Bombay High Court
Riyazuddin Hisamuddin Kazi vs National Investigation Agency ... on 23 December, 2022
Bench: R.P. Mohite-Dere, R. N. Laddha
Digitally
signed by
SHAGUFTA
SHAGUFTA Q PATHAN
Q PATHAN Date:
2022.12.23 1-APEAL-357-2022.doc
16:52:56
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 357 OF 2022
Riyazuddin Hisamuddin Kazi,
Age : 59, Occu : Retired,
Plot No. 601, Bhagwan Bhavanm JB Nagar,
Andheri (East), Mumbai - 400 059 ...Appellant/
Accused No. 4
Versus
1. National Investigating Agency,
7th Floor, MTNL, Telephone Exchange
Building, Pedder Road, Cumballa Hill,
Mumbai - 400 026
2. The State of Maharashtra ...Respondents
Dr. Yug Mohit Chaudhary a/w Mr. Hassnain Kazi, Ms. Shraddha
Vavhal and Mr. Zeeshan Khan for the appellant
Mr. Anil C. Singh, Additional Solicitor General a/w Mr. Sandesh
Dadasaheb Patil, Mr. Aditya Thakkar, Mr. Chintan Shah and
Ms. Savita Ganoo for the Respondent No.1-NIA
Mr. J. P. Yagnik, A.P.P for the Respondent No.2-State
CORAM : REVATI MOHITE DERE &
R. N. LADDHA, JJ.
RESERVED ON : 02.12.2022
PRONOUNCED ON : 23.12.2022
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JUDGMENT (Per Revati Mohite Dere, J.) :
1 In view of not before order passed by Justice A. S.
Gadkari vide order dated 21.9.2022, the present appeal is listed
before this Bench.
2 By this appeal, preferred under Section 21 of the
National Investigation Agency Act, 2008 (`the NIA Act'), the
appellant (A-4) has impugned the order dated 01.03.2022 passed
by the Special Court (NIA), Greater Mumbai, rejecting his
application for bail and as such seeks his enlargement on bail in
connection with NIA RC 01/2021/NIA/MUM (NIA Special Case
No. 190/2021), for the alleged offences punishable under
Sections 120-B and 201 of the Indian Penal Code (`IPC').
Submissions of Dr. Yug Chaudhary :
3 Dr. Yug Chaudhary, learned counsel for the appellant
submits that the appellant has been charge-sheeted only for the
offences punishable under Sections 120-B and 201 of the IPC,
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both of which, are bailable offences. He submits that the
appellant was not involved in the planting of the gelatin sticks in
the Scorpio vehicle which was parked near Antilia, nor was he
concerned with the murder of Mansukh Hiren. He submits that
the only allegation against the appellant pertains to destruction
of evidence with and under the orders of the main accused
Sachin Waze (A-1), after the commission of the main offence.
Dr. Chaudhary submits that a perusal of the statements of the
witnesses would reveal that there is absolutely no material on
record to show that the appellant was involved in the destruction
of evidence, as alleged by the prosecution. Dr. Chaudhary
submits that the statements of the witnesses would reveal that the
appellant, alongwith witness-Prakash Howal had collected CCTV
Cameras, DVRs, CPUs, Registers and Bill Books from various
places, on the direction of Sachin Waze (A-1) and that it was
Sachin Waze (A-1), who had directed the appellant and witness-
Howal not to create any documentation of the seized articles.
Learned counsel submits that despite the same, the appellant
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made station diary entries concerning the seized articles, which
clearly show that he had no knowledge of the intent of Sachin
Waze. Dr. Chaudhary further submits that it is a matter of record
that the NIA had applied for sanction under Sections 45A of the
Unlawful Activities (Prevention) Act, 1967 (`UAPA') as against all
the accused, however, sanction was not accorded to the appellant,
pursuant to which, the other co-accused have been prosecuted,
apart from the other provisions, even under Sections 16, 18 and
20 of the UAPA. Dr. Chaudhary submits that since the appellant
has been charge-sheeted only for the offences punishable under
Sections 120-B and 201 of the IPC, the question of applying the
bar under Section 43D (5) of the UAPA does not arise. He submits
that neither has any sanction been accorded under Section 39 of
the Arms Act nor under Section 7 of the Explosive Substances
Act. He submits that the sections alleged against the appellant are
bailable and that as a matter of right, the appellant is entitled to
be enlarged on bail. He submits that the appellant was arrested on
10.04.2021 and has been in custody since then i.e. for about one
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year and eight months, for bailable offences.
3.1 Dr. Chaudhary mainly relied on the statement of
Assistant Police Inspector (`API')-Prakash Howal to show that the
role of both i.e. the appellant and Howal (witness) was identical.
He submits that the statement of Howal would reveal that they
were acting under the orders of Sachin Waze (A-1), who was the
Investigating Officer in the said case and that the evidence was
destroyed by Sachin Waze and that neither Howal nor the
appellant had participated in the said destruction. He submits
that on the contrary, the statement of Howal would reveal that
they i.e. he and the appellant were terrified by what they saw i.e.
Sachin Waze throwing bags containing CPUs, DVR, etc. in the
Mithi River. According to the learned counsel, the NIA cannot
pick and choose, inasmuch as, all others i.e. API-Prakash Howal,
PN-Yuvaraj Shelar, PC-Shivaji Desale, KW 1 and others, who were
also acting under the directions of Sachin Waze and whose role is
similar or even greater, have been made witnesses, for reasons
best known. Considering the material on record qua the
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appellant, learned counsel for the appellant seeks his enlargement
on bail.
