TaxTMI 
TaxTMI 
2024 (2) TMI 1669
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.... 1860 ("the Penal Code"), Sections 3, 25 and 27 of the Arms Act, 1959, Section 37(1) read Section 135 of the Maharashtra Police Act, 1951 and Sections 3(1)(i), 3(2) and 3(4) of the Maharashtra Control of Organized Crime Act, 1999 ("the MCOC Act"), have preferred these applications to enlarge them on bail. Prosecution case and background facts: 2. Abushahma Shabbir Ansari (the first informant) was a partner of Jignesh Thakkar alias Muniya (the deceased). They were dealing in real estate. The first informant had also known Dharmesh Shah alias Nannu, accused No.1. Accused No.1 Dharmesh and Jignesh were childhood friends. However, on account of financial transactions and criminal activities there were disputes between accused No.1 and the deceased. 3. On 31st July, 2020 between 9.45 to 10.00 pm., the first informant and the deceased while leaving the latter's office at Suyash Plaza, Kalyan (West), the deceased received a call. While speaking on the phone, the deceased proceeded towards the corner of Suyash Plaza. Dharmesh (A1) and Jaypal alias Japan (A2), who was the driver of accused No.1, came near the deceased. They were engrossed in conversation. 4. After a while, t....
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....around the implication of the applicants as the members of the organized crime syndicate and the applicability or otherwise of the rigor contained in Section 21(4) of the MCOC Act, it may be expedient to note the role attributed to each of the applicants in the alleged occurrence. The aspect as to whether the applicants could have been roped in on the count that the offences were committed as members of the organized crime syndicate, can thereafter be delved into. Role of the applicants: 11. The role of the applicants, as emerged from the statements of the first informant and witnesses, especially witness No.11 and the confessional statements of the three of the accused and, as articulated in the affidavits-in-reply filed on behalf of the respondents, is that the applicants alongwith the gang leader Dharmesh (A1) and co-accused Jaypal (A2), the assailants, hatched a conspiracy to eliminate the deceased. On 30th July, 2020 between 2.00 pm. to 3.00 pm. Dharmesh (A1), Jaypal (A2), Dhanraj (A4), Amjad Pathan (A3) and two unknown persons had assembled in the premises of Shivshakti building and witness No.11 had then overheard the conspiracy being hatched to kill the deceased. 1....
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....d Counsel for the applicants, there is no material to connect the applicants with the alleged offences. 16. In addition to the aforesaid broad submissions, the learned Counsel have advanced submissions, peculiar qua the concerned applicant represented by each of them. An endeavour was made to show that the provisions of MCOC Act could not have been invoked qua the particular applicants as there is not a shred of material to indicate that they were members of the organized crime syndicate. 17. Mr. Mundargi, the learned Counsel for the applicant Amjad Pathan (A3) in BA/132/2023 urged that even if the prosecution case is taken at par, the provisions of MCOC Act can have no application as the alleged act would not fall within the dragnet of the "organized crime" under Section 2(e) of the MCOC Act, 1999. Amplifying this submission, Mr. Mundargi urged that the tenor of the prosecution case is that on account of personal rivalry between Dharmesh (A1) and the deceased, who were alleged to be childhood friends, the latter was killed. In such circumstances, the alleged offences cannot be said to have been committed with the objective of gaining pecuniary benefits or undue economic a....
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....ad to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court 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 future 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. ....
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....romoting insurgency. 18. The above definition of organized crime, as its elements indicate, incorporates two other concepts namely, a continuing unlawful activity and an organized crime syndicate. Hence, it becomes necessary to understand the ambit of both those expressions. The ingredients of a continuing unlawful activity are: a. The activity must be prohibited by law for the time being in force; b. The activity must be a cognizable act punishable with imprisonment of three years or more; c. The activity may be undertaken either singly or jointly as a member of an organized crime syndicate or on behalf of such a syndicate. d. More than one charge-sheet should have been filed in respect of the activity before a competent court within the preceding period of then years; and e. The court should have taken cognizance of the offence. 19. The elements of the definition of 'organized crime syndicate' are: a. A group of two or more persons; b. Who act singly or collectively, as a syndicate or gang; and c. Indulge in activities of organized crime. 20. Both Section 2(1)(d) while defin....
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....ovind Sakharam Ubhe vs State of Maharashtra [2009(3) Bom C.R.(Cri.) 144] it was enunciated as under: "37. ..... Charge is in respect of unlawful activities of the organized crime syndicate. Therefore, if within a period of preceding ten years, one charge-sheet has been filed in respect of organized crime committed by the members of a particular crime syndicate, the said charge-sheet can be taken against a member of the said crime syndicate for the purpose of application of the MCOCA against him even if he is involved in one case. The organized crime committed by him will be a part of the continuing unlawful activity of the organized crime syndicate. What is important is the nexus or the link of the person with organized crime syndicate. The link with the `organized crime syndicate' is the crux of the term `continuing unlawful activity'. If this link is not established, that person cannot be roped in." (emphasis supplied) 29. In the case of Zakir Mirajkar (supra) the Supreme Court approved the aforesaid enunciation and observed that it is settled law that more than one charge-sheet is required to be filed in respect of the organized crime syndicate and not in ....
