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7/31/2019 Chhota Shakeel Gang MCOCA Court Judgement
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.. 1 .. MCOC Spl.Case No.05/2007
IN THE SPECIAL COURT FOR GREATER BOMBAYUNDER MCOC ACT AT GR.BOMBAY
MCOC SPECIAL CASE NO.05 OF 2007
The State of Maharashtra,(at the instance of DCB CIDMumbai,C.R.No.84/2001) ..Complainant.
Versus
1. Salim Iqbal Qureshi @ Salim Fruit )
2. Jamil Haji Abdul Jabbar Shaikh )
3. Mohd. Sabir Suleman Shaikh )
4. Shahidmiyan Natthumiyan Qureshi )
5. Afzal @ Raju Chocolate Abdul )Kadar Supariwala )
6. Mohd.Salim Alim Khan )
7. Mushtaque Abdul Rehman Nawab ) ..Accused
8. Shaikh Shakeel Babu Mohiddin )Shaikh @ Chhota Shakeel )
9. Anwar Mohiddin Shaikh ) Wanted Accused
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Mr.D.M.Shah, Spl.P.P.for the State.Mr.S.Pasbola, advocate for accused no.1Ms.Trupti Shetty, advocate for accused no.2Mr.Jagdish Shetty,advocate for accused nos.3 to 5Ms.Saba Qureshi, advocate for accused nos.6 and 7.
CORAM : THE SPECIAL JUDGE UNDER MCOCACT SHRI S.T.MAHAJANCourt Room No.56
DATE : 24th January, 2011
ORAL JUDGEMENT
1. The accused nos.1 to 7 are charge sheeted by DCB
CID Unit-1,C.R.No.84/2001 (MRA Marg Police Station CR
No.360/01) for the offences punishable u/sec.387, 120(B
r/w 34 of IPC, r/w 3(1)(ii), 3(2) and 3(4) of M.C.O.C
Act 1999, on the complaint of Rahul Chabra and for the
State of Maharashtra by M.B. Kurne, ACP,Protection
Branch, Mumbai.
2. According to prosecution following is the
factual scenario:
That the complainant Rahul Chhabra is doing
business of selling and supplying bearings in the name
and style as A to Z Bearing Corporation, having office
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.. 3 .. MCOC Spl.Case No.05/2007
at first floor, Rohit Chambers, Janmabhumi Marg, Fort
Mumbai-400001. In the office of complainant, there are
two land line connection having No.2875541 and 2873623
The complainant Rahul Chhabra received number of
threatening calls from 1/10/2001 to 12/10/2001 from the
accused Salim Iqbal Qureshi @ Salim Fruit by fictitious
name as John on his office phone and mobile phone,
threatening the complainant at the behest of gangster
Chhota Shakeel for extortion of Rs.50,00,000/- and for
the amount of settled at Rs.5,00,000/- and he asked the
complainant to deliver the extortion amount to Raju, his
local associate.
3. On 12/10/2001 Raju called the complainant to
deliver the extortion amount near Shagun Hotel at Mumbai
Central at about 19 hours. After receiving the call
from said Raju, the complainant went to the Anti
Extortion Cell and narrated the fact to the police which
was registered vide C.R.No.360/01, u/sec.387 r/w 34 of
IPC at M.R.A. Marg police station.
4. Thereafter, further investigation was taken over
by Anti-Extortion Cell of DCB CID, Mumbai. On the basis
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of the complaint, a trap was laid at Mumbai Central near
Shagun Hotel where the accused Afzal @ Raju Chocolate
Abdul Kadar Supariwala and Mohd.Salim Ali Khan were
arrested red handed while accepting plastic bag
containing bundle of papers look like bundle of notes
from the complainant as extortion amount.
5. Police prepared seizure panchanama of plastic
bag containing bundle of papers looked like bundle of
notes and one chit having mobile phone number, diary and
STD bills from the arrested accused. Later on the
accused Mustaque Abdul Rehman Nawab was arrested as his
involvement also revealed in the offence.
6. The police, after due investigation, recorded
statements of the witnesses and filed charge sheet
against the arrested accused Afzal @ Raju Chocolate
Abdul Kadar Supariwala, Mohd.Salim Ali Khan, and
Mustaque Abdul Rehman Nawab in the Court of Addl.Chief
Metropolitan Magistrate, 19th Court, Esplanade, Mumbai
vide C.C.No.724/P/2003.
7. On 21/11/2006, the accused Salim Iqbal Qureshi @
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Salim Fruit, Jamil Haji Abdul Jabbar Shaikh and Mohamed
Sabir Suleman were arrested and police seized the two
mobiles from these accused under panchnama. During the
course of investigation, it was revealed that the
arrested accused are members of Organized Crime
Syndicate headed by Chhota Shakeel. They are indulging
in continuous unlawful activities of threatening for
extortion to the businessmen for pecuniary gain o
members of Organized Crime Syndicate and therefore it
attracts the provision of section 3(1)(ii), 3(2), 3(4)
of MCOC Act, 1999. Therefore police obtained prior
approval as per sec.23(1) of the MCOC Act from Jt
Commissioner of Police, (Crime) Branch, Mumbai, vide its
order dated 13/12/2006 and accordingly these provisions
of MCOC Act added to the original charge.
8. Thereafter, on 21/11/2006 police arrested the
accused Salim Iqbal Qureshi as he found involved in the
said offence and also member of Organized Crime
Syndicate. The police of DCB CID recovered chit from
the accused Salim Khan during trap under panchnama and
sent the same to handwriting expert by obtaining
specimen hand writing of accused Salim Khan. Then
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Deputy Commissioner of police, recorded confessional
statement of accused Shahidmiyan Natthumiyan Qureshi
Salim Iqbal Qureshi @ Salim Fruit and Jamil Haji Abdul
Jabbar Shaikh.
9. The complainant produced three audio cassette
before the police, then after arrest of the accused
police collected voice sample of the accused in presence
of panchas and sent all these cassettes to the Voice
Analyzer, Forensic Science Laboratory, Kalina.
10. The police also collected details in respect of
calls from mobile phone No.9821294817 from service
provider BPL mobile company.
11. After due investigation, police of DCB CID
obtained sanction from the Commissioner of Police
Mumbai u/sec.23(2) of MCOC Act 1999, dated 27/2/2007 for
prosecuting the accused and thereafter filed charge
sheet against all the accused in this Court.
12. From the material available on record, the
charges against accused nos.1 and 3 to 7 was framed on
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23/1/2009 vide Ex.8 and the charge against accused no.2
framed on 29/3/2010 vide Ex.85 by my predecessor at
office. The charges were read over and explained to the
accused to which they abjured and claimed to be tried.
13. The defence of the accused is of total denial
and of false implication. According to them, they are
innocent. Plea of the accused to that effect is
recorded vide Ex.9 to 14 and 86 respectively.
