Bombay High Court
Ayub Alimuddin Shaikh @ Ayub @ Chikhna vs State Of Maharashtra on 4 March, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:10874
50-BA-2938-23.DOC
Sayali Upasani
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 2938 OF 2023
Ayub Alimuddin Shaikh @ Ayub @ Chikhna ...Applicant
Vs.
SAYALI
DEEPAK The State of Maharashtra ...Respondent
UPASANI
Digitally signed by
SAYALI DEEPAK
UPASANI
Date: 2024.03.06
Mr. Darshit Rakesh Jain i/b AID Legal, for Applicant.
14:46:42 +0530
Mrs. G. P. Mulekar, APP for State-Respondent.
CORAM:- N. J. JAMADAR, J.
DATED:- 4th MARCH, 2024.
ORDER:
-
1) The applicant, who is arraigned in CR No.70 of 2019,
registered with Kalachowki Police Station, Mumbai, for the
offences punishable under Sections 120-B, 395, 397, 412, 341
and 201 of the Indian Penal Code, 1860, Sections 3 (1) (ii), 3 (2)
and 3 (4) of Maharashtra Control of Organized Crime Act, 1999
(MCOCA, 1999), Section 4 read with Section 25 of Arms Act,
1959 and Section 37 (1) (A) read with Section 135 of the
Maharashtra Police Act, 1951, has preferred this application to
enlarge him on bail.
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2) The first informant is a jeweller. On 6th April, 2019, the
first informant had been to Panvel to sell gold ornaments
weighing about 1800 grams. At about 9.50 pm, the first
informant alighted at Chinchpokali Railway Station. While the
first informant was on his way to home along with gold
ornaments, two unknown persons accosted him near the pendal
of Chinchpokali Ganesh Mandal. They tried to snatch away the
bag containing gold ornaments, which the first informant was
carrying. As the first informant resisted, one of the robbers, who
was wearing a red cap, assaulted the first informant by means of
a chopper on his right hand. The first informant raised alarm.
Thereupon, another robber unleashed blows on the left
shoulder, biceps, wrist and forehead of the first informant. The
robbers snatched away the bag containing the gold ornaments.
When the nearby persons attempted to rescue the first
informant, those robbers threatened to kill anybody who
intervened. The first informant had noticed that two of the
associates of those robbers were standing at the platform of the
Chinchpokali bridge and exhorted the robbers to hurry up.
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3) During the course of investigation on the basis of the leads
obtained through to the CCTV footages, CDR, location and other
technical evidence, the investigating agency could identify the
suspects.
4) The applicant came to be arrested on 12 th April, 2019. The
applicant made a number of discoveries. Pursuant to the first
discovery made by the applicant, the motorcycles which were
used in the commission of the crime by the robbers were
recovered. In another discovery, a chopper was recovered. The
applicant also made a disclosure statement leading to the
recovery of gold ornaments weighing 146 grams which had fallen
to the share of the applicant. In the meanwhile, the co-accused
were also arrested. The co-accused also made discovery. A
jeweller - co-accused to whom the applicant and his wife had
allegedly sold the gold ornaments, of which the first informant
was robbed, made a discovery leading to the recovery of two
yellow metal ingots weighing 475 and 555 grams.
5) It further transpired that the applicant was the leader of
the organised crime syndicate. The applicant had been indulging
in continuous unlawful activity and as many as 39 crimes were
registered against the applicant. The applicant resorted to the
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modus operendi of hiring new members for carrying out unlawful
activities for the organised crime syndicate. The rest of the
accused were allegedly the members of the said syndicate. Thus,
with the prior approval of the competent authority, the
provisions contained in the MCOC Act, 1999 were invoked. Post
completion of investigation, with the previous sanction of the
competent authority, the learned Special Judge took cognizance
of the offences indicated above. Test-identification parades were
conducted. The applicant was allegedly identified by the
witnesses in the test identification parade.
6) An affidavit-in-reply is filed on behalf of the respondent. It
is contended that there is a strong prima facie case against the
applicant. Pursuant to the discovery made by the applicant, gold
ornaments weighing 145 grams have been recovered. Jeweller-
co-accused has also made discovery leading to the recovery of
the yellow metal ingots into which the gold ornaments, of which
the first informant was robbed, were converted. There is material
to indicate that the applicant had sold huge quantity of the
stolen ornaments to the co-accused jeweller. In addition, there
are CCTV footage, CDR and further discoveries made by the
applicant which squarely incriminate the applicant. Moreover,
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in as many as 39 crimes, the applicant has been arraigned. The
antecedents of the applicant are such that he does not deserve
to be released on bail.
7) I have heard Mr. Darshit Jain, the learned Counsel for the
applicant and Mrs. G. P. Mulekar, the learned APP for the State.
