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2022 DIGILAW 2146 (BOM)

Munib Memon v. State of Maharashtra

2022-09-27

REVATI MOHITE DERE, SHARMILA U.DESHMUKH

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JUDGMENT REVATI MOHITE DERE,J. - By this appeal preferred under Sec. 21(4) of the National Investigation Agency Act, the appellant seeks his enlargement on bail in connection with C.R. No. 9 of 2012 registered with the Anti Terrorism Squad Police Station ('ATS'), Mumbai (Original C.R. No.168 of 2012, registered with the Deccan Police Station, Pune), for the alleged offences punishable under Ss. 307, 435 and 120B of the Indian Penal Code; Ss. 3, 4 and 5 of the Explosive Substances Act; Ss. 3 and 25 of the Arms Act; Ss. 16(1)(b), 18, 20, 23, 38 and 39 of the Unlawful Activities (Prevention) Act of 1967 as amended in 2008; and, under Ss. 3(1)(ii), 3(2) and 3(4) of the Maharashtra Control of Organized Crime Act ('MCOC Act'). 2. Learned Counsel for the appellant seeks bail on merits, on parity, as well as, on the ground of delay in the commencement of the trial i.e. the appellant having undergone pre-trial detention of about 9 years and 9 months. 3. Learned Counsel for the appellant submits that the appellant was working with accused No.3 - Firoz @Hamza Abdul Hameed Sayyed in his tailoring shop and that the appellant had no role to play in the commission of the offence. He submits that even the Sim Card allegedly purchased by the appellant was purchased at the behest of accused No.3 - Firoz @Hamza i.e. the appellant's employer. He submits that even the alleged chit/s found with the appellant containing 2 emails, was/were given by the accused No.3 - Firoz @Hamza to the appellant. He submits that infact, there was no good reason for the appellant to keep the said chit/s containing 2 emails for 3 months, after the arrest of accused No.3 - Firoz @Hamza and that the possibility of the police planting the chit/s could not be ruled out. He submits that even otherwise, nothing turns on the said chit/s, inasmuch as, there is no material brought on record, by the investigating agency to show that the said 2 emails were used or any mail was sent or exchanged between the accused. Learned counsel further submits that admittedly the appellant was not amongst the accused who planted the bombs at Deccan Gymkhana, even according to the prosecution. Learned counsel further submits that admittedly the appellant was not amongst the accused who planted the bombs at Deccan Gymkhana, even according to the prosecution. He further submits that there is no material to show that the appellant had the requisite knowledge, that the accused No.3 - Firoz @Hamza alongwith others had planned/conspired to plant bombs nor is there any material to show that the appellant was a part of the criminal conspiracy hatched by the accused to plant bombs. He submits that the appellant has no antecedents and that except for the present case, there is no case registered as against the appellant. According to Mr. Solkar, learned counsel for the appellant in the Delhi Case, which is registered against some of the accused, the appellant is shown as a witness in the said case. He submits that it is the prosecution case, that the said bomb blasts were planned to avenge the death of one Quatil Siddique, a member of a banned terrorist organization, Indian Mujahideen, who died in the jail custody on 8/6/2012. He submits that if this was the reason for planning the blasts i.e. to avenge the death of Quatil Siddique, who died on 8/6/2012, there was no reason for purchasing Sim Cards on bogus documents between the period January 2012 to August 2012 i.e. much prior to the death of Quatil Siddique. He submits that admittedly the bogus documents have not been prepared by the appellant and that the only allegation as against the appellant is that he purchased a Sim Card, which was at the behest of his employer i.e. accused No.3 - Firoz @Hamza. 4. Mr.Solkar further submits that the appellant is in custody since his arrest i.e. since 26/12/2012, for over 9 years. He submits that charge was framed in the said case on 25/5/2022 and that there is no prospect of the trial commencing in the immediate near future. He submits that even otherwise, the prosecution intends to examine 107 witnesses, which will take some time and as such the appellant be enlarged on bail, having regard to the fact, that the appellant has been incarcerated for over 9 years. 5. Learned Counsel for the appellant in this regard relied on the judgments in Shaheen Welfare Association v/s Union of India and Others; (1996) 2 SCC 616 . 