14. In order to bring home the guilt of the accused
the prosecution has examined in all 15 witnesses and
commenced its evidence by examining Rahul Chabra - PW 1
vide Ex.21, Lalu Abdulla Shaikh - PW 2 vide Ex.34, Mohd
Ayub Mohd.Omar Mogul - PW 3 vide Ex.38, Shakil Ismile
Patni - PW 4 vide Ex.40, Saifuddin Mohsinbhai
Kargonwalla - PW 5 vide Ex.41, Anil Ramchandra Avhad API
- PW 6 vide Ex.44, Manohar Jagannath Bhoir, DCP - PW 7
vide Ex.48, Jagdish Jagannath Kulkarni, PSI - PW 8 vide
Ex.59, Dilip Pralhad Ahiwale - PW 9 vide Ex.64
Vishwasrao Narsinh Salve, DCP - PW 10 vide Ex.68
Rakeshchandra Rambhuj Prajapati - PW 11 vide Ex.80
Pundalik Venkatrao Nigade, PI - PW 12 vide Ex.99
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Prashant Shivshankar Burde - PW 13 vide Ex.109, Anami
Narayan Roy - PW 14 vide Ex.124 and Madhukar Bhau Kurne
ACP - PW 15 vide Ex.127. The prosecution also filed
number of documents on record and finally closed its
case by filing evidence closure pursis vide Ex.131.
15. The statements of the accused u/sec.313 of
Cr.P.C. were recorded vide Ex.132 to 138 respectively
wherein they reiterated their theory of total denial and
of false implication. The accused did not examine
themselves on oath, nor they examined any witness in
their defence.
16. Heard learned Spl.P.P.Mr.D.M.Shah for the State
learned Advocate Mr.Pasbola for accused no.1, Ms.Trupti
Shetty for accused no.2, Mr.Jagdish Shetty for accused
nos.3 to 5 and Ms.Saba Qureshi for accused nos.6 and 7.
17. Considering the oral and documentary evidence on
record and submissions of both the sides, following
points arise for my consideration and determination
which I have replied accordingly for the reasons given
herein below:
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POINTS FINDINGS
1. Does the prosecution prove thatthe accused nos.1 to 7 and wantedaccused Shaikh Shakeel BabuMohiddin @ Chhota Shakeel andAnwar Mohiddin Shaikh, during the
period from 1/10/2001 to 12/10/2001agreed with each other to do orcaused to be done an illegal act,i.e.committing an offence ofextortion by threatening variousbusinessmen in Mumbai city forgetting huge ransom amount andbesides this above agreement, theaccused did an act in pursuance
of the above agreement i.e. gavethreatening calls to the complainantRahul Chhabra asking him to payextortion amount of Rs.50,00,000/-and threatened to kill him in caseif the above demand of extortionwas not complied by him and therebycommitted an offence punishable U/s120-B,r/w 387 of IPC? No.
2. Does the prosecution prove thatthe aforesaid offence ofextortion punishable u/sec.387of IPC amounts to an organizedcrime as defined in section 2(e)of the MCOC Act 1999 and thereby
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the aforesaid accused committedan offence u/sec.3(1)(ii)of the MCOC Act, 1999? No.
3. Does the prosecution provethat the accused nos.1 to 7conspired together, abettedeach other and/or knowinglyfacilitated the commissionof the aforesaid organizedcrime and/or acts preparatoryto the organized crime andthereby committed an offencepunishable u/sec.3 (2)ofthe MCOC Act,1999? No.
4. Does the prosecution prove
that the accused nos.1 to 7are the members of the organizedcrime syndicate headed byabsconding accused Shaikh Babu@ Chhota Shakeel and therebycommitted an offence punishableu/sec.3(4) of MCOC Act, 1999? No.
5. What order? As per final order.
R E A S O N S
POINT NO.1
18. In order to prove the charge under Sec.387
120(B) of the Indian Penal Code (IPC), the prosecution
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has examined complainant Rahul Chhabra, who has stated
that he is doing business of selling ball bearing of
automobile vehicles in the name of A to Z Bearing
Corporation, situated at Rohit Chambers, Janmabhum
Marg, Fort, Mumbai. According to him, in the year 2001
particularly on 1/10/2001, at about 6.30 p.m., he
received phone call and caller speaking that his name is
John and he is speaking for Chhota Shakil. He received
a same call on his land line No.2873623. He has scared
about that call. On the next day he also received call
from the same person and he demanded Rs.50 lakhs
otherwise threatened to kill him.
19. PW 1 further deposed that thereafter he received
threatening calls on his mobile phone bearing no
9820098507 and also received threatening call on his new
mobile number. Lastly he received a call on his land
line no.2873623. The caller was John and asked to pay
Rs.50/- lakhs. Even the caller reduced the ransom
amount upto Rs.10 lakhs and 5 lakhs. He has further
stated that the caller John, told him that he would send
his person viz., Raju to collect the cash amount of Rs
5/- lakhs from him. He would communicate the place
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where he was supposed to handover the cash of Rs.5/-
lakhs.
20. He has further deposed, thereafter he approached
to the crime branch office at Crawford Market, on
12/10/2001 and narrated the story to PSI Kulkarni
Accordingly, he gave statement. His statement was
recorded by PSI Kulkarni. He has further deposed that
on the very day PI Kulkarni, called him at the crime
branch office, at about 3.30 p.m., and asked him to
prepare paper packets in the size of currency notes so
as to handover the said packets to Mr.Raju. Two
witnesses were also called by the PSI Kulkarni
Accordingly, police party and two witnesses went to the
Shagun Hotel at Bombay Central. Complainant stood on
the road in front of hotel Shagun at about 6.30 p.m
Thereafter, two persons came there and he told him that
he was Raju, the said Raju asked him to handover the
packet to another person. While handing over the packet
police officers surrounded them and caught hold Raju and
his associate Salim Khan. Police also seized some chits
and diary from both of the accused under panchanama.
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21. From the statement of PW 1 the complainant, it
appears that, he started to receiving threatening calls
from 1/10/2001 and finally he decided to go to the
police.
22. In respect of this evidence of PW-1, it has been
submitted by the Spl.P.P.Mr.Shah, that evidence o
complainant is quite believable and sufficient
explanation is given about the telephonic threatening
calls received by the complainant, so also about the
trap led by the police.
23. Per contra defence advocates have submitted that
evidence of PW-1 is full of omissions and
contradictions. There is some discrepancies in respect
of actual filing of the complaint, therefore, such
evidence should not be believed.