8) Mr. Jain submitted that the applicant was admittedly not
the person, who had allegedly robbed the first informant. The
role of being one of the robbers who decamped along with the
gold ornaments, after unleashing blows by means of a chopper,
has not been attributed to the applicant. Nor there is any
material to show that the applicant was present at the time and
place of the alleged occurrence. The entire prosecution case
rests on evidence of discovery allegedly made by the applicant.
There is no confessional statement recorded under Section 18 of
the MCOC Act, 1999. Nor the witnesses have identified the
applicant as one of the persons, who was seen along with the
alleged robbers. In the circumstances, it cannot be said that a
prima facie case is made against the applicant.
9) As a second limb, Mr. Jain would urge, dehors the merits
of the matter, the applicant deserves to be enlarged on bail on
the count of long period of incarceration. The applicant was
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arrested on 6th April, 2019. Almost five years have elapsed and,
yet, charge has not been framed. It is extremely unlikely that the
trial can commence and conclude within a reasonable period.
This long period of incarceration furnishes a justifiable ground
to release the accused on bail notwithstanding the interdict
contained in Section 21 (4) of the MCOC Act, 1999.
10) To lend support to this submission, Mr. Jain placed
reliance on the judgment of the Supreme Court in the case of
Union Of India vs K.A. Najeeb1 and an order passed by this
Court inMrugank Kalwalkar @ Miccky Vs. State of Maharashtra
in BA 2388 of 2022 dated 13th October, 2022.
11) In opposition to this, Mrs. Mulekar stoutly submitted that
the applicant cannot be heard to urge the ground of delay in trial
as the applicant and the co-accused are themselves responsible
for dragging the trial in Special Case No. 14 of 2019. It is on
account of dilatory tactics on the part of the applicant and the
co-accused, the trial could not be commenced and concluded
expeditiously.
12) Mrs. Mulekar invited the attention of the Court to an order
dated 10th August, 2023, passed by a Co-ordinate Bench in the
Bail Application of the co-accused Mohd. Shahtaj Jamal Khan in
1 (2021) 3 SCC 713
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BA 32 of 2022, whereby this Court had already expedited the
trial by directing the learned Special Judge to frame the charge
and conclude the trial as expeditiously as possible, and, in any
event, within a period of one year thereof.
13) The learned APP would urge the said period is yet to expire
and thus the applicant cannot seek bail on the ground of delay
in trial.
14) To begin with, the injury certificate of the first informant
indicates that the first informant had sustained multiple
lacerations by means of a sharp weapon. There is prima facie
material to show that the first informant was robbed of a huge
amount of gold ornaments and in committing the robbery the
robbers caused grievous hurt to the first informant.
15) The submission on behalf of the applicant that the
applicant had no role in the alleged robbery as he was not the
person who allegedly assaulted the first informant while
committing the robbery, at this stage, does not advance the
cause of the applicant. The applicant has been roped in as the
gang leader of an organised crime syndicate.
16) To constitute a continuous unlawful activity within the
meaning of Section 2 (d) of the MCOC Act, 1999, the activity
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must have been undertaken either singly or jointly as a member
of the organised crime syndicate or on behalf of such syndicate.
"Organised crimes syndicate" under Section 2 (f) of the MCOC
Act, 1999 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. The material on record prima facie
indicates that the alleged robbery was committed by the co-
accused for the organised crime syndicate.
17) Mr. Jain laid emphasis on the fact that the co-accused
have not been arraigned along with the gang leader in any other
crime. Therefore, it cannot be said that there is any organised
crime syndicate of which the applicant is the gang leader and,
the co-accused the members. This submission is required to be
appreciated in the light of the fact that the requirement is of two
charge-sheets qua organised crime syndicate and not each of the
persons who is alleged to be a member of such syndicate.
Undoubtedly, there has to be a nexus between the person, who
is sought to be implicated as a member and the organised crime
syndicate. If such nexus is established, the fact that the said
person is not implicated in any other crime or has not been
implicated along with the co-accused/ member of the gang does
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not detract materially, from the charge for the offences
punishable under Sections 3 (1)(ii), 3(2) and 3 (4) of the MCOC
Act, 1999.
18) In the instant case, the discoveries allegedly made by the
applicant leading to the recovery of the chopper which were
allegedly used by the robbers, and, more importantly, 145 grams
of gold ornaments, in the totality of the circumstances, prima
facie establish the nexus between the applicant and the co-
accused-alleged assailants, who robbed the first informant.
19) Mr. Jain, the learned Counsel for the applicant submitted
that the antecedents of the applicant sought to be relied upon by
the prosecution do not merit consideration as apart from two
crimes i.e. CR No. 14 of 2012 registered with Wakola police
Station and CR No. 107 of 2021 registered with DCB CID,
Mumbai, rest of the crimes registered against the applicant were
in respect of the occurrences prior 10 years of the occurrence in
question.
20) It was further submitted that in MCOCA Special Case No.