5. Learned Counsel for the appellant in this regard relied on the judgments in Shaheen Welfare Association v/s Union of India and Others; (1996) 2 SCC 616 . Union of India v/s K. A. Najeeb;[Criminal Appeal No.98 of 2021 decided on 1/2/2021.] The National Investigation Agency v/s Areeb Ejaz Majeed;[Criminal Appeal No.389 of 2020 decided on 23/2/2021.] Iqbal Ahmed Kabir Ahmed v/s The State of Maharashtra;[Criminal Appeal No.355 of 2021 decided on 13/8/2021.]. Ashim Alias Asim Kumar Haranath Bhattacharya Alias Asim Harinath Bhattacharya Alias Aseem Kumar Bhattacharya v/s National Investigation Agency; (2022) 1 SCC 695 . Thwaha Fasal v/s Union of India;2022 (1) Bom.C.R. (Cri.) 368. Afroz Firoz Mujawar @ Dastagir v/s The State of Maharashtra;[Criminal Bail Application No.1608 of 2012 decided on 4/12/2012.] Vikram Vinay Bhave S/o. Vinay Bhave v/s State of Maharashtra and Anr.;[Criminal Appeal No.187 of 2020 and Criminal Appeal No. 472 of 2020 decided on 6/5/2021.] Jahir Hak v/s The State of Rajasthan ;[Criminal Appeal No.605 of 2022 (Arising out of SLP (Crl.) No.7003 of 2021 decided on 11/4/2022.]. Sachin Atmaram Vartak v/s State of Maharashtra;2022(1) Bom.C.R.(Cri.) 628. Sanjiv Shankarrao Khade v/s Republic of India (CBI);[ Special Leave to Appeal (Crl.) No.4265/2021 decided on 24/8/2021] Ritu Pal v/s The State of Uttar Pradesh;[ Writ Petition (Criminal) No.535 of 2021 decided on 25/2/2022] Vinod Solanki v/s Union of India and Another, (2008) 16 SCC 537 . and Ramesh Bhavan Rathod v/s Vishanbhai Hirabhai Makwana (Koli) and Another, (2021) 6 SCC 230 . 6. Learned Counsel for the appellant also sought bail on the ground of parity. He relied on the orders dtd. 17/3/2016 and 1/10/2015, by which co-accused viz. Sayed Arif Amil @Kashif Biyabani and Aslam Shabbir Sheikh @Bunty Jagirdar, were enlarged on bail. 7. Learned Special P.P. opposes the appeal. He submits that the appellant was part of the criminal conspiracy as is evident from the confessional statements of co-accused - Irfan Mustafa Landge (original accused No.4), Farooq Shaukat Bagwan (original accused No.6) and Firoz @Hamza Abdul Hameed Sayyed (original accused No.3) and as such had complete knowledge of the blasts. He submits that pursuant to the conspiracy hatched by the accused at the shop of the accused No.3 - Firoz @Hamza, each of the accused was handed over a particular job to perform, to achieve the said object/goal. He submits that pursuant to the conspiracy hatched by the accused at the shop of the accused No.3 - Firoz @Hamza, each of the accused was handed over a particular job to perform, to achieve the said object/goal. He submits that as far as the appellant is concerned, he was assigned with the task of procuring a Sim Card based on bogus documents. He submits that the statement of one of the witness i.e. the shopkeeper will show that the appellant had gone and purchased the Sim Card from the shopkeeper on the basis of bogus/fabricated documents. He submits that the CDR records also show that the appellant was in touch with the co-accused. Learned Special P.P relied on the confessional statements of co-accused - Irfan Landge, Farooq Bagwan and Firoz @Hamza Sayyed to show the complicity of the appellant and other material. 8. Perused the papers with the assistance of the learned counsel for the parties. The case pertains to five bomb blasts that took place in Pune City on 1/8/2012 at around 7:00 p.m. in the areas of Deccan Gymkhana, Bal Gandharv Rang Mandir and other adjoining areas. A live bomb was also recovered from one of the spots. The bombs which were used in the commission of the offences were placed in bicycle baskets. All the bicycles were placed in one of the prominent business and crowded areas in Pune. Pursuant to the said five blasts that took place at various locations in Pune City, an FIR came to be lodged initially with the Deccan Police Station, Pune as against unknown persons. The offences alleged were Ss. 307, 427 and 120B of the Indian Penal Code etc. Thereafter, the investigation came to be transferred to the ATS, Mumbai. Nine persons came to be arrested in connection with the aforesaid offences and some accused are stated to be still absconding. It is the prosecution case, that the said bomb blasts were planned by the accused with the intent of striking terror in the minds of the people and for causing deaths/injuries to persons and/or causing loss or damage or destruction of property. It is the prosecution case, that the said bomb blasts were planned to avenge the death of one Quatil Siddique, a member of a banned terrorist organization, Indian Mujahideen. It is the prosecution case, that the said bomb blasts were planned to avenge the death of one Quatil Siddique, a member of a banned terrorist organization, Indian Mujahideen. We may note