Chhota Rajan Rajan Gang MCOCA Court Judgement

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IN THE COURT OF SPECIAL JUDGE FOR MCOCA AT MUMBAI MCOC SPECIAL CASE NO.25 OF 2005 @ 25-A OF 2005 @ 25-B OF 2005
The State (DCB CID CR.No.86/05 & 87/05) vs. 1. Vikrant Vishal Malhotra @ Ajay Vicky Malhotra @ Vijaykumar Rambadhai Chowdhari Address:A-467, Ground floor, Aroni Apartment, Dum Dum Park, Kolkata-700 055. (At present in Thane Central Jail) ..Complainant
2. Farid Ahmed Tayyeb Tanashah (deceased)-Abated
3. John Albert D'souza Address:341/2728, Motilalnagar,G Goregaon (W), Mumbai.
4. Dharmesh Nitin Shah @ Nannu @ Panditaji Address:Block No.172, Shiv Shakti Apmt. Zunjarrao Nagar, New Shiwan Path, Kalyan(W), Thane.
5. Anil Jaydevlal Barot Bharamabhatt @ Bhau Address:R.No.204, Mandirwali Pole, Vallabh Apartment, Sath Bazar, Nadiyad, Gujrat.
6. Bhaskar Raghu Bhandari @ Basu Address: Bldg.No.139/2556, Gurukul Society, Samatanagar, Kandivali (E), Mumbai.
7. Kashinath Muniram Pashi @ Kashi Pashi @ Kaka Address:Dhiraj Appt.,2nd Floor, R.No.208, Service Road, Dyes Comp.Jogeshwari(E),Mumbai-61.
8. Jitendra Rajbahadur Tiwari @ Amit Address:R.No.4, Gupta Chawl, Behram Baug, Behind Mahatma Gandhi School, Jogeshwai (W), Mumbai.
9. Ravi Mallesh Borra @ Akash @ D.K.Rao Address:Mukund Nagar, 'C'Ward, Room No.197, Near Budda Mandir, Sant Rohidas Marg, Dharavi,Mumbai-17.
10.Shrikant Madhavao Sonavane @ Vishal Address:Atmaram Bhoir Chawl, Shiv Parisar
Chikan Char,Ram Baug Char, Kalyan(W), Dist.Thane. (At present in Mumbai Central Prison)
11.Nitin Trimbak Deshmukh
--
Discharged
12.Firoz Bashir Khan Address:Govindwadi, Galli No.5, Behind Bismilla Madarsa, Reti Bandar Road,Kalyan,Thane.
13.Yusuf Suleman Quadri (At Belgaon Central Prison,Karnataka) ..Accused
Ld.Spl.P.P.Shri J.R.Madon for the State. Ld.Counsel Shri Pasbola with Ld.advocate Shri
Patkar for the accd.No.1. Ld.Counsel Shri Pasbola for the accused Nos.3,7 & 12. Ld.Advocate Shri Shetty for accused Nos.2
(deceased), 4 and 6. Ld.advocate Shri Bhanushali for accused No.5 & 8. Ld.advocate Shri Rasal for accused No.10. Ld.advocate Shri Manerkar for accused No.13.
Coram:H.H.The Addl.Special Judge Shri R.G.Avachat C.R.No.55 Dated:25th June 2010 :ORAL JUDGMENT: The accused persons in the above noted three MCOC Special Cases are charged and prosecuted together as they are alleged to have committed offence of
organized crime in the capacity of the members of organised crime syndicate headed by wanted accusedChhota Rajan. These accused persons are also charged and prosecuted for having of abetted each other crime the for and Indian
committing corresponding
offence offences
organised under
punishable
Penal Code (I.P.C.). In short, the accused persons are prosecuted for having put the businessmen (victims) in fear of death or grievous hurt, in order to committing of extortion. The relevant provisions under which the accused persons have been charged with are sections 3(1)(ii), 3(2), 3 (4) of the Maharashtra Control of Organized Crime Act (for short 'MCOC Act') and under
sections 384,385,386,387 r/w 120B of the Indian Penal Code. Moreover, Vicky Malhotra (A.1) is charged and prosecuted for having held property derived/obtained from commission of an organised crime. Further more, Vicky Malhotra (A.1) is alleged to have forged certain documents and used them for obtaining passport. For the same A.1 is prosecuted for the offences punishable u/sec.466,467,468, 471 & 420 of the Indian Penal Code and u/sec.12(1)(B) of the Passport Act,1967. Whereas accused D.K.Rao (A.9) is charged and prosecuted for causing evidence crime of to the commission with of offence of of
organised
disappear,
intention
screening the offender from legal punishment (Section 201 of the I.P.C.)
2.
The prosecution case is as follows; There exits an organized crime syndicate headed
by
Chhota
Rajan the
(wanted
accused). of
Shri
Dhananjay (DCP),
Kamlakar
was
Dy.Commissioner
Police
Mumbai during the relevant time. He had received a tip-off that members of the organised crime syndicate
would make extensive use of wire and cellphones in their criminal activities. Shri Kamlakar had received an information that the accused Vicky and Farid
(deceased A.2) were to arrive in Delhi on 10th July, 2005. Shri Kamlakar therefore formed a team of some police officers and deputed them to Delhi in search for these accused persons. PW.73-Joshi, PW.74-Ajay and PW.75-Patil were the members of the said team. The police team went to Delhi on 10th July,2005. The team laid trap at hotel Madona. On 11th July,2005 at about 10.00 a.m. the team members noticed accused Vicky
leaving hotel in taxi. The team followed him. The taxi stopped at Panchsheel Marg. The police officers in the team detained him on the spot. Meanwhile, DCP Shri Kamlakar arrived. The police officers brought the
accused Vicky to hotel Madona. The accused came to be interrogated there. Later in the day, PW.73 & 74
brought the accused Vicky to Mumbai by air. On the next day, the deceased Farid-(A.2) came to be detained in Delhi. He too was brought to Mumbai on the same day.
3.
On 11th July,2005, Shri Pawan Chomal (PW.1)
approached Anti Extortion Cell of the Crime Branch. His statement-cum-First Information Report (FIRExh.44) was recorded by Shri Anil Naik, Asstt.Police Inspector (PW.58). It is alleged in the FIR that
accused-Vicky and the deceased-Farid contacted Shri Pawan on his cell and land-line phone. They claimed to be the men of wanted accused Chhota Rajan. They
inquired with him about his construction sites as he was in construction business. The duo claimed to have all the details about financial status of Pawan. The accused Vicky asked Pawan to cough up Rs.50 lacs as extortion money. Pawan claimed to have developed cold feet to approach calls the Police to On report 11th about the he
extortion
he
received.
July,2005
gathered courage to lodge the FIR (Exh.44). As the alleged offence took place within the limits of
Lokmanya Tilak Police Station, Shri Anil Naik (PW.58) went to the said Police Station to et the crime
registered vide C.R.No.195/05.
4.
On
the
same
day
i.e.
11th
July,2005,
Shri
Kamal Jain (PW.12) rushed to Anti Extortion Cell. His statement-cum-First Information Report (Exh.90) came to be recorded there. In his FIR, he has alleged that on 31st May,2005 at 12.00 noon, he received a phone call on the land-line at his office. The caller
claimed to be one Farid Ahmed, man of Vicky Malhotra. The caller claimed to have knowledge that construction of his (PW.12) building was underway and if he wanted to continue with the construction work, he would have to pay to the caller. On 1st June,2005 at 12.30 noon, the PW.12 received a call on his office land-line. The caller claimed to be Vicky, man of Chhota Rajan. He
made demand of Rs.1 crore. The caller gave threat to the life of PW.12 if demand was not met. The caller asked PW.12 to contact on cellphone number
0085290215851. It is further alleged in the FIR that thereafter he started receiving threatening calls of Vicky Malhotra & Farid Ahmed. He received such calls on 15th June, 6th July,2005. During the last call dated 6th July,2005, the caller Vicky gave a time frame of
10 days to meet his demand of Rs.50 lacs.
PW.12
claimed to have been frightened by such call. After having gathered courage, he rushed to the Anti
Extortion Cell to lodge the report. Shri Kalim Shaikh (PW.57), Police Sub-
Inspector attached to Anti Extortion Cell recorded PW. 12's statement-cum-FIR. He then rushed to D.B.Marg
Police Station to get the crime registered as the alleged offence had taken place within the limits of D.B.Marg Police Station. PW.61-Umesh was on duty as the Station House Officer, D.B.Marg Police Station. He filled in FIR format (Exh.90-A) on the basis of FIR brought by PW.57-Kalim. He then returned the original FIR and the copy of FIR format to PW.57 as the
investigation of the said crime was to be taken over by the Anti Extortion Cell in view of the directions of the higher ups.
5.
The aforesaid two crimes initially came to be
taken up for investigation by the Police Officer-Kalim Shaikh (PW.57) attached to anti-extortion cell on the
instructions
of
the
higher
ups.
The
accused-Vicky
therefore came to be placed to the custody of Shri Shaikh. Shri Shaikh in turn arrested the accused
Vicky. He took search of the person of Vicky in the presence of panchas. Two cellphones (Art.13 & 14), paper slip containing the names of businessmen in
Mumbai and their phone numbers came to be taken charge of under the panchnama (Exh.70). Some other articles
were also found on his person. Same also be came to be taken charge of. On the next day i.e. 12th July,2005 the deceased accused-Farid came to be arrested. During search of his person, seven cellphones and other
articles were found. they came to be taken charge of under the panchnama. During the investigation, it was revealed that accused-John D'souza (A.3) would assist the accused-Vikcy in the criminal activities. AccusedJohn also came to be arrested. On search of his
person, a cellphone and other articles came to be taken charge of. Accused Dharmesh Shah (A.4) came to be arrested on of 11th both August,2005. the crimes Meanwhile, came to the be
investigation
transferred
to
PW.73-Joshi,
Police
Sub-Inspector
attached to CIU. Shri D.T.Patil (PW.75) would monitor the investigation.
6.
The cellphones used by accused-Vicky and the
deceased-Farid were under observation. Both of them would contact businessmen on phone to make extortion demands. Both of them were also in contact with their mentor-Chhota Rajan and their associates on phone. The police officers attached to SOS intercepted over 100 telephone conversation calls of by each recording call on the telephonic tape (audio
separate
cassette). The officers would immediately prepare a copy of the recorded call in a separate cassette.
After intercepting the call, they would place original cassette in a wrapper and apply seal thereon. Shri D.T.Patil (PW.75) realised that criminal activities of the accused 1 to 3 were no short of an offence of organised crime under the MCOC Act. In his view the accused 1 to 3 were involved in continuous unlawful activity of the organized crime syndicate.
He
therefore
submitted
proposal for The
(Exh.288)
for
obtaining provision Police
prior of the
approval MCOC Act. the
invoking
stringent of
Jt.Commissioner on 25th
(Crime)
approved
proposal
July,
2005. The Jt.C.P. appointed the Asstt.Commissioner of Police Shri Pargunde (PW.76) as investigating officer. Needless to mention that the offence under the MCOC act has to be investigated by the officer of the rank of Dy.S.P./ACP. PW.76 took charge of 100 sealed audio cassettes conversation containing between the intercepted accused persons telephonic and the
victims of extortion, under the panchnama (Exh.104). After having learnt about the arrest of accused
persons, the businessmen who had received extortion calls came forward to give their statements. Shri
Pargunde recorded the statements of those businessmen. The voice sample of the accused persons and the
victims came to be obtained separately. The accused John D'souza (A.3), Anil Barot (A.5) and the Bhaskar Bhandari (A.6) volunteered to make confessional
statements. The Jt.C.P. therefore appointed the police
officer of the rank of Superintendent of Police to record their confessional statements. Shri Prashant
(PW.60), Shri Bajaj (PW.59) & Shri Rastogi (PW.68) recorded the confessional statements of the accusedJohn, Anil & Bhaskar respectively. Certified copies of the charge-sheets filed against the wanted accused
Chhota Rajan during period of ten years next before the registration of FIR-Exh.44 came to be obtained. Printouts of the phone calls under
observation came to be obtained from the respective cellphone companies. The statements of concerned Nodal Officer working with respective cellphone companies came to be recorded. The wanted accused Chhota Rajan was based in Bangkok. ACP Shri Kamble (PW.72) had been to Bangkok to interrogate him in the year 2000. Shri Kamble identified voice of wanted accused Chhota Rajan in intercepted conversation. Audio cassettes
containing intercepted conversation and the cassettes containing voice samples of the accused persons and victims came to be sent to Central Forensic Science Laboratory (CFSL) Chandigarh for comparison, analysis
and report. the report from CFSL came to be received. Police Officer Shri More was deputed to
Kolkatta for making inquiry as to property of accusedVicky there. Shri More collected the property related papers and other documents from the school in which accused Vicky was. It was found that accused-Vicky was representing himself by 2-3 nicknames. During
investigation, it was found that accused Vicky had obtained passport by making use of forged documents.
7.
On
completion
of
investigation,
PW.76-
Pargunde placed all the papers of investigation before the Commissioner of Police for obtaining sanction for prosecution. The Commissioner of Police Shri A.N.Roy granted sanction (Exh.293) for prosecution of A.1 to 6. The Investigating Officer,Shri Pargunde filed the charge-sheet (MCOC Spl.Case No.25/05) in the Special Court for trial of offence under the MCOC Act.
8.
Shri
Pargunde
continued
to
make
further
investigation. The involvement of the accused 7 to 10
surfaced. They came to be arrested. During search of their person, cellphones came to be taken charge of. Their voice samples came to be obtained. A.9-D.K.Rao had been undergoing life sentence. He was in
continuous contact with the co-accused and the mentor on cellphone. On his arrest, he gave a disclosure statement pursuant to which screen of the cellphone made use of by him came to be recovered. To cause disappearance of evidence of having made use of the cellphone, D.K.Rao smashed the cellphone, the dumbbell used for smashing the same came to be taken
charge of. Pursuant to the disclosure statement given by accused-Kashipashi (A.7), Rs.3 lacs came to be
taken charge of from his office. The said amount was said to be extortion money received from the victims.
9.
On
completion
of
further
investigation,
Investigating officer Shri Pargunde placed the papers of investigation for the before the Jt.C.P. The CP for obtaining A.N.Roy
sanction
prosecution.
Shri
granted sanction for prosecution (Exh.299) of accused
7 to 10. These accused persons came to be proceeded against by filing charge-sheet (MCOC Spl.Case No.25-A of 2005).
10.
Further investigation continued. Involvement
of three more accused persons (A.11 to A.13) came to light. They came to be arrested. These three were also found in contact with the accused 1 to 10 on
cellphone. Their voice samples came to be obtained. It was found that accused-Yusuf (A.13) had made extortion calls to Shri Suvarna (PW.7). On completion of the further accused investigation, 11 to 13 sanction to be for prosecution and of
came
obtained
then
proceeded against by filing charge-sheet.
11.
Accused
Nitin
Deshmukh
(A.11)
came
to
be
discharged from the case. The deceased accused-Farid died after the the hearing of the case is over. The case against deceased-Farid therefore came to be
abated.
12.
The Charge (Exh.25 & 55) came to be framed.
The accused persons pleaded not guilty. Their defence is of false implication.
13. examined
To 79
establish witnesses
the and
charge, put in
the
prosecution over 150
little
documents. The prosecution proposes to establish the charge based on by the the evidence of the victims and
corroborated
intercepted
conversation
confessional statements of the A.3,A.5 & A.6.
14.
To
avoid
repetition,
the
names
of
the
witnesses examined on behalf of the prosecution are not reproduced.
15. the
Shri J.R.Madon, Ld.Spl.P.P. took me through charge and the evidence of the prosecution
witnesses. On the question of application of the MCOC Act, Ld.Spl.P.P. would submit that filing of previous charge-sheets and taking congnizance thereof against one and the all accused is not condition precedent. In
his view, filing of the previous charge-sheet against the organised crime syndicate would suffice. In
support of his submission, Ld.Spl.P.P. has referred to and relied upon the Judgment of the Division Bench of our Hon'ble High Court in case of State of Maharashtra reported in Govind Ubhe 2009 of ALL vs. MR
(Criminal)1903. Ld.Spl.P.P. organised crime would submit by the that it was of an the
committed
members
organised crime syndicate. The builders and diamond merchants have been targeted. The indicate intercepted that the
conversation
would
undoubtedly
accused persons, who have committed no overtact in giving threats to the prosecution witnesses, squarely come in the dragnet of the offence of conspiracy, abetment and being the members of the organised crime syndicate. In view of the Ld.Spl.P.P., the charge
against the accused persons has been proved by the evidence of the victims themselves. The evidence of the victims has been corroborated by the FIR (Exh.44 & 90) coupled with the intercepted conversation and the
confessional statements of the accused A-3, A.5 & A.6.
16. the
I have heard Ld.Advocate Shri Pasbola, for accused Nos.3,7 & 12. He has submitted a
memorandum (Exh.350) of the arguments. On the question of application of MCOC Act, Ld.Advocate would submit that prior approval (Exh.298) and the sanction for prosecution granted by the respective authorities are non-est. These documents suffer from non-application of mind. These authorities have not been examined. In view of the Ld.Advocate, the previous charge-sheets relied upon for invoking MCOC Act are irrelevant and short to make out the offence of the organised crime. Turning to the evidence on record as regards the
offence under the Indian Penal Code, Ld.Advocate would submit that none of the victims claimed to have paid extortion money. The alleged victims did not approach to the police on their own. On the arrest of the accused persons, the alleged victims were invited to the crime branch. The FIR and the statements of the alleged victims have been influenced by the officers
of the crime branch. The statements are belated one. Ld.Advocate has dealt with the evidence of the alleged victims thread-bare in his memorandum of arguments. On the question of interception of the telephone calls allegedly made by the accd.1, Ld.Advocate would submit that the so-called interception has been unauthorised one. The same is therefore no admissible in evidence. In support of his claim, Ld.Advocate has relied upon Hon'ble Supreme Courts Judgment in case of PUCL vs.
Union of India reported in AIR 1997,S.C.,568. In his view, the directions of the Hon'ble Supreme Court have not been followed. The audio cassettes containing
alleged intercepted conversation have been tampered with. There is no evidence to indicate that copies of cassettes made containing intercepted the conversation of were the
immediately
after
interception
respective call. Panchnamas (Exh.104 & 189) are silent to indicate the same. On the question of the evidence of voice analysis report, Ld.Advocate would submit
that the expert has given his report sans grounds of his opinion. The report has therefore little
evidenciary
value.
Turning
to
the
evidence
in
the
nature of printouts of the phone calls relied upon, Ld.Advocate would submit that the printouts have not been duly proved. The witnesses examined in proof of those printouts did not have personal knowledge in relation thereto. Certificate as is required u/sec.65B of the Evidence Act has not been appended to the
printouts. In view of the Ld.Advocate, in the totality of the circumstances the accused persons deserve to be acquitted giving benefit of doubt. The rest of the submissions made and the case law relied upon would be adverted to at an appropriate stage.
17.
Ld.Advocate
Shri
Shetty
for
accused
Nos.2
(deceased), 4 and 6 made submissions on the lines of the submission made by the Ld.Advocate Shri Pasbola. I have also heard Ld.advocate Shri Bhanushali for
accused No.5 & 8, Ld.advocate Shri Mulye for accd.No. 9, Ld.advocate Shri Shri Rasal for for accused accused No.10 No.13. and The
Ld.advocate
Manerkar
submissions made by the Ld.advocates are on the mind of this Court.
18.
Following points arise for my determination. Points Findings
(1)
Does the prosecution prove that
accused No.1, 3 to 10 and 12 & 13 formed an organised crime syndicate and thereby committed an offence of being members of organised crime syndicate punishable u/sec.3(4) of the MCOC Act? No
(2)
Does the prosecution further prove
that accused No.1,3 to 10 and 12 & 13 have committed an organised crime and thereby guilty of offence punishable u/sec.3(1)(ii) of the MCOC Act? No
(3)
that accused No.1,3 to 10 and 12 & 13 conspired, abetted each other & attempted to commit offence of organised crime and thereby guilty of offence punishable
u/sec.3(2) of the MCOC Act?
No
(4)
Does the prosecution prove that the
accused-Vicky held property derived/ obtained from the commission of organised crime and is thereby guilty of an offence punishable u/sec.3(5) of the MCOC Act? No
(5)
that accused No.1,3 to 10 and 12 & 13 conspired to commit offence of extortion and to give threats to one's life, causing grievous hurt or any other injury in order to the committing of extortion and thereby guilty of offences punishable u/sec.387,385 r/w 120B of the Indian Penal Code? The offence is proved against A.1,A.3 to A.6 & A.8.
(6)
that accused-Vicky pursuant to the conspiracy hatched with the co-accused, put the prosecution witnesses (PW.1 to 5, PW.12,14,25 & PW.37) in fear of death or grievous hurt or fear of any injury
in order to the committing extortion and thereby guilty of offences punishable u/sec.387,385 of the Indian Penal Code and the co-accused 3 to 10, 12 & 13 are guilty of the offence punishable u/sec.387,385 r/w 120B of the Indian Penal Code?
It is proved that A.1 has committed offence punishable u/sec.385 against PW.1 & PW.37. It is also proved that he has committed offence punishable u/s.387 against PW.2 & PW.12.
(7) Does the prosecution further prove that the accused No.4-Dharmesh Shah, accd.No.7-Kashinath @ Kashi Pasi pursuant to the criminal conspiracy hatched with rest of the co-accused put the prosecution witnesses (PW.25 & 40 respectively) in fear of death or grievous hurt or any injury in order to the committing of extortion and hereby guilty of offence punishable u/s.387 or 385 of the Indian Penal Code? No
(8) Does the prosecution further prove that the accused-Ravi Bora @ D.K.Rao destroyed cellphone used for committing
of the offence of extortion and thereby caused the evidence of commission of that offence to disappear with an intention of screening the offender from legal punishment and thereby guilty of offence punishable u/sec.201 of the Indian Penal Code? No
(9)Does the prosecution further prove that the accused-Vicky forged the documents to wit school transfer certificate, character certificate with an intention to cheat the passport authorities to obtain the passport and thereby guilty of offence punishable u/sec.420,466,467,468,471 of the I.P.C. and u/sec.12(1)(B) of the Passport Act? No
(10)What offence, if any, is committed by the accused?