24. While perusing the cross-examination of PW-1, it
has been pointed out by the defence that on the FIR Ex
22 the date is mentioned as 12/10/2001. However, while
perusing the statement recorded by the complainant it
appears the date 11/10/2001, then again the next date is
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appeared 12/10/2001. Then while perusing the
supplementary statement of the PW-1, the date is
appeared 12/10/2001 and the third supplementary
statement dated 6/2/2007 is stated that his complaint
recorded on 11/10/2001. Such type of different version
about the filing of the complaint itself create doubt
about the actual filing of the complaint and on which
date. Apart from the differences in respect of date
though PW-8 PSI Kulkarni, stated that wrongly the date
11/10/2001 has been mentioned on the statement of the
complainant, but his explanation is not acceptable, in
view of the repeated statement by PW-1 before Court in
respect of his statement recorded on 11/10/2001.
25. Apart from this fact, the defence has pointed
out some important facts on record about recording of
FIR with the MRA Marg Police Station. In this respect
while perusing the evidence of PW-1, he has stated in
his cross-examination that he did not go to MRA Marg
Police Station and no officer of MRA Marg Police Station
contacted him. On the contrary, there is evidence of
PW-6 Anil Avhad, API, MRA Marg Police Station, who has
stated that on 12/10/2001 at about 3.30 p.m.
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complainant Rahul Chhabra was brought in MRA Marg Police
Station by PSI Nigade (PW-12) of Anti Extortion Cell for
registration of FIR and he registered C.R.No.360/2001
To this, again there is contradictory version came from
PW-8 PSI Kulkarni, who stated that he produced the
statement of Rahul PW-1 to MRA Marg Police Station for
registration of C.R. Again there is different version
from the mouth of PW-12, PI Nigade, DCB CID, who has
stated he did not see the report of complainant Rahul
He denied in cross-examination that he took Rahul to
MRA Marg Police Station, for registration of FIR.
26. In view of the four different testimonies in
respect of registration of FIR Ext.22 with the MRA Marg
Police Station, it is again create doubt about actually
registration of the same on 12/10/2001, or its
registration on 11/10/2001. In such circumstances, the
basic fact has not been properly established by the
prosecution.
27. Apart from the above controversy in respect of
registration of FIR and given statement by the
complainant, while perusing the cross-examination of the
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complainant, I found there are number of omissions and
contradictions in the evidence of PW-1. Such as, that
complainant in cross-examination stated that accused
Raju contacted him thrice asking him to deliver cash
amount at Hotel Shagun. The said fact is not found
place in a statement recorded by police. Then PW-1
stated that he was asked by PSI Mr.Kulkarni to prepare
packets in the size of currency notes and he carried the
same in the office of Anti Extortion Cell. Likewise the
fact stated by PW-1 that, Raju and Salim Khan both were
apprehended by police, such statement also not found
place in the statement of complainant.
28. There is also omission in the statement o
complainant that, that it was stated by him to the
police that he was threatened that he would be killed by
Jhon's men if he failed to pay him above ransom amount
Rs.50/- lakhs. He also not stated about identification
of John's voice from the cassette. He also not stated
that, every time John, used to call him on phone and
lastly John admitted to accept Rs.5/- lakhs. He also
not stated about mention of mobile number of John, on
chit. Such type of omissions goes to the root of the
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case, because police case is based on evidence of PW-1
about the extortion threatening calls.
29. Even PW-1 in the cross-examination stated that
he has not stated portion marked 'A' to the police and
therefore, it is not correctly recorded by police. This
portion mark contained about the seizure of diary and
chit from the accused nos.5 and 6. Therefore
considering the major omission which goes to the root of
the case, so also the filing of FIR and giving of
statement by the complainant variance dates in it, such
evidence of the complainant inspires no confidence.
30. In view of the above said fact, let us see what
is the evidence putforth by the police about the traps
allegedly led at Bombay Central, near Shagun Hotel. As
stated supra, the PW-1 stated that the police called two
witnesses at Anti Extortion Cell, he and two witnesses
and police personnel went to Shagun Hotel at Bombay
Central. He has stated that, he went there alone by
taxi. Contrary to it PW-2 Panch Lalu Shaikh has stated
that the police, another panch and he himself went to
Bombay Central, near Shagun Hotel by private Quali
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vehicle. Later on in the cross-examination PW-2 stated
that, they went there in jeepsy vehicle.
31. So far as this vehicle point is concerned, the
PW-8 PSI Kulkarni stated that they went there by private
vehicle. There is also difference about the parking o
vehicle at different places stated by the panch witness
PW-2 and PW-8 Mr.Kulkarni. Apart from this fact, the
vital admission has been given by the PW-1 in cross-
examination he has stated when he came, witnesses and
police party reached near Shagun Hotel, they all had a
discussion near Shagun Hotel about 15 minutes. It means
the police and complainant were together in front of
Hotel Shagun at Bombay Central. Then, in such
circumstances, it is not possible for the person for
whom the trap was there to go near the complainant for
demanding the cash. Therefore, the evidence which i
full of variance about the trap cannot be accepted.
32. Moreover, the fact which is admitted on record
that PW-2 Lalu Shaikh, is not at all independent
witness, he is a habitual panch to the DCB CID, I come
to this conclusion on the very evidence of PW-2 in
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cross-examination. He has admitted that on number of
occasions he acted as panch with the DCB CID. This
witness is appeared to be under the influence of police
as he is used to sell handkerchief near the C.P.Office
situated at Crawford Market, Mumbai. Therefore
evidence of such witness cannot be accepted as genuine
one. To this fact Mr.Kulkarni PW-8, also admitted that
PW-2 acted as a panch in some of the cases of DCB CID.
33. Of course, the PW-2 Lalu Shaikh, PW-1 Rahul and
PW-8 Kulkarni PSI, have stated that at the time of trap
the accused nos.5 and 6 were apprehended on the spot
To this fact except the corroboration of themselves such
as PW-1 and PW-2 I found that their evidence are not
trustworthy, no other independent witnesses examined for
the same. Moreover, while perusing the evidence of Lalu
Shaikh PW-2 and PSI Kulkarni PW-8, they have stated that
initially panchanama was prepared at DCB CID Office
Ex.35. He also stated after the trap, panchanama was
prepared Ex.35(A). In respect of this panchanama
particularly after trap panchanama Ex.35(A), I will come
later because there is another vital discrepancy in
respect recovery of chit allegedly from the accused
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during the trap. It is sufficient to mention that the
evidence of pre-trap and after trap by witnesses a
narrated above are not at all trustworthy and
believable.
34. About chit which is allegedly recovered from
accused Salim Khan at the time of trap near Shagun Hotel
at Bombay Central, it has been pointed out by the
defence that there is vital discrepancy about the actual
seizure of said chit at the trap. Of course, PW-1 the
complainant as well as PW-2 panch witness have stated
that there was a seizure of one diary and some receipts
of STD bills and chit having mobile number on it. Same
facts also been stated by PW-8 PSI Kulkarni, in his
evidence and on the basis of the said recovery the one
of the panchanama, i.e., after trap panchanama was
prepared Ex.35(A). While recording the evidence of PW-8
the chit which was allegedly seized from the accused
Salim Khan had been marked as Ex.25. This Ex.25 chit
shows the name of accused Salim Khan as well as two
mobile numbers. According to prosecution, this is the
same chit, which was seized from accused Salim Khan at
the time of trap.
