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TMI Blog2012 (10) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... ivities in the nature of extortion and contract killings in Mumbai and other places through their members. All the accused persons pending on the file before the MCOC Special Court, Greater Bombay are alleged to be the members of the said syndicate. (b) On 03.06.2010, one Farid Tanasha, known criminal, was shot dead at his residence at Tilaknagar, Chembur, Mumbai. On the same day, an FIR being No. 122 of 2010 was registered against the accused persons Under Sections 302 and 452 read with Section 34 and Section 120-B of the Indian Penal Code, 1860 (in short 'Indian Penal Code') and Under Sections 3, 25 and 27 of the Arms Act, 1959 at Tilaknagar Police Station. (c) During investigation, DCB, CID, Unit No. 6, Mumbai learnt that the murder was committed on the instructions of Bharat Nepali and Vijay Shetty (wanted accused). Further, it was revealed in the investigation that one Dattatray Bhakare (Accused No. 7 therein) - a builder, had contracted Bharat Nepali and Vijay Shetty for eliminating Farid Tanasha (since deceased), who agreed to help the members of a Co-op. Housing Society in order to settle their dispute with the builder. It was also revealed in the investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involvement of the Respondent and his role in passing of the amount from Dattatray Bhakare - a builder to the actual killers, A-1 and A-2, granted bail to him. Per contra, Mr. U.U. Lalit, learned senior Counsel for the Respondent, by pointing out the confessional statement of co-accused, who retracted later, and in the light of the provisions of MCOCA, submitted that the High Court was fully justified in granting bail to the Respondent. In order to appreciate the rival contentions, it is useful to refer the relevant provisions of MCOCA which are extracted hereinbelow. There is no dispute that apart from Section 302 read with Section 120-B of Indian Penal Code, the Respondent was charged with Section 3(1)(i), 3(2) and 3(4) of MCOCA. The relevant provisions of MCOCA read as under: Section 2 of MCOCA deals with various definitions: "2. Definitions. (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 syndic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um of rupees five lacs. (3) Whoever harbours or conceals or attempts to harbour or conceal, any member of an organised crime syndicate; shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs. (4) Any person who is a member of an organised crime syndicate shall be punishable with imprisonment for a term which shall not be less, than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs. (5) Whoever holds any property derived of obtained from commission of an organised crime or which has been acquired through the organised crime syndicate funds shall be punishable with a term which, shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum fine of rupees two lacs. 4. Punishment for possessing unaccountable wealth on behalf of member of organised crime syndicate." If any person on behalf of a member of an organised crime syndicate is, or, at any time has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence Under Section 279 of the Indian Penal Code may debar the court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What would further be necessary on the part of the court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done. The court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reasons for enacting the said Act is as under: "Organised crime has for quite some years now come up as a very serious threat to our society. It knows no national boundaries and is fuelled by illegal wealth generated by contract killings, extortion, smuggling in contrabands, illegal trade in narcotics, kidnappings for ransom, collection of protection money and money laundering etc. The illegal wealth and black money generated by the organised crime being very huge, it has had serious adverse effect on our economy. It was seen that the organised criminal syndicates made a common cause with terrorist gangs and foster terrorism which extend beyond the national boundaries. There was reason to believe that organised criminal gangs have been operating in the State and, thus, there was immediate need to curb their activities. It was also noticed that the organised 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 le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extracted Section 21(4) of MCOCA which bars the Court from releasing the accused of an offence punishable under the said Act subject to the conditions prescribed in Clauses (a) and (b) therein. We are of the view that Sub-section (4) of Section 21 mandates that it is incumbent on the part of the Court before granting of bail to any person accused of an offence punishable under MCOCA that there are reasonable grounds for believing that he is not guilty of such offence and he is not likely to commit any offence while on bail. In the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the NDPS Act'), similar provision, namely, Section 37, corresponding to Section 21(4) of the MCOCA has been substituted by Act 2 of 1989 with effect from 29.05.1989 with further amendment by Act 9 of 2001 which reads as under: "37. Offences to be cognizable and non-bailable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds". 13. The expression "reasonable grounds" has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence (vide Union of India v. Shiv Shanker Kesari). Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act. 14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the court is not called upon to record a finding of "not guilty". At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... third week of June, 2010, Accused No. 6 received an amount of Rs. 6 lakhs from an employee of the Respondent. The substance of the allegation against the Respondent is that part of the amount, which was given to the shooter for killing Farid Tanasha, had been passed on through him to the actual shooter. It is not in dispute that sanction Under Section 23(2) of MCOCA had been accorded by the Commissioner of Police on 25.09.2010. Considering the materials, particularly, in the light of the bar Under Section 21(4) of MCOCA, the Special Court rightly rejected the application for bail filed by the Respondent herein. From the materials placed, prima facie, it is clear that the Respondent - accused had association with the wanted accused, Vijay Shetty and Bharat Nepali, who are notorious criminals and the act of the Respondent comes within the definition of 'abet' as defined in Section 2(1)(a) of MCOCA. As rightly pointed out by the learned Counsel for the State that the High Court ought to have appreciated the statement of the co-accused - Mohammad Rafiq that on 28.05.2010, he collected Rs. 15 lakhs from co-accused - Dattatray Bhakare and delivered it to the Respondent. The co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. What would further be necessary on the part of the Court is to see the culpability of the accused and his involvement in the commission of an organized crime either directly or indirectly. The Court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. In view of the above, we also reiterate that when a prosecution is for offence(s) under a special statute and that statute contains specific provisions for dealing with matters arising there under, these provisions cannot be ignored while dealing with such an application. Since the Respondent has been charged with offence under MCOCA, while dealing with his application for grant of bail, in addition to the broad principles to be applied in prosecution for the offences under the Indian Penal Code, the relevant provision in the said statute, namely, Sub-section (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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