A.1-Vicky is independently found guilty of the offence punishable u/sec. 385 & 387 of the I.P.C. A.1-Vicky,A.3-John, A.4-Dharmesh, A.5-Anil, A.6-Bhaskar & A.8Jitendra are found guilty of the offences punishable u/sec.387 r/w 120B of the I.P.C.
(11) What Order?
As per final Order;
:REASONS: Point Nos.1 to 4: 19. All these points are taken up together as
they are interconnected. Before going for assessing the evidence on record, it would be apposite to first refer to requirements of law so as to constitute
offences under MCOC Act. It needs no mention that even if offence under MCOC Act is not made out by the evidence on record, the accused still may be found guilty of offence punishable under the Indian Penal Code and can be convicted therefor by the Special Court.
Let
us
therefore
first
have
look
at
the
relevant provisions of the MCOC Act; 2(d) coninuing unlawful activity means
an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, under-taken either singly or jointly, as a member of an
organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence.
2(e)
organised crime means--
any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency.
2(f) organised crime syndicate means--
a group of two or more persons who acting either singly or collectively as a syndicate or gang indulge in activities of organised crime
For charging the person of organised crime or being a member of organised crime syndicate, it would be necessary to prove that the persons concerned have indulged in: (i) an activity, (ii)which is prohibited by law, (iii)which is a cognizable offence punishable with imprisonment for three years or more, (iv) undertaken either singly or jointly, (v) as a member of organized crime syndicate i.e. acting as a syndicate or a gang or an behalf of such syndicate. (vi)(a) in respect of similar activities (in the past) more than one charge-sheets have been filed in competent court within
the preceding period of ten years, (b) and the court has taken cognizance of such offence (vii) the activity is undertaken by; (a) violence, or (b) threat of violence, or intimidation or (c) coercion or (d) other unlawful means. (viii)(a) with the object of gaining pecuniary benefits or gaining undue economic other advantage for himself or any other (b) with the object of promoting insurgency. Mere proof of filing charge-sheets in the past is not enough. It is only one of the requisites for constituting offence of organised crime. or
person, or
(Prafulla s/o.Uddhav Shende
vs. State of
Maharashtra, 2009 ALL MR (Cri)870) 8. The above definitions reveal that in order to accuse a person or the persons to have
committed an offence of organised crime, he or they must be shown to have been involved firstly in any continuing unlawful activity; secondly, being a member of or acting on behalf of organised crime
syndicate; thirdly, by way of unlawful means, including use of violence or threat of violence or intimidation or coercion and, fourthly, with the
object of gaining benefit either pecuniary or undue economic or other advantage for himself or other
person, and fifthly, promoting insurgency. As far as continuing unlawful activity is concerned, it has
to be an activity prohibited and punishable by law in force with imprisonment of three years or more and of cognizable nature as well as it should be as a member of or on behalf of the organised crime syndicate and further that at least two charge-sheets must have
been filed in respect of such offences within the period of preceding ten years and the Court should have taken cognizance of such offences. A group of two or more persons indulging in the activities of organised crime either singly or collectively is
called as an organised crime syndicate in terms of section 2(f) as seen above. 9. The analysis of the definition of the organised crime, therefore, would reveal that continuing unlawful activity is one of its ingredients whereas in order to make an activity to be continuing unlawful one, it should disclose filing of minimum two charge-sheets in relation to the activity prohibited by law in force and of the nature specified in section 2(d) during the period of preceding ten years. In other words, lodging of two charge-sheets in relation to the acts which are already declared under the law then in force as
offences of the nature specified under section 2(d) during the preceding period of ten years is one of the requisites the vs. said for Act. the offence of organised crime &
under Others
(Jaisingh
Asharfilal
Yadav
State of Maharashtra & Anr., 2003,Bom.
C.R.(Cri.)1606).
20.
In case of Vinayak Valchand Shinde
vs. State
of Maharashtra, (Criminal Writ Petition No.523/2002 decided on 14.2.2003) his Lordship of the Hon'ble
Bombay High Court, Aurangabad Bench
was pleased to
observe that three definitions (2(d), 2(e) & 2(f) are intertwined in a cyclic order. Isolated incident would not be a continuing unlawful activity. Section 2(d) requires to take into consideration period of
preceding ten years, during which there ought to have been filed more than one charge-sheets before the
competent Court and which must take cognizance of such offence/s. four crime Against were petitioner No.2-Rajendra him. Shinde, first
registered
against
The
three offences were regarding violence against persons and those were the offences affecting the human body as contained in Chapter XVI of the Indian Penal Code. The penal provisions recorded in the said offences registered against Rajendra, therefore, prima facie do not appear to attract clause with the objective of
gaining pecuniary benefits or getting undue economic or other advantage . The offence petitioner No.2 do not seem to registered against be the offence
attracting
element
of
objective
as
contemplated
by
section 2(d) and, therefore, section 3 of the MCOC Act does not seem to be attracted.
21.
To
determine
whether
the
offence
is
of
organised crime, one has to ascertain whether it is the continuing unlawful activity within the meaning of Section 2(d) of the MCOC Act. Read together both the
definitions (2(d)&(e) it would undoubtedly indicate that the present offence for being an organised crime ought to have been continuing unlawful activity of the concerned accused who is charged therewith.
22.
It is reiterated that both the definitions
given in Section 2(d) & 2(e) are required to be read together question for is ascertaining an organised whether crime. the If so offence in
construed,
thread of nature of offence covered by more than one charge-sheet filed within the period of ten years next before the offence in question is required to be taken to connect the offence in question.
23.
Same
are
the
requirements
for
establishing
the charge of the offence of being member of organised crime syndicate as the definition itself would suggest that for being a member of organised crime syndicate, it has to be proved that the person alleged to be the member has involved in organised crime.
24.
Shri Madon, Ld.Spl.P.P. has referred to and
relied upon the Judgment of the Division Bench of our Hon'ble High Court in case of Govind Ubhe vs. State
of Maharashtra reported in 2009 of MR (Criminal)1903 to submit the Section 2(1)(d) refers to registration of more than one charge-sheet against the organised crime syndicate and not against the individual member of the organised crime syndicate. In his view, law laid down in this later judgment submit the would the in prevail. Hon'ble Govind
Ld.Spl.P.P. Division
would
further
that
Bench
while
deciding
issue
Ubhe's case (supra) has considered the observations of the Hon'ble Supreme vs. Court in case of State of
Maharashtra
Lalit Nagpal, 2007, Cri.L.J.,1678.
25.
Let us turn to assess the evidence relied
upon by the prosecution to make out the charge under the MCOC Act. Exh.288 is the proposal moved by the P.I. Shri D.T.Patil (PW.75) for invoking the
provisions of the MCOC Act. The proposal contained the catalogue of previous (A.1), charge-sheets Accused-Farid filed (A.2) against and the
accused-Vicky
wanted accused-Chhota Rajan. Para 30 of the proposal speak about the two previous charge-sheets filed
against accused-Vicky and Chhota Rajan. It however, needs to be mentioned that proposal-Exh.288 cannot be read in evidence for want of supportive evidence in the nature of certified copies of the previous chargesheets filed against the accused persons. More so, when it has been amply proved that the charge-sheets of the criminal cases referred to in Para 17 as one to have been filed against accused-Farid contained most of the charge-sheets pertaining to brother of accusedFarid. On the basis of the said proposal, the prior approval (Exh.289) for invoking MCOC Act have been
granted
by
the He
Jt.Commissioner has not been
of
Police,Shri The order
Raghuvanshi.
examined.
granting prior approval do not specifically refer to any of the previous charge-sheets filed against any of the accused persons in the case much less against wanted accused-Chhota Rajan. It has only been noted in the order granting prior approval that more than one charge-sheets have been filed against the members of the organised crime syndicate headed by Chhota Rajan during the last 10 years and the respective courts have taken cognizance of the said cases. Two cases referred to in Para 30 of the proposal (Exh.288) areC.R.No.118/09 (MCOC Spl.Case No.3/2002) registered
with Bandra Police Station and C.R.No.237/98 (Sessions Case No.883/98) of Oshiwara Police Station. Exh.300 is the certified Same copy of the charge-sheet none of in the C.R.No. accused
237/98.
indicates
that
persons including the wanted accused in this case were arrested or prosecuted in connection with C.R.No.
237/98. So far as regards C.R.No.118/09 is concerned, it is evident from Exh.199 that the accused Vicky was
subsequently shown arrested in the said case and has been discharged u/sec.169 of Cr.P.C. As such, both the C.Rs. noted in para 30 of the proposal do not suggest the present offence to be continuing unlawful activity of the organised crime syndicate headed by Chhota
Rajan.
26.
Let us see whether the defect in granting
prior approval under MCOC Act gets cured on account of collection of further evidence later on. Exh.293,
295,322 are the sanctions granted by the Addl.Director General of Police-cum-Commissioner of Police, Mumbai for prosecution of the accused Nos.1 to 6, 7 to 10 & 11 to 13 respectively. Sanctions have been proved by the evidence of the I.O.Shri Pargunde (PW.76). He has identified Commissioner of Police Shri A.N.Roy's
signature appearing thereon. It needs no mention that the sanctioning authority need not be examined as a witness. The of perusal mind by of the sanction authority would suggest the
application
granting
sanction. It is in the evidence of I.O.Shri Pargunde
that he had placed all the papers of investigation before the C.P. The for proposal obtaining put up sanction for for
prosecution.
obtaining
sanction is at Exh.310. The sanction orders-Exh.293, 295 & 322 do not refer to the previous charge sheets, which have been relied upon. The previous charge-
sheets referred to in para 30 of the proposal (Exh. 288) have not been referred and relied upon for
obtaining sanction for the prosecution. Exh.294 are the certified copies of the two previous charge-sheets relied upon by the prosecution in this case to prove the offence in question to be an organised crime. The first charge-sheet pertains to FIR No.134/04 (V.P.Road Police Station), C.R.No.258/04. The papers of the
charge-sheet
undoubtedly indicate
that none
of the
accused persons in the present case were ever cited or proceeded against in connection with F.I.R.No.134/04. The second document forming part of Exh.294 is not a charge-sheet but the charge in MCOC Special Case No. 13/01. Said document also indicates that none of the accused persons in this case has been charged and
prosecuted
in
MCOC
Spl.Case
No.13/01.
The
third
document forming part of Exh.294 is the charge-sheet in FIR No.118/09 of Bandra Police Station. It is
reiterated that none of the accused persons in this case had ever been charged and proceeded against in connection with C.R.No.118/09. It is true that accused-Chhota Rajan has been cited in all the aforesaid three cases (Exh.294) as wanted accused. The papers specifically indicate that Chhota Rajan has not been charge-sheeted. His
involvement in those offences has been suspected. It is true that the Court takes cognizance of the offence and not of the offender. There is, however, no
material in the nature of evidence before this Court to indicate that the offences covered by the chargesheets (Exh.294) were infact alleged to have been
committed by associates of Chhota Rajan and he (Chhota Rajan) was involved in those offences. It appears that the investigating officer could have collected the
material in the nature of previous charge-sheets filed against the main accused in this case to prove the
offence in question to be an organised crime.
27.
In case of Govind Ubhe (supra), it has been
held/observed ... What is contemplated under section 2(1)(d) of the MCOCA is that activities prohibited by law for the time being in force which are punishable as described therein have been undertaken either singly or jointly as a member of organized crime syndicate and in respect of which more than one charge-sheets have been filed. Stress is on the unlawful activities committed by the organized crime syndicate. Requirement of one or more chargesheet is qua the unlawful activities of the organized crime syndicate and not qua individual member thereof.
28.
The
observation
in
Govind
Ubhe's
case
are
distinguishable on facts. The definition of organised crime syndicate given in Section 2(f) suggests that it
is a group of two or more persons, who, acting either singly or collectively either syndicate or gang
indulged in activities of organised crime.
There is
no evidence to indicate that the accused-Vicky or any of the accused persons before this Court had ever been charge sheeted twice during the preceding ten years in respect of any cognizable offence punishable with
imprisonment of three years as a members of organised crime syndicate headed by Chhota Rajan. It is
reiterated that the charge-sheets relied upon by the prosecution undoubtedly suggest that the accused-
Chhota Rajan is a suspect and wanted in those cases. His name is shown in the charge-sheet in the column as the accused not sent up for trial. It would be
anybody's guess whether he would be charge-sheeted or dealt with in terms of section 169 of the Cr.P.C. The aforesaid charge-sheets relied upon therefore cannot be said to have been filed against him in his
individual capacity. It would not be out of place to mention here that none of the prosecution witnesses examined in this case has testified on oath to have
ever received any extortion call from the accusedChhota Rajan. It is true that the intercepted
telephonic conversation undoubtedly indicate that some of the accused persons in this case were in continuous contact with Chhota Rajan on phone. The nature of intercepted talk between them do not indicate that the offences in question were committed at the behest of Chhota Rajan. It is not that Court is oblivious of the fact that the accused-Chhota Rajan is at the top of list of the wanted accused by Mumbai Police. It is also known fact that number of crimes have been
registered against him in India. But when the matter has come to the Court, there has to be evidence to indicate the involvement of the wanted accused in this case and in the previous cases of which the chargesheets have been relied upon in proof of the present offence to be an organised crime. In short, for want of cogent evidence, it cannot be said that the offence in question is an organised crime committed by the
accused
persons
as
members
of
organised
crime
syndicate of Chhota Rajan or on behalf of their own syndicate.
29. an
As the offence in question is found to be not organised crime, there is no question of the
accused persons to be the members of the organised crime syndicate and committing offence of conspiracy to commit the organised crime or aiding and abetting the commission of organised crime. So far as regards, charge u/sec.3(5) of the MCOC Act, there by is no evidence to indicate been the
property
held
accused-Vicky
has
acquired
through the organised crime syndicate fund. Needless to mention none claim of the to have victims of paid any the offence to of the
extortion
farthing
accused-Vicky or to anybody else at his behest as extortion money. As such, the charge for the offences punishable u/sec.3 of the MCOC Act fails.
Point Nos.5 to 9: 30. The charge is sought to be brought home on
the basis of the following facts/evidence; (1) Oral evidence of the victims. (2) Seizure of cellphones from the person of the accused and the seizure of paper slip (Exh.70) containing the names of the victims with their phone numbers from accd.1-Vicky. (3) Interception of extortion calls made by accd.1-Vicky. (4) Printouts of the telephone calls. (5) Voice Analysis Report. (6) Confessional statements of the accd.3, accd.5 & accd.6.
31.
The evidence of the victims first
PW.1-Pawan
claims to have been in construction business. It is in his evidence that he would make use of cellphone
bearing number 9821122825 during the relevant days. It is further in his evidence that on 5th July,2005, at 4.30 p.m., he received a phone call. The caller gave
him one phone number and asked him to contact on the given number. It is further in his evidence that on 7th July,2005 by 6.15 p.m., he received a call on his cellphone. The phone number of the caller did not flash on the screen of his cellphone. Matter 'private calling' appeared on the screen. The caller gave his name-Vicky Malhotra. The caller inquired with him
about 2-3 sites at which construction work of his company was in progress. The caller inquired with him (PW.1) as to why he did not contact on the phone number given to him earlier i.e. on 5th July,2005. The caller also talked with him relating to PW.1's plot at Panvel. It is further in the evidence of PW.1 that the caller Vicky made demand of money. PW.1 claimed to have informed the caller to be unable to meet his demand. The caller therefore asked him to think over as he would again call him after two days. PW.1's evidence further indicate that on 9th July,2005, he received call on his cellphone. The caller claimed to be Vicky Malhotra. The caller gave details as to his knowledge about financial status of PW.1. PW.1 claimed
to have informed the caller that his information was untrue. The caller therefore told him that he would contact him again after 2 days.
32. because
It is further in the evidence of PW.1 that of such calls, he got frightened. He
approached to the Anti Extortion Cell of Mumbai Police on 11th July,2005. He claimed to have lodged complaint there. PW.1 has referred to his statement-cum-first information report. Based on his evidence, the FIR has been admitted in the evidence vide Exh.44.
33. after
It is further in the evidence of PW.1 that some days, he had again been to the Crime
Branch. At the Crime Branch, his voice sample came to be obtained under the Panchnama (Exh.45). He has
referred to the panchnama. The audio cassette (art.1) containing PW.1's voice sample was played in the open Court. Three more audio cassette (Art.2,3 & 4) were also played in the open Court. PW.1 has identified his voice from amongst the two speakers in the
conversation recorded in these cassettes.
34.
PW.1 was subjected to a searching cross-
examination. In response to the questions put to him during the cross-examination, it has emerged that he had not recorded any call received by him. He did not hand over to the police any document concerning the cellphone he was making use of. The police did not take charge of his cellphone or sim-card while he had been to the Crime Branch to lodge the report or any time thereafter. PW.1 has, however, denied to have been to the Crime Branch on 11th July,2005 in response to a police call.
35.
PW.58-Anil
Naik
was
attached
to
Anti
Extortion Call as the Asstt.Police Inspector during the relevant days. It is in his evidence that on 11 th July,2005, PW.1-Pawan had been to the Anti Extortion Cell complaining about having received extortion calls from A.1 and A.2 (deceased). PW.58 claim to have
recorded statement-cum-First Information Report (Exh.
44) given by the PW.1. He has identified his signature appearing thereon. It is further in his evidence that as the offence took place within the limits of
L.T.Marg Police Station, he rushed to the said police station to get the crime registered. His evidence
further indicate that PW.1 had not been taken along to the L.T.Marg Police Station. Inspite of searching cross-examination, PW.58 stood the ground. There is nothing to suggest that the FIR (Exh.44) is his brainchild. PW.62-Kantilal was
the Station House Officer (SHO) at L.T.Marg Police Station at the relevant time on 11th July,2005. His evidence indicate that PW.58-Anil had been to L.T.Marg Police Station with the FIR (Exh.44). It is in his evidence that he recorded the crime on the basis of the FIR (Exh.44) vide C.R.No.195/05 and handed the FIR back to PW.58 as the investigation was to be made by the Crime Branch. It is true that the FIR format (Exh.44-A) does not bear the signature of the PW.1 and the date and time of the despatch of the FIR to the Court of
Metropolitan
magistrate.
Admittedly,
PW.1
had
not
accompanied PW.58 to the L.T.Marg Police Station to get the crime that registered. FIR format It is, therefore, not bear but
natural
the
does
PW.1's
signature. Moreover, the FIR (Exh.44) cannot be termed to be anti-dated and concocted as there is independent evidence to vouch the allegations therein.
36.
The
aforesaid
evidence
undoubtedly
suggest
that PW.1 lodged the first information report with the Anti Extortion Cell, Crime Branch on 11th July,2005. True, PW.1 appears to have rushed to the Crime Branch after the arrest of A.1-Vicky. His evidence however indicate that he had developed cold feet to rush to the police immediately after receipt of first call making demand of money. PW.1's failure to lodge
prompt FIR has been justified considering the overall evidence on record particularly the transcript (Exh. 279) of intercepted telephonic conversation between the accused inter-se and the victims.
37.
It is also true that the evidence of PW.1
does not in terms speak to have received any threats from caller-Vicky. It however, cannot be said that the evidence of PW.1 do not make out offence punishable u/sec.385 of the Indian Penal Code. Admittedly, PW.1 and the caller-Vicky did not have acquaintance with each other. The caller therefore do not have any
reason to make phone calls to the PW.1 to make a demand of money. The caller Vicky claimed to have details about financial status of PW.1. The caller Vicky asked PW.1 as to why did he not make call on the given number. The talk which the accused-Vicky had with PW.1 and the manner he spoke to him did give perception of threat to PW.1. It is not necessary that the accused should have used words expressly giving threat for the offence of extortion. It is sufficient that the accused puts any person in fear of any injury to that person. The very transcript it of the would
intercepted
telephonic
conversation,
undoubtedly be inferred that the accused-Vicky did put PW.1 in fear of injury.
38.
PW.12-Kamal claimed to have been in diamond
and construction business. It is in his evidence that on 31st May,2005, he received a phone call from a person claiming to be Vicky. The caller made demand of money as construction work of his (PW.12) business was in progress. PW.12's evidence further indicate that on the next date or the day after he received a phone call from the same caller. The caller gave threats to his life if his demand of Rs.1 crore or Rs.90 lacs was not met. The evidence of PW.12 further indicate that he expressed his inability to meet the demand. The caller again gave threats to his life. The evidence of PW.12 further indicate that those calls were received by him on his office land-line and the cellphone
bearing number 9820231718 as well. It is further in the evidence of PW.12 that due to threats to life given by the caller, he did not approach to the police immediately. His evidence
further indicate that he had been to the crime branch in July,2005 to lodge the report (Exh.90). His
evidence further indicate that after some days he had
again been to the Crime Branch. That time his voice sample came to be obtained under the panchnama-Exh.91. The cassette (Art.24) containing PW.12's voice sample came to be played in the open Court. The witness has identified his voice recorded on the tape. One more cassette (Art.22) was played in the open Court. PW.12 claimed that voice of one of the two speakers might be his. He, however, could not identify voice of the other speaker in tape recorded conversation.
39.
PW.12
has
been
extensively
cross-examined.
His evidence suggest that he did not tender to the police any document pertaining to the cellphone or the records of the calls he received on his phone. The witness has categorically denied that the recording contained in the cassette (Art.24) is doctored one. PW.12 was confronted with the matter portion marked 'A to D' appearing in FIR-Exh.90. It is true that PW.12's evidence before the Court is not in the nature of reproduction of his allegations in the FIR (Exh.90). That however doesn't matter as there is independent
evidence Court.
corroborating
PW.12's
evidence
before
the
40.
PW.57-Kalim
was
the
Police
Sub-Inspector
attached to Anti Extortion Cell. It is in his evidence that on 11th July,2005, PW.12-Kamal had been to his office. PW.57 claimed to have recorded the statementcum-First Information Report (Exh.90) as narrated by the PW.12. His evidence further indicate that as the offence took place within the limits of D.B.Marg
Police Station, he rushed to the said Police Station and got the crime registered vide C.R.No.86/05. PW.61-Umesh was the SHO on duty on 11th July, 2005 at D.B.Marg Police Station. It is in his evidence that PW.57-Kalim had been to the Police Station with the FIR (Exh.90). PW.61's evidence further indicate that he filled in FIR format (Exh.90-A) and the
returned the FIR and filled in FIR format to PW.57 as the investigation of the crime was to be made by the Crime Branch. It is true that the FIR formate (Exh.90-A)
does not bear the signature of PW.1 and the date and time of the despatch of the FIR to the PW.12 Court had of not
Metropolitan
Magistrate.
Admittedly,