Submissions of Mr. Anil Singh, the learned Additional Solicitor
General (`ASG') :
4 Mr. Singh, learned ASG submits that the role of the
appellant in the commission of the crime has been detailed in the
main charge-sheet. He submits that the appellant, as a colleague
of Sachin Waze, willingly entered into a well-organized
conspiracy hatched by Sachin Waze and as such, aided Sachin
Waze in arranging a fake vehicle registration plate, which was
used in the commission of the offence; that after the commission
of offence, the appellant aided Sachin Waze in destruction of the
evidence, by illegally collecting CCTV Cameras, DVRs, which
had captured the movement of the vehicle used by Sachin Waze
i.e. parking of the Scorpio vehicle laden with gelatin sticks; and
that, after completion of the offence, the appellant aided Sachin
Waze in destruction of the articles/records, from the shops from
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where Sachin Waze had procured the fake vehicle registration
number plate.
4.1 During the course of submissions, the learned ASG
submitted that it is not the prosecution's case that the appellant
was involved either in the planting of gelatin sticks in the Scorpio
vehicle near Antilia, or in the commission of the murder of
Mansukh Hiren. The submission essentially against the appellant
is that he illegally took possession of the DVRs, CDRs, CCTV
Cameras, etc. from the shop owners and others, without
preparing any panchnamas or documentation and thereafter,
assisted Sachin Waze in destroying the items collected.
Relevant Facts :
5 Perused the papers with the assistance of the learned
counsel for the respective parties. A few facts as are relevant to
decide the appeal are as under :
5.1 On 25.02.2021, in the wee hours, a Mahindra
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Scorpio vehicle was parked on Carmichael Road, near Antilia
Building i.e. near the house of a prominent businessman. On
25.02.2021 itself, the police of the Gamdevi Police Station found
20 gelatin sticks and a note, threatening a prominent industrialist
and his wife in the said car. Pursuant thereto, the Gamdevi Police
lodged an FIR, which was registered vide CR No. 35/2021 under
Sections 286, 465, 473, 506(2) and 120B of the IPC and under
Section 4(a)(b)(i) of the Explosive Substances Act, against
unknown persons.
5.2 The said C.R was transferred to the Crime
Intelligence Unit, Crime Branch, Mumbai (`the CIU') and the case
came to be re-registered as CR No. 40/2021. The investigation of
the said case was assigned to Sachin Waze, the then API, CIU,
Crime Branch, Mumbai, for investigation. During the course of
investigation, it was learnt that the Scorpio vehicle which was
found, had a fake number plate and that the actual number of the
vehicle was MH-02-AY-2815. In respect of the said Scorpio
vehicle, a separate C.R i.e. C.R No. 47/2021 was registered with
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the Vikhroli Police Station, Mumbai, by Mansukh Hiren
(deceased) on 18.02.2021 alleging an offence punishable under
Section 379 of the IPC. According to Mansukh Hiren (deceased),
his vehicle i.e. Scorpio vehicle was stolen on 17.02.2021, by
unknown person/persons.
5.3 The investigation of the said CR i.e. CR No. 47/2021
registered with the Vikhroli Police Station also came to be
transferred to CIU, Crime Branch, Mumbai and the said CR was
re-registered as CR No. 41/2021. The investigation of the said
case was also assigned to Sachin Waze (A-1).
5.4 On 01.03.2021 and 02.03.2021, Mansukh Hiren
(deceased) was summoned by the CIU, Crime Branch, pursuant to
which, Mansukh Hiren attended the CIU Office on 02.03.2021
and 03.03.2021.
5.5 On 04.03.2021, Mansukh Hiren left his house to
meet one police officer named Tawde, after which, he did not
return home. Pursuant thereto, on the next day, i.e. on
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05.03.2021, a missing person's complaint was filed at the
Naupada Police Station, Thane, by Mansukh Hiren's son-Meet
Hiren. The said complaint was registered vide Missing Persons
Report No. 16/2021.
5.6 On 05.03.2021, Mansukh Hiren's dead body was
found in the creek area of Retibunder, by Mumbra Police.
Pursuant thereto, an Accidental Death Report No. 39/2021 under
Section 174 of the Code of Criminal Procedure (`Cr.P.C') was
registered by the Mumbra Police Station. During the course of
investigation by the Mumbra Police, Mansukh Hiren's widow-
Vimla Hiren, in her written complaint before the ATS, Thane
Unit, alleged foul play and expressed her suspicion against Sachin
Waze.
5.7 On 06.03.2021, the Government of Maharashtra
issued an order transferring the cases relating to placing of
explosive laden Scorpio SUV, theft of Scorpio vehicle and the
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ADR case of Mansukh Hiren, to the Anti Terrorist Squad (`ATS'),
Maharashtra, for further investigation.
5.8 On 07.03.2021, the ATS, Maharashtra converted the
ADR No. 39/2021 into an offence of murder and re-registered
the case as CR No. 12/2021, alleging offences punishable under
Sections 302, 201, 34, 120-B of the IPC, as against unknown
persons, for the murder of Mansukh Hiren. The cases relating to
placing of explosive laden Scorpio SUV and theft of Scorpio
vehicle were re-registered by the ATS, Maharashtra, as CR Nos.