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35. However, while perusing after trap panchanama
Ex.35-A, the description of said chit appears to be
totally different on this chit it was mentioned name of
John and two mobile numbers. If one believed the
evidence of PW-1 and PW-2 in respect of trap or at least
in respect of recovery of some chit and diary, more
specifically the chit in dispute Ex.25, then the
description mentioned in the panchanama Ex.35-A is not
tallied with the same. Because Ex.25, which is produced
in the Court is not bears the name 'John' and the chit
which is produced in the court Ex.25 bears the name
'Salim Bhai'. Therefore, while perusing the evidence
particularly the I.O. of the previous case i.e.
Mr.Kulkarni PSI PW-8, he has not given the satisfactory
explanation about the discrepancies of said specific
chit, even PW-1 and PW-2 stick up with their case about
recovery of chit having mentioned name John on it. In
such circumstances and on the basis of total
contradictory fact, it is clearly appears that the Ex
25, which is produced in the Court a chit having the
name of 'Salim bhai' is totally manipulated document
Therefore, this document, i.e., chit which is allegedly
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recovered from the accused Salim is not acceptable and
believable.
36. On the basis of the above said findings in
respect of chit Ex.25, the evidence of PW-9 Dilip
Ahiwale, a handwriting expert, who has stated that he
compared the handwriting of the accused Salim Khan with
the chit Ex.25 and issued report Ex.66 and the reason
and conclusion is at Ex.67, has no use to the
prosecution.
37. Though the I.O.has stated that handwriting
specimen of accused Salim Khan was obtained and the same
was sent to handwriting expert PW-9 Dilip Ahiwale, but
mere establishing the fact of obtaining handwriting of
accused Salim and the handwriting on Ex.25, tallied with
the handwriting of accused Salim is not much important
in view of finding given supra about the manipulation of
the chit by the police on record.
38. Moreover, it is rightly submitted by the defence
advocate that report of the handwriting expert is not
the conclusive piece of evidence, it is only supporting
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or corroborative evidence, if other facts established by
the prosecution. In this respect Mr.Pasboala is relied
on the reported case Fakhruddin V/s. The State of Madhya
Pradesh (1967 Cri.L.J.1197). In it, it was held by the
Hon'ble Apex Court that,
The writing may be proved to be in thehandwriting of a particular individual by theevidence of a person familiar with thehandwriting of that individual or by thetestimony of an Expert competent to thecomparison of handwritings on a scientificbasis. A third method is comparison by theCourt with the writing made in the presenceof the Court or admitted or proved to by thewriting of the person. Both under Sec.45and Sec.47 the evidence is an opinion, inthe former by a scientific comparison and inthe latter on the basis of familiarityresulting from the frequent observationsand experience. In either case theCourt must satisfy itself by such means asare open that the opinion may be acted upon.
Where an expert's opinion is given, theCourt must see for itself and with theassistance of the expert come to its ownconclusion whether it can safely be held thatthe two writings are by the same person.
This is not to say that the Court mustplay the role of an expert but to say thatthe court may accept the fact proved only
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when it has satisfied itself on itsobservation that it is safe to accept theopinion whether of the expert or otherwitness. The Supreme Court in an appealalso is entitle to call for the writings formaking a comparison thereof.
39. Likewise Hon'ble Apex Court also held in
reported case Ram Chandra and another V/s. State of
Uttar Pradesh (1957 Cri.L.J.559). In it, it was held by
the Hon'ble Apex Court that,
It may be that normally it is not safe totreat expert evidence as to handwriting as
sufficient basis for conviction. It maybe, however, relied upon along with othervarious items of external and internalevidence relating to the documentsinquestion.
40. From the above said principle laid down by the
Hon'ble Apex Court, it is clear that the opinion of the
handwriting expert cannot take place of substantive
evidence. Moreover particularly in this case, in view
of the conclusion in the above said para, that chit Ex
25 is clear manipulation, therefore the handwriting
expert's report Ex.66, is not at all considerable in
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this case in order to establish the allegation of the
prosecution that the Ex.25 is the handwriting of accused
Salim.
41. In this particular case the prosecution also
relied on the evidence of PW-1, in respect of submission
of audio cassette which is allegedly the conversation in
between John and complainant was recorded by the
complainant with the help of cassette player.
42. PW-1 complainant has stated that on 12/10/2001
he handed over the three audio cassettes to the police
Same fact has also been stated by PW-8 PSI Kulkarni, who
recorded the statement of complainant. But in respect
of handing over the said three cassettes, interestingly
no panchanama was prepared about the seizure of the same
from the PW-1 by the PW-8. The PW-1 in the evidence has
stated that he does not know whether the said panchanama
was prepared or not. Apart from this on record no such
panchanama putforth by the prosecution.
43. Though it is believed that the complainant
handed over the three cassettes allegedly containing
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conversation between him and John. It is important to
note here that the said cassettes were played down on
6/2/2007, that is just after the gap of six years when
the MCOCA provision was applied to the accused and it is
though stated by PW-1, he was called by the police at
the office of DCB CID and played such a cassette and
conversations were recorded in presence of panchas. In
this respect there is evidence of PW-12 Nigade PI, DCB
CID, he has stated after calling PW-1 the complainant in
the office the said cassettes were played and the
conversations were recorded as per Ex.102.
44. During the trial at the time of evidence of PW-1
complainant, the said cassettes were played in open
court but the cassette number third was not played
properly, that conversation was not properly heard in
the Court. Likewise, in the cassette no.1, there was a
conversation in between complainant and his sister
which is not useful to the case. Apart from this fact
about the said cassettes PW-1 stated that PSI Kulkarni
handed over those cassettes to him, but PSI Kulkarni has
stated that, he handed over the said cassettes to PW-12
but as stated supra no panchanama was prepared for
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seizure. Even in the chargesheet no such conversation
has appeared to be produced by the IO PI Kulkarni in
that case.
45. Apart from this fact, it is appeared that PI
Nigade, PW-12, has exercised in respect of recording
sample voice of accused Salim, vide Ex.101, he also
recorded voice sample of accused Jamil Jabbar Shaikh
and the voice sample of accused Afzal @ Raju, vide
panchanama Ext.39. The said voice samples were sent to
the voice analyzer at Kalina Forensic Science
Laboratory. The voice samples, which were recorded in
the different cassettes examined by voice analyzer and
tallied with the voice/conversation recorded in the
three cassettes produced by complainant to the police
But there is no conclusive opinion given by the voice
analyzer in the report and therefore, the witnesses
though listed by the prosecution, i.e., voice analyzer
has not been examined. Therefore, the alleged recording
of conversation by the complainant with the person who
gave threatening calls is not established by the
prosecution by the cogent evidence. Hence, the evidence
of PW-1, PW-8 and PW-12 to that effect is not much
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helpful to the prosecution.