accompanied PW.57 to the D.B.Marg Police Station to get the crime registered. It is, therefore, but
natural that the FIR format does not bear PW.12's signature. Moreover, the FIR-Exh.90 cannot be termed to be anti-dated & concocted as there is independent evidence to vouch the allegations therein.
41.
Based on the evidence of PW.12,57 & 61 the
FIR-Exh.90 has been duly proved. The FIR corroborates the PW.12's evidence before the Court.
42.
PW.3-Ulhas
has
testified
claiming
to
have
been in construction business. It is further in his evidence that in the year 1990 he had constructed two buildings-'Park Avenue' & 'Mhatre Plaza'. There was no cable net work service to the building 'Park Avenue'. It is further in his evidence that he would get input for cable net work service from one Robert Raj. Robert
discontinued supply of the input. Dispute therefore ensued. On conditions, Robert resumed supply of the input in the year 2000. Robert again picked up quarrel with him on the same issue. PW.3 therefore approached another net work by name-'In Mumbai'. Person known as Captain was the in-charge of this net work. Captain too refused to give input. PW.3, therefore, approached another service provider-'Win Cables'. PW.3's evidence further indicate that Robert again picked up quarrel with him. PW.3 was unsuccessful to provide cable net work to the building 'Park Avenue'. It is further in the evidence of PW.3 that from the year 2000, he started receiving calls on his cellphone (9892492943). The caller calimed to be one Captain. The caller told him that his requirement of input will be fulfilled. After one and half months he received a call of John. John gave one cellphone and asked him to contact. It was international phone
number. It is further in the evidence of PW.3 that he did not make call on international phone number. After one and half months, he again received a call on his
cellphone. The caller inquired with him as to why did he not make a call on the given phone number. It is further in his evidence that he again received a call on his cellphone. The caller made demand of Rs.25 lacs. The caller claimed to be a man of Chhota Rajan. The caller also claimed to have full knowledge about PW.3's business.
43.
PW.3 came to be extensively grilled in his He admits that whatever he has
cross-examination.
stated as to have received call in the year 2002 and call received one and half months after the first call is not correct.
44.
PW.4-Kirit
is
alleged
to
be
one
of
the
victims. He however did not stand by the prosecution. PW.4 was declared hostile. He by was the subjected to a
searching
cross-examination
Ld.Spl.P.P.Shri
J.R.Madon. He, however, did not give in. He denied to have received extortion call from Bhau, who claimed to be man of Vicky Malhotra.
The evidence of PW.4 is of no use for the prosecution to establish the charge.
45.
The next witness is PW.5-Jayant. It is in his
evidence that since 1982, he has been in construction business. In 2004-05, he received phone calls of a person who claimed to be Vicky Malhotra. The caller had with him details about his (PW.5) business
activities. It is further in his evidence that the caller asked him that he should pay him Rs.5 lacs, 25 lacs as his (PW.5) construction activities were in progress. caller It is him further repeated in his evidence on his that the
made
calls
cellphone
bearing 9323615165. During the last call, the caller told him that he would sent Babua's son for his some work relating to the development of the property. The caller asked him to do the needful. It is further in the evidence of PW.5 that he did not approach to the police complaining about the calls he received as he was in fright. It is further in his evidence that he was summoned to the Crime Branch in 2005. He,
accordingly,
went
there.
The
tape
recorded
conversation between him and the caller was played to him. He identified his voice in the tape recorded conversation between him and the caller. He has also identified the voice of the caller who claimed to be Vicky Malhotra. It was the recording of last call relating to the matter concerning Babua's son. PW.5's evidence further indicate that his voice sample was obtained by the Crime Branch under the panchnama (Exh. 59). The audio cassette containing PW.5's voice sample is at Art.8. The cassette was played in the open
Court. PW.5 has identified his voice as one obtained as sample. In during his response to the questions he has put to PW.5
cross-examination,
categorically
testified that during last call, the caller did not mention his (caller) name. There was no demand for money in the last call. The caller did not put him under any kind of threat to meet his demand during both the calls. PW.5 has also testified to have
received only one call in 2004 and one more call in
2005 of the caller who claimed to be Vicky Malhotra.
46.
Then we have the evidence of PW.7-Survarna.
It is in his evidence that on 17th August,2006 he received a call on his cellphone (9869219000). The caller abused him. The caller claimed to be Yusuf Pachkana, man of Chhota Rajan. It is further in the evidence of PW.7 that he cut off the call as he was in the meeting. At about 8.30 p.m., again he received a
call. The caller was one Anthony. The caller inquired with him as to why did he cut off the call made by Bhai. The caller Anthony informed him that first
caller was Yusuf Pachkana speaking from Banglore Jail and he would be released very soon. The caller Anthony asked him to receive the call and talk to Yusuf. At about 10.00 p.m., PW.7 received a call on his phone. The caller claimed to be Yusuf Pachkana. The caller made demand of of PW.7 Rs.2 that lacs. on It the is next further day, in he the
evidence
again
received a phone call of Yusuf Pachkana. The caller inquired with him as to when the amount would be paid
to Anthony. On request, the caller gave two days time to meet the demand. The evidence of PW.7 further
indicate that he did not receive any call thereafter.
47.
PW.7
was
subjected
to
searching
cross-
examination. It has emerged in his evidence that he had been to the Crime Branch first time on 27th
December,2006 to report about calls he received. PW. 7's evidence indicate that he was in the know that Yusuf Pachkana was in Banglore Jail. Still he made
four months delay to report to the Crime Branch about the calls he received. PW.7's evidence indicate that he had been came to the to be Crime Branch only the after Yusuf in
Pachkana
arrested
for
crimes
question. True, PW.7 claimed to have had been to Malad Police Station soon after he received the call on 17th August,2006. It is also in his evidence that he lodged the report there. The police officer recorded his
statement and treated it as non-cognizable case. The entire prosecution evidence is however silent to
support the PW.7's claim that he had been to Malad
Police
Station
to
report
about
extortion
calls
he
received on 17th August,2006. There is no evidence in the nature of printouts or the call records. There is also no evidence in the nature of interception of the alleged extortion calls. As such, there is no reliable evidence to indicate that PW.7 had really received extortion calls in August,2006 and the caller was
accused No.13-Yusuf Pachkana.
48.
Then
comes
to
the
evidence
of
PW.14-
Hasmukhraj. It is in his evidence that he has been in construction business for little over 15 years. He has office of his business in Vile-Parle. On 4th July, 2005, he received a call on his cellphone bearing number 9821069296. It was about 7.30 p.m. The caller claimed to be Vicky Malhotra. The caller called upon him to help It him is from his in (PW.14) his construction that he
business.
further
evidence
informed the caller that no construction activity of his business was in progress. He was on the verge of retirement. Thereupon the caller asked him to take
care
of
him
as
and
when
PW.14
would
commence
construction. It is further in his evidence that the caller had given him one phone number to contact him thereon. In the month of August,2006, he was summoned to the Anti Extortion Cell. His statement came to be recorded there. One audio cassette was played to him and called upon to identify voice therefrom. He
identified his voice. The audio cassette (Art.26) was played in the open Court. PW.14 identified his voice from the
recorded conversation of two speakers. According to the witness, other speaker was the caller-Vicky
Malhotra. the witness then turned around to deny the other speak in the tape recorded conversation was
Vicky Malhotra.
49.
One more cassette (Art.27) came to be played
in the open Court. The witness identified his voice as one given by him as his voice sample. The witness has also identified his signature appearing on panchnama (Exh.98) where under his voice sample came to be
obtained.
50.
In
response
to
the
questions
put
to
him
during cross-examination, PW.14 denied to have close relation with the police. He has however admitted to have not tendered any printouts/call records or other documents in proof of the calls received by him on his cellphone bearing number 9821069296.
51.
The
evidence
of
PW.14
do
not
make
out
ingredients of the offence punishable u/sec.383,385 or 387 of the I.P.C.
52.
Then
there
is
evidence
of
PW.25-Laxmichand
Dedia. It is in his evidence that he has been in construction business for over 37 years. Land-line
phone number at his office was 25160909. Whereas his cellphone number was 9821138656. It is further in his evidence that in 1995, he purchased a land at Kalyan for Rs.40 lacs from one Arjun Wahile. Land admeasures 11000 sq.mtrs. One Bhagat family was the owner of the
said land. Arjun Wahile had his residential structure on the land. Ten years after the purchase of the land, he got the title cleared. He had paid Rs.10 lacs as earnest money. The remaining amount of consideration was agreed to be paid at the time the land would be recorded in his name in the property record. It is further in his evidence that Vendor started asking for Rs.20 lacs more. The dispute therefore ensued. It is further in his evidence that in December,2003, he
received call on his cellphone. The caller asked him to pay Rs.20 lacs more to the landlord. The caller gave threats to his life and disturb the transaction, if he did not pay Rs.20 lacs more. The caller gave his name-Vicky Malhotra. It is further in his evidence that frequency of such calls increased during January and February,2004. It is further in his evidence that in January he received a call on his phone. The caller was one 'Nanhe'. The caller asked him to complete the transaction by paying Rs.20 lacs more, lest he would be put in difficulty. The caller also informed him that he was receiving calls from his boss in
connection with this matter. It is further in his evidence that during January & February, he received ten such calls from Vicky Malhotra and one of Nanhe. The caller would ask him to complete the transaction by paying Rs.20 lacs more. The caller gave threats to his life if he did not obey. It is further in his evidence that in 2005 he received a call on his
cellphone bearing number 9821138656. The caller was Vicky Malhotra. The caller called upon him to pay to the caller himself. He refused. The caller thereupon gave threats to his life. It is further in his
evidence that in March & April,2005, he received 2-3 such calls from the said caller. Each time the caller asked him to send money to him. PW.25's evidence
further indicate that in August,2005, he was summoned to the Crime Branch. His statement came to be recorded there. In response to the questions put to him
during cross-examination, PW.25 has testified to have not maintained any record as to date & time of the calls he received. According to him, everything was on
his mind while he gave his statement. His evidence would further indicate that till 18th August,2005, he did not approach to any Police Station complaining about the calls he received. His evidence further
indicate that he was summoned to the Crime Branch on 18th August,2005. Had he not been summoned, he would not have made any complaint in relation to the calls he received.
53.
Then there is evidence of PW.37-Sampatkumar.
It is in his evidence that in the year 1997 he started business of manufacturing Granite Tiles. In 2000, he started dealing in scrap material. He met one Raju Mandviya in connection with his business. Raju
introduced him to one Dilip Patel (wanted accused in this case). Dilip was staying in London. It is further in his evidence that occasionally he used to visit London in connection with his business. He used to meet Dilip there. Once he met one Bhaskarao. Bhaskarao assured him that he would supply scrap material.
Bhaskarao would also visit London. In 2000, Bhaskarao
met him in London when Dilip Patel was with him. Dilip paid Rs.60 lacs, while he (PW.37) paid Rs.
1,20,00,000/- to Bhaskarao as advance for supply of scrap material. Bhaskarao did not supply any scrap material. Bhaskarao gave four cheques totally worth Rs.4,80,000/- as security. The transaction could not materialize. Dilip started asking for his money back. PW.37 claims to have informed his inability to pay the amount. PW.37 gave to Dilip his land papers and
executed Power of Attorney in his favour authorising him to mortgage his land. It is further in the evidence of PW.37 that in November,2004, he received phone call of Dilip
Patel from London. Dilip made demand of Rs.3 crore. He questioned Dilip as to how could he make demand of Rs. 3 crore when he owed him Rs.60 lacs only. Thereupon, Dilip told him to have handed over the matter to one Malhotra and he would tackle the same. It is further in the evidence of PW.37 that after some days, he received a call on his cellphone (9821889202). The
caller claimed to be one Bhau or Sunil. The caller
informed
him
that
Malhotra
would
call
him
and
he
should respond to the call. After the said call was over, PW.37 received Malhotra's call. The caller
informed him that the case has come to him and he should pay Rs.3 crore to Dilip Patel. The caller gave him one month's time to pay the amount. It is further in his evidence that he explained all the facts to the caller. The caller thereupon asked him to hand over all the papers to his man. It is further in his
evidence that after some days, he received a call of one Bhau. Bhau called upon him to come to hotel 'All Season' at Kandivali to hand over all the papers to him. It is further in his evidence that accordingly he went to hotel 'All Season' and placed the papers in the custody of Bhau. After some days, he received a call from Vicky Malhota asking him to pay Rs.50 lacs directly to him and in return forget Dilip. It is further in his evidence that he was very much scared because of such calls. He had therefore informed to area police station which in turn provided him
security. It is further in his evidence that in May,
2005, he attended Crime Branch officer in response to a call. He gave his statement there. PW.37 has identified accused-Bhau from among the eight in the dock.
54.
This witness too came to be subjected to a cross-examination. It has emerged in his
searching
cross-examination that he had been to the office of Crime Branch on 19th August,2005. He had lodged
complaint with Samtanagar Police Station regarding the calls he received. His police statement is however found to be silent to make mention of having lodged the report with Samtanagar Police Station. He has, however, denied that he had not received any call from Bhau or Vicky Malhotra. His evidence however indicate that accused-Bhau was with him for an hour while he gave him the papers. The witness was however
categorical to state to have had not given description of Bhau in his statement dated 19th August,2005.
55.
Then comes the evidence of PW.39 & 40. The
evidence
of
both
these
witnesses
pertains
to
one
transaction. It is in the evidence of PW.39-Jitendra that in the year,2005, he was working as a site as
Manager
with Dhiraj
Developers
(presently
known
'Housing Development Infrastructure Ltd.'-HDIL). It is further in his evidence that he was making use of cellphone bearing number 98330119803. On 29th June, 2005, he received a call on his cellphone. The caller claimed to be one Farid. There was one hotel-Diamond. There was the dispute between the two partners of this hotel. One Nasiruddin Siddiqui was in possession of the hotel. Dhiraj Developers purchased the said hotel by paying Rs.20 lacs to Nasiruddin. The dispute
between Nasiruddin and one Mehboob was there. Farid's call was in that connection. Farid asked him to settle the matter. He therefore settled the matter by paying Rs.10 lacs to Mehboob. PW.39 claims to have personally paid the amount that he to Mehboob. had It is 2-3 further phone in his of
evidence
received
calls
Farid. Farid called upon him to settle the matter. It is further in his evidence that in August,2005, he was
summoned
to
the
Crime
Branch.
he
went
there.
The
statement came to be recorded. During his cross-examination, PW.39 has
stated that had he not been summoned to the Crime Branch in August,2005, he would not have lodged any report about the calls he received. PW.39 stated to have not tendered to the police any document
pertaining to the hotel.
56.
The evidence of PW.40-Mehboob is other way
round. It is in his evidence that in the year 1996, he had constructed hotel 'Diamond'. He allowed one
Nasiruddin to run the said hotel. Nasiruddin stopped making payment of rent to him. Nasiruddin claimed
exclusive possession of hotel premises. He therefore instituted premises. Nasiruddin a suit for possession paid of the hotel to
Diwan and
Builders obtained
Rs.1,20,000/of the
possession
hotel
premises. It is further in his evidence that Diwan Builders was also one of the parties to the suit for
possession. It is further in his evidence that after
institution of the suit, he had been to the office of Diwan Builders for effecting service of stay order passed by the Court. PW.39 was present in the office. One Riyazbhai from Jogeshwari told him to have
relations with Diwan Builer and he would settle the matter. Riyazbhai also inform him to have talked to PW.39-Jitu. Jitu asked him to come to Bandra Court. He accordingly went there. Jitu gave him Rs.2.5 lacs and obtained his signature on some papers. Jitu promised to pay the remaining amount within a week. He,
however, did not pay any amount as promised. It is further in the evidence of PW.40 that thereafter he received calls on his cellphone asking him to settle the matter. The callers were one Farid & Kashi Pashi. It is further in his evidence that he went near Bandra Court as directed by the Caller. Nobody however turned up. Then he again received a call of one Kashi Pashi. The caller asked him not to go to fetch any amount as the matter was settled. The caller informed him that he would be paid money at his residence. However none came to pay any farthing. He, therefore, lodged
complaint with the Police. In during response to the questions has put to him that
cross-examination,
PW.40
testified
Crime Branch recorded his statement only once and that is in June,2006. In 1997, he allowed Nasiruddin to run the hotel 'Diamond'. There were 13 partners. In 2003, Diwan Builder took up the hotel premises Scheme. for That
development
under
Slum
Rehabilitation
time he met Diwan Builder to inform him to be one of the partners in the hotel business. The witness has stated to have informed in his statement to the police that his cellphone number was 9820364427. The police statement is however silent to make mention of the cellphone number. He has however denied to have not received any phone call of Farid or Kashi Pashi.
57. (12 in
The aforesaid is the evidence of the victims number) who claim to have had received
extortion calls particularly from the accused-Vicky Malhotra. The extortion calls made allegedly by the accused-Vicky to five out of the aforesaid twelve
victims are alleged to have been intercepted. They are PW.1, PW.2, PW.5, PW.12 & PW.14. It is reiterated that PW.4-Kirit did not support the prosecution. The
evidence of PW.14-Hasmukhseth is to the effect that the caller Vicky Malhotra had called upon him to help him from his construction business as and when
business activity would commence. This witness does not in terms claimed to have received any extortion call. PW.7-Suvarna's evidence is concerning accusedYusuf Pachkana (A.13). It has already been observed that his evidence does not further the prosecution case. whereas the evidence of PW.39 (A.2) & 40is
concerning
deceased
accused-Farid
and
Kashi
Pashi (A.7). No phone calls allegedly made by these two were ever under observation. The evidence of PW.39 & 40 is to the effect that both Farid & Kashi Pashi had called upon them to settle the matter concerning purchase of hotel 'Diamond' by HDIL. The evidence of both these witnesses do not shed light on the role allegedly played by the accused-Kashi Pashi in the offence in question.
The analysis of the evidence of the aforesaid witnesses would indicate that overtacts have only been attributed particularly to Vicky Malhotra and once to Bhau and Nhane. None of the victims claim to have known any of the accused persons since before the alleged offences took place. None of the accused
persons except Bhau is alleged to have met personally any of the victims. The identity of the accused
persons is sought to be established on the basis of the evidence which is being referred to hereinbelow;
58.
The seizure of chit-Exh.70 and the cellphone used for making extortion calls from
allegedly
accused-Vicky Malhotra. Admittedly, into custody in accused-Vicky Delhi on came to be taken The
New
11th
July,2005.
evidence of PW.73 to PW.75 (police officers) and the evidence of PW.8 (panch witness) is relevant in this regard. Admittedly, within hours after arrest of
accused-Vicky, he came to be brought to Mumbai by air. It is in evidence of PW.73-Ajay Joshi that he handed
over
the accused-Vicky
to
PSI-Kalim
Shaikh
(PW.57)
attached to Anti Extortion Cell as involvement of the accused in DCB,CID, C.R.No.86/05 (old C.R.No.128/05) was surfaced. The evidence in relation as to how the accused-Vicky came to be overpowered in New Delhi is not being referred to as the same doesn't have bearing on the case. It is in the evidence of PW.57-Kalim that he secured presence of two panchas for effecting arrest and taking search of person of accused-Vicky. he took search His of
evidence
further
indicate
that
person of the accused in presence of two panchas. Two cellphones, ATM cards, some cash, some gold articles and the paper slip bearing some names with their phone numbers were alleged to have been found on the person of the accused. These articles came to be taken charge of under the panchnama-Exh.69. Two cellphones taken charge of have been marked as Art.13 colly. In proof of the arrest of accused-Vicky and the aforesaid
articles having been taken charge of from him, the evidence of PW.8-Kirit (Panch witness) is relied upon.
During the cross-examination of this witness, it was revealed that he was staying in Mulund. PW.72 & PW.73 who have played major role in the investigation of this offence were attached to Mulund Police Station for some time before the registration of the offence in question. These two police officers have availed services of PW.8 as panch witness on number of
occasions. The evidence of PW.8 therefore is not being believed. The accused-Vicky is sought to be connected with the offence in question on the basis of the
cellphone (Art.13) and paper slip (Exh.70) alleged to be taken charge of from him. One of the cellphones allegedly taken charge of from the accused-Vicky was said to have been used by him to make extortion calls to the prosecution witnesses. The paper slip (Exh.70) contains the names of the prosecution witnesses and their phone numbers. This paper slip is therefore
sought to be used as piece of evidence to connect the accused-Vicky with the offence in question.
59.
In my view, the aforesaid evidence inspires
no confidence. Admittedly, the accused-Vicky came to be taken into custody in New Delhi on 11th July,2005 in the morning. The police team that had been to New Delhi in search to for take accused-Vicky search of had an and ample the
opportunity
person
belongings of the accused-Vicky in New Delhi itself. It is alleged that both the cellphones were found on the person of Vicky while he came to be searched at the time of his arrest. It needs no mention that the accused-Vicky came to be brought to Mumbai by air. Admittedly, he came to be screened as a security
measure at the Airport. It is surprising as to how during the screening no cellphone could be found on his person. It is the case of the accused that these articles have been planted on him. It is true that there is no evidence to substantiate his claim. The fact, however, remains that the prosecution evidence that the two cellphones, paper slip (Exh.70) and other articles were first time found on his person while he came to be searched in Mumbai inspires no confidence. On arrest of accused No.1-Vicky, his specimen
handwriting was obtained. The same came to be compared with the paper slip (Exh.70). The handwriting expert's report does not support the prosecution. This piece of evidence is therefore not taken as incriminating piece of evidence against the accused-Vicky.
60.
It is the case of the prosecution that the would number make to use of cellphone his bearing of
accused-Vicky international
contact
victims
extortion. It is also the case of the prosecution that number of the cellphones he made use of did never flash on the screen of the cellphones of the victims. PW.63 to PW.66, PW.69 & PW.70 were the police officers of the rank Sub-Inspector of Police during the
material time. They were attached to SOS section of the Crime Branch. All these witnesses claim to have intercepted telephone calls to and fro. International Cellphone No.008290215851 and Cellphone Numbers9821326901 & 9312555879. The evidence of these
witnesses is in consonance with each other. It is in their evidence that they intercepted the calls on the
aforesaid cellphone numbers as they were directed to do so by Shri Kamlakar, Dy.Commissioner of Police. The evidence of these witnesses is not being referred to independently as I did not find any flaw in their respective evidence. The evidence of these witnesses undoubtedly indicate that the aforesaid two cellphones were under observation The gist from of 17th the May,2005 evidence to of 7th the
October,2005.
aforesaid witnesses is given below; PW.63-Ravindra intercepted in all 24