10/2021 and 11/2021 respectively.
5.9 On 08.03.2021, 20.03.2021 and 21.03.2021, as per
the directions of the Ministry of Home Affairs, Government of
India, the NIA took over the investigation of the aforesaid cases
and directed the NIA to suo-motu register a case and take up the
investigation. Accordingly, the case was re-registered by NIA, as
NIA RC 01/2021/NIA/MUM on 08.03.2021 and the original case
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papers and articles were handed over by the ATS, Maharashtra to
NIA, BO-Mumbai, on 10.03.2021.
5.10 During the course of investigation, it was found that
Sachin Waze (A-1), alongwith other co-accused had committed
heinous and serious offences attracting the provisions of the
UAPA and hence, Sections 16, 18 and 20 of the UAPA, were
invoked.
5.11 During the course of investigation, several persons
involved in the commission of the offence were arrested. On
completion of investigation, the NIA filed charge-sheet on
03.09.2021 as against 10 accused. We are informed that the NIA
has also filed an application under Section 173(8) of the Cr.P.C.
5.12 In the charge-sheet filed by the NIA, in paragraph 18
i.e. `18-CHARGES', the allegations as against the appellant are
set-out in para 18.4. The said para reads as under :
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"18.4 Offences committed by accused A-4:- As a
colleague of A-1, he willingly entered into a well-
organized conspiracy hatched by A-1, and he aided
A-1 in arranging fake vehicle registration number
plates which were used in the commission of offences
in the case. After commission of the offences, he aided
A-1 in destruction of evidence by illegally taking over
CCTV DVRs which had captured movement of
alleged vehicles used by A-1 during the placing of
Scorpio vehicle laden with Gelatin (Explosive). After
commission of the offences, he aided A-1 in
destruction of evidence by illegally taking over CCTV
DVRs and records of shops from where A-1 had
procured fake vehicle registration number plates.
Hence A-4 is to be charged under the sections shown
against his name in the table below."
5.13 The sections alleged in the table qua the appellant are
in Para 18.12. The sections with which the appellant has been
charged are Sections 120B and 201 of the IPC.
5.14 The statements relied upon by the NIA with respect
to the charge as against the appellant, are of API-Prakash Howal;
PN-Yuvaraj Shelar; KW-1; PC-Shivaji Desale; PC-Pandit Banjara;
PC-Mansur Shaikh, PC-Sameer Gawkar, PC-Pankaj Bhosale, PI-
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Santosh Kotwal, KW-11, Nikhil Shah. Some documents were
also relied upon. Dr. Chaudhary has also relied on the very same
statements of the witnesses to show that none of the statements
reveal the complicity of the appellant in the alleged crime, taking
their statements, as they stand.
REASONS :
6 A perusal of the statement of API-Howal, who is the
prime witness as per the prosecution, reveals, that he was
working as an API in the CIU; that the CIU would handle
confidential matters, apart from other important cases which
were marked to CIU for further investigation; that he came in
contact with Sachin Waze (A-1) as In-charge Officer, when he
joined the CIU, in June 2020; that since then, he was working
under him; and that Sachin Waze (A-1) would come to the office
in his own vehicles i.e. BMW or Mercedes or Mitsubishi or
Toyota Prado, which he used to drive himself.
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6.1 Witness-Prakash Howal has further stated, that the
investigation of Gamdevi Police Station and Vikhroli Police
Station i.e. FIR Nos. 35/2021 (parking of Scorpio Vehicle laden
with gelatin sticks) and 47/2021 (theft of Scorpio Vehicle)
respectively, were transferred to CIU, Mumbai, for further
investigation; that the Investigating Officer in both the cases was
Sachin Waze, Unit In-charge of CIU; and that he was one of the
team members of the investigation pertaining to both the C.Rs
registered with the Gamdevi Police Station and Vikhroli Police
Station.
6.2 According to the said witness (Howal), on
25.02.2021 at around 17.30 hours, Sachin Waze called him and
told him to come near Antilia, pursuant to which, he left from
CIU office; that on the way, he received a call from PC-Shaikh
(Driver), who told him that Sachin Waze had asked him to come
to Girgaon Chowpaty Police Chowky, pursuant to which he went
to Girgaon Chowpaty Police Chowky; that he did not enter the
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Police Chowky, as there were senior Officers who had visited the
said Police Chowky; that after sometime, Sachin Waze told him
that a Scorpio vehicle laden with gelatin sticks, was found near
Antilia; and that the said vehicle was towed and parked behind
Girgaon Chowpaty Police Chowky. He has further stated that
thereafter, he accompanied Sachin Waze to Varsha Bungalow,
where a meeting was held; that after the meeting, they came back
to CIU Office; that Sachin Waze, after the meeting, told him that
the said case would be investigated by their unit i.e. CIU Unit and
that he would be the Investigating Officer; that on 26.02.2021
the case of theft registered with the Vikhroli Police Station with
respect to the Scorpio vehicle given by Mansukh Hiren was
transferred to CIU for further investigation; that on the said date,
Mansukh Hiren came to the office; that two NIA Officers also
came to meet Sachin Waze; that he learnt on that day that the
said vehicle which was found parked near Antilia, belonged to
Mansukh Hiren; that in the evening, Sachin Waze, the appellant,
PN-Yuvaraj Shelar and himself visited the scene of crime; that as
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per the direction of Sachin Waze (A-1), they came to Gamdevi
Police Station and took the seized articles, as the investigation was
handed over to the CIU; that on 27.02.2021, as per the directions
of Sachin Waze, the appellant, PN-Yuvaraj Shelar, PC-Shaikh
(Driver) and himself came to Peddar Road; that the purpose of
the visit was to gather information about the incident dated
25.02.2021; that when they took search for CCTV camera in the
surrounding area, they found one Bungalow (Nikhil Villa) and
noticed that the CCTV Camera was facing towards the roadside;
that on inquiry with the owner of that bungalow about the road
facing camera footage, he readily handed over the DVR; that they
kept the said DVR in the office vehicle (that the said DVR was
later returned back by him and the appellant, to the owner); that
on the same day, when they came back to the office, Sachin Waze
told them that he had issued a written order and as such, had
directed them to look for CCTV footages and number plate
makers in the surrounding area of Eastern Express Highway and
Thane City; that on the same day, at around 4:00 p.m, Sachin
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Waze told them that they were going to check the CCTV footages
and number plate makers; that Sachin Waze alongwith appellant
and himself proceeded in his private vehicle and PN-Yuvaraj
Shelar, PC-Desale and PC-Shaikh (Driver) came in the office
vehicle; that when they reached Thane, Sachin Waze stopped his
car near one car accessories shop `Sadguru Car Decor'; that they
went in the said shop and made inquiry, checked documents; then
Sachin Waze directed the shop owner to give the DVR, pursuant
to which, the DVR was handed over, which was kept in the office
Vehicle; that from there, they left and went to another shop i.e.
