Dismissed

Pankaj Chhaganlal Soni v. State of Maharashtra

Bombay HC3 Apr 2024APEAL/152/2024

Case brief

AI extract

What is this about?

Accused no.6 in an MCOCA special case appealed rejection of his discharge application, claiming parity with two discharged co-accused. Holding that the gold bar seizures at his instance and his CDRs with accused no.8 constituted prima facie evidence under Sections 3(2) and 2(1)(a) MCOCA, the High Court refused discharge and dismissed the appeal.

What the court decided

AI extract

Pankaj Chhaganlal Soni vs State of Maharashtra — Criminal Trial and Appeal | Bombay HC (2024)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.152 OF 2024

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Pankaj Chhaganlal Soni …. Appellant

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Versus

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The State of Maharashtra …. Respondent

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Mr.Sandeep R. Karnik, Advocate for the Appellant. Ms.S.V. Gavand, APP for Respondent – State.

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ACP Kalpana Gadekar, Bhoiwada Division Kalachowki Police Station and PSI Gaikwad, Kalachowki Police Station, present.

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CORAM : BHARATI DANGRE & MANJUSHA DESHPANDE, JJ.

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DATED : 6^th AUGUST 2024.

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JUDGMENT (PER : Manjusha Deshpande, J.)

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Digitally signed by RAJESHRI RAJESHRI PRAKASH PRAKASH AHER AHER Date: 2024.08.26 17:36:20 +0530

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1 The appellant is accused no.6 in Special Case No.14 of 2019. As per the chargesheet, he has been charged for the offences punishable under Sections 395, 397, 412, 341, 201 and 120-B of Indian Penal Code (IPC) with Sections 37(1)(a) read with 135 of the Maharashtra Police Act and Sections 3(1)(ii), 3(2) and 3(4) of the Maharashtra Control of Organized Crime Act, 1999 (MCOCA for short), in Special Case No.14 of 2019. The

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Rajeshri Aher

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appellant herein has fled the present appeal challenging the order passed by the MCOC Special Court in discharge application at Exhibit 188. The application of the present appellant has been rejected by the Special Judge in MCOCA Court vide order dated 30^th January, 2024.

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2 According to the prosecution, a report is lodged by the informant on 6^th April, 2019. It is stated that the informant deals in gold ornaments and used to visit gold jewellery shop for marketing of various gold ornaments. It was his routine to visit shops and exhibit the gold jwellery to the said shopkeepers and seek purchase orders from the customers/shopkeepers.

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On 6^th April, 2019, while the informant had been to Panvel for getting orders from his customers, on his way-back to his residence, he alighted from a local train at about 09.00 p.m. to 09:45 p.m. at Chinchpokli Police Station, Mumbai. While he was passing from the Chinchpokali Ganesh Festival Mandal at about 09:45 p.m, two persons came near him and started snatching the packet containing ornaments. When the informant resisted, a person wearing red cap gave a blow with his sharp edged chopper with his right hand wrist. Thereafter, the informant started shouting for help. At the same time,

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Rajeshri Aher

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another person was trying to snatch the packet from the informant. When he tried to resist, the second person also assaulted the informant with sharp edged chopper on his left shoulder, forearm, wrist and head and on the left side of his head. The two persons snatched the packet from the informant. People present nearby gathered and came to his rescue. However, the accused persons threatened the people gathered of dire consequences, if they came near them to rescue the informant. In the meanwhile, the other two persons who were accomplices, cautioned them to complete their work and leave immediately. Thereafter all the accused persons left the scene of offence from Chinchpolkali bridge.

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The informant was subsequently admitted to the hospital, and thereafter C.R. No.70 of 2019 came to be registered with Kalachowki Police Station, Mumbai, for the offences punishable under Sections 394, 397, 34 of IPC and Section 37(1) (a) read with Section 135 of the Maharashtra Police Act against four unknown persons.

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3 During the course of investigation, it was revealed that the said crime was committed by an organized crime

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Rajeshri Aher

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syndicate headed by accused no.1 Ayub Ahimuddin Shaikh @ Ayub Chikna. A prior approval under Section 23(1)(a) of the MCOC Act was granted for applying the provisions of MCOC Act. During the course of further investigation, it was revealed that the present appellant is also a member of the organized crime syndicate, headed by the gang leader Ayub Alimudding Shaikh (Accused No.1). Suffcient material was collected by the prosecution against the present appellant about his involvement in the present crime. Considering the material collected by the prosecution, the Competent Authority has accorded sanction as contemplated under Section 23(2) of the MCOC Act, for prosecution of the appellant. The approval was granted by order dated 6^th July, 2019. After grant of sanction, chargesheet came to be fled against the present appellant on 8^th July, 2019.

