Holding

Section 3(2) and Section 24 of the Maharashtra Control of Organized Crime Act do not apply to the appellant, and the interim bail order stands.

Summary

The case arose from the investigation of a massive counterfeit stamp scam in which the former Pune Police Commissioner, Ranjitsing Sharma, was arrested under the Maharashtra Control of Organized Crime Act (MCOCA) on allegations that he had helped and supported members of the organized crime syndicate. The prosecution alleged that Sharma abetted police officers Mulani and Kamat, thereby facilitating the crime, and sought to deny him bail. The Supreme Court examined whether Section 3(2) and Section 24 of MCOCA could be attracted, interpreting the terms "abet", "conspiracy" and the scope of "help or support" under the Act. It held that there was no direct nexus between Sharma’s conduct and the organized crime, and the statutory provisions must be given a strict, reasonable construction. Consequently, the Court found that neither Section 3(2) nor Section 24 applied to the appellant and that bail could be granted under Section 21(4) of MCOCA. The interim bail order previously granted by the High Court was upheld.

Issues considered

Whether the appellant’s alleged acts constitute an offence under Section 3(2) of MCOCA requiring a direct nexus with an organized crime syndicate.
Whether Section 24 of MCOCA applies to a public servant who renders help or support to co‑accused police officers.
How the terms "abet", "conspiracy" and "help or support" are to be interpreted under MCOCA.
Whether bail can be denied under Section 21(4) of MCOCA in the absence of a prima facie case.
Whether the brain‑mapping test report is admissible as scientific evidence.

Legislation cited

Code of Criminal Procedure
Indian Penal Code, 1860s. 107, s. 108, s. 120-B, s. 249, s. 255, s. 260, s. 263(a), s. 263(b), s. 34, s. 472, s. 474, s. 478
Maharashtra Control of Organized Crime Act, 1999s. 21(4), s. 24, s. 2(d), s. 2(e), s. 2(f), s. 3(2)

Subjects

MCOCAbailabetmentconspiracyorganized crimeinterpretation of statutesbrain mapping evidencepresumption of innocenceSection 21(4) bail provisionpublic servant liability

Judgment

RANJITSING BRAHMAJEETSING SHARMA A
v.
STATE OF MAHARASHTRA AND ANR.

APRIL 7, 2005

[N. SANTOSH HEGDE, B.P. SINGH AND S.B. SINHA, JJ.] B

Maharashtra Control of Organized Crime Act, I 999 :

ss. 3 and 24 read with ss. 2(d), 2(e), 2(/), ands. 21(4)-/nterpretation
of-Printing of counterfeit stamps-Accused arrested-During investigation, C
a police officer also arrested on ground of rendition of help and support to
organized crime syndicate-Application for bail by police officer-Held,
provisions of the Act must receive a strict construction so as to pass the test
ofreasonableness-s. 21(4) must be construed reasonably so that the court is
able to maintain a delicate balance between a judgment of acquittal and D
conviction and an order granting bail much before commencement of trial-
Prima faie s.3(2) is not attracted-Order granting interim bail to continue-
Penal Code-ss. 107 and JOB-Constitution of India-Article 21.

Evidence-Brain mapping test report-Admissibility of
E
Words and Phrases :

Expressions, 'abet', and 'conspiracy '-Meaning of in the context of the
Maharashtra Control of Organised Crime Act, I 999 :

A case of printing counterfeit stamps and forgery in various States p
including the State of Maharashtra was unearthed and fake stamp papers
worth lacs of rupees were recovered during appellant's tenure as
Commissioner of Police, Pune. One 'T' was arrested and a case initially
under various sections of Penal Code was registered. Later, s.3 of the
Maharashtra Control of Organised Crime Act, 1999 was invoked. During
investigation, the appellant was arrested on the alleged ground of rendition G
of help and support to organized crime syndicate by acts of omission and
commission, i.e. rendering help or support to a police officer through
another police officer, both of whom were co-accused in the case. His bail
application was rejected by the Special Judge as also by the High Court.
345 H
346 SUPREME COURT REPORTS [2005) 3 S.C.R.