Classic Car Decor, the shop owned by Mansukh Hiren; that he
knew Mansukh Hiren, as he had previously visited the CIU Office
to meet Sachin Waze on 26.02.2021; that all of them got down
from the vehicle and went to the said shop; that at the said shop,
Sachin Waze met Mansukh Hiren and they were discussing for
sometime; then Mansukh Hiren handed over the DVR of his shop
and the said DVR was also kept in the office vehicle; from there,
they went to Saket Complex i.e. the residence of Sachin Waze;
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that Sachin Waze instructed the appellant and him to check the
CCTV footage and collect the DVR from the said society; that as
per the instructions, two DVR's of CCTV footage were collected
by giving notice under Section 91 of the Cr.P.C (the said notice
was signed by the appellant); that after taking the DVR, they left
for Mumbai; that at Teen Hath Naka Junction, Sachin Waze told
PN-Shelar and PC-Desale that they could leave if they wanted,
pursuant to which, they left and only PC-Shaikh (Driver)
followed them in his official car; that thereafter, they came to
Dnyaneshwari Bungalow for a meeting; that thereafter, they
returned to CIU Office; and that, Sachin Waze dropped them
near the Office Gate and told them to keep the collected DVRs in
the Office.
6.3 Witness-Prakash Howal has further stated when asked
about his role in the investigation of the said case, that he was
acting as per the directions of Sachin Waze and that as per the
directions of Sachin Waze, he had visited the scene of crime and
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surrounding areas of Thane and Mumbai. He has stated that he
visited the areas alongwith the appellant and Sachin Waze. He has
further stated that when they (appellant and himself) collected the
DVRs from Saket Complex i.e. where Sachin Waze was residing,
they had not sealed the said DVRs, as they were specifically
directed by Sachin Waze for collecting the DVRs, without
proceeding. He has further stated that the said DVRs were
handed over by the appellant to Sachin Waze with a written
report in the CIU Office, as Sachin Waze was the Investigating
Officer of the said case. The statement of Howal further reveals
that on 01.03.2021, he went to Mulund, pursuant to a call made
by Sachin Waze; that when he reached Mulund, the appellant was
present with Sachin Waze. He has stated that Sachin Waze took
them i.e. the appellant and himself to one 'Arihant shop', where
Sachin Waze and one person-Devendra had some discussion; that
thereafter, the said person called another person- Umang; that
Sachin Waze told them i.e. the appellant and him, to go to the
shop shown by the said person and check registers, number
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plates, CCTV footage and also directed them to take the DVR
from the said shop; that Sachin Waze had also directed them not
to seize or prepare any documents/proceeding, while taking the
registers, DVR, etc. He has further stated that thereafter, they
went to a shop by the name `Pixel'; that they checked the
registers, inquired about the number plates, CCTV footage, etc;
that when they were in the said shop, the other staff of CIU i.e.
the Driver-Shere, PN-Yuvaraj Shelar and PC-Salve also came
there; that from the said shop `Pixel', they took a CPU and a
CCTV camera for investigation purpose; that, although, Sachin
Waze was not present, under his instructions, they did not serve
any notice to the shop owner nor did they make any panchnama
for taking over the CPU and the CCTV camera; that thereafter
they went to 'Arihant shop', where Sachin Waze was present; that
thereafter, on the instructions of Sachin Waze, a team of Crime
Branch, Unit-7 came there and the appellant passed on the
instructions given by Sachin Waze, regarding checking of the
CCTV footage and number plate makers in the surrounding
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areas. Howal has further stated that from 'Arihant shop', they
went for lunch to a nearby hotel; that after lunch, Sachin Waze
once again dropped them near `Pixel shop', as the CCTV Camera
had remained to be collected; that from there, Sachin Waze left
and as per the instructions of Sachin Waze, they visited 'Arihant
shop', where the shop owner gave the DVR; thereafter, they went
to Thane and met one person by the name, Namdev, who is
famous for making number plates; that as the said number was
not found in his register, the same was returned and they came
back to the CIU Office. According to witness-Howal, the CPU
and CCTV camera taken from Pixel shop and a DVR given by
Arihant shop owner, were kept in the office; that Sachin Waze
had asked them what investigation was done regarding the seized
vehicle number plates and asked him to investigate the same, and
hence, he and the appellant made inquiries in the areas in Thane,
with different number plate makers, however, did not get any
lead and as such informed Sachin Waze about it. He has further
stated that later, he accompanied the appellant to Vikhroli, where
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the appellant spoke to two-three persons; that he learnt later,
that the appellant had taken a CPU from a shop as per the
directions of Sachin Waze and that the shop owner was asking for
his CPU and the appellant was convincing him that Sachin Waze
was ready to give money, if their work was stuck due to CPU, as
it would take some more time to return the same.