&
conversations on 17th & 22nd May,2005 and on 15th, 17th
22nd June and on 1st, 4th, 5th, 8th & 9th July,2005. He has also intercepted two calls in October,2005 pertaining to accused-D.K.Rao. The witness has referred to the original cassettes The containing first 24 the calls he has been
intercepted.
cassettes
have
collectively marked as Art.47. While other two were marked as Art.48. PW.64 has intercepted in all 23 calls. The last two calls intercepted by him pertained to the accused-D.K.Rao. PW.64 claimed to have intercepted the
phone calls on 20th , 23rd , 24th May, 3rd June & 7th July and the last two calls on 6th October,2005. The first 21 cassettes have been marked as Art.49. While the remaining two were marked as Art.50 colly. PW.65-Vijay intercepted in all 31 calls. The last eight intercepted calls pertain to the accusedD.K.Rao. PW.65 has intercepted the calls on 23rd May, 15th, 16th & 20th June, 5th & 6th July and on 26th, 27th, 29th & 30th, July,2005. The first 23 audio cassettes have been colly. marked as Art.51 and remaining eight find place at Art.52 colly. PW.66-Waghmare intercepted two calls on 15th & 20th November,2005. The cassettes containing the
intercepted calls find place at Art.53 colly.
61.
PW.69-Anant
intercepted
in
all
25
calls
pertaining to the accused-Vicky Malhotra and 19 calls pertaining to accused-D.K.Rao. The first 25 cassettes find place at Art.60. The next 19 were marked as Art. 62. He has intercepted the phone calls on 15th May, 25th May, 14th June, 16th June, 17th June, 18th June, 20th
June, 2005 and again on 18th to 20th, 22nd, 24th, 25th September and 22nd & 30th November,2005. PW.70-Arun intercepted in all nine calls.
Seven pertaining to Vicky Malhotra and other two of D.K.Rao. The first seven audio cassette find place at Art.64. The next two are marked as Art.66.
62.
The evidence of these witnesses is to the
effect that they would intercept one call in one audio cassette. After successful interception, they would prepare copy cassette. They used to place the cassette under the cover with a seal thereon. They would affix the label bearing call code word with a of the of caller in the and
intercepted
date
interception
initial of the respective officers intercepting the call. The evidence of these witnesses undoubtedly
indicate that they placed all the cassettes to the custody of PW.76-Pargunde (I.O.). The evidence of Shri Pargunde indicate that under the panchnama-Exh.104, he received hundred sealed audio cassette from the
aforesaid officers and 35 sealed cassettes under the
panchanama-Exh.189. It is further in the evidence of PW.76 that he had received the copy cassettes as well. It is true that the panchnama-Exh.104 & 189 are silent to speak about handing over the copy cassette to the custody of PW.76. It needs no mention that all the original and copy cassettes were produced before the Court. PW.73Ajay Joshi claimed to have exhibited the original
cassettes by placing them again in sealed cover. The same appears to have been done for sending the
cassettes to CFSL, Chandigarh. There is nothing to suggest that the original might cassettes have been containing tampered
intercepted
conversation
with. The officer intercepting the calls claimed to have maintained record of interception in two
registers. (X-21 & X-21-A). These witnesses referred to the entries in in both the registers of the which are
appearing officers.
the
handwriting have,
respective not been
These
registers
however,
delivered to the Investigating Officer alongwith the cassettes. The registers first time came to be
produced before the Court while the evidence of these officers containing was being recorded. of the A bunch speaker, of labels of
code
word
date
interception with initial of the respective officers stumbled out of one of the registers. In view of the Ld.Advocate, these registers have been brought into existence subsequently to show compliance of the rules as to interception of telephonic conversation. As the register had not been taken charge of during
investigation and there being no proper explanation as to why the number of labels containing the code word of the speaker, date and time of interception were prepared in excess of the requirement. The Court do not propose to rely upon the evidence in the nature of the registers. The facts, however, remain that the officers (PW.63 to PW.66, PW.69 & PW.70) have
intercepted telephonic conversation as stated by them in their respective evidence.
63.
Exh.279
is
the
transcript contained
of in
the
entire the
intercepted
conversation
all
cassettes. The defence do not dispute correctness of the transcript. The transcript has been prepared by PW.71-Shashikant. containing Each original call made to audio the cassette respective
intercepted
victim came to be played in the open Court while the respective victim has been examined as the prosecution witness. Each victim has identified the call received by him from the caller who claimed to be Vicky
Malhotra. The defence, therefore, cannot state that no cassette played containing to the interception during conversation recording of was his
victims
evidence.
64.
On arrest of all the accused persons, their
voice sample came to be obtained independently in the presence of panchas. Panchnama to that effect came to be drawn. The evidence in proof of the same is not being referred to in extenso, in view of the fact that there is nothing to doubt the case of the prosecution that on arrest of the accused persons, their voice sample came to be obtained. PW.73-Ajay Joshi gave his
evidence in this regard. The panchas in whose presence the voice sample of respective accused came to be obtained also testified in consonance with the case of the prosecution. Moreover, the cassette containing
voice sample of the respective accused persons came to be played to the panch witness. On playing of the cassette, it appears that PW.73 first briefly spoke then two panchas gave their names. The voice of the fourth speaker was of the respective accused. After playing of the said cassette, it was found that the speakers spoke chronologically and there is nothing to doubt the cassettes to have been tampered with. It needs no mention that the investigating officer would not destroy his own case by obtaining someone else's voice for respective accused person.
65.
Under Panchnama (Exh.76-Panch, PW.11-Usman
Khan) voice sample of the accused-Vicky came to be obtained. In the same way, voice sample of the victims of extortion (PW.1, PW.2, PW.5,PW.12 & PW.14) came to be obtained.
66.
All
the
cassettes
containing
intercepted
conversation and the voice sample of the victims and accused persons came to be sent in sealed condition to CFSL, Chandigarh. PW.71-Jagdale carried the cassettes to the office of CFSL. PW.67-C.P.Singh claimed to have compared and analysed the questioned voice and the voice sample contained in all the cassettes. The
report of Analysis 256.
find place at Exh.250,252,254 &
67.
Before proceeding to assess the expert's (PW.
67) evidence, let us deal with the objections as to admissibility Ld.Advocate of Shri this evidence. In view of the
Pasbola,
intercepted
telephonic
conversation is inadmissible in evidence for want of authorisation for interception. He has relied upon the relevant provisions of the Telegraph Act, Rules
thereunder and the provisions of the MCOC Act. He has also placed reliance on the Judgments in the following cases;
(1)People's Union for Civil Liberties (PUCL) vs. Union of India & Anr., AIR,1997,S.C.568. (2) State of Maharashtra vs. Bharat
Shantilal Shah & Ors., 2009, All MR (Cri.) 624 (Supreme Court). (3)Tabassum Khan vs. State of Maharashtra,
Criminal Appeal No.198 decided on 23rd Sept. 2004 (Hon'ble High Court, Bombay).
68.
In PUCL's case (supra), the Apex Court has
held that Telephone tapping infracts Article 21 of the Constitution of India. Right to Privacy is part of right to life and right in to privacy would of include home or
telephone
conversation
the
privacy
office. Telephone tapping would also infract Article 19 (1)(a) unless it comes within grounds of
restrictions under Article 19(2). When a person is calling on telephone, he is exercising his right to
freedom of speech and expression. The Apex Court has given some directions to be followed as procedural safeguard in the matter of telephone tapping. The
direction
given
by
the
Apex
Court
have
now
been
incorporated in the nature of rules under Telegraph Act. The rules provided for - (i) maintain record for interception conversation, (ii) the extent to which the material is disclosed, (iii) the number of persons and their identity to whom any of the material is disclosed, (iv) the extent to which the material is copied and (v) the number of copies made of any of the material. It is also provides for Review Committee appointed to see whether the Order of interception is a relevant order u/sec.5(2) of Telegraph Act. The
Review Committee is authorised to set aside the order authorising the interception of telephone call. For better appreciation, Section 5(2) of Telegraph Act is reproduced below; 5(2) - On the occurrences of any public emergency, or in the interest of public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if
satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by an telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order; Provided that press message intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has
been prohibited under this sub-section. 5. The above provisions clearly indicate that in the event of the occurrence of a public emergency or in the interest of public safety the Central Government or the State Government or any officer specially authorised in this behalf, can intercept messages if satisfied that it is necessary or expedient so to do int he interest of; (i) The sovereignty and integrity of India, (ii)The security of the State, (iii)Friendly relations with foreign States, (iv)Public order, (v)For preventing incitement to the commission of an offence. (Para 5 reproduced from the Judgment of PUCL)
69.
Section
14
of
the
MCOC
Act
speaks
of
authorisation of interception of wire electronic or oral communication. Whereas Section 13 of the said Act speaks of appointment of competent authority for the
purpose of Section 14. Whereas Section 15 speaks of constitution of Review Committee for review of wire interception authorisation order. We are not very much concern with the
provisions of MCOC Act relating to interception of telephonic conversation as telephone tapping in the case in hand commenced long before the provisions of the MCOC Act came to be invoked to the offence in question. True, the telephone tapping continued even after the offence under MCOC Act came to be registered and even after the first charge-sheet came to be laid.
70.
If
we
look
into
the
transcript
of
the
intercepted telephonic conversation, one would realise that it was the case in where of under Section an order of for the
telephone
tapping
term
5(2)
Telegraph Act is justified on the ground of public order or for preventing incitement to the commission of an offence.
71.
Exh.298
are
the
true/certified
copies
of
Orders
passed
by
the
Addl.Chief
Secretary
(Home),
Government of Maharashtra on 31st May,2005 authorising interception of calls to and fro cellphone numbers 0085290215851, 00852961209300, 00971505151786 &
9312555879. The Orders came to be passed on 31st May, 2005 and were to remain in force till 27th July,2005. True, the authority granting authorisation for
interception of telephonic conversation has not been examined. It is also true that PW.57-Kalim Shaikh who had put the proposal seeking authorisation for
interception did not refer to his proposal during his evidence. It is also true that DCP Shri Kamlakar has also not been examined as a witness in this case. The perusal of the Order-Exh.298 would however indicate that the authority granting authorisation had applied his mind while passing the Order. It is true that there is no record to indicate as to whether the Order was placed what before was It the the needs Review decision to be Committee made by and the if so
placed
Review the
Committee.
mentioned
that
interception of telephonic calls in the case in hand
commenced on 17th May,2005 i.e. long before the orders authorising interception of telephone calls came to be passed. As such, some of the interceptions can be said to be unauthorised one. There is also no evidence to indicate compliance of Rule 419(A) of Telegraph Rules, 1951. In Tabassum Khan's case (supra), the
intercepted telephonic communication of the accusedTabassum compliance has of not been relied of upon for 5(2) want of of the
provision
Section
Telegraph Act and the relevant rules relating thereto.
72.
This Court proposes to rely upon the Judgment
of the Hon'ble Supreme Court in case of State (NCT) of Delhi 3820. vs. The Navjyot Sandhu, AIR 2005 Supreme Court, Apex Court has observed-Telegraph Act,
Section 5(2) and Telegraph Rules (1951), R 419(A) Intercepted and recorded not telephonic by conversation illegality or
admissibility
affected
irregularity in interception. The relevant observation of the Apex Court are reproduced below;
Section 5(2) Telegraph Act or Rule 419(A) does not deal with any rule of evidence. The non-compliance or inadequate compliance with the provisions of Telegraph Act does not per-se affect the admissibility. The legal position regarding the question of admissibility of the tape recorded conversation illegally collected or obtained is no longer res-integra in view of the decision of this Court in R.M.Malkani vs.
State of Maharashtra, AIR 1973, Supreme Court 157. In that case the Court clarified that contemporaneous tape record of a relevant conversation is a relevant fact and is admissible as res-gestae under section 7 of the Evidence Act. Adverting to the arguments that Section 25 of the Indian Telegraph Act was contravened Ld.Judges held that there was no violation. At the same time, the question of admissibility of evidence illegally obtained was discussed. The law was laid
down as follows; There is warrant for the proposition that even if evidence is illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. See Jones v. Owen (1870)34 JP 759. The Judicial Committee in Kumar, Son of Kanju v. R(1995 1 All ER.236) dealt with the conviction of an accused of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police officer below the rank of those who were permitted to make such searches. The Judicial Committee held that the evidence was rightly admitted.
The reason given was that if evidence was admissible it matters not how it was obtained. There is of course always a word of caution. It is that the Judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. That caution is the golden rule in criminal jurisprudence.
73.
Ld.Advocate Shri Pasbola tried to distinguish
the Apex Court's observation in Navjyot Sandhu's case by submitting that said Judgment does not and cannot be said to have laid down any proposition that the prosecution is dispensed with leading evidence to
prove that the valid authorisation was granted. No such question Court fell and for it consideration appears that before the
Hon'ble
Jt.Director,
Intelligent Bureau, who authorised the interception was examined and the only question raised was whether there was no evidence that he held the rank of
Jt.Secretary to the Government of India. The Hon'ble submission Court cannot has in be term subscribed observed to. that
Supreme
evidence illegally collected or obtained is very much admissible. In view of this Court, the evidence in the nature of intercepted telephone conversation is
therefore admissible in evidence.
74.
Shri C.P.Singh (PW.67) is the Asstt.Director
(Physics) in FSL, Delhi. At the material time he was working as Junior Scientific Officer (Physics) with CFSL, Chandigarh. He did his M.Sc. in Forensic Science from Madras University and Ph.D. in the area of
Speaker Identification. phonetics from CIIL,
He has undergone training in Mysore and cepetral analysis
technique from NAL, Banglore. He has also undergone training in the area of advance in speaker tape PW.
identification,
signal
processing,
audio-video
authentication from University of Trier, Germany.
67's evidence as to his qualifications is undisputed. It is in his evidence that on 3rd October,2005, CFSL,
Chandigarh received 107 sealed parcels alongwith the copies of the transcription of conversation from DCP (Detection), Mumbai. The witness has referred to the acknowledgment receipt signed by Shri Tekchand Sharma an officer from CFSL. It is further in his evidence that seals on the parcels were intact and tallied with specimen seals provided. PW.67's evidence further
indicate that on 30th January,2006, his lab received 43 sealed parcels alongwith the copies of transcript of conversation. His evidence further indicate that again on 7th September,2006 & 10th January,2007, his lab received one cassette each. He has referred to the acknowledgment given by the official. PW.67's evidence is to the effect that each sealed parcel contained one audio cassette. He personally examined all the audio cassettes thoroughly and gave his report vide Exh.250 (107 cassettes), Exh.253 (43 cassettes), Exh.254 (one cassette) & 256 (one cassette). It is in his evidence that the procedure followed is NABI of in examination the CFSL, was the written The of
procedure procedure
Chandigarh. The method
accredited.
examination is auditory analysis followed by acoustics analysis using voice spectrograph matching for
computerised speech lab. In his view, the scale of matching is as per the prescribed criteria in the procedure followed in his laboratory. According to
him, a positive identification is expressed as belongs to the same speaker as otherwise a probability is scaled as high probability or probable voice of same person. The witness was subjected to a searching
cross examination. In response to the questions put to him during cross-examination, his lab it has come in his seal
evidence
that
received
specimen
impression used for sealing the parcel, on a piece of cloth each time. His evidence would further indicate that he did not open any of the parcel till 31 st June, 2006. letter The witness by has his referred lab to the forwarding the sealed
received
forwarding
parcels. The details of the procedure he had followed for voice analysis, has come on record during his cross-examination.
75.
The material flaw according to the defence in
the opinion reports given by the PW.67 is that the reports are silent to state the grounds of opinion. IN view of the Ld.Advocate Shri Pasbola, opinion evidence sans grounds of opinion is of no help for the
prosecution. In support of his submission, Ld.Advocate has relied upon Apex Court's Judgment in case of
Murari Lal,
vs.
State of M.P., AIR 1980 Supreme
Court,531. It has been observed.. There is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases
where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible rule on a matter, which, in the ultimate analysis, is no more than a question of testimonial weight (case law disccused). An expert is no accomplice. There is no justification for condemning his opinionevidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses - the quality of credibility or incredibility being
one which an expert shares with all other witnesses- but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. An expert deposes and not decides. His duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in
evidence.
76.
True, reasons/grounds for the opinion are the
soul. On careful perusal of the Judgment relied upon it would appear that it has not been held by the Apex Court that the opinion unsupported by the reasons is irrelevant and not to be acted upon. It is reiterated that PW.67 is an highly
qualified person. He was working with an independent agency. He had no reason to give opinion supporting the prosecution for extraneous consideration. Under Section 45 of the Evidence Act, an opinion of expert
upon a point of science or art is the relevant facts. The section does not speak that such an opinion
unsupported by reasons is of no relevance. There is separate provision i.e. Section 51 of the Evidence Act- whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant. It is reiterated that it is not that an opinion of expert sans the grounds on which such opinion is based is irrelevant. In view of this
Court, the opinion expressed by PW.67 in his report (Exh.250,252,254 & 256) is very much relevant. The witness has given details of the procedure following by him for coming to his opinion. More so, when there
is plurality of evidence corroborating the prosecution case. The aforesaid report would be adverted to later on while the evidence for the prosecution connecting the accused persons to the offence in question would be taken up for assessment.
Printouts/call records and subscriber details; 77. The another piece of corroborative evidence
sought to be relied upon is in the form of printouts. The following witnesses have been examined in this regard. PW.42-Prashant-Reliance Communication, PW.44Nikum-MTNL, PW.45-Sanjay-BPL, PW.48-Vikas-Vodafone,
PW.49-Dhirendrakumar-VSNL, PW.52-Milind-Airtel, PW.55Shekhar for Tata Tele Services. Exh.157(14 pages) is comprised of two
certificates and the printouts of the phone calls. These documents pertain to the certificates provide-
Reliance Communication. The printouts were supplied in September,2005. The certificates came to be supplied on 19th March,2007 i.e. long after the printouts came to be supplied. The certificates have been issued by one Prakash Jain, Chief Technical Officer & Nodal
Officer of M/s.Reliance Communication certifying that printouts supplied by him were the records lawfully maintained, regularly fed in the master computer in the ordinary course of the activities carried on,
having operational control over the use of the said computer. He has further certified that printouts are the reproduction from the record derived from
information registered by the computer in the ordinary course of the said activities which was operational at the relevant period and the printouts of the calls made to & fro the given numbers are supplied by means of appropriate equipment. He has further certified
that printout is true and correct electronic record supplied from the master computer. True, Shri Prakash Jain has not been
examined. PW.42-Prashant has however identified the
signature
of
Prakash
Jain
who
has
issued
the
certificates. True, the witness do not have personal
knowledge abut the printouts supplied to the police. He has, however, denied to have not played any role for issue of document-Certificate (Exh.157).
78.
PW.44-Nipun claims to have been working as