A Aggrieved, the accused filed the present appeal.
Allowing the appeal, the Court

HELD : 1.1. Prima facie section 3(2) of Maharashtra Control of
Organized Crime Act, 1999 is not attracted in the instant case. Sub-section
B (2) of s.3 of the Act provides punishment, inter alia, for facilitating
conspiracy or abetting or commission of a crime by a person knowingly
or any act preparatory to organized crime. The expression 'conspiracy'
is not a term of art. It has a definite connotation. Mens rea to commit the
crime must be established besides the fact of agreement. Mens rea is a
C necessary ingredient for commission of a crime under MCOCA.
(366-D-H; 367-A; 369-B-D]

1.2. The offence under s.3(2) of MCOCA must have a direct nexus
with the offence committed by an organized crime syndicate. Abetment
of commission of offence must be by way of accessories before the
D commission of an offence. An offence may be committed by a public
servant by reason of acts of omission and commission which would amount
to tampering with the investigation or to help an accused. Such an act
would make him an accessory after the commission of the offence. The
High Court does not say that the appellant has abetted 'T' or had
conspired with him. The findings of the High Court as against the appellant
E are attributable to allegations of abetting the two police officers. Both were
public servants. They may or may not have any direct role to play as
regard commission of an organized crime but unless a nexus witfl an
accused who is a member of the organized crime syndicate or an offence
in the nature of organized crime is established, only by showing some
F alleged indulgence to the two co-accused police officers, the appellant
cannot be said to have conspired or abetted commission of an organized
crime. (365-D-E; 369-B-D)

Shri Ram v. The State of UP., AIR (1975) SC 175; Kehar Singh and
Ors. v. The State, (Delhi Admn.) AIR (1988) SC 1883; State of Karnataka v.
G L. Muniswamy and Ors., AIR (1977) SC 1489; P.K. Narayanan v. State of
Kera/a, (1995) 1SCC142 and Saju v. State of Kera/a, AIR (2001) SC 175, <;;.=
referred to.

1.3. The interpretation clause as regards the expression 'abet' do_es
not refer to the definition of abetment as contained in s.107 IPC. It refers
H to such meaning which can be attributed to it in the general sense with
RANJITSING BRAHMAJEETSING SHARMA v. STATE OF MAHARASHTRA 34 7
grammatical variations and cognate expressions. However, having regard A
to the cognate meaning, the term may be read in the light of the definition
of these words under ss.107 and 108 of the Penal Code. The inclusive
definition although expansive in nature, "communication" or "association"
must be read to mean such communication or association which is in aid
of or render assistance in the commission of organized crime. B
1364-G-H; 365-AJ

1.4. Any communication or association which has no nexus with the
commission of organized crime would not come within the purview thereof.
It must mean assistance to organized crime or organized crime syndicate
or to a person involved in either of them. It, however, includes: (a)
communication or (b) association with any person with the actual C:
knowledge or (c) having reason to believe that such person is engaged in
assisting in any manner, an organized crime syndicate. Communication
to, or association with, any person by itself, would not, come within
meaning of the aforementioned provision. The communication or
association must relate to a person. Such communication or association D
to the person must be with the actual knowledge or having reason to
believe that he is engaged in assisting in any manner an organized crime
syndicate. (365-A-D)

2.1. Section 24 of MCOCA must be given a proper meaning. A public
servant can be said to have committed an offence within the meaning of E
the said provision if he (i) renders any help or support in any manner in
the commission of an organised crime; (ii) whether before or after the
commission of an offence by a member of an organised crime syndicate
or (iii) abstains from taking lawful measures under this Act or (iv)
intentionally avoids to carry out the directions of any Court or of the
superior police officers in this respect. The purported acts of omission and F
commission on the part of the appellant does not attract the first part of
Section 24 of MCOCA. It is not the case of the prosecution that he has
committed any act which comes within the purview of clauses (iii) or (iv)
hereinbefore. (369-E-G)

3.1. Presumption of innocence is a human right. Article 21 of the G
Constitution in view of its expansive meaning not only protects life and
liberty but also envisages a fair procedure. Liberty of a person should not
01·dinarily be interfered with unless there exist cogent grounds therefor.
Sub-Section (4) of Section 21 of the Act must be interpreted keeping in
view these salutary principles. Giving an opportunity to the public H
348 SUPREME COURT REPORTS {2005] 3 S.C.R.