6.4 Prakash Howal has further, in his statement, stated
that a vehicle similar to the Scorpio vehicle, which was found
near Antilia, used to be parked in the compound of the Mumbai
CP Office and that many times, it was used by the police persons
posted at CIU, Mumbai, for investigation purpose. According to
Howal, on 03.03.2021, at around 9:00 to 9:30 p.m, when he
and the appellant were present in Sachin Waze's cabin, Sachin
Waze received a call on his mobile; that he heard Sachin Waze
saying, "You leave from there and I will leave from here. We will
meet near Chakala Petrol Pump. Before leaving, you switch off
your mobile phone and mine also will be switched off. We will
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wait at the spot for each other." He has stated that he did not
know with whom Sachin Waze was speaking over the phone, but
later, learnt that the said call was from PI-Mane, In-Charge of
Crime Branch, Unit-11.
6.5 According to Howal on 04.03.2021, he and the
appellant were called in Sachin Waze's cabin; that Sachin Waze
told them that they were going to conduct a raid on a bar and
that if they wished to join him, they could, to which, they replied
in the affirmative; that Sachin Waze told them that the proposed
raid would be conducted late night; that thereafter, they left the
CP office compound; went for dinner and again returned to the
CP office; that Sachin Waze asked the appellant to call the staff
and PSI-Lohakare, pursuant to which, they all left for conducting
a raid on the bar located at Dongri, Mumbai; that they
conducted the raid but found nothing suspicious and that
thereafter, they all left for their respective homes.
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6.6 Howal has further stated that on 05.03.2021, when
he was in CIU Office, he learnt from a TV Channel that
Mansukh Hiren's dead body was found at Retibunder, Thane;
that he learnt that Sachin Waze and ACP-Alaknure had visited
Thane; that on his return, Sachin Waze told him and the appellant
to accompany him to Varsha Bungalow; that Sachin Waze went
inside and when he returned, they all went out for dinner; that
whilst having dinner, Sachin Waze discussed about the dead body
of Mansukh Hiren being found and asked them what they
thought, whether it was murder or suicide; that thereafter, Sachin
Waze and PC-Salve went towards the office and the appellant and
he went home.
6.7 Prakash Howal has further stated that on 06.03.2021,
Sachin Waze asked him and the appellant to accompany him;
that Sachin Waze got down from his vehicle near P.D'Mello Road
in a small lane besides Hotel Dazzel, where KW-12 met Sachin
Waze; that Sachin Waze and KW-12 went ahead and were
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discussing and that he and the appellant were waiting at the
hotel, at some distance; that thereafter they had tea and again
sat in the vehicle; that Sachin Waze, whilst driving the vehicle
towards the Free Way, asked them to switch off their mobile
phones, pursuant to which, he switched off his mobile phone;
that Sachin Waze looked confused and stressed and was uttering
words like, he wanted to commit suicide and so on; that ATS may
book him in the unnatural death of Mansukh Hiren; that at BKC,
Sachin Waze stopped his vehicle, got down from the car and again
started talking irrelevant; that as Sachin Waze was hungry, from
there they came back to the CIU Office; that Sachin Waze was in
his cabin for 10 to 15 minutes; that Sachin Waze told them to
switch on their mobile phones; thereafter, they went for dinner;
after dinner, Sachin Waze again told them to switch off their
mobile phones; from there Sachin Waze drove his car and came
near BKC, where he dropped the appellant and later dropped him
at the Eastern Express Way.
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6.8 According to Prakash Howal, on 06.03.2021, at
about 6:30 p.m, he saw Yuvaraj Shelar and Shivaji Desale, on the
direction of the appellant, picking and keeping a Nylon bag,
having zip in the Mercedes-Benz Car; that thereafter, Sachin
Waze drove the said car and that he and the appellant
accompanied Sachin Waze, in the said car.