Sub-Divisional Engineer with MTNL since 1993. He has referred to the printouts-Exh.162 and the subscriber details (Exh.163) supplied by the MTNL. Exh.163 bears
his signature. The printouts-Exh.162 are not supported by certificate. PW.44 does not claim to have
personally taken out the printouts-Exh.162 for being supplied to the Crime Branch.
79.
PW.45-Sanjay claims to have been working as
Nodal Officer with BPL. It is in his evidence that the BPL furnished call details and subscriber details as per the requisition made by DCP, Shri Kamlakar. the witness has identified the signature of Shri
K.P.Bapuna, Head-HR appearing on the documents, the Company had supplied as per the requisition. The
witness has identified the signature of officials of the BPL, who had issued the documents in the nature of printouts and the subscriber details. Based on his evidence, these documents came to be exhibited vide Exh.166 to 172. This witness too do not claim to have any personal knowledge about the documents-Exh.167 to 172. The printouts have not been supported by the
certificate as is envisage by Section 65-B(4) of the Evidence Act. The subscriber details (Exh.166)
furnished by the BPL can be read in evidence as the same is the information supplied by the BPL from its official record. The witness has identified
K.A.Bapuna's signature appearing thereon. It is not that the documents can only be proved by its author. There are ways and means to prove the document. Even under some circumstances, documents relied upon can be admitted in evidence on the basis of internal
evidence. On the basis of such internal evidence, one
can vouch for probative value of such document. The victims have themselves given their phone numbers.
Their oral evidence is supported by the subscriber details furnished by the concerned service provider like BPL Mobile etc.
80.
PW.48-Vikas claims to have been working as
Nodal Officer working with Vodafone. On the basis of his evidence, communication between the DCP and the Vodafone, printouts and the subscriber details came to be exhibited vide Exh.182 to 183. certificates certifying Exh.184 to be are true the and
printouts
correct electronic record. This witness has identified the signature of Shri Godse, Asstt.Nodal Officer
appearing on this certificate. True, the certificates came to be issued subsequent to supply of the
printouts.
81.
PW.49-Dhirendrakumar
claims
to
have
been
working with VSNL. There are call records and the certificates certifying the call records to be true
and
correct.
On
the
basis
of
his
evidence,
the
documents in the nature of the certificates and the printouts came to be admitted in the evidence vide Exh.186 & 187. PW.48 & had 187) himself issued the the call
certificate details.
(Exh.186
certifying
True, the call records do not appear to be in chronological order in which calls were made. The
witness has an answer thereto. According to him in the year 2005, there at were seven international gateways Gandhinagar, For each Kolkatta, gateway
located
Mumbai,Delhi, Ernakulam,
Jalandhar,
Chennai.
monthwise sequence was maintained. The master computer arranges the calls in that manner automatically that is why the call record are not in chronological order. The witness has categorically denied that the call records were not automatically generated record from the master computer.
82.
PW.52-Milind
was
the
Nodal
Officer
working
with Bharti Airtel. On the basis of his evidence, the
call details and subscriber details vide Exh.194 to 204 supplied by Airtel came to be admitted in
evidence. He had identified signature of the concerned official appearing on respective exhibited document viz.194 to 204. This witness too did not have personal
knowledge about the printouts and the other details supplied by the Bharti Airtel. None of these documents bear certificate as expected by Section 65-B of the Evidence Act.
83.
PW.55-Shekhar claims to have been working as
Asstt.Manager (Vigilance) with Tata Tele Services. On the basis of his evidence, the printouts-Exh.211
supplied by Tata Tele Services came to be admitted in the evidence. These printouts are supported by the certificate. The witness has identified the signature of Shri Yogesh Rajapurkar.
84.
In view of Section 65-B of the Evidence Act,
any information contained in an electronic record
which is printed on a paper, stored, recorded and copied in optical or magnetic media produced by a computer shall be deemed to be also a document, if the conditions mentioned in this section are
satisfied in relation to the information and computer in question and shall be admissible in any
proceedings, without further proof or production of the original, or as evidence any fact of any contents therein of of the
original
of
stated
which
direct evidence would be admissible. In view of sub-section 4 of Section 65-B, In any proceedings it is desired to give a statement in evidence by virtue of Section 65-B, a certificate
doing any of the following things, that is to say-(a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was
produced by a computer; (c) dealings with any of the matters to which the conditions mentioned in sub-
section(2)relate, and purporting to be signed by a person occupying a responsible official position in relation to the
operation of the relevant device or the management of the relevant be activities of (whichever any matter is appropriate) in the
shall
evidence
stated
certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
85.
The
certificates or the
issued
by
the
concerned to
authorities
cellphone companies
referred
hereinabove do contain substance of the matter as is required to be contained as per the provisions of section-65-B. Moreover, the very documents could be read in the evidence under the other provisions of the Evidence Act particularly in view of Section 63. The
documents
in
the
nature
of
printouts
and
the
subscriber details referred to hereinabove can also be read in evidence on the basis of internal evidence that vouch for their correctness. The aforesaid
documents would be adverted to while appreciating the evidence after the question of admissibility of the confessional statement relied upon is addressed.
86.
Confessional Statements: Accused John (A.3),
Anil (A.5) and Bhaskar (A.6) are alleged to have made confessional statements. Their confessional statements are sought to be relied upon against themselves and the co-accused. Before adverting to their confessional statements, it would be apposite to have a look at the relevant provisions of the MCOC Act relating to
confessional statements made to the police officer.
S.18. Certain confessions made to police officer to be taken into consideration(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872(1 of 1872), but subject to
the provisions of this section, a confession made by a person before a police officer not below the rank of the Superintendent of Police and recorded by such police officer either in writing or on any mechanical devices like cassettes, tapes or sound tracks from which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator. Provided that, the co-accused, abettor or conspirator is charged and tried in the same case together with the accused. (2) The confession shall be recorded in a free
atmosphere in the same language in which the person is examined and as narrated by him. (3) The police officer shall, before recording any confession under sub-section(1), explain to the
person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any the such confession making it, he unless is upon
questioning
person
satisfied
that
it
is
being
made
voluntarily.
The
concerned
police officer shall, after recording such voluntary confession, certify in writing below the confession about his personal satisfaction of the voluntary
character of such confession, putting the date and time of the same.
(4) Every confession recorded under sub-section (1) shall be sent forthwith to the Chief Metropolitan
Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Special Court which may take cognizance of the offence. (5) The person from whom a confession has been
recorded under sub-section (1) shall also be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is
required to be sent under sub-section (4) along with the original on statement mechanical of confession, without written or
recorded
device
unreasonable
delay. (6) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall scrupulously record the
statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon. There Crime are Maharashtra Control of Organized of
Rules prescribing
procedure for
recording
confession u/sec.18 of the MCOC Act. In case of Bharatbhai @ Jimi Premchandbhai vs.
State of Gujarat, 2003 ALL MR (Cri) 164 (S.C.). The Hon'ble Supreme Court has observed ... Thus, the fate of not only the accused co-accused as well hinges on the but the
confessional
statement recorded by a police officer under section 15 of the TADA Act. Such a statement cannot be
recorded in a mechanical manner. All the safeguards provided in the Act and the Rules have to be strictly adhered to. There can be no room for any latitude in
the matter and manner of recording of a confessional statement. Any material discrepancy will be fatal
unless satisfactorily explained by the prosecution. It is for the prosecution to prove that the
confessional statement was truthful, voluntarily made and all safeguards were complied with while recording it. It can result in the hanging of accused and co-accused etc. Relying on it, punishment upto death penalty others. The provisions of Section 18 of the MCOC Act are para-materia Section 15 of TADA Act. Confessional Statement is an admissible piece of evidence in a trial for the offence under MCOC Act. Even if the offence under MCOC Act fails or is not proved, still confessional offence statement is admissible Penal in proof or of any can be imposed on the maker as also on
punishable
u/sec.Indian
Code
other law. 87. Let us turn to the evidence in relation to the
confessional statement. It is in the evidence of PW.
76(I.O.) that on 2nd August,2008, accused John (A.3) volunteered to give his confessional statement. He, therefore, immediately submitted the proposal to the Jt.C.P. officer (Crime) to for nominating competent statement. police It is
record
confessional
further in his evidence that the Jt.C.P. appointed DCP Shri Prashant Burde (PW.60) to record confessional
statement. He, therefore, made correspondence with PW. 60. He was called upon to produce accused before PW.60 on the next date. PW.76's evidence further indicate that as per his instructions, the accused-John came to be produced before the PW.60-Prashant.
88.
It is in the evidence of PW.60 that on 1st he received to record the letter from Jt.C.P. of
August,2005, appointing
him
confessional
statement
accused-John. The witness tendered in the evidence the said letter (Exh.223). It is further in his evidence that thereafter he wrote a letter to the I.O. asking him to produce the accused before him at his office on 2nd August,2005. The office copy of the said letter is
at Exh.224. The evidence of PW.60 further indicate that the accused-John came to be produced before him on 2nd August,2005 at 1.15 p.m. He then secured
presence of Shri Wahile (PW.54) Police Inspector. He gave the accused to the custody of Shri Wahile for a while. He then asked the officer of the crime branch to leave his office. Accordingly, officer Shri Joshi and Shri Deshmukh left his office. Then he got the accused produced before him. Shri Wahile then left. PW.60 then summoned his stenographer. It is further in his evidence that he introduced himself to the
accused-John. He also explained to the accused that he was no way concerned with the investigation. His
evidence further indicate that he put some questions to the accused to let him know his background,
languages he understand etc. It is further in his evidence that he made the accused aware that he was no longer in custody of the officer relating to the
investigation. It is further in his evidence that he explained to the accused that he was not bound to make a confession and if he made so it would used as
evidence against him. The evidence of PW.60 further indicate that he made inquiry with the accused to let him know whether the accused was subjected to any kind of ill-treatment or was made any promise to make him confess. The evidence of PW.60 indicate that whatever interaction he had with the accused-John has all been recorded in question-answer form. It is further in his evidence that he gave 24 hours time to the accused for reflection. He, therefore put the accused in the
custody of Shri Wahile with a direction to keep him in the lock up of Colaba Police Station. The witness has tendered in the evidence correspondence made by him in that regard vide Exh.225 & 226. Based on the evidence of PW.60, confessional statement of accused-John came to be admitted in the evidence. It is at Exh.227. PW. 60's further evidence indicate that on the next day i.e. on 4th August,2005, accused was again produced before him. He again put the questions to the accused to satisfy himself that the accused volunteered to make a confession.
89.
Whatever
interaction
between
the
PW.60
and
the accused John took place has all
been said to have
been recorded in Exh.226. It is not necessary to refer to the evidence in examination-in-chief of PW.60. His evidence further indicate that after recording the confessional statement, he sent the same in sealed cover to Ld.Chief Metropolitan Magistrate (CMM). It is further in his evidence that the accused-John was
produced before the Ld.CMM as per his direction.
90.
PW.60 came to be subjected to a searching
cross-examination. It has come in his evidence that document-Exh.223 does not bear inward number of his office. He was also unable to state who has signed Exh.224 acknowledgment receipt thereof. It is in his evidence that he got acquainted with the provisions of the MCOC Act as a preparation for recording
confessional statement. The witness was categorical to state that whatever questions he had put to the
accused
on both the dates i.e. on 2nd August & 4th
August have all been recorded as part of confessional
statement. accused
During
the in
period lock
of up
reflection, of colaba
the
was kept
the
Police
Station. PW.60 did not pay any visit to the lock up during the said period to let him know in what
condition the accused was kept in the lock up. It has also come in his evidence that the police custody of the accused was to expire on 5th August,2005. PW.60 claimed to have been aware that the accused has to be informed that his confessional statement would only be recorded if the same is voluntarily made. It has also come in his evidence that he did not recollect on the basis of what he has made mention of the nickname of accused as 'Aakash' in Exh.225 & 226 when there was no reference of name Aakash in Exh.223 and first part of the confessional statement. In my view, the failure of PW.60 to give clear answer to the question does not go to the root of the matter. After all, the witness gave his evidence little over four years after he recorded the confessional statement.
91.
The evidence of PW.54-Wahile corroborates the
evidence of PW.60. It is in his evidence that he took the accused in his custody on 2nd August,2005 from PW. 60. He then kept the accused int he lock up of Colaba Police Station. As per the direction of PW.60, he again produced the accused before PW.60 in his office on 4th August,2005. It is further in his evidence that he took the custody of the accused at 4.00 p.m. on 4th August,2005. He also received sealed envelope
addressed to the Ld.CMM. It is further in his evidence that he had produced the accused before the Ld.CMM by 5.00 p.m. and delivered the sealed cover to him. This witness too was subjected to a searching cross-examination. Nothing however could be elicited during his cross-examination which would throw doubt on his evidence. Exh.227 is the confessional statement (Part I & Part II) of accused-John. The contents in the first page are in English. The contents pertain to the production of the accused before PW.60. The rest of the confessional statement except the certificate appended below the same and first three paras of PartII are in Marathi (Devnagari). The perusal of the
questions 1 to 13 and the answers thereto given by the accused-John undoubtedly indicate that PW.60 has
complied with the provisions of Section 18 of the MCOC Act and the relevant rules. It is evident from those questions that PW.60 had informed the accused that it was not obligatory on him to make a confession and if he made so the same would be used as evidence against him. The questions were also put to the accused to ascertain whether he had been ill-treated or induced to make any confession. Each page of the confessional statement bears signature of the accused and that of PW.60. Admittedly, the accused was produced before the Ld.CMM after his confessional statement was recorded. The statement was also placed to the custody of Ld.CMM while the accused was produced before him. Ld.CMM's report finds place at Exh.229. His report indicate that he read over the entire confessional statement to the accused-John. The accused admitted the statement to be correct. The accused had, however, informed the Ld.CMM that he did not refer to any of the co-accused in his confessional statement.
True, the accused-John denies to have made any reference to any of The the co-accused of in his do
confessional appear in
statement. his
names
co-accused It
confessional
statement.
however
cannot be said that the accused had retracted from the substantive part of his statement. It might be that he entertained fear to him at the hands of co-accused. It is also true that on his production before the Special Court under the MCOC Act, the accused has retracted the confessional statement. Ld.Spl.Judge had called upon the prosecution to file it say. The record
indicate that the prosecution did not file any say. It was the case of the accused before the Ld.Special Judge that the officer Joshi & Sawant (PW.73 & PW.74) induced and promised him of discharge from the case if he made a confessional statement. In my view, the accused had an opportunity to make such a grievance while he was produced before the Ld.CMM with the very object to ascertain whether the accused was subjected to any kind of ill-treatment or to a promise to make a confession. The belated retraction is of little
consequence
while there
is
independent
evidence
to
vouch for truthfulness of his confessional statement.
92.
Then comes to the confessional statement made
by the accused Anil Barot (A.5). PW.59-Shri Bajaj was the Deputy Commissioner of Police during the relevant period. appointed It is in to his record evidence that ACP (Crime) of
him
confessional
statement
accused-Anil Barot @ Barot. He, therefore, issued a letter to the office of the Crime Branch asking him to produce the accused before him. The office copy of his letter have been tendered in the evidence vide Exh. 218. PW.59 also produced on record the Jt.C.P.'s
letter (Exh.217) appointing him to record confessional statement. It is further in the evidence of PW.59 that on 9th September,2005 at 11.00 a.m., the accused-Anil @ Bhau came to be produced before him. Then, he
ensured around.
that no officer from the Crime Branch was He explained to the accused the procedure
relating to the recording of confession. It is further
in his evidence that he made the accused aware that he was not bound to make a confession and if he made one, the same would be used as evidence against him. It is further in his evidence that he gave 24 hours time to the accused for reflection. He kept the accused in the lock up of Azad Maidan Police Station with a direction not to let any person meet the accused in the lock-up. The evidence of this he witness put to also the indicate for that his
whatever
questions
accused
subjective satisfaction as to the voluntariness of the accused to make a confession have all been recorded. The evidence of PW.59 indicate that from the answers given to his questions, he was satisfied that the accused wanted to make a clean breast voluntarily. The accused was not subjected to any ill-treatment or any promise was made to him to make the confessional
statement. The evidence of PW.59 further indicate that as per his direction, the accused again came to be produced before him on 10th September,2005. He again put similar questions to the accused to ascertain that the accused wanted to make confessional statement
voluntarily. The evidence of PW.59 further indicate that he recorded the statement given by the accused as it is vide Exh.219. Then he sealed the confessional statement evidence produced and sent the same that to he the got Ld.CMM. the His
further before
indicate the
accused
Ld.CMM
after
confessional
statement was recorded. PW.59 was subjected to a searching crossexamination. confessional True, only the last the page of of the the
statement
bears
signature
accused. It is also true that PW.59 ought to have obtained the signature of the accused on one and all pages of confessional statement. The lapse in not
obtaining the signature of the accused on all the pages of the confessional statement however does not rob it of its genuineness in view of the evidence on record. Had there been no signature of the accused on the confessional statement, the case would have been otherwise. PW.59 has also not physically examined the accused nor did he get him medically examined before he recorded the confessional statement. It is true
that each page of the confessional statement bears page number. According to the PW.59, page number
appearing on each page of confessional statement is not in his handwriting. He also could not state who has made the paging. The same too is not fatal to the prosecution as the confessional statement has later on changed the hands in due course.
93.
The evidence of PW.59 has been corroborated
by the evidence of PW.47-Laxman. It is in his evidence that on 9th September,2005, he appeared before PW.59. He took the accused-Anil to his custody. Then, he kept the accused in the lock up of Azad Maidan Police
Station and again produced him on the following day before the PW.59. It is further in his evidence that after recording of confessional statement was over, he produced the accused before in-charge CMM at his
residence as it was the holiday and the Ld.CMM was on leave.
94.
It is true that there is some inconsistency
inter-se the evidence of PW.47 & PW.59. The same is bound to occur as the witnesses have given the
evidence four years after the confessional statement was recorded.
95.
The confessional statement (Exh.219) indicate
