Bombay High Court

Pankaj Chhaganlal Soni vs State Of Maharashtra on 6 August, 2024

Author: Bharati Dangre

Bench: Bharati Dangre

2024:BHC-AS:34020-DB

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                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CRIMINAL APPELLATE JURISDICTION


                                     CRIMINAL APPEAL NO.152 OF 2024


                 Pankaj Chhaganlal Soni                                  .... Appellant

                         Versus

                 The State of Maharashtra                                .... Respondent

                                             .....
                 Mr.Sandeep R. Karnik, Advocate for the Appellant.
                 Ms.S.V. Gavand, APP for Respondent - State.

                 ACP Kalpana Gadekar, Bhoiwada Division Kalachowki Police
                 Station and PSI Gaikwad, Kalachowki Police Station, present.
                                              .....

                                               CORAM : BHARATI DANGRE &
                                                       MANJUSHA DESHPANDE, JJ.

                                               DATED   : 6th AUGUST 2024.

                 JUDGMENT (PER : Manjusha Deshpande, J.)

1 The appellant is accused no.6 in Special Case No.14

of 2019. As per the chargesheet, he has been charged for the

offences punishable under Sections 395, 397, 412, 341, 201 and

120-B of Indian Penal Code (IPC) with Sections 37(1)(a) read

with 135 of the Maharashtra Police Act and Sections 3(1)(ii),

3(2) and 3(4) of the Maharashtra Control of Organized Crime

Act, 1999 (MCOCA for short), in Special Case No.14 of 2019. The

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appellant herein has fled the present appeal challenging the

order passed by the MCOC Special Court in discharge

application at Exhibit 188. The application of the present

appellant has been rejected by the Special Judge in MCOCA

Court vide order dated 30th January, 2024.

2 According to the prosecution, a report is lodged by

the informant on 6th April, 2019. It is stated that the informant

deals in gold ornaments and used to visit gold jewellery shop for

marketing of various gold ornaments. It was his routine to visit

shops and exhibit the gold jwellery to the said shopkeepers and

seek purchase orders from the customers/shopkeepers.

On 6th April, 2019, while the informant had been to

Panvel for getting orders from his customers, on his way-back to

his residence, he alighted from a local train at about 09.00 p.m.

to 09:45 p.m. at Chinchpokli Police Station, Mumbai. While he

was passing from the Chinchpokali Ganesh Festival Mandal at

about 09:45 p.m, two persons came near him and started

snatching the packet containing ornaments. When the

informant resisted, a person wearing red cap gave a blow with

his sharp edged chopper with his right hand wrist. Thereafter,

the informant started shouting for help. At the same time,

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another person was trying to snatch the packet from the

informant. When he tried to resist, the second person also

assaulted the informant with sharp edged chopper on his left

shoulder, forearm, wrist and head and on the left side of his

head. The two persons snatched the packet from the informant.

People present nearby gathered and came to his rescue.

However, the accused persons threatened the people gathered of

dire consequences, if they came near them to rescue the

informant. In the meanwhile, the other two persons who were

accomplices, cautioned them to complete their work and leave

immediately. Thereafter all the accused persons left the scene of

offence from Chinchpolkali bridge.

The informant was subsequently admitted to the

hospital, and thereafter C.R. No.70 of 2019 came to be

registered with Kalachowki Police Station, Mumbai, for the

offences punishable under Sections 394, 397, 34 of IPC and

Section 37(1) (a) read with Section 135 of the Maharashtra

Police Act against four unknown persons.

3 During the course of investigation, it was revealed

that the said crime was committed by an organized crime

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syndicate headed by accused no.1 Ayub Ahimuddin Shaikh @

Ayub Chikna. A prior approval under Section 23(1)(a) of the

MCOC Act was granted for applying the provisions of MCOC Act.