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.... insulted him and something was required to be done about the deceased. 35. Mr. Gole, the learned Counsel for the applicant Pravin (A6), submitted that applicant Pravin (A6) had promptly retracted the alleged confessional statement before the learned Magistrate on 10th October, 2020. An endeavour was also made to urge that the confessional statement was not recorded in conformity with the MCOC Rules, 1999. 36. At this stage, the Court may not delve into these aspects elaborately. Prima facie, even if the confessional statement of Pravin (A6) is taken, as it stands, the element of agreement to eliminate the deceased appears prima facie missing. Pravin (A6) stated that Dharmesh (A1) was annoyed and thought that the deceased was required to be taught a lesson. 37. The confessional statement of Chetan Patel (A5) prima facie does not seem to advance the cause of the prosecution to the extent desired, as Chetan Patel (A5) stated that on 30th July, 2020, at the main gate of Shivshakti Building in the presence of Pravin (A6), Amjad (A3), Jaypal (A2), Dhanraj (A4) and others, Dharmesh (A1) enquired with Chetan Patel (A5) as to why the deceased and his associates had assaulted him, ....
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....of the case, qua the applicant Pravin (A6) and Dhanraj (A4) the material pressed into service in support of the charge of conspiracy, prima facie, appears contestible. 42. The role attributed to Dharaj (A4) in the alleged conspiracy of keeping a watch while the assailants fired bullets at the deceased, also appears contestible as the statement of witness No.13 indicates that at the time of the alleged occurrence Dhanraj (A4) was with the said witness at a different place. Witness No.13 and Dhanraj (A4) met at about 9.30 pm. and were standing in front of the office of Shah Brothers, Jhunzarrao Market at about 10.15 pm. They had seen the wife and son of the deceased passing from in front of them. After about 10 minutes the brother of the deceased called Dhanraj (A4) and threatened Dhanraj with dire consequences as Dharmesh (A1), the brother of Dhanraj (A4), had fired at the deceased. The statement of witness No.12 thus prima facie runs counter to the role attributed to Dhanraj (A4) in the alleged occurrence. 43. The applicant Pravin (A6), as is prima facie evident from the statement of PW12, had joined Dharmesh (A1) at Mira Road after the alleged occurrence on the night interve....
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....ear the office of the deceased. Thereupon, witness No.9 called witness No.2, who informed him about the alleged occurrence. Amjad (A3) had also allegedly made a disclosure statement leading to the recovery of the knife, with which he was armed at the time of the alleged occurrence. CDR data revealed that the applicant - Amjad (A3) was in the vicinity of Kalyan. 49. In the alleged conspiracy, the Applicant Amjad (A3) was allegedly tasked with tracking the location of the deceased. The witnesses who had allegedly witnessed the occurrence have not stated that the applicant - Amjad (A3) was with the assailants or seen in the vicinity of the scene of occurrence at the time of the alleged occurrence. In the context of the role attributed to Amjad (A3), the fact that the incident occurred in front of the office of the deceased, where he was expected to be normally present, may have some significance. 50. It would be relevant to note that witness No.13, who had known the applicant - Amjad (A3), does not state that when he and Dhanraj (A4) reached Mira Road, applicant - Amjad (A3) was with Dharmesh, Jaypal and David @ Sunil and Vicky Paneri. Thus, prima facie, there is no material to ....
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....the applicant came to be acquitted. It is true there are criminal antecedents of the applicant Amjad (A3), which puts the Court on guard. However, at the same time the fact that in 15 of the cases the applicant has been acquitted and/or discharged cannot be lost sight of. The time-lag between the last crime (2012) and the instant offence (2020) also deserves to be taken into account. 55. In such circumstance, can the applicant Amjad (A3) be deprived of his personal liberty on the ground that he has criminal antecedents? In the absence of prima facie material to rope in Amjad (A3) for the criminal conspiracy and the alleged offences committed by the organized crime syndicate led by Dharmesh (A1), in my considered view, the applicant Amjad (A3) cannot be deprived of his personal liberty on the basis of antecedents only. 56. The reasons which have been ascribed to above, qua Pravin (A6) and Dhanraj (A1) govern the claim of the applicant Amjad (A3) as well. 57. In any event, the applicants Dhanraj (A4), Amjad (A3) and Pravin (A6) have been in custody since 5th August, 2020, 5th August, 2020 and 10th August, 2020 respectively. Almost three and half years have elapsed. The grava....
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....the applicant Vivek (A8) along with Dharmesh (A1), the gang leader or any other member of the alleged organized crime syndicate. All the four crimes registered against the applicant were prior to 10 years of the alleged occurrence. In one of the crimes i.e. C.R. No.189 of 2008, the applicant has been acquitted. 62. The learned APP countered the submissions of Mr. Kashid by placing reliance on the material adverted to above. 63. The material on record prima facie indicates that the applicant Vivek (A8) was using XUV bearing registration No.MH- 03/BS4485. The mother of the applicant was the registered owner of the said car. The witnesses have consistently stated that the assailants were accompanied by two unknown persons. Undoubtedly, the applicant was not named in the FIR. However, there is material which prima facie establishes the identity of the applicant Vivek (A8) as the person who accompanied the assailants to the scene of occurrence. Witness No.2 stated that he had seen a Mahindra XUV 500 car proceeding towards Deepak Hotel after the deceased was shot at. In the Test Identification Parade, witness Nos.1 and 2 have identified the applicant Vivek (A8). 64. Mr. Kashid a....