A prosecutor to oppose an application for release of an accused appears to
be reasonable restriction but Clause (b) of Sub-section (4) of Section 31
must be given a proper meaning. [370-A-Cj

Narendra Singh and Anr. v. State of M.P., [2004) 10 SCC 699, relied
on.
B
3.2. The provisions of the Act must receive a strict construction so
as to pass the test of reasonableness. The restrictions on the power of the
Court to grant bail should not be pushed too far. If the Court, having
regard to the materials brought on record, is satisfied that in all probability
he may not be ultimately convicted, an order granting bail may be passed.
C The satisfaction of the Court as regards his likelihood of not committing
an offence while on bail must be construed to. mean an offence under the
Act and not any offence whatsoever be it a minor or major offence. What
would further be necessary on the part of the Court is to see the culpability
of the accused and his involvement iri the commission of an organised
D crime either directly or indirectly. The Court at the time of considering
the application for grant of bail shall consider the question from the angle
as to whether he was possessed of the requisite mens rea.
(370-E-G; 372-A)

Abdulla Mohammed Pagarkar etc. v. State (Union Territory of Goa,
E Daman and Diu), AIR (1980) SC 499 and C. Chenga Reddy and Ors. v. State
of Andhra Pradesh, AIR (1996) SC 3390, referred to.

3.3. The question as to whether a person is involved in the
commission of organized crime or abetment thereof must be judged
objectively. Only because some allegations have been made against a high
F ranking officer, which cannot be bru'.shed aside; may not by itself be
sufficient to continue to keep him behind the bars although on an objective
consideration the court may come to the conclusion that the evidences
against him are not such as would lead to his conviction. In case of
circumstantial evidence, like the present one, not only culpability or mens
·a rea of the accused should be prima facie established, the Court must also
consider the question as to whether the circumstantial evidence is such
whereby all the links in the chain are complete. [372-C-DJ

3.4. The wording of Section 21(4) does not lead to the conclusion that
the Court must arrive at a positive finding that the applicant for bail has
H not committed an offence under the Act. Section 21(4) of MCOCA must
RANJITSING BRAHMAJEETSING SHARMA v. STATE OF MAHARASHTRA 349

be construed reasonably. It must be so construed that the Court is able to A
maintain a delicate balance between a judgment of acquittal and conviction
and an order granting bail much before commencement of trial.
(372-E-FI
3.5. Similarly, the Court will be required to record a finding as to
the possibility of his committing a crime after grant of bail. However, such B
an offence-in futuro must be an offence under the Act and not any other
offence. Since it is difficult to predict the future conduct of an accused,
the court must necessarily consider this aspect of the matter having regard
to the antecedents of the accused, his propensities and the nature and
manner in which he is alleged to have committed the offence. (372-G-H)
c
3.6. For the purpose of considering an application for grant of bail,
although detailed reasons are not necessary to be assigned, the order must
demonstrate application of mind at least in serious cases as to why the
applicant has been granted or denied the privilege of bail. The duty of
the court at this stage is not to weigh the evidence meticulously but to
arrive at a finding on the basis of broad probabilities. However, while D
dealing with a special statute like MCOCA having regard to the provisions
contained in Sub-section (4) of Section 21 of the Act, the Court may have
to probe into the m~tter deeper so.as.to enable it to arrive at a finding
that the materials collected against the accused during the investigation
may not justify a judgment of conviction. The findings recorded by the E
Court .while granting or refusing bail undoubtedly would be tentative in
nature, which may not have any bearing on the merit of the case and the
trial court would, thus, be free to decide the case on the basis of evidence
adduced at the trial, without in any manner being prejudiced thereby.
(373-A-CJ
F
Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav and Anr.,
(2004) 7 SCC 528; Jayendra Saraswathi Swamigal v. State of T.N., (2005) 2
SCC 13; Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav and
Anr., (2005( 2 SCC 42; Kartar Singh v. State of Punjab, (199413 SCC 569

