Allowed

Javed Ahmed Abdul Majeed Ansari v. the State of Maharashtra

Bombay HC21 Oct 2013BA/1147/2013

Case brief

AI extract

What is this about?

Bail was granted in an arms-and-explosives conspiracy case. The court found no prima facie UAP Act case and reasonable grounds to believe the applicant was not guilty of M.C.O.C. Act offences. It also considered over seven years of custody and the likely trial duration, imposing attendance and witness-contact restrictions.

What did the court decide?

Release on bail with one surety, subject to attendance throughout trial and no contact with prosecution witnesses.

Javed Ahmed Abdul Majeed Ansari Vs the State of Maharashtra — Bail and Remand | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL BAIL APPLICATION NO. 1147 OF 2013

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Mr. Javed Ahmed Abdul Majeed Ansari ... Applicant versus State of Maharashtra ... Respondent

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Dr. Yug Chaudhari i/b Mr. Sharif Shaikh and Mr. Ansar Tamboli, Advocates for the applicant.

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Mr. Raja Thakare, Special Public Prosecutor a/w Mrs. S.V. Sonawane, A.P.P. for the State.

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CORAM : ABHAY M. THIPSAY, J ORDER RESERVED : 20^th AUGUST, 2013. ORDER PRONOUNCED : 21^st OCTOBER, 2013

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ORAL ORDER :

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The applicant is the accused No.6 in MCOC Special Case No. 16 of 2006, pending before the Special Court constituted under the Maharashtra Control of Organized Crime Act, 1999 (hereinafter referred to as “the M.C.O.C. Act”). Totally 22 accused have been arrested in the said case so far and the some others are stated to be ‘ wanted’ . The allegation against the applicant and the other accused in the said case is in respect of offences punishable under Section

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120B of the Indian Penal Code (IPC), Section 201 of IPC, Sections 4 and 5 of the Explosive Substances Act, Sections 5, 6 and 9(b) of the

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Indian Explosives Act, 1884, Section 25 of the Arms Act and Sections 10, 13, 16, 18, 20 and 23 of the Unlawful Activities (Prevention) Act (UAP Act), as also the offences punishable under Sections 3(1)(ii), 3(2) and 3(4) of the M.C.O.C. Act. The applicant, who has been arrested on 13.05.2006, is seeking bail primarily on

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the ground that there is no sufficient material in the charge-sheet to show his involvement in the alleged offences. Additionally, it is also submitted that the applicant is in custody for a period of more than 7 years, and that, the trial which has just commenced, is not likely to be over within a reasonable time; and considering that the case against the applicant is based only on the suspicion felt by the Investigating Agency, which suspicion is not supported by any material collected during the investigation, the applicant is entitled to be released on bail.

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I have heard Dr. Yug Chaudhari, the learned counsel for the applicant. I have heard Shri Raja Thakare, the learned Special Public Prosecutor. I have gone through the bail application and the annexures thereto. I have also gone through the relevant parts of

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the charge-sheet, to which my attention was drawn by Dr. Yug Chaudhari and the learned Special Public Prosecutor. I have also gone through the affidavit filed by the Investigating Officer, opposing the application.

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In order to understand the role attributed to the applicant in the alleged offences, reference to the facts of the case, would be necessary. The same can be best taken from the column No.16 of the printed prescribed proforma of the charge-sheet. In brief, they are as follows :-

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The Anti Terrorism Squad (A.T.S.), Mumbai, while conducting enquires in the incidents of Bomb Blast at Nanded, explosives seized at Buldhana and the Bomb Blast that had taken place in Marathwada, gathered some intelligence that some explosives and weapons were likely to be transported in a vehicle in the Marathwada region. On certain information, teams of A.T.S. were deputed to keep a watch on Manmad-Yeola-Aurangabad road. At about 16 hours, the Officers of the A.T.S. noticed one white colour Sumo Motor Jeep bearing No. MH-14 X - 4380 coming from Manmad side and speeding away towards Aurangabad by jumping police signals. On suspicion, the said Sumo Motor Jeep was chased,

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and was successfully intercepted on Verul-Arangabad road, near Ghrushneshwar Temple, Taluka Khulthabad, District Aurangabad. There were three persons sitting in the said Sumo Motor Jeep, who came out of it and started running. The police could apprehend only one of them i.e. Mohmad Amir Shakil Ahmed Shaikh (accused no.1) and the other two managed to escape. The other two, who were later on arrested, are said to be the accused no.4 Abdul Azeem and accused no.2 Mohd. Juber Sayyed Anwar.