that PW.59 put the questions to the accused in Hindi as the accused was comfortable with the said language. I have perused the question No.1 to 16 (Part-I) put to the accused. The questions undoubtedly indicate that the PW.59 has complied with the provisions of Section 18 of the MCOC Act and the relevant rules therein. It is true that the narrative part of the confessional statement cellphone of the accused have indicate given that by about in 15 his
numbers
been
him
statement. Ld.defence advocate can be said to have been justified to make a submission that it would be highly impossible for human being to give so much phone numbers from his memory. In my view, it is a matter of one's memory. It is, however, not that it is impossible for a man to give so much phone numbers
from his memory. The truthfulness of the confessional statement on this ground cannot be doubted as there is independent evidence to vouch for. The confessional statement to be true & voluntary.
96. produced
Admittedly, before
the the
accused-Anil in-charge CMM
Barot after
was his
confessional statement was recorded. The in-charge CMM has made his report overleaf the last page of the confessional statement. His report indicate that he had explained The the confessional admitted statement to have to made the the
accused.
accused
confessional statement before the Dy.C.P.
He made no
complaint of any torture. True, the accused on his production before the Special Court has retracted from his confessional statement. It was his case that the concerned police officer asked him to sign readymade statement on a promise that he would be released from the case. Ld.Spl.Judge had called upon the prosecution to file its say. The prosecution did not file its say. It however cannot be assumed that the allegations made
by
the
accused
while
retracting
his
confessional
statement before the Special Court are admitted by the prosecution. It is reiterated that there is
independent evidence to vouch for truthfulness of the confessional statement. The belated retraction of
confessional statement is therefore of no avail for the accused.
97.
The
confessional
statement
of
the
accused-
Bhaskar Bhandari (A.6) finds place at Exh.265. The same has been recorded by PW.68-Shri Rastogi,
Dy.Commissioner of Police. It is in his evidence that on 8th September,2005, appointing he him received to Jt.CP's letter
(Exh.258)
record
confessional
statement of accused-Bhaskar. He, therefore, issued a letter (Exh.259) to P.I. of Agripada Police Station with a direction to keep one officer present before him with some escort party to take the accused into custody. It is further in his evidence that as per his direction, the accused came to be produced before him on 9th September,2005. On production of the accused
before him, PW.68 ensured that interaction between him and the accused could not be heard or overheard by anybody. Then, he put some questions to the accused to let him know in which language he would be
comfortable. PW.68's evidence further indicate that whatever interaction between him and the accused took place has entirely been recorded by him in his own handwriting. This indicate the precautions taken by the officer. PW.68 has tendered in his evidence all the correspondence (Exh.258 to 271) made and received by him in relation to recording of confession of the accused-Bhaskar. I do not propose to dwell at length about oral testimony (Exh.265) of PW.68 as the the confessional in the
statement
contained
evidence
nature of questions put by PW.68 to the accused for his subjective satisfaction that the accused wanted to make confession voluntarily.
98.
PW.68
was
subjected
to
searching
cross-
examination. In my view, nothing could be elicited from his cross-examination that would make the
confessional statement doubtful.
99.
The evidence of PW.68 has been corroborated
by the evidence of PW.46-Pratap. It is in his evidence that on 9th September,2005, he appeared before PW.46. He received accused-Bhaskar to his custody and kept him in the Satrasta lock-up. He again produced the accused before PW.68 on 10th September,2005 in the
morning. Again at 4.00 p.m. he appeared before the DCP to get the custody of the accused. It is further in his evidence that he produced the accused before incharge CMM at his residence and delivered the sealed cover n the same day i.e. 10th September,2005.
100.
The confessional statement (in 2 parts) is at
Exh.265. I have carefully perused the questions put to the accused by PW.68 and the answers given by the accused thereto. From the answers to the questions given by the accused, he satisfied himself that the accused wanted to make clean breast. Each page of the confessional statement bears the signature of the
accused
and
that
of
PW.68.
Whatever
holes
in
the
confessional statement or the manner in which it came to be recorded were sought to be picked up by the defence loses its efficasy in view of affirmation of the confessional statement made by the accused himself before the Ld.CMM. The in-charge CMM has made his endorsement on the last page of the confessional
statement. The endorsement bear the signature of the accused as well. It indicate that the Ld.CMM explained the statement to the accused. The accused affirmed to have made confessional statement before the DCP. The accused did not have any complaint of ill-treatement. True, before the Special Court under the MCOC Act, the accused has retracted from the confessional statement. The accused had alleged that his signature was
obtained on the readymade statement. Ld.Spl.Judge had called upon the prosecution to file its say. It
appears that the prosecution did not file its say to the retracted statement made by the accused. In my view, the belated retraction is of no consequence in view of there being an independent evidence to vouch
for probative value of confessional statement-Exh.265.
101.
Ld.Advocate
Shri
Pasbola
took
exception
to
all the three confessional statements on number of grounds. It is true that the confessional statement came to be recorded when the accused persons were in the police custody. It is also true that the accused came to be placed to the custody of the I.O. after their confessional statement were recorded. There is also no evidence to indicate that the accused persons were medically examined before their statements came to be recorded. I have considered the grounds of
objections raised in the memorandum of argument (Exh. 353). This Court is of the view that the questions put to the respective accused by the concerned DCP and the answers given thereto by the accused persons vouch for subjective satisfaction of the concerned officer as to voluntariness of the accused persons who made
confessional statement. The grounds of objection to the confessional statement loses their efficacy in
view of accused persons affirming their confessional
statement before the Ld.CMM on their production in compliance of the provisions of Section 18(5) of the MCOC Act. As such, the confessional statements (Exh. 219,227 & 265) have been duly proved to have been voluntarily made.
Appreciation of Evidence: 102. PW.1-Pawan has already testified to have had
received phone calls on his cellphone bearing number 9821122825 on 5th, 7th & 9th July,2005. His evidence would further indicate that the caller claimed to be Vicky Malhotra. He inquired with him as to why he did not contact on given phone number. PW.1's evidence indicate that during the first call dated 5th July, 2005, the caller had given one phone number and asked him to contact thereon. That time the caller was some person other than Vicky Malhotra. The caller-Vicky
made inquiry with him as to his financial status. The evidence of PW.1 would further indicate that he was frightened by such calls. However, on 11th July,2005, he rushed to the Anti Extortion Cell of Mumbai Police
and lodged the first information report (Exh.44). PW.1's evidence finds corroboration from the documentary evidence on record. Exh.166 is the
document issued by BPL Mobile furnishing subscriber details. The document indicates that PW.1-Pawan was the subscriber of the aforesaid cellphone. Moreover, there are printouts-Exh.194 (Page 55) to vouch for PW. 1's evidence. the printouts indicate that on 7th July, 2005, there were two calls on PW.1's cellphone. The calling phone number was 0085290215851. Whereas on 9th July,2005, there was one call between these two phone numbers. PW.1 was the receiver of the said call. The order authorising interception indicate that the calls made to and fro cellphone number-0085290215851 were under observation. The calls have been intercepted. The transcript of the intercepted aforesaid three
calls find place at Page No.811,813 to 815 & 833. The transcript itself indicate that the caller gave his name as Vicky Malhotra speaking from one Rajan.
Perusal of entire transcript of intercepted telephonic conversation would indicate that the caller claims to
have property details of PW.1-Pawan. The caller made a demand of money. At one stage, the caller informed PW. 1 that he would tackle the matter in his style/way and then PW.1 should not complain. This indicate that the caller gave threats to PW.1. On Page 833, the caller again gave a threat. For better appreciation, I
propose to reproduce the words in verbatim..
The entire transcript is on record. The same indicate that the caller Vicky Malhotra gave veiled threat to PW.1-Pawan if his demand of money was not met. True, PW.1's evidence before the Court is
silent to state in terms that the caller gave him threats. PW.1's evidence however indicate that he was frightened because of such unusual calls. The caller asking PW.1 as to why he did not contact on the given number and claiming to have full details of PW.1's financial status coupled with demand of money would
undoubtedly suggest that the caller put PW.1 in fear with a view to induce him to meet his demand. The cassettes containing intercepted conversation find
place at the Article 2 to 4. These cassettes alongwith cassettes containing voice sample of both PW.1-Pawan and the accused-Vicky were sent to CFSL, Chandigarh. The Voice Analysis Report (Exh.252) undoubtedly
indicate that the intercepted talk was between the accused Vicky and PW.1-Pawan. Confessional Statements (Exh.219,227 & 265) undoubtedly indicate that the
aforesaid cellphone i.e. 0085290215851 was being used by the accused Vicky. It is reiterated that the caller gave his name Vicky and claimed to have been speaking from Rajan (may be wanted accused). The aforesaid
evidence undoubtedly indicate that three calls dated 5th July & 9th July,2005 received by PW.1-Pawan on his
above given cellphone number were made by A.1-Vicky. He made a demand for money and he gave veiled threats to PW.1 with an intention to induce him to meet his demand. It is true that PW.1 did not claim to have paid any farthing pursuant to the demand made by the
A.1. The evidence undoubtedly makes out an offence punishable u/sec.385 of the I.P.C. against the accused Vicky.
103. had
Similarly, PW.12-Kamal has testified to have received phone calls The on his cellphone has bearing his
number
9820231817.
witness
corrected
cellphone number during his re-examination. There is independent evidence to corroborate PW.12's case about his correct cellphone number. PW.12 claimed to have received phone calls on his aforesaid cellphone on 31st May,2005 and some more calls during the month of May to July,2005. His evidence further indicate that the caller claimed to be Vicky Malhotra and he made a demand of money was from him as PW.12's construction further
business
flourished.
PW.12's
evidence
indicate that the caller gave threats to his life if the demand was not met. PW.12's documentary details. evidence finds corroboration of from
evidence in Exh.183 is
the nature a
subscriber's issued by
document
Vodafone/Orange
informing
that
cellphone
number
9820231817 has been subscribed by PW.12-Kamal Jain. Moreover, there are printouts vide Exh.194 to vouch PW.12's case. Page 45 of the printout indicate that on 3rd May,2005, there were three calls received by PW. 12. While on 4th May,2005, there was one call. page 47 of the printouts indicate that on 19th May and on 12th May,2005, there were two and one call respectively. Page 49 of the printouts indicates that on 14th & 15th June,2005, there were two calls. Again on 17th June, 2005, there was one call. On 6th July,2005, there were two such calls. All the time the calling number was 0085290215851. The aforesaid calling cellphone number was under observation. The calls to and fro the said number have been intercepted. The transcript of the intercepted talk is at Page 639 to 641, 643, 649, 781 to 783 of Exh.279. I have minutely perused the entire transcript. I do not subscribe to the submission made by the defence that the talk pertain to business
transaction, One Nanaseth had given project to PW.12 for construction. PW.12 owed to Nanaseth and the talk
pertain thereto. The transcript indicate that the PW. 12 would avoid the calls made on his cellphone. The caller therefore made a call from the local number. Assuming the call to have been made by someone else, PW.12 received the call. The minute perusal of the entire transcript would undoubtedly reveal that the caller was making demand of money which was neither due to him or Nanaseth. True, the talk would indicate that PW.12 had availed some assistance of Nanaseth while he received the project for construction. The demand was for Rs.40 to 50 lacs. The nature of talk would threats undoubtedly to indicate that the caller gave I
PW.12-Kamal.
For better
appreciation,
reproduce some matter in verbatim..
The
entire
conversation
would
undoubtedly
indicate that the caller would give threats to PW.12 if his demand was not met. PW.12 in no uncertain terms claimed to have received threats to his life at the hands of caller-Vicky. It is reiterated that the cassettes
containing intercepted conversation and the cassettes containing voice sample of accused-Vicky and PW.12
were sent to CFSL, Chandigarh. Report (Exh.252) undoubtedly
The Voice Analysis indicate that the
intercepted talk was between the accused Vicky and PW.
12-Kamal.
Had
it
been
business
transaction,
the
nature of talk would have been otherwise. PW.12 would have no reason to avoid the calls. The confessional statements undoubtedly indicate that the cellphone number 0085290215851 was being used by the accused Vicky. the Confessional statement-Exh.265 had also asked indicate that
accused-Vicky
accused-Bhaskar The accused-
Bhandari to give threats to Kamalbhai.
Vicky did not offer any explanation as to calls made by him to PW.12 and other prosecution witnesses who claimed to have received extortion calls. The
foregoing evidence undoubtedly indicate that it was the accused-Vicky and none else who had made number of phone calls to PW.12-Kamal and gave him threats to meet his demand of money. It needs no mention that A.1-Vicky had earned name in underworld. He claimed to be affiliated to some dreaded gangster. Making calls and giving veiled threats by such a person would be nothing short of giving threats to one's life or
causing grievous hurt. PW.12 has testified to have received threats to his life at the hands of the
caller-Vicky.
The
caller
was
none
other
than
the
accused-Vicky gets established by the evidence in the nature of the printouts of the calls, transcript of the intercepted telephonic conversation and the Voice Expert's report. The foregoing evidence undoubtedly make out an offence punishable u/sec.387 of the Indian Penal Colde against accused-Vicky.
104. have
PW.2-Madan has testified in his evidence to had received calls on his cellphone bearing
number 9821114179. The caller was Vicky Malhotra. The caller asked him that he would have to pay tax as construction on large scale of his company was
underway. The caller informed PW.2 to have detailed information about PW.2's financial status. The caller made a demand of Rs.5 lacs. It is further in his evidence that the caller would give threats to his life if the demand was not met. PW.2's evidence
further indicate that caller-Vicky kept him calling on his phone almost everyday. In the month of April or May, he received such call. It is further in his
evidence
that
on
17th
June,2005,
there
was
an
engagement ceremony of his daughter. He received A.1Vicky's call on that day. PW.2's evidence find support from the document-Exh.166 that the Madan issued Kothari by BPL Mobile is the
informing
(PW.2)
subscriber of cellphone bearing No.9821114179. Exh.194 are the printouts issued by Airtel. Page 39 of the printout indicate that on 22nd, 25th, 27th & 28th
February,2005, 1st, 2nd,& 7th March,2005, 4th April,2005 & 17th June,2005, there are number of calls made on PW.2's aforesaid cellphone. The The calling number number was was
0085290215851.
calling
under
observation. The call dated 17th June,2005 has been intercepted. The transcript of the conversation in the intercepted call is at Page 687 of Exh.279. True, the conversation indicate that it was a general talk. As the PW.2 informed the caller that there was engagement ceremony of his daughter, the caller appears to have discontinued the call. The cassettes containing the intercepted conversation and the cassettes containing the voice sample of PW.2 and accused Vicky were sent
to CFSL, Chandigarh.
The Voice Analysis Report (Exh.
252) undoubtedly indicate that the intercepted talk was between the accused Vicky and PW.2-Madan Kothari. In the confessional statements (Exh.219 &
227), there is reference to PW.2-Madan as one of the victim of the extortion calls. True, PW.2's statement has been recorded very late. It is also true that PW.2 has in his evidence before the Court deviated from the story given to the police. He had been to the Crime Branch in response to the call. The fact, however, remains that PW.2 claimed to have been frightened as the result of calls he received. He did not dare to approach the police on his own. It is however not that what he had stated to the police and then before the Court is concoction or a got up story. If we read the confessional statement of the co-accused and the entire transcript of all the intercepted calls, there would be no reason for this Court to doubt PW.2's evidence before the Court. He has no reason to give false evidence against the
accused. The call details undoubtedly indicate that
accused-Vicky had made several calls to PW.2-Madan. It is now for the accused to explain as to why for he had made those calls, was he acquainted with the PW.2 and exchanged pleasantries during all such calls. The
accused-Vicky did not offer any explanation. As such the evidence of PW.2 undoubtedly make out an offence punishable u/sec.387 of the Indian Penal Code against accused-Vicky.
105.
PW.3-Ulhas
Mhatre
did
not
speak
anything
incriminating against the accused-Vicky. He claims to have received phone call of one John & one Captain. There is no independent evidence to corroborate PW.3's case. A.3-John's confessional statement (Exh.227)
do not shed light as to his involvement in making call to PW.3-Ulhas. True, there is some reference to one K.K.Mhatre, who was in the cable network business. The particular paragraphs in John's confessional statement in that regard is silent to bring him close to the offence he is charged with.
106.
PW.4-Kirit did not stand by the prosecution.
The evidence of PW.14-Hasmukh does not allege anything incriminating accused. against accused-Vicky or any other
107.
PW.5-Jayant claimed to have received number
of calls on his cellphone bearing number 9323615165. The caller was Vicky Malhotra. The caller had made demand of Rs.5 lacs, 25 lacs from him. PW.5's evidence further indicate that he would buy time on one or the other pretext. The last call made by A.1-Vicky pertain to some work relating to development of the property. Caller informed the PW.5 that he would send Babua's son in that connection and he should do the needful. It is further in his evidence that he received 3-4 such calls. He did not approach to the police
complaining about the calls due to fear. Exh.157 is the document issued by Reliance Communication. Jayant number is the Page 13 thereof of indicate that PW.5-
subscriber The
the
Cellphone
bearing was
9323615165.
calling
number
0085290215851. It needs no mention that this number was under observation. The cellphone number was being used by accused-Vicky is evident from the confessional statement of the co-accused and the Voice Expert's report. The question is whether the evidence of PW.5Jayant makes out the offence against the accused-
Vicky. During his cross-examination, it has come on record that he received Vicky's only one call in the year 2004 and in 2005 as well. PW.5 in clear terms testified that the caller-Vicky gave no threats. PW. 5's evidence in that regard is reproduced as below The caller did not put me in any kind of threats to meet his demand during both the calls . As such PW.5's evidence fell short to connect the accused-Vicky to the offence he is charged with. 108. Vicky. PW.7's evidence do not pertain to accusedHis evidence has already been discarded
hereinabove to connect the accused Yusuf Pachkana with the offence he is charge.
109. been
PW.25-Laxmichand Dedia's evidence has already referred to hereinabove. He claimed to have
received threatening calls on his cellphone bearing No.9821138656. The caller asked him to pay Rs.25 lacs more to the vendor from whom PW.25 claimed to have purchased land in Kalyan. One Nanhe is also alleged to have made one such call. There is no evidence to
establish the identity of the caller-Nanhe. None of the calls made to PW.25 had been intercepted. True, subscriber details (Exh.166) indicate that the PW.25Laxmichand is the subscriber of cellphone number
9821138656. Exh.194 are the printouts of the phone calls. The printouts indicate that there was only one call made on PW.25's aforesaid cellphone and that was on 13th May,2005. It is The calling the number was
0085290215851.
evident from
confessional
statements and other evidence on record in the nature of other intercepted conversation and voice Expert's report that this cellphone was being used by accusedVicky. In the confessional there is statement only (Exh.219) of of the
accd-Anil
Barot,
reference
aforesaid cellphone number of PW.25. PW.25's evidence is to the effect that since such December,2003 calls. till
December,2005
he received
He, however,
admits to have had not been to the police complaining about any of such calls. His evidence further indicate that he would not have lodged any complaint in
relation to such calls, had he not been summoned by the Crime Branch on 18th August,2005. It is not that PW.25's case is not being believed. However, there is no independent evidence to vouch for PW.25's case. The accused-Vicky (A.1) is therefore entitled to benefit of doubt.
110. referred received