46. Moreover, one important fact also been pointed
out by the defence in the cross-examination of PW-8
that the voice sample of the complainant was not
recorded either by PW-8 Shri Kulkarni or by PW-12 Shri
Nigade. Therefore, without voice sample of complainant
for the tally or for establishment of conversation in
the audio cassettes the sending of only voice sample of
accused referred above has no value. Therefore
considering all these facts, the evidence of PW-3
Mohd.Ayub, in which presence the voice sample was
recorded by PW-12, has no value.
47. Therefore, considering the evidence of PW-1
which is full of omissions and contradictions about the
filing of complaint and about the trap. Likewise
evidence of PW-2, about pre-trap and particularly after
trap then manipulation of chit Ex.25 having the name of
accused Salim and lacuna in the evidence of about the
identification of voice conversation in the audio
cassettes submitted by the complainant. The prosecution
has failed to establish the fact that there was
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threatening call given by the accused for the extortion
of amount initially Rs.50/- lakhs, then Rs.10/- lakhs
and finally Rs.5/- lakhs.
48. So far as allegation of the prosecution against
the accused about the formation of criminal conspiracy
punishable under Sec.120-B of IPC is concerned, except
the above said evidence, so also except the confession
available on record of accused no.1 Salim, accused no.2
Jamil and No.4 Shahidmiyan, no other evidence putforth
on record to establish such criminal conspiracy. Of
course, I have to consider confessional statement of the
said accused recorded independently by three witnesses
I will consider this evidence later on. But it is
sufficient to mention that the prosecution has failed to
establish the common object of the accused in order to
extort money from the complainant by giving the
threatening calls under the pretext of gang leader
Chhota Shakeel.
49. Now let us consider the evidence of prosecution
about the recording of confessional statement of accused
no.1 Salim, accused no.2 Jamil and accused no.4
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Shahidmiyan. Let us see the confession of said accused
one by one and evidence in support of the same.
50. The prosecution has examined PW-7 Manohar Bhoir
DCP, in order to prove the confessional statement of
accused no.4 Shahidmiyan, he has stated that on
26/12/2006, he received a letter from Jt.C.P., Ex.49, in
order to record the confession of accused no.4
Shahidmiyan. In turn he wrote a letter (Ext.50) to ACP
for production of said accused. On the same day then he
received a letter Ext.51 from ACP about the production
of accused with PSI Dhumal.
51. According to PW-7 Bhoir, PSI Dhumal of MRA Marg
Police Station, produced accused no.4 for recording his
confession at his office. Then according to him, he
recorded part-I Ex.52 of accused Shahidmiyan, then after
putting the formal question on Ex.52 he obtained
signature of accused no.4 and he also put his signature.
52. Then he handed over accused no.4 to PI Kadam of
MRA Marg Police Station, for reflection vide his letter
Ext.53 and directed to produce the accused on
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28/12/2006. Accordingly, PI Kadam produced accused
Shahidmiyan and then after the formal question he
recorded the confessional statement of him, i.e., part-
II, Ex.52-A and then finally put up his certificate
about voluntariness, which is at Ex.52-B and later on
sent the accused and confessional statement to the Chief
Metropolitan Magistrate, vide his letter Ex.54.
53. In respect of his confession and its value and
what procedure has to be followed while recording the
same, it has been vehemently submitted by Mr.Pasbola
advocate for the accused no.1 and Mr.Jagdish Shetty for
accused no.3 to 5 that such evidence particularly PW-7
PW-10 and PW-13 shows that they have not followed the
procedure laid down under Sec.18 of the MCOC Act and
Rule thereunder and also not followed the guidelines
laid down in Kartar Singh V/s State of Punjab ([1994] 3
Supreme Court Cases 569). Therefore, they have
vehemently submitted that the confession recorded above
said witnesses are not at all genuine or voluntary
confession of the accused nos.1, 2 and 4. They have
further submitted that the said confessional statement
has not been corroborated by any of the prosecution
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witness. Therefore, as a rule of prudence certain
corroboration is necessary, particularly on the backdrop
of the evidence of PW-7, PW-10 and PW-13 about the same
on the basis of the said confession no conviction can be
based.
54. The learned defence Counsel also relied on the
following reported cases in respect of acceptance of
confession.
1. State of Rajasthan V/s. Ajit Singh and Others([2008] 1 Supreme Court Cases [Cri] 287).
2. State (NCT of Delhi) V/s. Navjot Sandhu aliasAfsan Guru (2005 Supreme Court Cases [Cri]1715).
3. State of Maharashtra V/s. Siraj Ahmed NisarAhmed & Others ([2007] 2 Supreme Court Cases[Cri] 472).
4. Bharatbhai @ Jimi Premchandbhai V/s. State ofGujarat (2003 ALL MR [Cri] 164 [SC]).
55. Per contra Shri Shah learned SPP has vehemently
submitted that in the evidence of PW-7 PW-10 and PW-13
they have specifically stated that accused nos.1, 2 and
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4 have voluntarily confessed about their guilt and they
have properly recorded the same by following due
procedure laid down under Sec.18 of the MCOC Act and
Rule thereunder. Therefore, he has submitted that mere
certain omission in the procedure will not sufficient to
disbelieve the version of responsible officer. He has
submitted that the confessional statement of prime
accused coupled with the corroborative statement of co-
accused prosecution established the criminal conspiracy
hatched by all the accused for extortion of money from
the complainant. As such, he has submitted that
accused be convicted.
56. In Kartar Singh's case cited supra the Hon'ble
Apex Court has laid down certain guidelines for
recording the confession of the accused. On the basi
of the said guidelines it is clear that while enacting
MCOC Act, 1999 the legislature incorporated all the
guidelines in Sec.18 and the rule thereunder for
recording confession by the Dy.SP.
57. On the basis of the above said guidelines and
specific provision of Sec.18 and Rule under MCOC Act, I
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have to minutely scrutinize the evidence of PW-7, PW-10
and PW-13.
58. Then while testing the evidence of PW-7 Manohar
Bhoir DCP, with provision of Sec.18 and Rule thereunder
for recording confession, the Prosecution though stated
that evidence of DCP PW-7 states that all the procedures
have been followed and this fact also been stated by
PW-7 in his evidence in the Court. But apart from the
formal letters and production of accused before PW-7 by
the police officer and communication of letter in
between them the vital part is principal stage of
recording statement of accused, i.e., part-I and part-II
of the confession.
59. In respect of following the procedure of
recording such confession of accused no.4, while
perusing the cross-examination of PW-7, he has stated
and specifically admitted that he has not stated to the
accused that he is authorized to record the confession
He also mentioned in the part-I Ext.52 that, he would
not be handover the custody to DCB CID, even though
accused refused to give the statement. He also not
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asked the question to the accused about any receiving of
threat, inducement, promised to be specific in para 12
of his cross-examination. He has stated that he has not
mentioned the fact about asking such question in his
part-I and part-II Ex.52 and 52-A.
