Pankaj Jagshi Gangar v. State Of Maharashtra .

1. The present Writ Petition seeks the following reliefs:

(a) Strike down Section 23(1)(a) of the MCOCA being absolutely arbitrary, unguided, uncanalized and thus, unconstitutional being violative of the Articles 14, 19 and 21 of the Constitution of India; or to save it from unconstitutionality to read down, expound, delineate the ambit & scope of the words ‘prior approval’ occurring in Section 23(1)(a) of MCOC Act so as to ensure that the same is not rendered an empty formality dependent upon whims, fancies, prejudices and caprices of the concerned officer;

(b) Strike down the provisions of Section 21(4) of MCOC Act and declare the twin conditions imposed for release on bail, as encapsulated therein, to be unconstitutional and violative of Article 14 and 21 of the Constitution of India;

2. Apart from the challenge to the constitutional validity of the aforesaid provisions, the petitioner also prays for quashing and setting aside the approval order dated 10 October 2017 issued under Section 23(1)(a) against the petitioner and to quash and set aside the proceedings invoking the provisions of the Maharashtra Control of Organized Crime Act, 1999 Act (for short ‘MCOCA’) against the petitioner and to set him at liberty on such terms and conditions as the Court may deem fit.

3. In support of the petition, we have heard the learned Senior Counsel Shri Vikram Chaudhary. While assailing the provision of Section 21(4) of the MCOCA, he places reliance on the recent judgment of the Hon'ble Apex Court in case of Nikesh Tarachand Shah v. Union of India (2018) 11 SCC 1. Learned senior counsel makes a categorical submission that Section 21(4) of the MCOCA is in para materia with Section 45 of the Prevention of Money Laundering Act, 2002 (for short “PMLA Act”) and according to the learned counsel, the Hon'ble Apex Court while dealing with the twin limitation contained in Section 45 of the PMLA Act, 2002 was pleased to hold that Section 45 is a drastic provision which turns on its head the presumption of innocence which is fundamental of a person accused of any offence. He would invite our attention to the observations of the Hon'ble Apex Court in paragraph no. 46 and paragraph no. 47 of the said judgment. The Hon'ble Apex Court had also placed reliance on the judgment of Ranjitsing Brahmajeetsing v. State of Maharashtra (2005) 5 SCC 294 a judgment which construed the provisions of MCOCA, 1999. Resultantly, Section 45 of the PMLA Act has been struck down by the said judgment being arbitrary and contravening Article 14 and 21 of the Constitution.

4. Since we have noted that the provision contained in Section 21(4) is in para materia to Section 45 of the Prevention of Money Laundering Act, we deem it appropriate to issue Rule in light of the judgment of the Hon'ble Apex Court in Nikesh Shah (supra). We also issue notice to the learned Advocate General.

5. We have also independently examined the matter on its own merits and specifically the order of approval passed under Section 23(1)(a) of the MCOCA passed by the Addl. Commissioner of Police on 10 October 2017, by which prior approval under Section 23(1)(a) has been conferred. Perusal of the said order discloses that a proposal was submitted along with papers and records of evidence in Kasarvadavli Police Station in C.R. No. I-190 of 2017 under Sections 380, 387, 34, 120B of the IPC for seeking prior approval for invoking the provisions of MCOCA to the said offence. The submission of learned counsel Shri Chaudhary is to the effect that the order is passed by the Addl. Commissioner of Police without any application of mind and though it makes reference to the investigation papers, panchnamas, record of evidence, statement of various witnesses, charts of offences pertaining to previously filed charge-sheets in respect of some of the accused, none of the documents would justify invocation of the provisions of MCOCA against the present petitioner and he makes a categorical submission that the ingredients of the offences under MCOCA is conspicuously absent in all the material relied upon by the said authority, granting approval to invoke the provisions of the drastic enactment. Shri Chaudhary has taken us through the entire chronology of dates and events and also through the material which is placed on record and on the basis of which the approval has been granted. By the impugned order passed under Section 23(1)(a), his categorical submission is that the said material falls short of the ingredients of the offence being made under the MCOCA and he complains about his unnecessary incarceration in the said offence since the date of his arrest i.e. 28 September 2017.

6. The learned APP Mr. K.V. Saste has placed on record the affidavit of the Additional Commissioner of Police, Crime Branch and has sought to justify the order of approval. She also raises an objection that the petitioner has remedy to file discharge application. With the assistance of learned APP, we have examined the record which includes the material relied on by the Additional Commissioner of Police.

7. On 18 September 2017, a First Information Report came to be lodged under Sections 384, 386, 387, 120B and 34 of the Indian Penal Code by the complainant who is in the business of building construction but the applicant is not named in the said FIR which pertains to the charge of extortion. It is the case set out in the said complaint that the complainant is in the business of construction in the name of M/s. Darshan Enterprises and an agreement was entered into for development of land at Kavesar, Thane with its owners i.e. one Gurunath Jagdish Bhosale and the entire consideration was paid. It is then alleged that the original accused nos. 2 and 3 i.e. Israr Jamil Sayyed and Mumtaz Azaz Sheikh @ Raju respectively visited the site office and threatened the complainant that he was associated with Iqbal Kaskar - the original accused no. 1 and brother of underworld don Dawood Ibrahim and that they had purchased the property from original owners and threatened that he would be killed if he did not act as per their dictate and settle the issue. It is further alleged that accused no. 2 made a phone call to accused no. 1 and life threats were given by accused no. 1 with a demand of Rs. 30 lakhs and four flats and out of fear of life, complainant transferred one flat to accused no. 3 and paid extortion money of Rs. 90 lakhs.