6.9 Prakash Howal has further stated that on 08.03.2021,
the appellant got a message from ACP-Alaknure for handing over
the DVR of Saket Society to ATS, Vikhroli Unit, and hence, he
accompanied the appellant to the ATS Office, Vikhroli Unit, for
handing over the said DVR. He has stated that when they
reached the ATS Office at Vikhroli, ACP-Kale was not there in the
office, so the appellant called him; that ACP-Kale asked whether
the DVR was in a sealed condition, to which, the appellant
replied in the negative; that the appellant called ACP-Alaknure
and told him about it, to which, ACP-Alaknure told him to bring
back the DVR and make Station Diary entry. Accordingly, as per
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the instructions, they (appellant and himself) returned to the CIU
Office; that at the office, writer-Nalawde gave a written order of
ACP-Alaknure to the appellant, mentioning that the said DVR be
kept in his possession, but the appellant did not accept the order,
as he was not having a personal locker for keeping the DVR and
hence, the DVR was kept at some other place; that at around
10:00 p.m, Sachin Waze came to the office and after 10 to 15
minutes, told all the staff to go home, however, asked appellant
and him to stay back in the office. He has stated that they were
not aware why they were asked to wait in the Office. He has
stated that thereafter, the appellant and he went down and waited
in the CP Office compound for about one to two hours; that
around 0015 hours, they went to the Office and were sitting in
their regular places; that after 10 to 15 minutes, Sachin Waze told
them to accompany him; that they all came down and sat in
Sachin Waze's black Mercedes Car; that Sachin Waze, once again
told them to switch off their mobile; accordingly, he switched off
his mobile; that from CP Office Compound, they went by Free
SQ Pathan 28/44
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Way towards BKC; that again Sachin Waze was speaking
unrelated things; that he was saying that if something happened
to him, he would commit suicide; that Sachin Waze drove the
vehicle to many places and finally stopped at BKC Road, near one
over-bridge of Mithi river; that at that place, Sachin Waze told
them to get down from the vehicle. The most relevant part of the
statement of the said witness is reproduced herein under :
"At said place API Waze told us to get down from
vehicle and further told us to wait at one lane besides
road and come to him after ten minutes. At that time
we were not in a position to ask him, why API Waze
told us to get down at the said place. We were under
pressure, so got down from vehicle and waited for him
in one lane, then API Waze went ahead and parked
vehicle at one corner of road. We observed him from
behind (API Waze) by hiding ourselves. API Waze took
out some articles from the dickey of vehicle and threw
it into the Mithi River. As we were looking at some
distance, I observed that a CPU size articles was also
thrown in Mithi River. API Waze three / four times
came near dickey, then took some articles and finally
threw it in Mithi River. As we were standing at some
distance and it was a mid-night time, we could not
observed the articles. When the movement of API Waze
from vehicle to the Mithi River was stopped, we slowly
went towards him. When we reached near him, API
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Waze sat in vehicle. When API Waze getting to start his
vehicle, he first asked API Kazi has he seen anything?
On which API Kazi denied it. Then same question API
Waze asked me, on which I also denied. Then from
there we came at BKC and at said place API Waze
dropped API Kazi. Then he (API Waze) dropped me
near Eastern Express Highway at Shivaji Nagar, from
there I came home in auto rickshaw. During this period
API Kazi and myself were very frightened, so we did not
discuss about the incidence among ourselves and to
anyone else."
7 The statement of the said witness is corroborated by
the owners of the shops i.e. Sadguru Car Decor, Classic Car
Decor, Arihant Cars, Pixel Graphics, Bunty Radium, as well as the
owner of Nikhil Villa and the Secretary of Saket Complex,
Thane, that the appellant and Prakash Howal had accompanied
Sachin Waze and had taken the articles, without any
documentation.
8 As far as the submission of the learned ASG, that the
DVR was forcibly taken from the owner of Nikhil Villa is
concerned, the said submission is contrary to the statement of
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Prakash Howal as well as the owner of Nikhil Villa. The
statements of both the said witnesses do not show that the DVR
was forcibly taken by the appellant from the owner of Nikhil
Villa. Infact, the statements show that the DVR was readily
handed over by the owner of Nikhil Villa and that the said DVR
was returned to the owner on 11.03.2021/12.03.2021, by Howal
(witness) and the appellant. There are no allegations of tampering
of the said DVR.
9 As far as the statements of PN-Yuvaraj Shelar, PC-
Desale and API-Prakash Howal are concerned, that the appellant
had asked them to keep the bags in Sachin Waze's car on
06.03.2021, which were later destroyed by Sachin Waze on
08.03.2021, there is nothing in the statements to prima facie
show that the appellant had knowledge with respect to the
contents of the bags. Prima-facie, the statements of the said
witnesses, do not reveal that the appellant was aware of the
intention of Sachin Waze i.e. of destruction of the articles. The
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relevant portion of Howal's statement, reproduced herein-above,
does not even prima facie show that the appellant had knowledge
of Sachin Waze's intention to destroy evidence.
10 According to Yuvaraj Shelar, on 06.02.2021 (sic
06.03.2021), the appellant gave him the key of Sachin Waze's
Mercedes Benz Car and told him to keep some articles in the said
car and asked him to take help of some more persons. He has
stated that thereafter, he met Pankaj Bhosale and told him to
open the dickey of Sachin Waze's car, as he had some luggage,
which had to be kept in the dickey, that he noticed PC-Shivaji
Desale there; that he and Desale took two Nylon bags; that one
big bag contained some metal device like a CPU and the other bag
contained some papers and books. He has stated that thereafter,
Sachin Waze, the appellant and Howal (witness) sat in the car and
left the CP office. The statements of PC-Desale and PC-Bhosale
are on similar lines. These statements prima facie, are also of no
assistance to the prosecution, inasmuch as, the appellant is only
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alleged to have given Sachin Waze's car key to Yuvaraj Shelar, for
keeping the luggage in the car. Prima facie, having perused
Howal's statement, it appears that the appellant had no
knowledge that Sachin Waze was going to destroy the articles or
of Sachin Waze's involvement in the murder of Mansukh Hiren
or in planting of gelatin sticks in the Scorpio vehicle.