60. The most important fact is missing in the
confessional statement, i.e., Part-I and part-II that he
has not intimated to the accused that the confession if
any made by him that would be used against him as
evidence. Though he has stated this fact in the oral
evidence, but unfortunately for the prosecution thi
fact did not find place either in part-I and part-II of
the confession. This is the major defect in recording
confession by PW-7, because by not asking such question
to the accused or not intimating the accused about the
same is clear violation of provision Sec.18 and Rule
framed under the MCOC Act.
61. Therefore, there is a doubt that whether such
confession given by the accused Shahidmiyan is voluntary
or not and if the prosecution failed to establish the
confession is voluntary, then such confession can not be
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used as evidence against the accused himself or against
the co-accused.
62. Here one important fact is to be noted after
recording part-I Ex.52, interestingly the custody of
accused no.4 Shahidmiyan was handed over to PSI Kadam
MRA Marg Police Station. Admittedly FIR was registered
with the MRA Marg Police Station, and therefore, if a
custody of accused handed over to such police station
certainly there is possibility of influence and threat
by such police on accused during the reflection period
This basic fact has not been considered by PW-7 while
recording the confession. More important fact is also
pointed out in the cross-examination by the defence that
the PW-7 has not asked any question to the accused that
whether during the reflection period any police officer
contacted him. Therefore, all the fact brought in the
cross-examination of PW-7 clearly indicates that all the
basic procedure has been lacking while recording the
confession of this particular accused Shahidmiyan
Therefore, such confession is not reliable and cannot be
used against the accused and also against the co-
accused.
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63. The one another important fact is pointed out by
the defence that the PW-7 has given certificate in
regard to voluntariness of accused on a separate sheet
and this is one another violation of rule for recording
the confession.
64. Therefore, on the basis of fact narrated above
the evidence of PW-7 is not trustworthy in order to find
that the accused no.4 gave his confessional statement
voluntarily to him and he recorded the same vide Ex.52
and 52-A.
65. Now let us turn towards the confessional
statement of accused no.1 Salim Iqbal Qureshi. In order
to establish the confessional statement recorded of this
accused the prosecution has relied on the evidence of
PW-10 Shri Vishwasrao Salve DCP, he has deposed that he
received Ex.69 direction from Jt.C.P., for recording
confession of this accused. Then he wrote a letter Ex
70 to D.C.P., for production of accused and vide Ex.71
accused no.1 was produced on 25/12/2006.
66. He has further stated that on 27/12/2006 accused
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Salim was produced before him and after putting the
formal question for gathering the voluntariness of the
accused for giving the confessional statement. He
recorded the confession of accused no.1 as per his
narration vide Ext.72-A. On the basis of the said
examination-in-chief the prosecution has submitted this
witness has recorded the confessional statement o
accused Salim, who gave voluntarily confession. But
while perusing the cross-examination of PW-10 he also
replied identically as replied by PW-7 Mr.Manohar Bhoir
DCP.
67. Apart from the procedural lacuna in recording
the confessional statement and which come out in the
cross-examination of PW-10, the one important fact has
been pointed out by the defence in the cross-examination
of PW-10 that on part-I Ex.72, the date is mentioned
below the signature of PW-10 in English dated
27/12/2006, as well as below the signature of accused
Salim dated 27/12/2006. The same signature of PW-10 and
accused Salim alongwith the date 27/12/2006 also
appeared on part-II Ex.72-A. It means from these two
parts, i.e., part-I and part-II, it is pointed out that
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on the very day on 27/12/2006, part-I and part-II were
recorded by PW-10 Shri Salve. From this fact it is
clear that no reflection period was given by the PW-10
to the accused Salim after recording the part-I and
giving such reflection period is mandatory as per Rule 3
Sub Rule 4 of the MCOC Rules 1999. Therefore, such
confession recorded by the PW-10 of accused Salim is not
at all legal confession.
68. Of course PW-10 Shri Salve was called by my
predecessor at the time of deciding bail application of
the accused, that time he produced the document, i.e.
part-I, which is marked during trial Ex.79. In this Ex
79 there is a signature of Shri Salve in Marathi script
and bears date 25/12/2006, contrary to it on Ex.72 and
Ex.72-A, which bear date 27/12/2006 bears a signature of
Shri Salve PW 10 in English. Therefore, it appears that
this was another attempt of police to hide their misdeed
in respect of recording confession of accused no.1 Salim
Qureshi. As such a confession on which police i
heavily relying cannot be acceptable for conviction of
accused and other co-accused whose name mentioned
therein.
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69. Now, turn to the confessional statement of
accused no.2 Jamil. In order to establish the
confessional statement of accused no.2, prosecution has
examined PW-13 Shri Prashant Burde, DIG, initially in
his evidence he has stated that, he received a letter
from Jt.C.P., Crime, Mumbai, on 23/12/2006, for
recording confession of accused Jamil Shaikh, in C.R.no
84/01 of DCB CID Ex.110. He also stated that, he issued
a letter Ex.111 to ACP Kurne, for production of said
accused on 26/12/2006, at about 11.30 a.m. Then PSI
Dhumal, produced the said accused alongwith the letter
Ex.112.
70. He has further stated that after putting formal
question to the accused Jamil Shaikh, he prepared part-I
Ex.113, then later on handed over custody of said
accused for reflection with the letter Ex.114 and
directed the police to reproduce the accused Jamil on
27/12/2006 vide letter Ex.116. Accordingly, he made
entry in station diary vide Ex.117. According to him on
27/12/2006, accused Jamil was produced before him at
about 2.40 p.m. Then after putting necessary question
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and getting information from accused Jamil he recorded
confessional statement of accused Jamil vide Ex.118
Then issued certificate Ex.119 and finally asked the
police vide his letter Ex.120 to produce the said
accused before Chief Metropolitan Magistrate, Bombay
alongwith envelope containing confessional statement.
71. While perusing cross-examination of this witness
PW-13, he also committed the same mistake about checking
voluntariness of the accused for giving the confessional
statement. He has not put up the necessary question and
getting necessary answer from the accused before
recording confession, in order to verify the fact that
the accused giving statement without any threat or under
influence by police or anybody. He specifically
admitted that he did not inform the accused that if he
would not make confession, he would not be sent the
custody of I.O. Even, he has stated that no medical
papers about examination of accused was produced and he
has not made inquiry about the same. Even, it is not
disclosed to the accused that he has empower to record
his confession under the MCOC Act. He also not
disclosed to the accused that the confession if recorded
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would be used against him and also against co-accused as
evidence. Such basic question for declaring the
confession voluntarily has not been putforth by this
witness to the accused, therefore, such confession also
cannot be held as genuine and voluntarily made by the
accused Jamil.