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The search of the said Sumo Jeep was taken in presence of the panchas. The Jeep was found containing 10 Khaki Carton boxes, each containing a Computer Server Cabinet; and each Computer Server Cabinet was found containing one AK 47 Rifle, a packet of four magazines, a packet of 200 live cartridges and explosive substance, etc. A huge stock of AK Rifles, magazines, live cartridges and explosive substance was, thus, found in the said Sumo Jeep.

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A report was lodged by Shri Shengal, Assistant Commissioner of Police attached to A.T.S. (Investigating Officer) with the Local Police Station. In the investigation, it transpired that one more Car had been used for transporting the arms,

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ammunitions and explosives. That Car was a Tata India, which was allegedly driven by Mohd. Mujaffar Mohd. Tanveer (accused No.3)

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and was following the said Tata Sumo Jeep. It is the case of the Investigating Agency that as the Tata Sumo Jeep was chased by the police, the Tata Indica Car was diverted to Malegaon. On 12.05.2006, the said India Car was traced, without number plate, abondoned in the jurisdiction of Malegaon Taluka Police Station.

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That, the investigation revealed that five persons had attempted to dispose of and/or tamper with the said Indica Car in Malegaon. One of the said five persons is the present applicant. The others are said to be Mustaq Ahmed Mohd. Isak (accused no.5), Afazal Khan Nabirkhan (accused no.7), Riyaz Ahmed Mohd. Ramjan @ Raju (accused no.8) and Dr. Mohd. Sharif Shabir Ahmed (accused no.9).

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In the course of further investigation, the other accused were arrested, but the details thereof are not necessary for the purpose of the present application.

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6. Thus, the role attributed to the applicant is that ‘ he had

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played an active role in attempting to conceal the Tata Indica Car in

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his Warehouse ’. The allegation against him is that ‘he had done so with the knowledge that he was furthering an illegal act. ’ It is also alleged that the applicant had played a role in shifting five boxes containing arms and explosives from the said Car and had abetted the ‘ illegal activities of the co-accused ’.

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The substance of the contentions advanced by Dr. Yug Chaudhari is that, there is absolutely no material in the charge-

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sheet to show that the applicant had any knowledge as to the contents of the boxes in question. It is submitted that the role attributed to the applicant is based mainly on the confessions made by the co-accused, and that, as per these confessions, it is clear that the applicant did not have any knowledge of the contents of the boxes. It is also submitted that the material in the charge-sheet itself indicates that the applicant had no knowledge that the said Tata Indica Car had been used for carrying and concealing arms and explosives. It is submitted by Dr. Yug Chaudhari that as per the prosecution case itself, the Tata Indica Car was not to go to Malegaon, and that, it had reached there accidentally i.e. because the Tata Sumo Vehicle was chased by the Police. The argument is

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that, obviously, therefore, the applicant cannot be attributed with the knowledge that such a vehicle was to arrive there and consequently, the applicant cannot be said to be conspirator in respect of the conspiracy to transport the arms, cartridges and explosives. It is submitted that the applicant, who came in picture subsequently and that too accidentally, cannot be said to have abetted the commission of the alleged offences in the absence of the requisite mens rea on his part.

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Mr. Raja Thakare, the learned Special Public Prosecutor

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submitted that the intention and the knowledge on the part of the applicant is required to be inferred from the overt acts attributed to the applicant. According to him, the association of the applicant with the other accused, who undoubtedly appear to be, prima facie, involved in the alleged offences, itself creates a presumption that the applicant was aware of the design of the other accused persons.

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The material against the applicant consists of the confessional statements of accused no.7 Afzal Khan Nabir Khan, accused no.9 Dr. Mohd. Sharif Shabir Ahmed and the statement of

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two witnesses Istiyak and Abdula Osman Gani. That, except this,

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there is no other material against the applicant, has been conceded by the learned Special Public Prosecutor.