PW.37-Sampatkumar's evidence has already been to hereinabove. calls of He Vicky is alleged to have He
phone
Malhotra
(A.1).
claimed to be in the business of scrap and granite material. One Dilip Patel (wanted accused) and he had paid Rs.1,80,000/Rs.60 to one for Bhaskar. paid Dilip to had
contributed
lacs
being
Bhaskar.
Bhaskar had promised to supply scrap material. The
transaction did not materialise. Bhaskar did not repay the amount received as advance. Dilip Patel started asking PW.37 to pay his money back. PW.37's evidence further indicate that he received calls from Dilip Patel informing to have entrusted the matter to
Malhotra and he (Malhotra) would tackle with him. PW. 37's evidence further indicate that he received call on his cellphone bearing number 9819889202. The caller was one Bhau or Sunil. The caller informed him that Malhotra would call him later and he should respond to his call. It the is further The in his evidence to that be he one
received
call.
caller
claimed
Malhotra. He informed him that the case has come to him and he should pay Rs.3 crores to Dilip. The caller gave him one month's time to pay the amount. It is further in his evidence that he again received
Malhotra's call within a period of one month's time. He explained his side of the story. The caller asked him to hand over all the papers to his man. Then he received a call from one Bhau. Bhau asked him to come to hotel 'All Season' to hand over to him the papers.
PW.37's
evidence further
indicate that
he received
Vicky Malhotra's one more call asking him to pay him Rs.50 lacs and in return forget Dilip. PW.37 claimed to have been scared due to such call. PW.37 identified the accused-Anil Barot @ Bhau before the Court as the person who collected the papers from him at hotel 'All Season'. His evidence further indicate that Bhau was with him at that time for an hour. He, however, admits to have had not given description of Bhau in his
statement to the police. Exh.183 are the subscriber details indicating that PW.37-Sampatkumar was the subscriber of cellphone number 9819889202. Exh.194 are the printouts (Airtel) to indicate that on 3rd February, 14th February & 27th February,2005, there were number of calls between PW. 37's aforesaid cellphone and the cellphone number
0085290215851 that was being used by accused-Vicky. PW.37 was the receiver of all such calls. PW.37's received threats evidence at the indicate hands of that the he had
caller-Vicky
Malhotra. True, the evidence of PW.37 do not slightly
stand with his statement to the police. It is also true that his statement has been recorded late. PW. 37's evidence however stands corroborated in view of call records-Exh.194 Exh.219. and Para Anil 2 Barot's on page there confessional 11 are of the
statement
confessional
statement
(Exh.219)
details
indicating that accused-Vicky had given threats to PW. 37's life if he did not return money to Dilip Patel. The confessional statement further indicate that the accused-Anil Barot @ Bhau had received some papers from PW.37 at hotel 'All Season'. True, PW.37 did not in terms state that the caller had given threats to his life. The fact, however, remains that PW.37
perceived threats at the hands of the caller-Vicky Malhotra. The same is corroborated by the confessional statement-Exh.219. As such the evidence of PW.37 makes out the evidence punishable u/sec.385 of the Indian Penal Code against accused-Vicky and the offence of abetment of the offence u/sec.385 against the accusedAnil Barot @ Bhau.
111. and the
The evidence of PW.39 & PW.40 is on the one same point. Moreover, PW.39's evidence
pertains to the accused-Farid (deceased A.2). Except the bare words of PW.40, there is no other evidence to prove that he received phone calls of one Kashi Pasi (A.7). There is also no evidence to connect the A.7Kashi Pasi with the calls allegedly made to PW.40. The evidence of PW.40 is to the effect that the callersFarid & Kashi Pasi were asking him to settle the
matter i.e. dispute over the hotel premises. Suffice it to say that there is no evidence to substantiate PW.40's claim.
The role of co-accused-conspiracy/abetment: 112. the It is the case of the prosecution that all accused persons were the members of organised
crime syndicate. The same is literally true but not in terms of provisions of Section 2(f) of the MCOC Act. It is reiterated that the prosecution could have made out an offence under MCOC Act but for having placed reliance on irrelevant previous two charge-sheets. Be
that as it may, the accused persons are alleged to have conspired to commit offence of extortion and
related offences. In proof of the same, the telephonic conversation inter-se the accused persons have been relied upon. On arrest of all the accused persons, there voice sample came to be obtained. Panchnama in that regard came to be drawn. The officers-PW.73 & PW. 74 gave their evidence in this regard. Their evidence has been corroborated by the respective panch
witnesses. I do not propose to dwell at length the evidence of panchas and the officers in this regard as the factum of obtaining voice sample of all the
accused is evident on the audio cassettes containing voice sample. Each cassette was played before the
Court. The officer-Joshi first spoke, then the panchas and then the accused spoke. The same came to be
recorded. On hearing the recording on the tape, one can say that the said recording vouch for itself. There is nothing to doubt fabrication of evidence of such a nature. No Investigating Officer would obtain someone else's voice for voice of accused. Exh.76 is
the panchnama pertaining to obtaining of voice sample of accused-Vicky. For ready reference I give catelogue of the panchnama under which voice sample of the
respective accused came to be obtained. Exh.76-A.1-Vicky Malhotra, Exh.77-A.2-Farid
Tanasha (deceased), Exh.78-A.3-John D'souza, Exh.178A.4-Dharmesh Shah, Exh.143-A.5-Anil Barot @ Bhau, Exh.142-A.6-Bhaskar Tiwari @ Amit, Bhandari, Exh.120-A.8-Jitendra Borra @ Akash @
Exh.134-A.9-Ravi
D.K.Rao, Exh.129-A.10-Shrikant Sonavane @ Vishal, Exh. 143-A.12-Firoz Khan and Exh.62-A.13-Yusuf Pachkana. The cassettes containing voice sample and the cassettes conversation containing inter-se the intercepted accused and telephonic the victims
came to be sent to CFS for voice analysis and report. The evidence of PW.67-C.P.Sing (Voice Expert) has
already been referred hereinabove. His reports have been admitted in the evidence vide Exh.250,252 & 254. In his opinion, the voice sample of the accused
persons matched with the speakers in the intercepted telephonic conversation. In the opinion of PW.67, the
speakers
in the
intercepted conversation
were
none
other than the accused persons. The transcript of the intercepted telephonic conversation is at Exh.279. It runs into little over 500 pages. I have minutely
perused the entire transcript to find accused-Vicky, John D'souza, Anil Barot @ Bhau, Bhaskar Bhandari, Jitendra Tiwari @ Amit, Dharmesh Shah had conspired to commit various offences. The main offence pertaining to which the conspiracy came to be hatched was for collecting conspiracy, extortion overtacts money. in Pursuant the nature to the of said making
extortion calls were committed by the accused-Vicky. The first part of the transcript (Page 579 to 839) is full with the talk pertaining to conspiracy. The
intercepted talk pertain to recruitment of youths for committing offences, procuring fire arms, keeping
watch on victims of extortion, collecting information relating to financial status of extortion victims,
making phone calls to such victims. A.5-Anil Barot was found to be aggressive during the talk. He collected information about extortion targets- Badodiya, Dedia,
Hasmukhseth, Pawan Chomal etc. The accused-Dharmesh Shah (A.4) was engaged in procuring fire arms and recruiting youth for committing offences. Accused-John D'souza (A.3) has also found to have been engaged in collecting Mehta. He information was also of extortion to have targets-Kirit been handling
found
financial affairs (extortion money) for accused-Vicky. Accused-Jitendra Tiwari @ Amit (A.8) was also found
to have been involved in keeping watch on targets for extortion, business. particularly Same is the persons case about in construction
accused-Bhaskar
Bhandari (A.6). If I propose to reproduce the intercepted
conversation indicating involvement of these persons into the offence of conspiracy, the Judgment may run into over 500 pages. Suffice it to say that Exh.279 is axiomatic of these The accused is persons being party of to the
conspiracy.
same
relevant
u/sec.10
Evidence Act.
113.
The aforesaid evidence is corroborated by the
evidence Exh.219 Barot @
in the is the
nature of
confessional statement indicate
statements. of that A.5-Anil he had
confessional His statement
Bhau.
collected information of businessmen and persons in construction business for being targeted for
extortion. He supplied the said information to the accused-Vicky. He was also involved in collecting fire arms and making calls to some of the extortion
victims.
114
Exh.227 is the confessional statement of A.3-
John D'souza. He admits to have been keeping accounts of the extortion money. He would further admit to have had collected information relating to financial status of the targets for extortion. He also admits to have played role in making extortion calls to the
prosecution witnesses-Kamal Jain, Pawan Chomal, Madan Kothari, Kirit Mehta etc.
115.
Whereas Exh.265 is the confessional statement
of A.6-Bhaskar Bhandari @ Basu. He too admits to have
been in the loop of the accused-Vicky. He further admits to have been after the businessmen/extortion victims. He further admits to have had contacted Shri Pawan Chomal (PW.1) on phone to make a demand for extortion further money. indicate His that confessional he had statement would making
facilitated
extortion calls to one Jitu Builder from Andheri and diamond merchant-Kamalbhai. His confessional statement would further suggest that accused-Jitendra Tiwari @ Amit was also in the loop. He would keep watch on one Bacchisingh.
116.
Thus,
the
evidence
referred
to
just
hereinabove would undoubtedly make out involvement of accused-Vicky Malhotra (A.1), A-3-John D'souza, A.4Dharmesh Bhandari, Shah, A.5-Anil Barot Tiwari @ in Bhau, the A.6-Bhaskar offence of
A.8-Jitendra
conspiracy. Pursuant to the said conspiracy, overtacts in the nature of making calls demanding ransom from the prosecution witnesses have been made.
117.
The offence is complete as soon as there is
meeting of minds and unity of purpose between the conspirators to do that illegal act or a legal act by illegal means. Conspiracy is conceived as having three elements: (1) agreement (2) between two or more
persons by whom the agreement is effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. In view of Section 120-B- Whoever is a party to a criminal with conspiracy death, to commit an for two offence life years or or
punishable rigorous
imprisonment a term of
imprisonment
for
upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such
offence. It is therefore necessary to refer to Section 109 of the I.P.C.
Section
109
of
the
I.P.C.
speaks
of
punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment. Section runs.. Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
118.
It has already been held that accused-Vicky
(A.1) has committed offence of putting a person in fear of death or grievous hurt in order to committing extortion (Section 387 of the I.P.C.). Similarly,
offence of putting a person in fear of injury in order to commit extortion has also been proved against A.1-
Vicky
(Section 385 of I.P.C.). The accused persons-
A-3-John D'souza, A.4-Dharmesh Shah, A.5-Anil Barot @ Bhau, A.6-Bhaskar Bhandari, A.8-Jitendra Tiwari are found guilty of the offence punishable u/sec.387 & 385 r/w 120B of the Indian Penal Code. They are equally liable for being punished for these offences in view of Section 109 of the I.P.C.
119.
The
intercepted
talk
between
the
accused-
Vicky and the accused Firoz Khan (A.12) is found to be not incriminating. There is no other evidence to
indicate the accused-Firoz Khan to be party to the conspiracy. Same is the case about intercepted talk amongst accused D.K.Rao (A.9), accused Yusuf Pachkana (A.13) and accused-Shrikant Sonavane (A.10). I have carefully D.K.Rao. perused the The same do intercepted not pertain talk to of accusedany criminal
activity that was to be undertaken by him or anybody else. The evidence in the nature of recovery of screen of the cellphone and dumbbell with which the accusedD.K.Rao is alleged to have smashed the cellphone
allegedly used by him from behind the bars to stay in contact with the co-accused viz. Vicky, Yusuf Pachkana and the wanted accused is not relevant u/sec.27 or any of the provisions of the Indian Evidence Act. The cellphone allegedly used by accused-D.K.Rao has not been recovered. Using cellphone from behind the bars to stay in contact with the co-accused is not an
offence. The charge u/sec.201 of the IPC that the accused-D.K.Rao caused disappearance of evidence by smashing the cellphone and destroying the same with a view to screen the offender from legal punishment
therefore fails.
120.
As regards accused Kashi Pasi, there is no
evidence to connect him with the offence he is charged with. The evidence in the nature of recovery of Rs.3 lacs from his office pursuant to the disclosure
statement made by him is not relevant u/sec.27 or any other section of the Evidence Act as there is no any other evidence to indicate that the amount came to be taken charge of borne any ear-mark to label it to be
an extortion money. However, sum of Rs.3 lacs recovered at the instance of this accused would not be returned to him as the police papers can be read in evidence for
passing order in connection with such an amount. The police papers do not justify the prayer of the
accused-Kashi Pasi for return of the amount of Rs.3 lacs to him.
121.
The charge for the offence punishable u/sec.
466,467,468,471,420 of the I.P.C. and u/sec.12(1)(B) of the Passport Act against accused-Vicky fails as the prosecution did not lead any relevant evidence in that regard.
122.
As
such
accused
persons-Vicky
(A.1),
John
D'souza (A.3), Dharmesh Shah (A.4), Anil Barot (A.5) & Jitendra Tiwari (A.8) are found guilty of the offences punishable u/sec.387,385 r/w 120B of the IPC. Whereas accused-Vicky Malhotra is found guilty of the offences punishable u/sec.387 & 385 of the IPC.
123.
I pause here to hear the convicted accused
persons on the question of sentence.
124.
Ld.Advocate
Shri
Pasbola
and
rest
of
the
Ld.Advocates for the accused submit that the accused persons be give a chance for reformation. They would further submit that there is no previous conviction against any of the convicted submit accused that the persons. accused
Ld.Advocates
would further
persons be sentenced to imprisonment which they have already undergone till date.
125.
Shri
J.R.Madon,
Ld.Spl.P.P.
would,
per
contra, submit that the offences were serious one. The order of sentence be such that it would be deterrence to like minded accused persons. He submits for
imposing maximum sentence permissible under the law.
126.
The
nature
of
offence
is
on
mind
of
the
Court. The principle of proportionality is also on mind. The accused persons can be discriminated
inter-se on the question of sentence if role played by each of them that could be discriminated. No.1-Vicky The evidence was the
indicate
accused
Malhotra
kingpin. The rest of the convicted accused persons were under his thumb. The sentence in terms of the following justice. :ORDER: Accused No.1-Vikrant Vishal Malhotra @ Ajkay @ Vicky Malhotra @ Vijaykumar Rambadhai Chowdhari, accused No.3-John Albert D'souza, Accused No.4Dharmesh Nitin Shah @ Nannu @ Panditaji, accused No.5Anil Jaydevlal Barot Bharamabhatt @ Bhau, accused No. 6-Bhaskar Raghu Bhandari @ Basu, accused No.7Kashinath Muniram Pashi @ Kashi Pashi @ Kaka, accused No.8-Jitendra Rajbahadur Tiwari @ Amit, accused No.9Ravi Mallesh Borra @ Akash @ D.K.Rao, accused No.10Shrikant Madhavrao Sonavane @ Vishal, accused No.12Firoz Bashir Khan & accused No.13-Yusuf Suleman Quadri are acquitted of the offences punishable u/sec.3(1) (ii),3(2),3(4) of the Maharashtra Control of order would therefore meet the ends of
Organized Crime Act (MCOC Act).
Accused No.1-Vikrant Vishal Malhotra @ Ajkay @ Vicky Malhotra @ Vijaykumar Rambadhai Chowdhari is acquitted of the offence punishable u/sec.3(5) of the MCOC Act and u/sec.420,466,467,471 of the Indian Penal Code and u/sec.12(1)(B) of the Passport Act.
Accused No.7-Kashinath Muniram Pashi @ Kashi Pashi, accused No.9 Ravi Mallesh Borra @ Akash @ D.K. Rao, accused No.10-Shrikant Madhavrao Sonavane @ Vishal, accused No.12-Firoz Bashir Khan & accused No. 13-Yusuf Suleman Quadri are acquitted of the offences punishable u/sec.387,386,385,384 r/w 120B of the Indian Penal Code. Accused No.10-Shrikant Sonavane be set at liberty if not required in any other case. Accused No.9-Ravi Mallesh Borra @ D.K.Rao is also acquitted of the offence punishable u/sec.201 of the Indian Penal Code.
Accused No.1-Vikrant Vishal Malhotra @ Ajkay @ Vicky Malhotra @ Vijaykumar Rambadhai Chowdhari, accused No.3-John Albert D'souza, Accused No.4Dharmesh Nitin Shah @ Nannu @ Panditaji, accused No.5Anil Jaydevlal Barot Bharamabhatt @ Bhau, accused No. 6-Bhaskar Raghu Bhandari @ Basu, accused No.8-
Jitendra Rajbahadur Tiwari @ Amit are convicted of the offence punishable u/sec.387 r/w 120B of the Indian Penal Code (pursuant to the conspiracy offence did take place). Each of them is therefore sentenced to suffer imprisonment for the period already undergone behind the bars and to pay a fine of Rs.2,000/-. In default of payment of fine, the defaulting accused to suffer R.I. for six months.
Accused No.1-Vikrant Vishal Malhotra @ Ajkay @ Vicky Malhotra @ Vijaykumar Rambadhai Chowdhari is hereby separately/independently convicted of the offence punishable u/sec.385 of the Indian Penal Code as to have been committed against PW.1 & PW.37. He is, therefore, sentenced to suffer rigorous imprisonment
for a period of one year on each count and to pay fine of Rs.2000/- each. In default of payment of fine, the accused to undergo R.I. for one year. Accused No.1- Vikrant Vishal Malhotra @ Ajkay @ Vicky Malhotra @ Vijaykumar Rambadhai Chowdhari is hereby independently convicted of the offence punishable u/sec.387 as to have committed against PW.2 & PW.12. The accused is therefore sentenced to suffer R.I. for a period of five and half years on each count and to pay fine of Rs.2000/- each. In default of payment of fine, the accused to undergo R.I. for six months. All the substantive sentences to run concurrently.
Accused No.1-Vikrant Vishal Malhotra @ Ajkay @ Vicky Malhotra @ Vijaykumar Rambadhai Chowdhari has been in Jail since 11th July,2005, he be given set off in terms of Section 428 of the Cr.P.C. Accused No.3John Albert D'souza had been in jail from 17th July, 2005 to 26th March,2010, Accused No.4-Dharmesh Nitin
Shah @ Nannu @ Panditaji had been in jail from 11th August,2005 to 25th March,2010, accused No.5-Anil Jaydevlal Barot Bharamabhatt @ Bhau had been in jail from 1st September,2005 to 26th March,2010, accused No. 6-Bhaskar Raghu Bhandari had been in jail from 1st September,2005 to 27th March,2010 and accused No.8Jitendra Tiwari had been in jail from 6th December, 2005 to 16th January,2009. These accused persons be given benefit of set off in terms of Section 428 of the Cr.P.C. These accused persons to surrender. Muddemal articles viz.audio cassettes and their respective lable @ wrappers (Art.No.1/1-A, 5/5-A to 11/11-A, 19/19-A to 27/27-A, 39/39-A to 45/45-A,) Art.2-One cassette (Part of Art.49 colly.), Art.3-one cassette (part of Art.49 colly.), Art.3-One cassette (Part of Art.49 colly.), Art.4- One cassette (Part of Art.47 colly.), Art.47 colly.-24 audio cassettes, Art. 47-A colly.-24 labels on audio cassettes, Art.48 colly.-Two audio cassettes, Art.48-A colly.-Two labels, Art.49 colly.-21 audio cassettes, Art.49-A
colly.-21 labels on audio cassettes, Art.50 colly.-2 audio cassettes, Art.50-A colly.-Two lables, Art.51 colly.-26 audio cassettes (1 cassette-Art.24 & 24-A, 1 cassette-Art.9 & 9-A, one cassette Art.26 and 26-A), Art.51-A colly.-26 labels, Art.52 colly.-8 audio cassettes (D.K.Rao), Art.52-A colly.-8 lables on audio cassettes,Art.53 colly.-Two audio cassettes, Art.53-A wrapper, Art.53-B-Copies of two audio cassettes, Art. 54 colly.-21 duplicate cassettes, Art.55 colly.-2 duplicate cassettes, Art.56 colly.-24 duplicate be preserved cassettes, Art.57 colly.-Two cassettes,
art.58 colly.-23 duplicate cassettes, Art.59 colly.-8 cassettes, Art.60 colly.-25 audio cassettes (Vicky), Art.60-A colly.-Wrappers, Art.61 colly.-25 duplicate cassettes, Art.62 colly.-19 audio cassettes (D.K.Rao), Art.62-A colly.-Wrappers, Art.63 colly.-Duplicate cassettes (19), Art.64 colly.-7 audio cassettes (VM and CR), Art.64-A colly.-Wrappers, Art.65 colly.-7 duplicate cassettes, Art.66 colly.-two audio cassettes (DK Rao), Art.66-A colly.-Wrappers, Art.67 colly.duplicate cassettes (two) be preserved as they are
evidence in the case. Muddemal articles viz. all the cellphones (Art.Nos.13, 14, 16 colly.-seven cellphones, Art.17, Art.28 colly.-2 cellphones, Art.30 Art.35, Art.36, Art.37), Part of Art.46 colly.-3 mobiles be sold in auction. The sale proceeds be credited to the Government. The wrappers of the respective cellphoneArt.13-A, Art.14-A, Art.16-A, Art.17-A, Art.28-A, Art. 30-A, Art.35-A, Art.36-A, Art.37-A, Part of Art.46 colly-three envelopes be destroyed. One black wallet (part of art.12 colly.), Money purse (part of Art.15 colly.) and another wallet (part of article 29) be destroyed. Cash amount Rs.3 lacs (part of Art.46 colly), Rs.1400 (part of Art.12 colly.), Rs.200/- (part of art.38 colly. and Rs.510 (part of art.15 colly.) be credited to the Government. Their wrappers viz.Art.12A,38-A & 15-A be destroyed. Wrist Watch (part of Art.29 colly.) be returned to the concerned accused.
Muddemal articles-six ATM cards-part of Art. 12 colly., 10 ATM cards-Part of Art.15 colly. be destroyed. Muddemal Arts.- two papers, one air ticket, visiting card (Part of Art.12 colly) be destroyed. Driving licence (part of Art.12 colly.) be returned to concerned accused. Visiting cards and some other documents (part of Art.38 colly & 38-A colly.) be destroyed. Unmarked articles-cash amount Rs.230/-, driving license, one photograph and other miscellaneous papers be returned to the accused No.11Nitin Trimbak Deshmukh. The order of disposal of muddemal property shall not be carried out for three months, or if an appeal is presented, until such appeal has been
disposed of.
25/06/10
(R.G.Avachat) Addl.Special Judge, Gr.Mumbai
Judgment transcribed on 30/06/10 Judgment signed on 02/07/10