here, that Quatil Siddique was arrested in connection with the conspiracy to commit bomb blast at Dagadu Sheth Ganpati Mandir in Pune. In connection with the said case, Quatil Siddique was arrested and was lodged at Yerwada Central Jail, Pune, where he was murdered by two persons, whilst in jail. It is the prosecution case, that to avenge the death of Quatil Siddique, the members of the Indian Mujahideen, a banned terrorist organization, acting as an organized crime syndicate conspired to cause bomb blasts, in Pune City. It is alleged by the prosecution, that initially there was a plan to kill the assailants of Quatil Siddique when they were brought to Court, by firing at them, however, as the said plan could not be executed, it was decided to cause bomb blasts. 9. In order to consider whether the prosecution has prima facie established the connection of the appellant with the alleged offences or not, it would be necessary to consider the material that has come on record qua the appellant. We may note here, that admittedly even according to the prosecution, the appellant was not amongst the accused, who planted the bombs in bicycles on 1/8/2012. The role of the appellant is spelt out by the co-accused - Irfan Mustafa Landge (original accused No.4), Farooq Bagwan (original accused No.6) and Firoz @Hamza Sayyed (original accused No.3) in their confessional statement, recorded under Sec. 18 of the MCOC Act on 9/1/2013. Certain relevant paragraphs of the said confessional statements, are being reproduced hereinuder, which are relevant for consideration of the aforesaid appeal:- Irfan Mustafa Landge (original accused No.4) ". . 10. Certain relevant paragraphs of the said confessional statements, are being reproduced hereinuder, which are relevant for consideration of the aforesaid appeal:- Irfan Mustafa Landge (original accused No.4) ". . 10. A perusal of the aforesaid confessional statements of coaccused recorded under Sec. 18 of the MCOC Act prima facie shows (i) that the appellant was a friend of Quatil Siddique, who was killed in jail custody; (ii) that the appellant was working with Firoz @Hamza (original accused No.3), in his tailoring shop (iii) that the appellant was present in the secret meeting which took place on 8/7/2012 at Firoz @Hamza's (original accused No.3) tailoring shop, when the conspiracy to plant bombs was hatched; (iv) that the appellant alongwith another co-accused i.e. Farooq Bagwan (original accused No.6), who was present in the said meeting had agreed to purchase SIM Cards by using fake documents; (v) that pursuant thereto, the appellant was assigned with the task of procuring bogus Sim Card based on fabricated documents prepared by some of the accused; (vi) that the appellant visited the shop and purchased the Sim Card in the name of Mohsin Shaikh (vii) that the statement of the shopkeeper shows that the appellant had purchased the Sim Card in the name of Mohsin Shaikh (viii) that the said Sim Card was used in the commission of the offence; and (ix) that the appellant was entrusted to keep Farooq's mobile with him, till Farooq's return, post the blasts. 11. Although, the learned counsel for the appellant contended that the appellant was only an employee of accused No.3 - Firoz @Hamza and as such had no knowledge of the commission of the offence i.e. of bomb blasts and that as an employee, he only followed the diktat of accused No.3 - Firoz @Hamza and purchased the Sim Card, is prima facie belied from what is disclosed by co-accused - Irfan Landge, Farooq Bagwan and Firoz @Hamza Sayyed, in their confessional statement recorded under Sec. 18 of the MCOC Act. A perusal of Sec. 2(a) of the MCOC Act prima facie, would cover the act of the appellant. A perusal of Sec. 2(a) of the MCOC Act prima facie, would cover the act of the appellant. Sec. 2(a) of the MCOC Act defines the term 'abet' as under : "(a) "abet", with its grammatical variations and cognate expressions, includes,- (i) the communication or association with any person with the actual knowledge or having reason to believe that such person is engaged in assisting in any manner, an organised crime syndicate; (ii) . . . . . . and (iii) the rendering of any assistance, whether financial or otherwise, to the organised crime syndicate." 12. The confession statements of co-accused - Irfan Mustafa Landge, Farooq Bagwan and Firoz @Hamza Sayyed, prima facie, shows the complicity of the appellant in the crime; that the appellant was present in the meeting of 8/7/2012 ; that he had knowledge of the acts to be committed; that the appellant in pursuance to the conspiracy, had been assigned a task i.e. to purchase Sim Card based on bogus documents; that the appellant purchased the Sim Card from the shop keeper; and that the Sim Card was used in the commission of the offence. 