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I have carefully examined this material in the light of the facts of the entire case. I have also gone through the order passed by the learned Judge of the Special Court, refusing to release the applicant on bail.

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(a) The confessional statement of accused no.7 Afzal Khan

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indicates that he got acquainted with accused no.9 Dr. Mohd. Sharif some time in the year 2004. That, he already knew Mustq Ahmed Mohmad Isak (accused no.5), Riyaz Ahmed Mohmad Ramjan (accused no.8) and Istiyak, brother of Mustaq. The applicant and these persons used to meet each other. That, on 09.05.2006 at about 3 p.m. while the said accused No.7 Afazal Khan was passing through the road infront of the shop of Mustaq (accused no.5). Mustaq saw him, called him and told him that a meeting for arranging a medical camp had been fixed, and that, Riyaz (accused no.8), Istiyak, Dr. Sharif (accused No.9) and others had been asked to assemble for that purpose in the Gymkhana of Istiyak. When Afzal Khan went to said Gymkhana at about 9.30 p.m. on that day,

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Riyaz, Mustaq and one Rehan were already present there and one Rickshaw was also standing there. Accused No.9 Dr. Sharif and Istiyak took out five Khaki colour big boxes from the said Rickshaw and kept the same in the Warehouse of Mustaq by the side of the Gymkhana. Afzal Khan asked Riyaz, as to what was contained in the boxes, when Riyaz said that Dr. Sharif had brought the Computers, which he was to take to Dhule. Thereafter, there were discussions about the programme of medical camp, and before going home, Afzal Khan asked Dr. Sharif as to why the computer boxes had been kept in the Warehouse. Dr. Sharif then told him that it was for the purpose of saving octroi. That, on 10.05.2006, at about 5 p.m. Riyaz called Afzal Khan on his mobile telephone and asked him to come to the shop of Mustaq. When Afzal Khan went there, Dr. Sharif and Riyaz were present there. Riyaz told Afzal Khan that they all were to meet at 8 p.m. in the dispensary of Dr. Sharif. After about 7 p.m. Mustaq and Riyaz came to the shop of Afzal Khan and then all the three went to the dispensary of Dr. Sharif on a bicycle. At that time, Dr. Sharif told them that a person had parked his Indica Car at his place and he was to take the same away, but he did not come back. Dr. Sharif then told that he had learnt from a friend of his that the said Car was stolen, and that,

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therefore, that Indica should be removed from that place and should be kept elsewhere. Mustaq (accused no.5) then said that his friend Javed (the applicant) is having a Warehouse, and that, the car can be kept there.

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(b) Then Afzal Khan and Mustaq met the applicant at Bhiku Chowk and then, the said two and the applicant came back to the dispensary of Dr. Sharif. Dr. Sharif then closed his dispensary and then all of them went to the place where one Indica Car bearing registration No.MH-15-1140 was standing. Dr. Sharif gave the key of the Indica to Afzal Khan; and Afzal Khan and the applicant sat in the Indica Car and Mustaq (accused no.5) and Riyaz (accused no.8) came behind on a motorcycle of Dr. Sharif. All of them came to the Warehouse of the applicant. However, the Indica Car could not be taken inside the Warehouse because the door of the Warehouse was not of sufficiently big.

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(c) Riyaz then asked the applicant as to what should be done, when the applicant said that the Indica car should be parked at Ramzanpura. Accordingly, Afzal Khan parked the car at Ramzanpura and from there, the applicant went to his house. Afzal

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Khan, Mustaq and Riyaz went back to Dr. Sharif (accused no.9), returned the motor cycle to him and went to their respective houses.