72. Here one important fact also been pointed out by
the defence particularly Shri Pasbola and Shri Shetty
advocate, that all the accused, who allegedly gave
confessional statement as immediately retracted before
the Chief Metropolitan Magistrate, when they produced
before the respective officers. While perusing the
reports of Chief Metropolitan Magistrate, in respect of
all the three accused, i.e., accused no.1, 2 and 4, they
have reported that all the three accused retracted from
their statements allegedly given before PW-7, PW-10 and
PW-13.
73. In short, in view of the such retracted
confessional statements of accused nos.1, 2 and 4 and
also in view of the finding given supra about that such
confession are not voluntarily recorded by DCP and DIG
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Then as a rule of prudence, particularly in this case
certain corroboration is must in order to establish the
guilt against the accused in such serious cases.
74. In respect of confession, while perusing the
observation laid down by Hon'ble Apex Court in reported
case State of State of Rajasthan V/s. Ajit Singh cited
supra it was held that,
The non compliance of Rule with Sec.(5) ofthe Terrorist and Disruptive Activities(Prevention) Rules 1987, such confessioncould not be, therefore, be taken into
consideration for any purpose.
75. The identical observation has been laid down by
the Hon'ble Supreme Court in State of Maharashtra V/s
Siraj Ahmed Nisar Ahmed & Others, case cited supra that,
Under the TADA Act, considerable amount ofconfidence has been reposed on the seniorpolice officials for recording theconfessional statement. A confessionalstatement to police is not admissible underthe general law connected with administrationof criminal justice, which is made admissible
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under the TADA Act, and, therefore, strictcompliance with the procedure prescribedunder Sec.15 of the TADA Act read with Rule15 of the TADA Rules is expected to befollowed. Any confession made in defiance ofthe safeguards provided therein, would not berelied upon by a court.
76. The identical observation also been laid down by
the Hon'ble Apex Court in State (NCT of Delhi) V/s
Navjot Sandhu alias Afsan Guru and Bharatbhai @ Jimi
Premchandbhai V/s. State of Gujarat, cited supra.
77. Like provision laid down in TADA Act, similar
provision is also been incorporated in respect of
recording confession under Sec.18 of the MCOC Act
Precautionary rule have been framed, i.e., Rule-3 sub
rule thereunder in the MCOC Rules 1999. Therefore, the
above said observation of the Hon'ble Apex Court, though
laid down in the TADA cases are clearly applicable in
the cases under the MCOC Act, in respect of confessions
recorded by the police officials.
78. On the backdrop of basic principles laid down by
the Hon'ble Apex Court and precautionary measures for
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recording confession of the accused, so also the
provisions of Sec.18 and Rule-3 of the MCOC Rules and on
the basis of the evidence discussed above, I have no
hesitation to hold that all the confessional statements
of accused nos.1, 2 and 4, are not at all voluntary one
Therefore, no reliance can be placed on these
confessions for conviction of accused, who gave the
confessional statements as well as such confession
cannot be used as a piece of evidence against the co-
accused in this case.
79. Therefore, though the prosecution come with the
case of criminal conspiracy hatched between the above
said accused and wanted accused Chhota Shakil and Anwar
Shaikh, but there is lacuna in the evidence to establish
such conspiracy. Interestingly neither PW-8 Kulkarni
PW-12 Nigade and PW-15 Shri Kurane has stated a single
line in their respective evidence that there was such a
conspiracy in between all the accused to extort money
from complainant or others, such as PW-4 and PW-5.
80. So far as allegation of extortion against the
accused from PW-1 is concerned, I already held supra the
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evidence of PW-1. Other witnesses PW-2 and PW-8 are not
sufficient to establish the guilt of the accused even
the alleged trap has not been proved by the prosecution
on the backdrop of manipulation of chit Ex.25 and non-
compliance of provision in recording of confessional
statement.
81. Of course the prosecution examined PW-11
Rakeshchandra Prajapati, Nodal Officer of BPL Mobile
Communication Ltd., it is sufficient to say in single
line that this witness is not the person who taken out
printout Ex.81, and, therefore, Ex.81 is not properly
proved by the prosecution. Though the document
exhibited during the course of trial the contents is
required to be proved by the prosecution with sufficient
material and connected witnesses and not from any other
witnesses. Therefore, such testimony of PW-11 is not
sufficient to establish the contents of the printout of
Ex.81.
82. Of course, the PW-12, PI Nigade, has stated that
he has arrested accused Salim Fruit, Jamil and Sabir
Shaikh and recovered two mobile handsets from them and
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prepared arrest panchanama Ex.100. But on the backdrop
of above said fact and the conclusion arrived, the
evidence of PW-12 about mere arrest of accused no.1, 2
and 3 is not sufficient.
83. On the basis of the evidence stated supra the
prosecution failed to establish the guilt of the accused
for the offences punishable under Secs.387, 120-B r/w.34
of the Indian Penal Code, therefore, I answer the point
no.1 in the negative.
POINTS NO.2 TO 4
84. In respect of application of MCOC provisions to
these accused advocates Mr.Pasbola, Ms.Shetty and
Mr.Jagdish Shetty have vehemently submitted that the
provision of MCOC Act, not at all applicable to this
case on the backdrop of failure of the prosecution to
establish the offences punishable under section of the
Indian Penal Code.
85. They have also submitted that the sanction
accorded by PW-14 Shri Anami Roy, is mechanical one
There was non application of mind, therefore, the
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evidence of PW-14, likewise evidence of PW-4 and PW-
for establishing the provisions of MCOC Act, are not
believable. In order to support their contention for
non-application of provisions of MCOC Act, they have
relied on the following reported cases:
1. Madan Ramkisan Gangwani V/s. State ofMaharashtra, (2009 ALL MR [Cri] 1447).
2. Prafulla Uddhav Shende V/s. State ofMaharashtra, (2009 ALL MR [Cri] 870).
3. Criminal Appeal no.265 of 2010 in betweenNazeem Ahmed Wahid Ahmed Khan @ Raju V/s.State of Maharashtra decided on23/11/2010 by Hon'ble Bombay High Court.
86. The prosecution in order to prove the sanction
and also the application of mind for giving the
sanction by the PW-14 examined Shri Anami Roy, who has
deposed that after receiving of the report from
investigating officer ACP Kurne, about crime no.84/01
DCB CID, he perused the same and accorded the sanction
for prosecution against the accused under sec.23(2) of
the MCOC Act, vide Ex.125. He has stated that he has
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perused all the papers of investigation for according
sanction under Sec.23(2) of the MCOC Act. But important
fact is admitted by him in the cross-examination that
when he accorded sanction the report of CFSL regarding
Voice Spectrum Analysis was not received. In short
investigation paper was sent by IO Shri Kurne, the main
evidence was not before C.P. PW-14. Because by that
time it was not established about the connection of the
arrest of the accused except accused no.5 and 6, who
were allegedly arrested during the trap.