... and Prakash Kumar Alias Prakash Bhutto v. State of Gujarat, (200512 SCC
~~~~ G
4. Apart from the fact that nothing has been brought on record to
show as to how far a report of brain mapping test can be relied upon, the
report appears to be vague. Furthermore, the admissibility of a result of
a scientific test will depend upon its authenticity. Whether the brain
mapping test is so developed that the report will have a probative value H
350 SUPREME COURT REPORTS [2005] 3 S.C.R.

A so as to enable a court to place reliance thereupon, is a matter which would
require further consideration, if and when the materials in support thereof
are placed before the Court. Since the prosecution did not rely upon the
said report before the High Court, the same cannot be relied upon.
1384-B-D; 385-GJ
B Frye v. United States, 293 F 1013 (DC Cir) (1923); Daubart v. Merry/I
Dow Pharmaceuticals Inc., 113 Set 2786 (1993); ·General Electric Co. v.
Robert K. Joiner, 522 US 139 L.Ed. 2d; Kumho Tire Co. Ltd v. Carmichael,
(1999) 119 S.Ct. 1167 and R. v. Watters., 12000) All ER D 1469, referred
to.

C 5. The High Court may not be entirely. correct in coming to the
conclusion that the appellant prima facie committed an offence under
Section 3(2) as well as Section 24 of MCOCA. In the circumstances, the
order dated 4.11.2004 granting interim bail to the appellant should
continue subject to the same conditions. (386-B-CI

D CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 523
of 2005.

From the Judgment and Order dated 16.7.2004. of the Bombay High
Court in Cr!. Application No. 572 of 2004.

E A. Sharan, Additional Solicitor General, S.K. Dholakia, V.R. Manohar,
Ms. Sandhya Goswami, Vikas Shanna, P. Panneswaran, Siddharth Singla
and Ankur, Shyam Dewani, shrikant Shinde, Sanjay. Sen, Rana S. Biswas,
Manish Pratap Singh, Ms. Sarla Chandra, Ms. Usha Dahanwkar, S.S. Shinde
and Ravindra K. Adsure with them for the appearing parties.

The Judgment of the Court was delivered by
F
S.B. SINHA, J. Leave granted.
Interpretation and application of the Maharashtra Control of Organised
Crime Act, 1999 (for short 'MCOCA') is involved in this appeal which arises

G
out of a judgment and order dated 16th July, 2004 passed by a learned Single
Judge of the Bombay High Court in Criminal Application No. 572/2004
refusing bail to the Appellant herein.
..
.
The Appellant is a former Commissioner of Police. He was posted in
the city of Pune in the said capacity between 30th April, 2000 and 31st
December, 2000. He was appointed Commissioner of Police, Mumbai on or
H about }st January, 2003. Allegedly, he was so posted upon supercession of
RAN.IITSING BRAHMAJEETSING SHARMA v. STATE OF MAHARASHTRA [S.B. SINHA, J.] 351

a few officers. A disciplinary proceeding was initiated against him on A
25.11.2003 but without taking any further action thereupon, he was allowed
to superannuate on 30.11.2003.

One Abdul Karim Ladsa Telgi (hereinafter referred to as 'Telgi') was
arrested and proceeded against for alleged commission of offence of printing
counterfeit stamps and forgery in various States including the State of B
Maharashtra. He was lodged in Bangalore Jail since November, 200 l.

During the Appellant's tenure as Commissioner of Police, Pune, fake
stamp papers worth Rs. 2.98 lacs were seized whereupon a first infonnation
report bearing C.R. No. 135 of 2002 came to be registered at Bund Garden
Police Station, Pune under Sections 120-B, 255, 249, 260, 263(a) and (b), C
478, 472 and 474 read with Section 34 of the IPC. The said offence was
being investigated by one Mr. Deshmukh but having regard to the magnitude
thereof, three teams lead by one Mr. S.M. Mushrif, Addi. Commissioner of
Police (Crime) were formed. The said Mr. Mushrif is said to be a brother of
a Minister of the Government of Maharashtra. On or about 16.07.2002, D
however a proposal was mooted to invoke Section 3 of the MCOCA and