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(d) On the next day i.e. 11.05.2006 at 12 noon, Riyaz came to the house of Afzal Khan and left a message asking him to come to Gadi of Mustaq. At 2 p.m. Afzal Khan went to the Gadi of Mustaq. Riyaz was already there. Riyaz said that the Indica car had been kept on open place, and that, it should be removed from there and kept at some other place. Then Riyaz, Mustaq and Afzal Khan, all three went to the place of the applicant Javed and removed the Indica Car from there and parked it at some other place. Afzal Khan then went to his shop. In the night, while Afzal Khan was going to his house, he met Mustaq and Riyaz in the shop of Abdulla – brother-in-law of Mustaq. Abdulla was already known to Afzal Khan. At that time, Riyaz told Abdulla that computer boxes brought by Dr. Sharif were lying in the warehouse, and that, Dr. Sharif was to take away the same within one or two days. Riyaz sought permission of Abdulla to keep the said boxes in the shop of Abdulla. Abdulla granted such permission. Thereafter, Afzal Khan, Mustaq and Riyaz all went to the warehouse of Mustaq, Dr. Sharif was already there. He had already called one Rickshaw for taking away

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the boxes. On being told by Dr. Sharif, Riyaz and Mustaq picked up 2-2 boxes each and kept them in Rickshaw. Afzal Khan picked up one box. Since, the box was heavy, Afzal Khan had some difficulty in lifting it, when Dr. Sharif told Afzal Khan to be careful, and that, there were explosives and arms in the said boxes; and that, the same should not be told to any one. It is thereafter that Afzal Khan kept the box in Rickshaw and then all the boxes were taken to shop of Abdulla. Afzal Khan has then stated that on the next day, they removed the said Indica Car from the place where it had been parked. That, its number plates etc., were taken out and were given to Afzal Khan by Riyaz. Afzal Khan thought that as Dr. Sharif had said that there were ammunitions and arms in the boxes, and that, as the place of Indica car was being changed repeatedly, the Car also was likely to be involved in some problem; and that, it was not advisable to keep its number plates, documents and key in the house. He thereafter hid the number plates, documents and key of Indica at some place and went to his shop.

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The confession of Afzal Khan does not indicate at all

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that the applicant was aware of the contents of the boxes. On the contrary, the confession indicates that the applicant had kept the

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Indica car in an open place, which is indicative of the fact that the applicant was, in all probability, not aware of the fact that the same had been used for transporting arms and ammunitions. Not only that the confession of Afzal Khan does not indicate the applicant to be a conspirator in respect of the alleged conspiracy of procuring arms, ammunitions and explosives, but it, on the contrary, makes it clear that the applicant came in picture accidentally. He was not called by Dr. Sharif (accused no.9). It is only when Afzal Khan and Mustaq were called, they suggested that the car could be kept in the godown of the applicant, and it is at that stage the applicant came in picture.

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Coming to the confessional statement of accused no.9 Dr. Sharif, it indicates that on 09.05.2006, Dr. Sharif received a telephone call from Bilal (accused no.10) who told him that ‘the accused no.1 Amir Shakil (who was known to Dr. Sharif) was in difficulties, that, the police were behind him, (as) in Tata Indica car there were computers parts and that he (accused no.1 Amir) should be helped’. Going by the confession of Dr. Sharif, even he did not know as to what the boxes contained. According to him, he came to

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know about it much later, when he was told about it by Jabi. The

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confessional statement indicates that Dr. Sharif never took the present

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applicant in confidence, who as aforesaid, clearly came in picture only

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accidentally .

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Mr. Thakare, the learned Special Public Prosecutor has drawn my attention to the statement of witness Istiyaq, which has been annexed to the application. This statement indicates that on 09.05.2006 the applicant had assisted Dr. Sharif in keeping the five boxes in the warehouse. This statement, however, also indicates that Dr. Sharif had told the applicant that there was computer material in the said boxes. This witness is the brother of the accused no.5 Mustaq and his statement which is recorded on 29.05.2006 also does not indicate that the applicant was aware of the fact that the boxes contained arms and explosives.

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The statement of one Abdulla Osman Gani shows that on 11.05.2006 Mustaq, Riyaz and Afzal Khan had brought boxes to him, and that, on the request of Mustaq, he kept the boxes by believing that they contained computer parts. That, on 13.05.2006 he learnt that Mustaq, Riyaz, Afzal and two others were arrested in some crime, and on making general enquires, he learnt that they

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had been arrested by A.T.S. Mumbai. That, on 14.05.2006 in his absence the police came, and took the boxes away. He does not speak about the applicant having gone to him and the reference to the name of the applicant is found in his statement only in the context that he learnt from the police that the police had taken charge of five boxes, which had been kept by Riyaz, Mustaq, Afzal and Javed i.e. applicant. Even if that he does not mention about the applicant and takes the name of the applicant only in the context of what he learnt from the police – about the names of the persons who had kept the boxes - is ignored, - still, the same falls short of showing awareness on the part of the applicant of the contents of the boxes in question.