87. Apart from this fact, though the prior approval
under Sec.23(1) of the MCOC Act, vide Ex.138 was there
and which was proved by PW-15 Shri Kurne, for
application of MCOC provision. But sanction under Sec
23 sub-clause (2) is just necessary and for giving the
same there should be application of mind on the part of
the person who accorded the same. In order to establish
the organized crime syndicate or whether the accused are
the members of the syndicate at least some prima facie
evidence is required for according the sanction by C.P
In this particular case, except the retracted confession
of accused nos.1, 2 and 4 and except two chargesheets
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filed against wanted accused Chhota Shakeel, Ex.129 and
130, no other material were placed before the PW-14
Therefore, it is clear that none of the accused except
accused Chhotal Shakeel were prosecuted previously or
chargesheeted in respect of any of the offence of any of
the police station within Mumbai jurisdiction. Even in
the previous chargesheet in this particular case filed
by Shri Kulkarni, wanted accused Chhota Shakeel was not
shown as accused, therefore, in such circumstances, the
material placed before the PW-14 was not sufficient to
accord the sanction, till then such sanction has been
accorded. Therefore, though it is open to the
prosecution to establish that proper sanction has been
accorded by C.P., under Sec.23 sub-clause (2) of the
MCOC Act, during the trial, but on the basis of evidence
stated supra, I come to the conclusion even the sanction
accorded by PW-14 was a clear non application of mind.
88. For application of provision of MCOC Act, our
Hon'ble High Court has laid down certain guidelines in
Madan Gangwani case cited supra it was held that,
In order to constitute organised crime, thecrimes committed prior to coming into force
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of MCOCA, can only provide a background andcannot in themselves constitute organisedcrime.
It has further held that,
For establishing organised crime the proof
of each ingredients in the definitions laiddown under Sec.2 and 3 of the MCOC Act or thealternative thereof provided by suchdefinitions would have to be proved.
89. In short Hon'ble Parent High Court has laid down
a basic principle that each and every ingredients laid
down under Secs.2 and 3 in the definition of organized
crime and continuation of crime must be established.
90. In this particular case, in order to application
of provisions of MCOC Act, the prosecution has come with
the case that the accused are members of organized crime
syndicate headed by wanted accused Chhota Shakeel, but
none of the evidence produced on record to establish
such a fact except the confessional statement of accused
nos.1, 2 and 4, which I have held are not genuine
document and such statements are not voluntarily made by
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the accused.
91. Therefore, now remains only evidence of PW-4 and
PW-5 for showing alleged continuation of crime by the
organized crime syndicate. PW-4 Shakil Patni, has been
examined by the prosecution, but unfortunately for the
prosecution this witness turned hostile and not
supported the prosecution case saying that he has not
received the threatening calls from the gangster Chhota
Shakeel. The detail cross-examination has been held by
SPP of this witness PW-4, but nothing come out to
support the prosecution.
92. Now remains the evidence of PW-5 Saifuddin
Khargonwala, he has stated that the he gave Rs.10/-
lakhs to the caller, who disclosed his name as John and
also gave Rs.5/- lakhs to the same caller and he
identified accused no.5 Afzal in the court, who
allegedly received the said ransom Rs.10/- lakhs and 5/-
lakhs in the month of October, 2001.
93. Here one fact should be noted that this witness
was called by the DCB CID in the year 2006, it means
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just after the six years of the alleged incident o
handing over of the ransom to the accused no.5. During
the cross-examination he has admitted that accused no.5
was pointed out to him by the investigating officer Shri
Kurane, in the police station. Interestingly, after
2001 till 2006, when his statement recorded he has no
occasion to see accused no.5. Even he has stated he
collected that amount Rs.10/- lakhs from his relative
Tahir Hussein, but again prosecution has not established
the fact about receiving of the said amount by PW-5, and
handed over to accused no.5.
94. Apart from these above facts, the prosecution
has not established the case in which manner they came
to know that PW-5 also received such threatening calls
from the accused particularly accused no.5 and from
John. Therefore, on the backdrop of above said evidence
and lacuna in the prosecution case, I am not inclined to
believe on the evidence of PW-5 who allegedly handed
over the ransom Rs.10/- lakhs and Rs.5/- lakhs twice to
accused no.5 Afzal @ Raju. Therefore, by looking all
angles, the prosecution failed to establish that the
accused are the members of organized crime syndicate
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headed by Chhota Shakeel and their criminal activities
are continued. The prosecution has also not established
that the accused threatened to the complainant by giving
calls again and again for ransom. Therefore, I answer
above points no.2 to 4 are in the negative.
95. To sum up prosecution failed to establish
allegation against the accused punishable under Secs
387, 120-B r/w.34 of the IPC and Sec.3(1)(ii), 3(2)
3(4) of the MCOC Act, 1999. Therefore, all the accused
deserves to be acquitted, with this conclusion, I
proceed to pass the following order:
O R D E R
1. The accused no.1 Salim Iqbal Qureshi @ Salim
Fruit, no.2 Jamil Haji Abdul Jabbar Shaikh, no.3
Mohd. Sabir Suleman Shaikh, no.4 Shahidmiyan
Natthumiyan Qureshi, no.5 Afzal @ Raju Chocolate
Abdul Kadar Supariwala, no.6 Mohd.Salim Alim
Khan and no.7 Mushtaque Abdul Rehman Nawab are
hereby acquitted u/sec.235(1) of Cr.P.C., of the
offences punishable u/secs.120B, 387 r/w 34 of
the Indian Penal Code and u/sec.3(1)(ii), 3(2)
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and 3(4) of Maharashtra Control of Organised
Crime Act 1999.
2. Their bail bonds stand cancelled.
3. Unmarked Muddemal, i.e., two mobile handsets one
make of Nokia Company with battery and another
make of Samsung company be forfeited to the
State Government and it be sold in auction and
sale proceed be credited to the Government of
Maharashtra.
4. Muddemal Art.1 colly., grey colour bag, paper
slips of the size of currency notes, Arts.no.2
3 and 4 Cassettes, Art.5 polythene bag, wrapper
alongwith label, Art.no.6 label with signature
of panchas on cassettes and Unmarked articles
Six cassettes and one small cassette and all
unmarked wrapper and label being worthless be
destroyed after the period of one year under
para 73(d) of Criminal Manual
5. In respect of wanted accused namely, Shaikh
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Shakeel Babu Mohiddin Shaikh @ Chhota Shakeel
and Anwar Mohiddin Shaikh, the investigating
officer is directed to file separate chargesheet
whenever they found.
(S.T.MAHAJAN)Date: 24/1/2011 Special Judge under
MCOC Act
1. Date of dictation :24.01.20112. Date of transcription :08.02.20113. Date of Signing :09.02.20114. Delivered to certified
copy section on :
-// True Copy //-
(S.T.MAHAJAN)Special Judge under
MCOC Act