13. As far as the chit/s found with the appellant containing 2 email IDs is concerned, it appears that the same were found 3 months after the accused No.3 - Firoz @Hamza was arrested. It appears that the said chit/s was/were handed over by the accused No.3 - Firoz @Hamza to the appellant. No material with respect to the said email has been collected by the prosecution and as such prima facie, nothing turns on the seizure of the said chit/s from the appellant. 14. As far as CDR records are concerned, it appears that the appellant was in touch with the accused i.e accused Nos.3 and two other accused. It appears from the investigation that during the period 1 st January 2012 to 21/12/2012, the appellant was using the phone numbers standing in the name of his brother, Mushabbar Memon. During the said period, the appellant had called co-accused - Firoz @Hamza around 738 times (total), Irfan Landge 5 times and Farooq Bagwan 45 times. 15. It appears from the investigation that during the period 1 st January 2012 to 21/12/2012, the appellant was using the phone numbers standing in the name of his brother, Mushabbar Memon. During the said period, the appellant had called co-accused - Firoz @Hamza around 738 times (total), Irfan Landge 5 times and Farooq Bagwan 45 times. 15. Considering the confessional statements and what is stated aforesaid, prima facie, it is difficult to come to a conclusion that there are no reasonable grounds for believing that the appellant is not guilty of the offences with which he is charged, as mandated by Sec. 21(4) of the MCOC Act. Similarly, the material on record shows that there are reasonable grounds for believing that the accusation against the appellant are prima facie true, and hence Sec. 43(D)(5) of the Unlawful Activities (Prevention) Act, would also apply. 16. Considering the aforesaid, the appeal seeking bail on merits is rejected. 17. As far as parity is concerned, the ground of parity will not apply, inasmuch as, the grounds on which co-accused - Sayed Arif Amil @Kashif Biyabani and Aslam Shabbir Sheikh @Bunty Jagirdar, were enlarged on bail are completely different from that of the appellant and as such the ground of parity will not apply to the appellant. 18. As far as delay in commencement of the trial is concerned, it appears that charge was framed in the said case on 25/5/2022 and that the prosecution intends to examine about 107 witnesses. In this connection heavy reliance was placed on the judgment of the Apex Court in Shaheen Welfare Association (supra), in which the Apex Court considered the conflicting claims of personal liberty emanating from Article 21 of the Constitution of India and protection of the society from terrorist acts, which the Terrorist and Disruptive Activities (Prevention) Act, 1987, professed to achieve. Whilst reconciling the two, the Apex Court issued directions for release of undertrial prisoners, who had suffered long incarceration, depending upon the gravity of the charges. The observations in paras 9 to 11 and 13 to 14 are material and hence reproduced hereinunder:- "9. The petition thus poses the problem of reconciling conflicting claims of individual liberty versus the right of the community and the nation to safety and protection from terrorism and disruptive activities. The observations in paras 9 to 11 and 13 to 14 are material and hence reproduced hereinunder:- "9. The petition thus poses the problem of reconciling conflicting claims of individual liberty versus the right of the community and the nation to safety and protection from terrorism and disruptive activities. While it is essential that innocent people should be protected from terrorists and disruptionists, it is equally necessary that terrorists and disruptionists are speedily tried and punished. In fact the protection to innocent civilians is dependent on such speedy trial and punishment. The conflict is generated on account of the gross delay in the trial of such persons. This delay may contribute to absence of proper evidence at the trial so that the really guilty may have to be ultimately acquitted. It also causes irreparable damage to innocent persons who may have been wrongly accused of the crime and are ultimately acquitted, but who remain in jail for a long period pending trial because of the stringent provisions regarding bail under TADA. They suffer severe hardship and their families may be ruined. 