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The prosecution case, as reflected from the confessional statements of the accused persons and from the versions of the different witnesses, as reflected from their statements recorded in the course of investigation, can not be said to be without inconsistencies, or some discrepancies, but even if these inconsistencies are ignored at this stage on the ground that they are insignificant or inconsequential, still, all that can be said against the applicant is that he participated in the act of attempting to remove

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the Indica Car and park it in the godown as per the instructions of the other accused persons; and assisted the accused no. 9 Dr. Sharif

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in an attempt to conceal it somewhere. It is not the prosecution case that the Khaki colour boxes containing arms, ammunitions and explosives were in that Car at that time.

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Any way, it also appears that the applicant assisted the other accused in transporting the Khaki colour boxes and in keeping the same with the witness Abdulla Gani, who is the brother-in-law of the accused no.5 Mustaq. Similarly, the statement of Istiyaq shows that the accused no.5 Mustaq, accused No. 8 Riyaz, accused no.7 Afzal Khan and the applicant were present in the warehouse when the accused no.9 Dr. Sharif brought the boxes to the warehouse along with this witness, and that, the other accused and the applicant assisted in unloading the said boxes and in keeping the same in the warehouse.

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The question is whether, on these facts, prima facie, an inference can be drawn that the applicant was a conspirator in respect of the conspiracy to procure arms, ammunitions and explosives in huge quantity and then to use the same for striking a terror in the

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society by using the explosives substances, arms and ammunitions .

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That, there is no material in the entire charge-sheet to show such knowledge on the part of the applicant, is conceded by Mr. Thakare, the learned Special Public Prosecutor. His submission is this, viz:- that, from the very acts of the applicant in attempting to conceal the said Indica Car in his godown and assisting the other accused (against whom there is sufficient material to show their involvement in the alleged offence) in attempting to conceal the Khaki boxes containing arms, ammunitions and explosives, the inference that he knew the contents of the said boxes, should be drawn . He emphasized that there existed sufficient and satisfactory material against the other accused with whom the applicant had been associating, and that, therefore, it should be presumed that the applicant was aware of the contents of the said boxes and that consequently, he was also aware of the conspiracy .

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In my opinion, the inference expected to be drawn by the learned Special Public Prosecutor would be far fetched in the facts and circumstances of the case. It is true that conspiracies are hatched in secrecy, therefore ordinarily, there would be no direct

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evidence of conspiracy; and that, therefore, an inference of conspiracy, as also the inference of a person being a party to any such conspiracy, is necessarily required to be drawn from the acts of such person and acts of other conspirators. Therefore, whether, the applicant can be attributed with the requisite mens rea , - although prima facie - needs to be ascertained in the light of the totality of the material in the charge-sheet and the entire facts of the case, as put forth by the prosecution in the charge-sheet.

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The case is based mainly on the confessional statements of the accused persons, recorded under the provisions of Section 18 of the M.C.O.C. Act. Totally 10 accused have confessed of the crimes committed by them and only the accused no.7 Afzal and accused no. 9 Dr. Sharif refer to the applicant. No other accused makes even a reference to the applicant, which is significant. The non-mention of the applicant by any of the other accused may not be construed only as a negative factor :- i.e. nonavailability of further material against the applicant, but can be reasonably construed as a positive factor in his favour, i.e. indicating his non-involvement in the conspiracy. It cannot be overlooked that the prosecution case is in respect of conspiracy to procure arms,

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ammunitions and explosives in huge quantity and to strike terror in the society by using the explosive substances and fire arms and to

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kill certain political leaders. It is this aspect of the matter that increases the magnitude and enormity of the crime. It is this aspect which is put-forth to oppose grant of bail – and which may indeed come in the way of grant of bail – inspite of the applicant having undergone a pre-trial detention for a period of more than 7 years with the trial having just commenced and likely to take a long time for conclusion. Therefore, whether there is material to show that the applicant was a party to the said conspiracy become necessary. The non-mention of the applicant by the other confessing accused can very well be taken as a factor making the applicant being a party to this conspiracy doubtful.