8. The petitioner came to be arrested on 28 September 2017 and till that date, no statement was recorded implicating the petitioner. After the approval was granted on 10 October 2017, confessional statement of two accused came to be recorded on 1 November 2017 and 2 November 2017 respectively. We have perused the statement of the witnesses and also the confessional statements. Perusal of statement of three witnesses whose statements are recorded on 22 September 2017 and 23 September 2017 before the arrest of the petitioner do not even mention the name of the petitioner in their statement. As far as statements of witness nos. 4, 5 and 6 are concerned, they are ad verbatim but are hear-say and a reference is made to the present petitioner as the gang leader who, through his associates had threatened the builder Suresh Jain and his partner by visiting a site and compelling him to pay the amount demanded as extortion money. We have also perused the confessional statements of accused nos. 3 and 2 recorded on 1 November 2017 and 2 November 2017 respectively. The said confessional statements have been placed on record along with the petition and in the said statement, reference to the petitioner finds place merely on the basis of hear-say and accused no. 3 states that it is the petitioner who caters to the supply of weapons and bear their expenses of those who are indulged in extortion and this witness states that this is informed to him by Israr i.e. accused no. 2. We have also perused the statement of accused no. 2 whose statement do not make any reference to such information being supplied to the accused no. 3 and he do not attribute any such act to the present petitioner. Another statement which is relied upon by the Assistant Commissioner of Police is statement of Witness no. 10. We have carefully perused the said statement and this witness was working in the office of the petitioner and he states that several persons used to visit his office and used to say that they have been sent by different gang leaders and he takes name of Chhota Shakeel. He further states that the petitioner used to pay huge amounts in cash to the persons who used to visit him. Another statement relied upon is of witness no. 11 who proceeds to state that he used to visit the office of the petitioner and he had introduced him to a third person and at the instructions of the petitioner, he had delivered an amount of Rs. Nine lakhs to the person whom it was directed to be delivered and he was the person introduced to Shri Pankaj Gangar i.e. the petitioner.

9. In the said offence, charge-sheet is filed on 29 November 2017 and the provisions of Section 3(1)(ii), 3(2), 3(4), 3(5) have been invoked and applied against the present petitioner. We have, therefore, scanned the entire material which forms part of the charge-sheet to ascertain the involvement of the present petitioner in the aforesaid acts which would attract the provisions of MCOCA.

10. Perusal of the statement which form part of the charge-sheet and relied upon by the Additional Commissioner of Police for invoking the provisions of the MCOCA do not prima facie disclose that the petitioner was either a member of syndicate or he was acting on behalf of such syndicate and by making use of violence or threat of violence or intimidation or coercion, he had gained any pecuniary benefits or gained any undue economic or other advantage for himself. In absence of such material being available against the petitioner, we are not convinced that the provisions of MCOCA can be invoked against the petitioner. Further, reliance is placed on the Call Detail Records (CDR) of the mobile phone of the petitioner and though certain calls made are international calls, the petitioner has offered an explanation to the effect that the period when these calls are made, is the same period when the son of the petitioner Vansh Gangar had travelled to Europe and he resided there between 18 May 2017 to 7 September 2017. The petitioner has placed on record the visa and passport copies of Vansh Gangar. Thus, the CDR on which reliance has been placed coupled that they were international calls, nothing incriminating is attributed to the petitioner.

11. The overall perusal of the material against the petitioner taken at its face value do not disclose sufficient or tangible material which would prima facie justify the invocation of the provisions of MCOCA against the petitioner as an Organized Crime Syndicate. No material is placed on record to establish him as a member of any crime syndicate. The statements of witnesses and the confessional statements are merely hear-say and cannot be relied upon at this stage in absence of any independent corroboration.

12. In such circumstances, we are prima facie satisfied that the order passed by the Additional Commissioner of Police on 10 October 2017 suffers from non-application of mind as no material brought on record as a part of the charge-sheet justifies the invocation of provisions of MCOCA against the present petitioner.

13. The MCOCA contains a restriction in form of implied application of certain provisions of the Code and by virtue of Section 21(4), no person accused of an offence punishable under this Act, if in custody be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application of such release and where the Public Prosecutor opposed the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

14. We had afforded an opportunity to the learned APP to place before us the material relied upon by the authority while granting approval for invoking the provisions of MCOCA against the present petitioner. By taking into consideration the entire material brought on record, we are satisfied that there is no material on record to prima facie establish the culpability of the accused and his involvement in the commission of an organized crime, either directly or indirectly. The findings recorded by us are merely prima facie and tentative in nature and in any case, it will have no bearing on the merits of the case and trial Court is at liberty to decide the case on the basis of evidence adduced before it at the time of trial without being prejudiced by the aforesaid observations.

15. The learned APP was not able to justify the opposition to the relief sought by Shri Chaudhary on the basis of the material looked into by the authority granting approval.

16. In the backdrop of the aforesaid facts, we deem it appropriate to grant interim relief in terms of prayer clause (e) to the petitioner. We, accordingly, direct that the petitioner be released on bail in Special MCOC No. 24 of 2017 arising out of C.R. No. I-190 of 2017 registered with Kasarvadavli Police Station on executing P.R. bond in the sum of Rs. 1,00,000/- with one or two sureties in the like amount to the satisfaction of the Trial Court.

17. At this stage, learned counsel for the petitioner prays that petitioner be permitted to furnish cash bail in lieu of surety, for the period of four weeks.

18. The petitioner may deposit cash of Rs. One lakh in lieu of surety, temporarily, for a period of four weeks within which period the applicant is expected to furnish solvent surety in the amount of bail.

19. All concerned to act on an authenticated copy of the order.