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4 On charge being fled, the present appellant has fled application at Exhibit–188 in MCOC Special Case No.14 of 2019, for his discharge under Section 227 of the Cr.P.C. According to the applicant the allegation as against him is that, he alongwith his son has purchased gold ornaments from the second wife of main accused no.1 at a lower price, knowing fully well that the ornaments are stolen property. It is alleged that the said gold

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ornaments were melted by the present appellant and his son (who is now a discharged accused). Two lagads were recovered at his instance and this is the only circumstance against the present appellant. He has sought discharge primarily on the ground of parity with the accused no.3 Mr.Maruti Sonawane, who was discharged by this Court vide order dated 4^th May, 2022 in Criminal Appeal No.198 of 2022, and his son Mahesh Soni (accused no.7) who was discharged by this Court by order dated 15^th December, 2023.

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5 It is the contention of the present appellant that there is no material to connect the present appellant with the crime. The prosecution has not produced any evidence that the present appellant is a member of organized crime syndicate and, thus, the appellant does not fall under the purview of Section 2(f) read with Section 2(e) of MCOC Act. There are no common antecedents of present appellant with the gang leader Ayub Chikna against whom 39 cases are registered. As against that, there are no criminal antecedents whatsoever against the present appellant. The mere fact of the recovery of gold Lagads that too from the jewellery shop cannot be held as an incriminating evidence. Therefore, in view of the unavailability

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of the evidence, he had sought discharge under Section 227 of Cr.P.C. The learned Judge Special Court, after taking into consideration the material produced by the prosecution, has rejected the discharge application of the present appellant.

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6 Learned APP has opposed the grant of prayer in the present appeal contending that the Competent Authority has already granted approval on 11^th May, 2019, and sanction on 6^th July, 2019, under the provisions of MCOC Act. The material placed discloses involvement of the present appellant. The gold which has been seized vide memorandum panchanama, weighed almost 1 kilogram, which has a value of Rs.31,93,000/-. This itself is suffcient for establishing the involvement of the present appellant. The call details between the present appellant and accused no.8 clearly indicates the involvement of appellant in the offence. The appellant’s act is covered by Section 2(1)(a) of the MCOC Act, wherein explanation to the word “Abetment”, is provided. The Special Court has rightly considered the evidence produced by the prosecution and 0rejected the Application for Discharge.

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7 According to the learned Judge of the Special Court,

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the memorandum panchanama of the present appellant and the

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Rajeshri Aher

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two gold Lagads weighing 475 grams and 555 grams, each, which are seized at the instance of the appellant shows the involvement of the present appellant in the said organized crime syndicate headed by accused no.1. The prosecution has placed on record the CDRs to show that the wife of gang leader, one Sangeeta Vijay Nair, who is accused no.8 was in contact with the present appellant. The said CDRs show that Sangeet Nair was in contact with the present appellant, much before the registration of the present CR. She seems to be in contact with the present appellant from October 2018, and more particularly, the present appellant and accused no.8 were in contact with each other on 1^st April, 2019 and 7^th April, 2019.

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The CDR which is placed on record shows that from October 2018, till the date of registration of offence, the appellant and the accused no.8, were constantly in contact with each other during the said period. The memorandum panchanama of the present appellant shows his complicity in the present CR.

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The present appellant had melted the gold which the wife of accused no.1 had brought in his shop. The seizure of the said gold as well as the CDR which refects that the accused no.8

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was in constant touch with the present appellant are suffcient to connect the present appellant with the offence. The veracity of the evidence produced can be determined only during the trial.

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8 The appellant is seeking parity with one Maruti Sonawane–Accused no.3 and his son Mahesh Soni–Accused no.7, who have been discharged by the orders passed by this Court. While deciding the Appeal fled by Mahesh Soni–Accused No.7 in Criminal Appeal No.767 of 2023, this Hon’ble Court has observed that, the record reveals that the stolen gold ornaments which were melted into gold bar is seized at the instance of appellant's father i.e. original accused no.6 and not from the Appellant. It is observed that there is no evidence or material showing that, the Appellant is associated with the organized crime syndicate.