During the course of further investigation, it was revealed that

the present appellant is also a member of the organized crime

syndicate, headed by the gang leader Ayub Alimudding Shaikh

(Accused No.1). Suffcient material was collected by the

prosecution against the present appellant about his involvement

in the present crime. Considering the material collected by the

prosecution, the Competent Authority has accorded sanction as

contemplated under Section 23(2) of the MCOC Act, for

prosecution of the appellant. The approval was granted by order

dated 6th July, 2019. After grant of sanction, chargesheet came

to be fled against the present appellant on 8th July, 2019.

4 On charge being fled, the present appellant has fled

application at Exhibit-188 in MCOC Special Case No.14 of 2019,

for his discharge under Section 227 of the Cr.P.C. According to

the applicant the allegation as against him is that, he alongwith

his son has purchased gold ornaments from the second wife of

main accused no.1 at a lower price, knowing fully well that the

ornaments are stolen property. It is alleged that the said gold

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ornaments were melted by the present appellant and his son

(who is now a discharged accused). Two lagads were recovered

at his instance and this is the only circumstance against the

present appellant. He has sought discharge primarily on the

ground of parity with the accused no.3 Mr.Maruti Sonawane,

who was discharged by this Court vide order dated 4th May,

2022 in Criminal Appeal No.198 of 2022, and his son Mahesh

Soni (accused no.7) who was discharged by this Court by order

dated 15th December, 2023.

5 It is the contention of the present appellant that

there is no material to connect the present appellant with the

crime. The prosecution has not produced any evidence that the

present appellant is a member of organized crime syndicate

and, thus, the appellant does not fall under the purview of

Section 2(f) read with Section 2(e) of MCOC Act. There are no

common antecedents of present appellant with the gang leader

Ayub Chikna against whom 39 cases are registered. As against

that, there are no criminal antecedents whatsoever against the

present appellant. The mere fact of the recovery of gold Lagads

that too from the jewellery shop cannot be held as an

incriminating evidence. Therefore, in view of the unavailability

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of the evidence, he had sought discharge under Section 227 of

Cr.P.C. The learned Judge Special Court, after taking into

consideration the material produced by the prosecution, has

rejected the discharge application of the present appellant.

6 Learned APP has opposed the grant of prayer in the

present appeal contending that the Competent Authority has

already granted approval on 11th May, 2019, and sanction on 6 th

July, 2019, under the provisions of MCOC Act. The material

placed discloses involvement of the present appellant. The gold

which has been seized vide memorandum panchanama, weighed

almost 1 kilogram, which has a value of Rs.31,93,000/-. This

itself is suffcient for establishing the involvement of the present

appellant. The call details between the present appellant and

accused no.8 clearly indicates the involvement of appellant in

the offence. The appellant's act is covered by Section 2(1)(a) of

the MCOC Act, wherein explanation to the word "Abetment", is

provided. The Special Court has rightly considered the evidence

produced by the prosecution and 0rejected the Application for

Discharge.

7 According to the learned Judge of the Special Court,

the memorandum panchanama of the present appellant and the

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two gold Lagads weighing 475 grams and 555 grams, each,

which are seized at the instance of the appellant shows the

involvement of the present appellant in the said organized crime

syndicate headed by accused no.1. The prosecution has placed

on record the CDRs to show that the wife of gang leader, one

Sangeeta Vijay Nair, who is accused no.8 was in contact with the

present appellant. The said CDRs show that Sangeet Nair was in

contact with the present appellant, much before the registration

of the present CR. She seems to be in contact with the present

appellant from October 2018, and more particularly, the present

appellant and accused no.8 were in contact with each other on

1st April, 2019 and 7th April, 2019.

The CDR which is placed on record shows that from

October 2018, till the date of registration of offence, the

appellant and the accused no.8, were constantly in contact with

each other during the said period. The memorandum

panchanama of the present appellant shows his complicity in

the present CR.

The present appellant had melted the gold which the

wife of accused no.1 had brought in his shop. The seizure of the

said gold as well as the CDR which refects that the accused no.8

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was in constant touch with the present appellant are suffcient

to connect the present appellant with the offence. The veracity

of the evidence produced can be determined only during the

trial.

