9911796707
TMI Blog2005 (4) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... . A disciplinary proceeding was initiated against him on 25.11.2003 but without taking any further action thereupon, he was allowed to superannuate on 30.11.2003. 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 ₹ 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 obtai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of events in support of their case against the applicant. (a) A complaint about corruption was received in respect of Mulani on 14.9.1996, who was then the Sr. Inspector of Police at Dongri 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handwriting. (l) The applicant did not ensure the filing of a properly reasoned chargesheet in C.R. No. 135/2002 P.S. Bund Garden and did not ensure the timely application of MCOCA to the whole case. Reference 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein. A calculated attempt was made by the Appellant herein to continue Mulani in the investigation team and was assigned responsible role to play. Despite his transfer to Jat, district Sangli by the order dated 4.9.2002 which was received 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard the allegation regarding abetment of Kamat, it was pointed out that when custody of Telgi was taken by Mumbai Police between 20th October, 2002 and 21.st January, 2003, one Mr. M.N Singh was the Commissioner of Mumbai Police during which period Telgi 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 ₹ 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 demoliti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard filing of chargesheet against the wife, daughter and brother of Telgi, there had been difference of opinion between Mushrif and Deshmukh wherewith the Appellant was not involved. Mr. Jaiswal prejudged the Appellant's guilt. (h) As regard initiation of disciplinary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , B.N. 756, (6) H.C. Lele were recommended and, furthermore, the following endorsement was made: I have indicated priority above. Also include names of ACP Mulani/Yadav and Davies in the text. The names of ACP Mulani/Yadav and Davies, thus, were directed to be included only in the text, i.e., the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en operating in the State and, thus, there was immediate need to curb their activities. It was also noticed that the organized criminals have been making extensive use of wire and oral communications in their criminal activities. The interception of such communications to obtain evidence of the commission of crimes or 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, it shall be open to the Special Court trying him, to pass on order that all or any properties, movable or immovable or both belonging to him, shall, during the period of such trial, be attached, and where such trial ends in conviction, the properties so attached shall stand forfeited to the State Government, free from all encumbrances. Section 21 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, whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld make him an accessory after the commission of the offence. It is interesting to note that whereas Section 3(2) having regard to the definition of the term 'abet' refers directly to commission of an offence or assisting in any manner an organised crime syndicate, Section 24 postulates a situation where a public servant renders any help or support 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 use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of abetment under the third paragraph of Section 107. Sub-section (2) of Section 3 inter alia provides for facilitating conspiracy or abetting or commission of a crime by a person knowingly or any act preparatory to organised crime. The expression 'conspiracy' is not a term of art. It has a definite connotation. It must be read having regard to the legal 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 refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces are incapable of any other reasonable explanation. From the above discussion it can be seen that some of the circumstances relied upon by the prosecution are not established by cogent and reliable evidence. Even otherwise it cannot be said that those circumstances are incapable of any other reasonable interpretation. In Saju Vs. State of Kerala [AIR 2001 SC 175], this Court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of MCOCA, as for example, Section 20 casts a duty upon the persons concerned to see that properties of a member of the organised crime syndicate are attached. In view of Section 4, it also becomes the duty of the persons connected with the investigation of crime to see that persons, who are in possession of movable or immovable property which cannot be satisfactorily accounted for are brought 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 op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Abdulla Mohammed Pagarkar etc. Vs. State (Union Territory of Goa, Daman and Diu) [AIR 1980 SC 499], it is stated: 15. Learned counsel for the State sought to buttress the evidence which we have just above discussed with the findings recorded by the learned Special Judge and detailed as items (a) to (e) in paragraph 5 and items (i) and (iii) in paragraph 6 of this judgment. Those findings were affirmed 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 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 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 necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... large number of witnesses who were examined after the respondent was enlarged on bail had turned hostile and there are complaints made to the court as to the threats administered by the respondent or his supporters to witnesses in the case. In such circumstances, the Court was duty- bound to apply its mind to the allegations put forth by the investigating agency and ought to have given at least a prima facie finding in regard 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his earlier applications being rejected, the courts can do so. It was, however, observed: 42. While deciding the cases on facts, more so in criminal cases the court should bear in mind that each case must rest on its own facts and the similarity of facts in one case cannot be used to bear in mind the conclusion of fact in another case We are not oblivious of the fact that in certain circumstances, having regard 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 Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant, therefore, did not suggest the name of Mulani himself. He did so at the instance of Dr. Jadav and that too both by him as also the Joint Commissioner. So far as the recommendation of the Appellant for inclusion of Mr. Mulani's name in the list of officers who were to be rewarded for having done best work, is concerned, it appears that 10 names were suggested for the said purpose. The Appellant changed the priority in the manner as 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 becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h behind all these matters be brought to surface and the appropriate action be taken against the concerned persons at the earliest. About Mulani's lack of integrity, admittedly facts were made known to the Appellant only on 6.9.2002. Prior thereto, Mulani received very good remarks from his superior officers as would appear from a letter dated 21.3.2002 addressed by Shri A.K. Sharma to M.C. Mulani. It is undisputed, as would appear from the stand taken 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suspicion that the magnitude of Kamat's involvement may be minimized by making a fake raid. For all intent and purport, the High Court has placed the onus of proof upon the Appellant, which is impermissible. The Appellant faced a contempt petition before the Maharashtra State Administrative Tribunal and in his affidavit, he categorically stated that neither Mulani was the investigating officer nor supervisory officer. In his affidavit, as regard reason for his transfer to Special 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral, however, had drawn our attention to the statement of Mr. R.S. Mopalwar. The said statement was recorded on 21.6.2004. Shri U.K. Goel has also not been examined on the ground that he has gone out of the country. This material was not used before the learned Single Judge. Mr. Saran, laid emphasis on the fact that Telgi was interrogated alone by the Appellant after asking all others to leave the room without maintaining any record therefor. In this connection, we may notice the questionnaire and 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 use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estions, Mr. Sharma's right hand was moving towards the button of the tape-recorder as he wanted to tape my answers. I was not able to see the tape recorder, but it was evident from the movements of his hand that he was trying to switch on the tape for recording my answers. Then we reached the Yerwada Jail. Police sub inspector Mr. Hanumansingh Subbalkar (crime branch, Pune Police Commissionerate) was the chief officer appointed to keep the custody of Telgi and party. Therefore, there is some substance in the 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in Daubart Vs. Merryll Dow Pharmaceuticals Inc. [113 Sct 2786 (1993)] where the courts while allowing general acceptance stated that this might not be a precondition for admissibility of the scientific evidence, for which the Court may consider the following: (a) Whether the principle or technique has been or can be reliably tested? (b) Whether it has been subject to peer review or publication? (c) It's known or potential rate of error? (d) Whether there are recognized standards that control the procedure of implementation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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