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In this context, that the applicant came in picture accidentally, has to be kept in mind. It may be observed that it was not one accident, but a number of accidental factors that brought the applicant in picture. As per the case of the Investigating Agency itself, it had not been planned by the offenders that the Indica Car should be taken to Malegaon. It is the case of the prosecution that it is because the police chased the Sumo Jeep and it is because of

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this unexpected happening, the Tata Indica car, that was following, was diverted and brought to Malegaon. A perusal of the material in the charge-sheet indicates that the accused no.22, who was in the said Indica Car telephonically contacted the accused no. 10 Bilal when the problem arose. Bilal then contacted the accused no.9 Dr. Mohd. Sharif for seeking his help. That, thereafter, the accused no.9 contacted the accused no.8 Riyaz and sought his help. Riyaz then called the accused no. 7 Afzal Khan and accused no. 5 Mustaq; and it is the accused No.5, who called the applicant. All these happenings were clearly not preplanned. For that matter, even the involvement of the accused no.9 in the alleged incident appears to be accidental. In my opinion, the very fact that the applicant got involved in the matter accidentally; and that the accused (against whom there is sufficient material to show their prima facie involvement in the alleged offences) did not think of contacting him in times of trouble, is significant.

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It also appears that the applicant parked the said Indica Car at an open place at Ramzanpura when he could not take it inside his godown. On the next day, accused no. 8 – Riyaz mentioned to accused no.7 Afzal Khan that the Indica Car had been

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kept at open place, and that, it should be removed from there and kept elsewhere. The fact that the applicant parked the same at open place and did not feel the necessity of taking excessive or extreme precautions – which the accused no.8 felt – indicates that at any rate, the applicant did not know how serious was the matter and for what purpose the Indica car had been used and why it was to be kept hidden somewhere.

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The material in the charge-sheet indicates that the applicant had been told that the Car was stolen, and therefore, it was to be removed and kept somewhere from near the place of accused no.9 Dr. Sharif, where it had been parked. The material also indicates that even Dr. Sharif learnt about the boxes in question containing arms, ammunitions and explosives later, and initially even he did not know it. The material also indicates that the applicant had been told that the boxes contained computer parts, and that, they were to be hidden to avoid payment of octroi.

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Though, apparently, the applicant did know that some illegal act was being done, and that, he knowingly participated in such an illegal act, the illegal act agreed to be done by the applicant

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was, apparently, not of handling the arms, ammunitions and explosives in violation of law and helping the persons who had procured them. In any case, assuming that the applicant subsequently became aware of the fact - just for the sake of arguments and without the support of any material - that, the boxes contained arms, ammunitions and explosives, still, he cannot be, thereby, inferred to be a conspirator in respect of the main conspiracy, which is said to be the subject matter of the present case. Infact, that mere handling of arms and explosives would not give that serious a colour to the case has been admitted in the ‘synopsis of the prosecution case’ submitted by the learned Special Public Prosecutor, wherein ‘that it is not merely a case of possession and transportation of arms, ammunitions and explosives, but a case of larger conspiracy .......’ has been emphasized. At any rate, there is no material to indicate the applicant to be a part of such a larger conspiracy, which would change the magnitude, gravity and the nature of the crime allegedly committed by him.

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Since the applicant has been charged of the offences punishable under the M.C.O.C. Act and UAP Act, which contain provisions curtailing the discretion of the Court to release an

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offender on bail, whether the applicant has made out a case for his being released on bail inspite of the restrictive clauses contained in

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the aforesaid statutes, needs to be considered. Coming to the provisions of the M.C.O.C. Act, Section 21 (4) thereof, lays down that a person accused of having committed an offence punishable under the M.C.O.C. Act, is, (where the Public Prosecutor opposes the application) not to be released on bail, unless 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. Similarly, subsection (5) of Section 43D of the UAP Act also lays down that a person accused of having committed certain offences under the said Act, shall not be released on bail if there are reasonable grounds for believing that the accusation against such person is ‘ prima facie true ’.