11 Prima facie, the evidence on record shows that the
appellant and Prakash Howal (witness), PN-Yuvaraj Shelar, PC-
Shaikh and PC-Desale, accompanied Sachin Waze in the seizure
of DVRs, CCTV footages, CPU, CCTV Camera, registers, bill
books, mobile phones, diary, etc. and had acted on the directions
of Sachin Waze. As far as documentation of Saket Society is
concerned, Sachin Waze had directed not to create any
documentation, however, the statement of the Secretary of Saket
Society shows, that a notice under Section 91 (written by witness-
Howal and signed by the appellant), was issued by the appellant,
for taking the Society's DVRs.
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12 It also prima facie appears from the evidence on
record, that although panchnama was not carried out by either
Prakash Howal or the appellant, the appellant, on returning to
the CIU Office, has made station diary entries, with respect to the
seizure of articles. The said entries made in the station diary and
relied upon by the learned counsel for the appellant, have not
been disputed. It thus appears that the appellant had made
entries in the Station Diary/Case Diary to show seizure of articles
from the shops/Saket Complex, though, he was
prevented/directed by Sachin Waze from making any
documentation. The said station diary entries of the CIU are at
page Nos.499 to 503. The relevant entries are as follows :
Date & Time Station Place from where articles Description of Seized
Diary Entry seized Articles/Entry in Diary
No.
01/03/2021 at 19 Shops in Thane area (Fake CPU, Register, DVR and
22:00 hrs. number plates) and CCTV Camera (seized
Arihant Stores articles handed over to
Sachin Waze)
02/03/2021 at 9 Bunty Radium, Computer CPU, 1 Register
12:30 p.m Kannamwar Nagar, and 1 receipt book (seized
Vikhroli articles handed over to
Sachin Waze)
SQ Pathan 34/44
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03/03/2021 at 4 Sadguru Car Decor On directions of Sachin
10:40 hrs. Waze, left for Sadguru Car
Decor, Thane.
13:30 hrs. 8 Sadguru Car Decor Diary (Seized Diary
handed over to Sachin
Waze)
11/03/2021 10 Bunty Radium Left for Bunty Radium on
15:30 hrs. instructions of Sachin
Waze.
13 It is the prosecution case, that panchnamas were not
made intentionally and deliberately for the purpose of destroying
evidence. Prima facie, it appears that Sachin Waze had directed
the officers including appellant not to make any documentation.
Prima facie, it appears that despite the same, the appellant has
made station diary entries as stated above, regarding the seizure
of articles. As far as DVRs' seizure from Saket Complex, where
Sachin Waze was residing, as the Secretary of the Society was not
willing to handover the DVRs, despite the direction of Sachin
Waze not to create any document, the appellant and Howal
(witness) issued a notice dated 27th February 2021 under Section
91 Cr.PC. It appears from the document on record that after the
DVRs were brought from Saket Complex, the appellant submitted
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his report dated 27th February 2021 to Sachin Waze, regarding
seizure of the DVRs from Saket Society.
14 Prima facie, there is not a single statement in the
entire charge-sheet, atleast not pointed out to us, to show that the
appellant himself destroyed any of the seized articles. It is the
prosecution case, that the appellant, alongwith Sachin Waze,
destroyed the articles in Mithi River, however, a perusal of the
statement of Howal, the relevant portion of which, is reproduced
herein-above, is to the contrary. It appears from the said
statement that both of them i.e. the appellant and Howal, were
asked to wait at a distance from where the appellant and Howal
watched Sachin Waze destroying the articles by throwing them in
the Mithi river. It further reveals that Sachin Waze asked the
appellant and Howal whether they had seen anything, to which,
both replied in the negative. Howal has specifically in his
statement stated that after seeing Sachin Waze throwing bags in
the Mithi River, they both were frightened.
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15 Admittedly, during investigation, nothing
incriminating was found/seized from the appellant. No material
has been pointed out by the NIA, to show that the appellant was
involved in anyway in preparing fake number plates or had
himself destroyed the items so seized from shops. Infact, API -
Howal's statement, prima facie, shows that it was Sachin Waze
who destroyed the articles collected from the shops. Evidence
collected by NIA shows, that the role of the appellant is similar to
the other officers, who are witnesses in the said case. The
statements of witnesses, prima facie, shows that all were acting
under the directions of Sachin Waze. It is pertinent to note, that
Sachin Waze vide letter dated 27th February 2021 had issued an
order directing the appellant and Howal (witness) to conduct an
inquiry with respect to the persons preparing Car number plates
in Thane; to check the CCTV footage of the shops, in respect of
4 number plates (specified in the letter) and to submit a report.
SQ Pathan 37/44
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16 As far as the submission of the learned ASG that the
appellant was present with Sachin Waze, when Sachin Waze asked
KW-12 for hammer and kerosene and when the same was handed
over to Sachin Waze is concerned, the statement of witness of
KW-12 and Howal, are to the contrary. The statement of Howal
shows that Sachin Waze alongwith KW-12 had gone at some
distance and were discussing something and that Howal and the
appellant were waiting at the hotel, at some distance; that
thereafter they had tea and again sat in the vehicle. The
statement of KW-12 also shows that Sachin Waze had taken him
to the side and asked him to give kerosene and hammer to him.