10. Bearing in mind the nature of the crime and the need to protect the society and the nation, TADA has prescribed in Sec. 20(8) stringent provisions for granting bail. Such stringent provisions can be justified looking to the nature of the crime, as was held in Kartar Singh case, on the presumption that the trial of the accused will take place without undue delay. No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21. 11. These competing claims can be reconciled by taking a pragmatic approach. 13. For the purpose of grant of bail to TADA detenus, we divide the undertrials into three (sic four) classes, namely, (a) hardcore undertrials whose release would prejudice the prosecution case and whose liberty may prove to be a menace to society in general and to the complainant and prosecution witnesses in particular; (b) other undertrials whose overt acts or involvement directly attract Ss. 3 and/or 4 of the TADA Act; (c) undertrials who are roped in, not because of any activity directly attracting Ss. 3 and 4, but by virtue of Ss. 3 and/or 4 of the TADA Act; (c) undertrials who are roped in, not because of any activity directly attracting Ss. 3 and 4, but by virtue of Ss. 120-B or 147, IPC, and; (d) those undertrials who were found possessing incriminating articles in notified areas and are booked under Sec. 5 of TADA. 14. Ordinarily, it is true that the provisions of Ss. 20(8) and 20(9) of TADA would apply to all the aforesaid classes. But while adopting a pragmatic and just approach, no one can dispute the fact that all of them cannot be dealt with by the same yardstick. Different approaches would be justified on the basis of the gravity or the charges. Adopting this approach we are of the opinion that undertrials falling within group (a) cannot receive liberal treatment. Cases of undertrials falling in group (b) would have to be differently dealt with, in that, if they have been in prison for five years or more and their trial is not likely to be completed within the next six months, they can be released on bail unless the court comes to the conclusion that their antecedents are such that releasing them may be harmful to the lives of the complainant, the family members of the complainant, or witnesses. Cases of undertrials falling in groups (c) and (d) can be dealt with leniently and they can be released if they have been in jail for three years and two years respectively. Those falling in group (b), when released on bail, may be released on bail of not less than Rs.50,000.00 with one surety for like amount and those falling in groups (c) and (d) may be released on bail on their executing a bond for Rs.30,000.00 with one surety for like amount, subject to the following terms: (1) The accused shall report to the police station concerned once a week; (2) The accused shall remain within the area of jurisdiction of the Designated Court pending trial and shall not leave the area without the permission of the Designated Court; (3) The accused shall deposit his passport, if any, with the Designated Court. If he does not hold a passport, he shall file an affidavit to that effect before the Designated Court. If he does not hold a passport, he shall file an affidavit to that effect before the Designated Court. The Designated Court may ascertain the correct position from the passport authorities, if it deems it necessary; (4) The Designated Court will be at liberty to cancel the bail if any of these conditions is violated or a case for cancellation of bail is otherwise made out; (5) Before granting bail, a notice shall be given to the public prosecutor and an opportunity shall be given to him to oppose the application for such release. The Designated Court may refuse bail in very special circumstances for reasons to be recorded in writing." 19. Having regard to the gravity of the offence, the role of the appellant, the evidence qua him and the observations made by us as stated aforesaid, we also decline to consider the appellant's plea for bail on the ground of delay in commencement of the trial. However, at the same time, we cannot be oblivious to the right of the appellant to an expeditious trial guaranteed to him under Article 21 of the Constitution of the India. Charges in this case were framed on 25/5/2022. Accordingly, we expedite the trial of the appellant and direct the learned Special Judge, to conclude the trial, as expeditiously as possible, and in any event by December 2023. All parties i.e. prosecution and defence to co-operate with the learned Judge in the expeditious disposal of the trial. 20. Accordingly, the appeal is dismissed and disposed of as such. 21. It is made clear that the observations made herein are prima facie, and the trial Court shall decide the case on its own merits, in accordance with law, uninfluenced by the observations made in this order. 22. All concerned to act on the authenticated copy of this order.