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The question as to how such phrases, curtailing the discretion of the Court in the matter of releasing a person on bail should be construed, often arises before the Courts of law.

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In the case of Ranjitsing Brahmajeetsing Sharma V/s State of Maharashtra and another reported in (2005) 5 Supreme Court Cases 294 : {2005 All MR (Cri) 1438 (S.C.)}, Their Lordships of the Supreme Court of India, held that the restrictions imposed by

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Section 21 (4) of the M.C.O.C. Act on the power of the Courts

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cannot be pushed too far. It is not as if a person can be released on bail only if there would be no grounds for proceeding against him at all on the charge of an offence punishable under the M.C.O.C. Act. The said provisions are required to be interpreted in a reasonable manner. They cannot be interpreted in such a manner so as to make the grant of bail impossible. It is not that the court is required to come to a positive finding that the applicant for bail is not guilty of an organized crime before grant of bail.

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In Shamil Saquib Nachan V/s The State of Maharashtra (Criminal Bail Application No. 512 of 2013 decided on 6^th May, 2013) reported in 2013 All M.R. (Cri.) 2273 , I had an occasion to deal with the question, as to how the restrictive phrases should be construed. After carefully anyalysing the relevant provisions in the said Statutes and the observations made by the Supreme Court of India in the aforesaid case of Ranjitsingh Sharma (supra), I had concluded as follows :-

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“For enabling the court to exercise its
discretion in favoaur of a person accused of
having committed an offence punishable under the

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M.C.O.C. Act, what is required is existence of
reasonable grounds for believing that the
applicant before the court is not guilty of an
organized crime. The satisfaction that the
“accused is not guilty” is not contemplated by
the relevant provisions and what is required is
the satisfaction that “there are reasonable
grounds for believing the accused to be not
guilty”. Again, the phrase “reasonable grounds”
should not be confused with the phrase
“sufficient grounds”. It imports a lesser
degree of satisfaction than “sufficient
grounds”. It cannot be lost sight of that the
Special court would be entitled to discharge an
accused if it considers that there is no
sufficient ground for proceeding against the
accused. If the court forms an opinion, that
there is ground for presuming that the accused
has committed an offence punishable under the
M.C.O.C. Act, a charge shall be framed against
the accused. This is clear from the provisions
of Section 9(4) of the M.C.O.C. Act, read with
Sections 227 and 228 of the Code of Criminal
Procedure. It cannot – even remotely – be
suggested that the special provisions regarding
grant of bail in the M.C.O.C. Act are to be
interpreted in such a manner, so as to mean that
it is only when there would be no sufficient
grounds for proceeding against an accused, that
he shall be released on bail. If such a view is
taken, no person who has been granted bail, can
ever be proceeded against, in respect of an
offence punishable under the M.C.O.C. Act.
Rather, there would be no question of granting

¶109

Tilak 26/30 BA-1147-13

¶110

bail, and an accused would be discharged at that
stage itself. Since this is not intended or
contemplated while enacting the relevant
provisions regarding bail, the special
provisions are to be interpreted by keeping in
mind that the phrase “reasonable grounds for
believing that he is not guilty of such offence”
cannot be so construed as to make it
irreconcilable with the existence of ground for
presuming that he has committed such offence.

¶111

The restrictive provision under Section 43D of the UAP

¶112

Act with respect to the grant of bail is not similar to the one contained in the M.C.O.C. Act, and has been worded differently. It contemplates that a person accused of having committed an offence punishable under Chapter IV and Chapter VI of the UAP Act shall not be released on bail if there are reasonable grounds for believing that the accusation against such person is prima facie true. Perhaps, this phrase puts a greater restriction on the powers of the court than is put by the aforesaid provisions of the M.C.O.C. Act. However, inspite of the difference in the phraseology, there would be no basic difference in the practical application of these provisions. All that these provisions lay down is that a person arrested on the accusation of having committed the offence contemplated by the said provisions should not be released on bail, if there would be a

¶113

Tilak 27/30 BA-1147-13

¶114

prima facie case of such offence against him. If a rational and

¶115

reasonable doubt is felt in that regard, then the court would not be precluded from granting bail.