8 The appellant is seeking parity with one Maruti

Sonawane-Accused no.3 and his son Mahesh Soni-Accused no.7,

who have been discharged by the orders passed by this Court.

While deciding the Appeal fled by Mahesh Soni-Accused No.7 in

Criminal Appeal No.767 of 2023, this Hon'ble Court has

observed that, the record reveals that the stolen gold ornaments

which were melted into gold bar is seized at the instance of

appellant's father i.e. original accused no.6 and not from the

Appellant. It is observed that there is no evidence or material

showing that, the Appellant is associated with the organized

crime syndicate.

There is no commonality between the Appellant and

the crime. There is a recovery of gold melting machine, which is

not unusual in a jewellery shop. The C.D.R. does not indicate

that, the Appellant had ever called Accused no.1 or Accused

no.8. Therefore, the Court had come to the conclusion that the

evidence gathered is not suffcient to show that, the Appellant

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had knowledge about the activities of Accused no.8. Considering

the material available against the Appellant, the Accused No.7

has been discharged.

So far as the other accused Maruti Sonawane-

Accused No.3 is concerned, the allegations and the material

available against the said accused also cannot be compared. The

only allegation against the said accused was that, he had recced

the area from Panvel to Chinchpokli on 6th September, 2021, on

the instructions received from the gang leader Ayub Chikna. He

provided information about the other co-accused, and amount of

Rs.10,200/- was seized from the said accused; he was in

continuous contact with Ayub Chikna, and his wife Sangeeta

Nair.

In support of the allegation of recced, CCTV footage

was collected by the investigating offcer. In the said CCTV

footage of the railway station, according to the prosecution, the

said Appellant could be seen walking, but nothing could be seen

when the said C.D.R. was seen by the panch witnesses. The

technician was unable to copy any CCTV footage. Therefore

there was no CCTV Footage in support of the allegations of

prosecution. Since, the prima facie material showing

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involvement of the appellant could not be produced by the

prosecution, this Court has been pleased to discharge him.

9 Though the Appellant, is claiming parity with the

Accused Nos.3 and 7, on going through the orders passed in

their favour, it is evident that, this Court has considered the

evidence produced by the prosecution against them, and has

come to the conclusion that, the evidence is not suffcient to

show their involvement in the crime. Therefore, the Court has

recorded that, there is no material for proceeding against

accused. As a result both the Accused i.e. Accused Nos.3 and 7

in Criminal Appeal No.198 of 2022 and Criminal Appeal No.767

of 2023, respectively, have been discharged from the offences in

Special Case No.14 of 2019.

10 After hearing the respective parties and going

through the material on record, according to us, the seizure of

Gold Bars, which are seized at the instance of the accused and

the CDRs between the Appellant and wife of Accused No.1 i.e.

Accused No.8, is suffciently incriminating evidence against

Appellant, to form a prima facie opinion about the involvement

of the present Appellant. The veracity and truthfulness has to

be tested at the time of trial. However, as on today at this stage,

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we are of the considered opinion that, the appellant has not

made out a case for discharge.

The Appellant has been charged with Section 3(2) of

the MCOC Act, which reads as under:

"3(2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organised crime or any act preparatory to organised crime, shall be punishable with imprisonment for a term which shall be not less than fve years but which may extend to imprisonment for life and shall also be liable to a fne, subject to a minimum fne of rupees fve lacs."

The word Abets is also explained in Section 2(1)(a)

of the MCOC Act, which reads as under:

"2(1)(a) "abet", which its grammatical variations and cognate expressions, includes, -

(i) the communication or association with any person with the actual knowledge or having reason to believe that such person is engaged in assisting in any manner, an organised crime syndicate;

(ii) the passing on or publication of, without any lawful authority, any information likely to assist the organised crime syndicate and the passing on or publication of or distribution of any documents or

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matter obtained from the organised crime syndicate; and