Bombay High Court
Ravi Dhiren Ghosh vs The State Of Maharashtra on 29 October, 2012
Bench: A.M. Thipsay
1
BA-1063
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL BAIL APPLICATION NO. 1063 OF 2012
RAVI DHIREN GHOSH .. APPLICANT
VERSUS
THE STATE OF MAHARASHTRA... RESPONDENT
Ms. Apeksha Vora, Advocate appointed for the applicant
Ms. Rohini Salian, Spl. PP with Ms. R. V. Newton, APP for the
NIA/State.
CORAM:-ABHAY M. THIPSAY, J.
DATED : 29/10/2012
P.C.
This application for bail was sent by the applicant, from
jail. The registry was, therefore, directed to provide legal aid to
the applicant for prosecuting the application. Accordingly Ms.
Apeksha Vora, advocate has been appointed under the free
legal aid scheme, to prosecute the application.
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2. Heard Ms. Apeksha Vora, learned advocate for the
applicant. Heard Ms. Salian, learned Spl. Public Prosecutor for
the National Investigation Agency.
3. The applicant is the accused No. 1 in Sessions Case No.
674 of 2009.
4. Apart from the applicant, there are six others, who are
also accused in the said case. One of them - accused No. 7 - is
said to be absconding.
5. The case against the applicant and the others is in respect
of offences punishable u/ss. 120-B, 489A, 489B,489C,489E of
the IPC and of offences punishable u/ss.15,16,17 and 18 of the
Unlawful Activities (Prevention) Act, 1967, as amended by Act
No. 35 of 2008.
6. The case was initially registered by the Anti Terrorism
Squad (ATS) vide their C.R. No. 7/2009 but the investigation
thereafter was taken over by the National Investigation Agency
(NIA).
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7. The applicant was arrested on 14/5/2009. He is in
custody since then. The trial has not yet commenced. Even
charge has not been framed as yet.
8. The facts of the prosecution case, as revealed from the
FIR and the other materials in the charge-sheet are, that on
secret information received by ATS, a watch was kept near Star
Cinema, Mazgaon. The secret information was to the effect
that two persons by name Ruby and Nooruddin were to gather
on 14/5/2009 at about 0.30 hrs. near Star Cinema, Nesbit Road,
Mazgaon and were to handover counterfeit Indian Currency
Notes to their associates by name Mohammed Samad and
Mohammed Aijul, for circulating the same in the market. On
receipt of this information, watch was kept by the officers of
ATS near the Star Theatre. At about 13-45 hrs. Two persons
Ruby (stated to be the present applicant) and Nooruddin came
there. After sometime, two other persons i.e. Mohammed
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respectively, came there. It is thereafter that the Police Party
surrounded the said four persons and took their search in the
presence of Panchas. 345 counterfeit currency notes were
recovered from the personal search of the applicant and the
others. So far as the applicant is concerned, 200 counterfeit
currency notes of 1000 denominations were recovered from
him. On examination of those notes, they were found to be
counterfeit. They were taken charge of in the presence of
panchas and the applicant and the others were placed under
arrest.
9. In the course of investigation, a committee of experts
was formed on the request of NIA for the examination of the
said notes and it was opined by the said committee that the
counterfeit currency notes in question were printed in some
other foreign country.
10. Apparently, it is thereafter that the accusation of offence
under the Unlawful Activities (Prevention) Act was levelled
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against the applicant and the other accused.
11. The learned Spl. Public Prosecutor contended that in
view of the application of the provisions of the Unlawful
Activities (Prevention), Act (hereinafter "the UAP Act" for
brevity) the applicant and the other accused were not entitled
to be released on bail. She drew my attention to the provisions
of Section 43D of the UAP Act and submitted that the said
section curtails the discretionary powers of this court in the
matter of grant of bail to a large extent.
12. According to Smt. Salian, the learned Spl. Public
Prosecutor, the act attributed to the applicant (and other
accused) amounts to a 'Terrorist Act'. She read the provisions
of Section 15 of the UAP Act and submitted that the case
against the applicant was covered by the definition of a
'Terrorist Act' as given in the said section. It would be
convenient to reproduce the said section here.
"15. Terrorist Act.
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Whoever does any act with intent to
threaten or likely to threaten the unity,
integrity, security or sovereignty of
India or with intent to strike terror or
likely to strike terror in the people or
any section of the people in India or in
any foreign country, -
(a) by using bombs, dynamite or other
explosive substances or inflammable
substances or firearms or other
lethal weapons or poisonous or noxious
gases or other chemicals or by any
other substances (whether biological
radioactive nuclear or otherwise) of a
hazardous nature or by any other means
of whatever nature to cause or likely
to cause -
(i) death of, or injuries to, any
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person or persons, or
(ii) loss of, or damages to, or
destruction of property, or
(iii) disruption of any supplies or
services essential to the life of
the community in India or in any
foreign country, or
(iv) damages or destruction of any
property in India or in a foreign
country used or intended to be
used for the defence of India or
in connection with any other
purposes of the Government of
India, any State Government or any
of their agencies, or
(b) overawes by means of criminal
force or the show of criminal force or
attempts to do so or causes death of
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any public functionary or attempts to
cause death of any public functionary;
or
© detains,kidnaps or abducts any
person and threatens to kill or injure
such person or does any other act in
order to
compel the Government of
India,any State Government or the
Government of a foreign country or any
other person to do or abstain from
doing any act,
commits a terrorist act.
