate is sufficient to constitute an offence under MCOCA. The prosecution has stated that it is not mandatory that each member of the syndicate should have a direct role to play in the foundational crime or that he should be shown to be having direct transactional contact with the mastermind of the syndicate. The plea is that one member of the syndicate need not necessarily have the same or similar role as another member of the syndicate concerned. The prosecution has stated that the role of the applicant/petitioner is distinct from other members of the Syndicate, and his role comprised of facilitating the collection of extorted money and then facilitating the same, reaching the intended hands situated at various places in the country and at various places in Dubai, for which purpose the petitioner was using many individuals, some of whom were working under forged identities as an integral part of his modus operandi. 40. In the present cas....
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...., as a member of an organized crime syndicate, or on behalf of such a syndicate. It is also important to note that the alleged offense relate to the statement of the object and reasons, as well as the components of "organized crime" and "continuing unlawful activity." It is also to be seen that whether the petitioner committed the alleged act only at the instructions of the Deepak Ramnani or as a member of an organized crime syndicate or on behalf of such syndicate. 43. It is also pertinent to mention here that the petitioner is a senior citizen aged about 69 years and stated to be suffering from heart ailments and suffering from prolonged geriatric illness i.e., asthma, diabetes, hypertension etc. It is also a settled proposition that the period of incarceration and factum of trial not likely to be concluded in the near future may be taken into consideration while considering the bail. 44. The Hon'ble Supreme Court in Union of India vs. K.A. Najeeb in Criminal Appeal No. 98 of 2021 inter alia held as under: 18. It is thus clear to us that the presence of statutory restrictions like Section 43D (5) of UAPA perse does not oust the ability of Constitutional Courts....