¶116

In this case, there is no material to indicate that the applicant was a conspirator in respect of the conspiracy which is the subject matter of the present case, viz:- of procuring arms, ammunitions and explosives in a huge quantity, transporting them and using them for creating terrorists acts by killing some political

¶117

leaders., etc. There is absolutely no material to show that the applicant had agreed to commit any such acts. In fact, if the statements made in the charge-sheet, the affidavit in reply filed by

¶118

the Investigating Officer, and the ‘Brief synopsis of the prosecution case’ submitted in writing by the learned Special Public Prosecutor,

¶119

are carefully examined, it becomes clear that the prosecution has avoided – and rightly so – to make a claim that the applicant was one of the conspirators in respect of the aforesaid conspiracy. It may be recalled that the allegations against the applicant are worded rather guardedly – such as – that ‘ the applicant had played an active role in attempting to conceal the Car in his warehouse’ . That, ‘he had done so with the knowledge that he was furthering an

¶120

Tilak 28/30 BA-1147-13

¶121

illegal act and that ‘ he had abetted illegal activities of the co-accused, etc. ’ It is true that there is material to indicate that the applicant had agreed to do some illegal acts, but that would not make him conspirator in respect of the main conspiracy. At the most, it can be said that the applicant knowingly handled arms and ammunitions, but in that case, the crime committed by him would be of a different degree of criminality.

¶122

In the course of arguments, the learned Special Public Prosecutor sought to overcome the deficiency of material against the applicant by suggesting that the applicant had associated himself with some other accused in this case, who are actively associated with each other in activities which are anti-national . However, such association appears to be for consideration and discussion of some issues which are – or are thought to be - of some importance to the entire Muslim community. Having association with each other in the context of such common issues, would not necessarily indicate all such persons to be a party to the criminal activities of some of them. It would not be proper to presume that one is involved in the conspiracy only because he has association with some of the conspirators, when the association is not shown to

¶123

Tilak 29/30 BA-1147-13

¶124

be for the prosecution of the object of the conspiracy, or for committing any offence or offences, but for considering the general grievances – real or perceived – of the Muslim community and listening to, or exchanging views on, the matters felt important by them. Anyway, the applicant is not seen to be having even such general association with the conspirators in this case.

¶125

In this case, once such `general suspicion’ is kept aside and the matter is examined objectively, there appears to be no prima facie case of the offences punishable under the UAP Act against the applicant. As regards the offences punishable under the M.C.O.C. Act, certainly, there are reasonable grounds for believing that the applicant is not guilty of such offences. There would, therefore, be no bar to release the applicant on bail.

¶126

The applicant is in custody since 13.05.2006 i.e. for a period of more than 7 years. Five witnesses have been examined so far and though the trial is proceeding expeditiously, it is not in dispute at all, that it is not likely to be over within a reasonable time. Considering the period already spent in custody by the applicant as an under trial prisoner, the nature of material by which

¶127

the allegations against him are supported and the severity of the

¶128

Tilak 30/30 BA-1147-13

¶129

sentence that is likely to be imposed upon the applicant in the event of his being found guilty, I think it proper to release him on bail.

¶130

At this stage, I have asked the learned Special Public Prosecutor as to whether the prosecution seeks imposition of any conditions on the applicant, while releasing him on bail and that in that case, he may suggest suitable conditions, which the Court may consider imposing. Upon this, the learned Special Public Prosecutor submitted that the trial is in progress; that, it is being held on day to day basis, and that, all the applicant should do is to attend the trial Court regularly.

¶131

36. The application is allowed.

¶132

The applicant is ordered to be released on bail in the sum of Rs. 50,000/-, with one surety in the like amount, on the condition that he shall remain present before the Court during the trial, and shall not contact, meet or approach any of the prosecution witnesses, in any manner, whatsoever.

¶133

(ABHAY M. THIPSAY, J)

Javed Ahmed Abdul Majeed Ansari v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Javed Ahmed Abdul Majeed Ansari v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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