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There is no commonality between the Appellant and the crime. There is a recovery of gold melting machine, which is not unusual in a jewellery shop. The C.D.R. does not indicate that, the Appellant had ever called Accused no.1 or Accused no.8. Therefore, the Court had come to the conclusion that the evidence gathered is not suffcient to show that, the Appellant

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Rajeshri Aher

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had knowledge about the activities of Accused no.8. Considering the material available against the Appellant, the Accused No.7 has been discharged.

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So far as the other accused Maruti Sonawane– Accused No.3 is concerned, the allegations and the material available against the said accused also cannot be compared. The only allegation against the said accused was that, he had recced the area from Panvel to Chinchpokli on 6^th September, 2021, on the instructions received from the gang leader Ayub Chikna. He provided information about the other co-accused, and amount of Rs.10,200/- was seized from the said accused; he was in continuous contact with Ayub Chikna, and his wife Sangeeta Nair.

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In support of the allegation of recced, CCTV footage was collected by the investigating offcer. In the said CCTV footage of the railway station, according to the prosecution, the said Appellant could be seen walking, but nothing could be seen when the said C.D.R. was seen by the panch witnesses. The technician was unable to copy any CCTV footage. Therefore there was no CCTV Footage in support of the allegations of prosecution. Since, the prima facie material showing

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Rajeshri Aher

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involvement of the appellant could not be produced by the prosecution, this Court has been pleased to discharge him.

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9 Though the Appellant, is claiming parity with the Accused Nos.3 and 7, on going through the orders passed in their favour, it is evident that, this Court has considered the evidence produced by the prosecution against them, and has come to the conclusion that, the evidence is not suffcient to show their involvement in the crime. Therefore, the Court has recorded that, there is no material for proceeding against accused. As a result both the Accused i.e. Accused Nos.3 and 7 in Criminal Appeal No.198 of 2022 and Criminal Appeal No.767 of 2023, respectively, have been discharged from the offences in Special Case No.14 of 2019.

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10 After hearing the respective parties and going through the material on record, according to us, the seizure of Gold Bars, which are seized at the instance of the accused and the CDRs between the Appellant and wife of Accused No.1 i.e. Accused No.8, is suffciently incriminating evidence against Appellant, to form a prima facie opinion about the involvement of the present Appellant. The veracity and truthfulness has to be tested at the time of trial. However, as on today at this stage,

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Rajeshri Aher

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we are of the considered opinion that, the appellant has not made out a case for discharge.

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The Appellant has been charged with Section 3(2) of the MCOC Act, which reads as under:

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“3(2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organised crime or any act preparatory to organised crime, shall be punishable with imprisonment for a term which shall be not less than fve years but which may extend to imprisonment for life and shall also be liable to a fne, subject to a minimum fne of rupees fve lacs.”

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The word Abets is also explained in Section 2(1)(a) of the MCOC Act, which reads as under:

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“2(1)(a) “abet”, which its grammatical variations and cognate expressions, includes, –

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(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 syndicate;

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(ii) the passing on or publication of, without any lawful authority, any information likely to assist the organised crime syndicate and the passing on or publication of or distribution of any documents or

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matter obtained from the organised crime syndicate; and

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(iii) that rendering of any assistance, whether fnancial or otherwise, to the organised crime syndicate;”

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The conduct of the appellant will be squarely covered by Section 3(2) of the MCOC Act. He has purchased the gold ornaments at much lower rate from the accused, with the knowledge that, they are stolen property, which has been melted and converted into Bars.

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11 We have already observed that, case of each of the accused is to be considered independently on the basis of the evidence collected against him, showing his involvement. Therefore, considering the evidence available against the appellant, the relief granted by this Court to other two accused cannot be extended to him.

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The evidence in the form of CDR, and the seizure of gold bars are suffcient to indicate the complicity of the Appellant. Though is a matter to be proved at the time of trial, at this stage there exists prime facie case against the Appellant.

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Incidentally, the accused no.8 Sangeeta Nair, who

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was constantly in contact with the present appellant, had fled criminal Appeal No.1430 of 2023, has been rejected by this Court vide order dated 12^th February, 2024.

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12 In view of the conspectus of the matter, we are not inclined to entertain the Appeal. Accordingly, the appeal stands rejected.

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(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)

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Rajeshri Aher

Pankaj Chhaganlal Soni v. State of Maharashtra

Case brief

What is this about?

What the court decided

Pankaj Chhaganlal Soni v. State of Maharashtra

Case brief

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