8 of 2012, arising out of CR No. 107 of 2021, DCB CID, Mumbai
and (CR No. 241 of 2011, registered with Azad Maidan Police
station), the accused No. 1 has been acquitted of the offences
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punishable under MCOC Act and convicted for the offences
punishable under Sections 392 and 342 read with Section 34 of
the Penal Code, 1860 only.
21) The aspect of antecedents of the applicant, is required to
be considered as a whole. As many as 39 crimes have been
registered against the applicant and the majority of them are of
theft and robbery armed with weapons. The antecedents of the
applicant put the Court on guard. It would be hazardous to draw
an inference that the applicant would not indulge in identical
offences, if released on bail.
22) I am, therefore, impelled to hold that prima facie, the twin
test envisaged by Sub Section (4) of Section 21 cannot be said to
have been satisfied.
23) As regards long period of incarceration, it is now
crystallized by a catena of judgments, including the judgment of
the Supreme Court in the case of K.A. Najeeb (supra) that the
statutory restrictions in the matter of grant of bail melt down on
account of long period of incarceration as it impinges upon the
constitutional guarantee of right to life and personal liberty
under Article 21 of Constitution of India. In fact, the
statutory restrictions on the grant of bail under special
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enactments like UAPA, MCOC Act and NDPS Act, 1985 are
considered to be justifiable on the premise that the trial in those
cases would be completed expeditiously.
24) In the case of K.A. Najeeb (supra) the Supreme Court
enunciated that at the commencement of proceedings, Courts
are expected to appreciate the legislative policy against grant of
bail but the rigours of such provisions will melt down where
there is no likelihood of trial being completed within a
reasonable time and the period of incarceration already
undergone has exceeded a substantial part of the prescribed
sentence. Such an approach would safeguard against the
possibility of provisions like Section 43D (5) of UAPA being used
as the sole metric for denial of bail or for wholesale breach of
constitutional right to speedy trial.
25) In the case at hand, the applicant has been in custody
since 12th April, 2019. A period of four years and 11 months has
elapsed. It is necessary to note that the charge has yet not been
framed despite the directions by this Court in BA No. 32 of 2022
preferred by the co-accused, to frame charge and conclude the
trial as expeditiously as possible and, in any event, within a
period of one year thereof.
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26) The learned APP, however pointed out that there have been
efforts to delay the trial on the part of the accused. Often
adjournments are sought and applications for discharge have
been preferred. Thus, the charge could not be framed.
27) Mr. Jain countered the submissions on behalf of the
prosecution. It was urged that the accused have a statutory
right to prefer an application for discharge and that cannot be
arrayed against the applicant for not concluding the trial
expeditiously.
28) I have perused the copies of the Roznama. The submission
of Mrs. Mulekar that the accused have also contributed for the
delay in framing the charge cannot be said to be wholly
unfounded.
29) Undoubtedly the applicant has been in custody for almost
5 years. Offence punishable under Section 394 of the Penal
Code, 1860 entails punishment which may extend to
imprisonment for life. Since grievous hurt was caused to the first
informant, Section 397 of the Penal Code, 1860, which provides
for a minimum sentence of 7 years may come into play. Offences
punishable under Section 3 (1)(ii), 3(2) and 3 (4) of the MCOC
Act, 1999 entail punishment of imprisonment for life with a
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minimum sentence of 5 years. Thus, a balance is required to be
struck between right of the accused to speedy trial and the
interest of society in having the accused tried for grave offences.
30) In my considered view since the Bail Application of the co-
accused was disposed with a direction to the trial Court to
conclude the trial prior August, 2024, it may be expedient to
grant opportunity to the prosecution to make an effort to
conduct the trial expeditiously within the said period.
31) To sum up, at this stage, the facts that the applicant is a
history sheeter, the applicant has been identified by one of the
eye witnesses and there has been the recovery of huge quantity
of gold from the applicant and co-accused Pankaj Soni, which
was allegedly sold by the applicant, incriminate the applicant.
32) Thus, in the totality of the circumstances, and having
regard to the fact that the Court has already directed
expeditious conclusion of the trial, I am inclined to reject the
application with liberty to the applicant to revive the prayer for
bail in the event the trial is not concluded by August, 2024.
33) Hence, the following order.
:ORDER:
(i) The application stands rejected.
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(ii) The learned Judge is requested to make an
endeavour to commence and conclude the trial in
Sessions Case No. 14 of 2019 positively by end of
August, 2024.
(iii) In the event trial is not concluded within the said
period, the applicant shall have liberty to review the prayer
for bail before this Court.
(iv) By way of abundant caution, it is clarified that the
observations made hereinabove are confined for the
purpose of determination of entitlement for bail and they
may not be construed as an expression of opinion on the
guilt or otherwise of the applicant and the trial court shall
not be influenced by any of the observations made
hereinabove.
[N. J. JAMADAR, J.]