The emphasis of Smt. Salian is on the phrase "by any other
means of whatever nature" occurring in clause (a) of the said
section.
13. It is not possible to accept the submission of the learned
Spl. Public Prosecutor. It is clear that the phrase "by any other
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means of whatever nature" has to be read as ejusdem generis
along with the other means mentioned in Clause (a) i.e. by
using bombs, dynamite, or other explosive substances, fire
arms, lethal weapons etc. Moreoever apart from this, the sub-
clauses (I),(ii),(iii) and (iv) clearly indicate that the use of
bombs, dynamite, explosives or any other substance, has to be
for the purpose of causing something that has been mentioned
in one or more of the said sub-clauses. It is not possible to
accept that possession and circulation of counterfeit Indian
currency notes,, even, if such currency notes have been printed
in some other foreign country, would amount to any Terrorist
Act, as defined in Section 15 of the UAP Act. Since I am
dealing only with the question of bail, I do not wish to discuss
all the relevant aspect of the matter in depth, though I have no
doubt that the acts attributed to the applicant cannot be termed
as a "Terrorist Act" as defined in Section 15 of the UAP Act
and that, therefore, the provisions of the UAP Act cannot be
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invoked for such acts.
14. Taking the material in the charge-sheet at its face value,
it does appear that the applicant was found in possession of
counterfeit Indian currency notes. It, however, cannot be
overlooked even at this stage that the secret information on the
basis of which trap was laid and the applicant and others were
arrested, was not reduced to writing by the concerned officer.
There is no such claim in the FIR. No diary entry to that effect
has been relied upon in the charge-sheet. The learned Spl.
Public Prosecutor was asked a specific question as to whether
there is any record of having received such information, but she
conceded that there was no such material available with the
prosecution.
15. The claim that the notes have been printed in some other
foreign country is based on a report submitted by a committee
of experts. It is claimed that this report was filed along with
the charge-sheet, but admittedly, no copies of this report were
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being furnished to any of the accused along with the copy of
the charge-sheet. A copy of this report has not been given even
now, to the learned advocate for the applicant, who has been
appointed to prosecute the bail application, on the ground of it
being 'a secret and confidential document'. That the evidence
that is intended to be adduced against an accused can be kept
secret from him, is a shocking proposition. In the view that I
am taking, it is not necessary to give any directions in that
regard, regarding the furnishing of copies to the applicant or
the other accused. The matter may be left to be decided by the
trial court, in accordance with law.
16. Even if one proceeds on the basis that the counterfeit
Indian currency notes are indeed printed in some other foreign
country and that they are being brought or sent to India as a
part of a larger conspiracy to ruin the Indian economy, whether
the applicant can be connected with such a larger motive and
whether he would be a part of such larger conspiracy, would be
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the question, needing consideration. Admittedly, there is no
material in the charge-sheet to indicate the same. There is no
claim - much less anything to support the same that the
applicant was 'himself concerned in importing such fake
counterfeit Indian currency notes from a foreign country', or
even that 'he knew that the counterfeit currency notes in
question had been printed in some other neighbouring
country and was being brought to India, as a part of a larger
conspiracy'.
17. It may be recalled that the applicant is in custody since
15/5/2009 i.e. for a period of more than three and a half years.
The trial has not yet commenced. The question is whether,
under these circumstances, the applicant's prayer for bail
should be refused.
18. In my opinion, the procedure which permits the
detention of an undertrial prisoner for such a long time without
proceeding with the trial and without any prospects of the trial
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being expeditiously held and disposed of, cannot be said to be
fair, just or reasonable. Such a procedure offends the
provisions of Article 21 of the Constitution.
19. When this aspect of the matter was discussed, the learned
Spl. Public Prosecutor submitted that she would endeavour to
ensure that the trial would get over within a period of six
months from today. However, this does not seem to be possible
considering the number of witnesses cited in the charge-sheet
i.e. about 46 witnesses and considering the volume of the
evidence that would be adduced during the trial.
20. Since the provisions of the UAP Act, cannot, prima facie,
be invoked in this case, and since the period of detention
already undergone by the applicant in custody is so much, that
further pre-trial detention of the applicant is totally unjustified
and contrary to the notions of a just, fair and reasonable
procedure, I am inclined to release the applicant on bail.
21. The application is allowed.
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The applicant is ordered to be released on bail in the sum
of Rs.75,000/- with one surety in the like amount, or three
sureties in the sum of Rs.25,000/- each on the condition that the
applicant shall report to the ATS office on every alternate day
i.e. on Monday, Wednesday and Friday, till the disposal of the
case against him.
On oral prayer of the learned Spl. Public Prosecutor, it is
directed that the operation of this order shall be stayed for a
period of three weeks from today, for enabling the State to
move the Supreme Court of India, challenging this order.
It is made clear that this shall not prevent the applicant
from making and getting the surety application/applications
processed, though the applicant may not be actually released
from prison before a period of three weeks from today.
The stay on the operation of this order shall not be
construed by the trial court or by any of the parties as a stay on
the trial proceedings and it is made clear that this stay shall not
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be an impediment or prohibition for proceeding further with
the trial, which is already delayed.
(ABHAY M. THIPSAY, J.)
md.saleem