KW-12 has stated that when he asked Sachin Waze, why he
wanted the said articles, Sachin Waze replied that he needed it for
an operation, pursuant to which, the said witness procured the
articles from a nearby ration shop and kept the said hammer and
kerosene in Sachin Waze's car, on his direction. The said
submission of the learned ASG is, therefore, unfounded, having
regard to the statements on record.
SQ Pathan 38/44
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17 Admittedly, as noted above and as conceded by the
learned ASG, the appellant is not involved or connected with the
incident of the parking of the Scorpio vehicle near Antilia, which
was found laden with gelatin sticks, nor was he concerned with
the murder of Mansukh Hiren. The allegation as against the
appellant only pertains to destruction of evidence.
18 The sections applied qua the appellant in the charge-
sheet are, Sections 120-B and 201 of the IPC. Although, the
learned ASG contended that under Section 120-B, the appellant
is liable to the same punishment as Sachin Waze i.e. for the
murder of Mansukh Hiren, we are afraid, we cannot accede to
the said submission, as, it is not the case of the prosecution that
the appellant was involved in the murder of Mansukh Hiren.
The only allegation against the appellant, is of destruction of
articles. Prima facie, we are doubtful, having regard to the
statements, whether it can be said that the appellant destroyed
any of the articles. Even, if it is accepted that the appellant aided
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Sachin Waze in destruction of evidence, at the highest, the offence
would be one under Section 201 and 120-B of the IPC, which
are both, bailable.
19 As noted above, neither has the UAPA nor the Arms
Act or Explosive Substances Act, been invoked against the
appellant.
20 It is also pertinent to note that other co-accused in the said
case i.e. Naresh Ramniklal Gaur @ Gor and Another were charged
only for the offences under Sections 403 and 120B of the Indian Penal
Code and were granted bail by the learned Special Judge, NIA Court.
The said order granting bail was challenged by the NIA before this
Court. This Court (Coram: Nitin Jamdar & Sarang V. Kotwal, JJ.)
vide order dated 21.12.2021 dismissed the appeal filed by the NIA
being Criminal Appeal No. 1016/2021 and as such, confirmed the
order of the learned Special Judge, releasing the accused therein, on
bail. Infact, even against the said accused, the allegations in the
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charge-sheet and the sections applied were only Sections 403 and 120B
of the IPC. No other serious offences were mentioned in the charge-
sheet against the said accused. Infact, similar submissions as advanced
by the learned ASG in this appeal, were made by the NIA in Criminal
Appeal No. 1016/2021 i.e. with respect to Section 120B of IPC.
21 In the present case also, the learned ASG submitted that
there is meeting of minds between the accused with the main accused
(Sachin Waze) and that it is difficult to get direct evidence regarding
conspiracy, and as such, the same would have to be gathered from the
attending circumstances. At the cost of repetition, the appellant is not
prosecuted for the Scorpio Vehicle laden with gelatin sticks, nor for
the murder of Mansukh Hiren. Neither the appellant has been charged
for the offence punishable under the UAPA, Arms Act or the Explosive
Substances Act, nor any sanction been accorded against the appellant,
as done for the other accused. Prima facie, from the evidence relied
upon by the learned ASG, we find that the appellant (A-4) appears to
have no knowledge either of planting of explosives in the Scorpio
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vehicle or of the parking of the said vehicle near Antilia or of the
commission of the murder of Mansukh Hiren.
22 Considering the material on record, as discussed
herein above, we find that the appellant has made out a case for
grant of bail. Accordingly, following order is passed :
ORDER
(i) The appeal is allowed;
(ii) The judgment and order dated 01.03.2022 passed
below Exhibit 51 in NIA Special Case No. 190/2021
by the Special Judge, is quashed and set-aside;
(iii) The appellant is enlarged on bail on executing PR
Bond in the sum of Rs. 25,000/- with one or two
sureties in the like amount in connection with NIA
Special Case No. 190/2021;
(iv) The appellant shall attend the NIA Office at Mumbai,
on the 2nd Saturday of every month between 10:00
a.m. to 11:00 a.m. from the date of his release until
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further orders, except if the date in the trial Court
falls on a Saturday;
(v) The appellant shall inform his latest place of
residence and mobile contact number immediately
after being released and/or change of residence or
mobile details, if any, from time to time to the Court
seized of the matter and to the Investigating Officer
of the concerned Police Station;
(vi) The appellant to cooperate with the conduct of the
trial and attend all the dates before the trial Court,
unless exempted;
(vii) The appellant shall not tamper with the evidence or
attempt to influence or contact the complainant,
witnesses or any person concerned with the case;
(viii)The appellant shall deposit his passport to the
Investigating Officer before his release;
(ix) The appellant shall file an undertaking with regard to
clauses (iv) to (viii) in the trial Court, within two
weeks of his release.
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23 Appeal is disposed of in the above terms.
24 It is made clear that the observations made herein are
prima facie, for deciding this appeal and the trial Court to
conduct the trial, on its own merits, in accordance with law,
uninfluenced by the observations made in this judgment.
25 All concerned to act on the authenticated copy of this
judgment.
R. N. LADDHA, J. REVATI MOHITE DERE, J.
26 After the judgment was pronounced, learned counsel for
the NIA seeks stay of the said judgment. Request for stay is rejected.
R. N. LADDHA, J. REVATI MOHITE DERE, J.
SQ Pathan 44/44