Chhota Rajan Rajan Gang MCOCA Court Judgement

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2. Farid Ahmed Tayyeb Tanashah (deceased)-Abated

3. John Albert D'souza Address:341/2728, Motilalnagar,G Goregaon (W), Mumbai.

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10.Shrikant Madhavao Sonavane @ Vishal Address:Atmaram Bhoir Chawl, Shiv Parisar

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11.Nitin Trimbak Deshmukh

13.Yusuf Suleman Quadri (At Belgaon Central Prison,Karnataka) ..Accused

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On 11th July,2005, Shri Pawan Chomal (PW.1)

registered vide C.R.No.195/05.

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10 days to meet his demand of Rs.50 lacs.

The aforesaid two crimes initially came to be

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attached to CIU. Shri D.T.Patil (PW.75) would monitor the investigation.

The cellphones used by accused-Vicky and the

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proposal for The

obtaining provision Police

approval MCOC Act. the

statements. The Jt.C.P. therefore appointed the police

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investigation. The involvement of the accused 7 to 10

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granted sanction for prosecution (Exh.299) of accused

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Further investigation continued. Involvement

proceeded against by filing charge-sheet.

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The Charge (Exh.25 & 55) came to be framed.

prosecution over 150

confessional statements of the A.3,A.5 & A.6.

witnesses examined on behalf of the prosecution are not reproduced.

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confessional statements of the accused A-3, A.5 & A.6.

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