upon obtaining the opinion of Senior Public Prosecutor therefor, the same
was invoked.

One Mr. Mulani, Assistant Commissioner of Police (Crime Branch)
had been included in the field work team along with other officers in E
connection with the investigation of the said crime. Overall supervision of
the said crime, however, was entrusted to one Mr. Maheshgauri, Joint
Commissioner of Police.

On the ground of alleged involvement in the aforementioned case, the
Appellant was arrested on l.12.2003 whereafter a remand application for 15 F
days of police custody was made but he was remanded to police custody
from 2.12.2003 to 9.12.2003 and thereafter to judicial custody. His application
for bail was rejected by the Special Court, Pune by an order dated 19.1.2004
whereupon he filed an application for grant of bail before the High Court. By
reason of the impugned order, the said application has been rejected. G
Before adverting to the rival contentions raised in this appeal, we may
notic.e some admitted facts.

On the basis of the information received by the Appellant and on his
direction to intercept the car and on his telephonic instruction thereabout, a H
352 SUPREME COURT REPORTS (2005) 3 S.C.R.

A first information report dated 7.6.2002 was lodged. During the course of the
investigation of the said case, number of places were raided and huge quantity
of stamps, printing machinery worth Rs. 21,28,47,63,824 were seized from
several accused persons.

The provisions of the MCOCA were invoked against Telgi who figured
B as accused No. 23 and Mr. Shabir Sheikh, accused No. 25 on the ground that
a period of 90 days was coming to an end on 3 .9 .2002. On or about 22.11.2002,
Mr. Jaiswal, DIG, SRPF, Mumbai granted an approval to invoke the provisions
of the MCOCA whereupon DCP, Dr. Jai Jadhav took over investigation of
the said case.
c Before the High Court, the role of the Appellant was said to be rendition
of help and support to organized crime syndicate by certain acts of omission
and commission, i.e., by rendering help ;)r support to Mulani, a co-accused
when he was Commissioner of Police, Pune and through API-Dilip Kamat,
co-accused while ~e was the Commissioner of Police, Mumbai.
D
The allegations against the Appellant as have been noticed by the High
Court are as under :

"I. The applicant knew the adverse antecedents of Mulani since. 1996.
The respondents have relied on the following circumstances and the
E sequence of events in support of their case against the applicant.

(a) A complaint about corruption was received in respect of Mulani
on 14.9.1996, who was then the Sr. Inspector of Police at Dongri
Police Station, Mumbai. A copy of this complaint was also received
by the applicant, who was then working as Jt. Commissioner of Police,
F Mumbai and bears his signature on it. The said complaint was
forwarded by the applicant to Anti Corruption Bureau, Mumbai.

(b) In the affidavit dated 29.10.2002 filed by the applicant in his
capacity as Commissioner of Police, Pune before the Maharashtra
State Administrative· Tribunal (MAT) against Mulani he has
G categorically affirmed that conduct of Mu Jani was found to be highly
suspicious in sensational murder case of one Faizulla Khan.

(c) On 6.9.2002, the Investigation was handed over to DCP Jay Jadhav
as by then the provisions of MCOCA were invoked against two of
the Accused in C.R. No. 135/2002. New teams were formed for the
H investigation under MCOCA. While forming the team, the applicant
RANJITSING BRAHMAJEETSING SHARMA v. STATE OF MAHARASHTRA [S.B. SINHA, J.] 353

included Mulani's name in the investigation team in connection with A
the investigation of C.R. No. 135/2002 (Page No. 12694 of
chargesheet) though he was specifically told by DCP Jay Jadhav not
to include him in the team (statement of CDP Jay Jadhav Page 11941
Of the Chargesheet). It was on the pretext that Pl Deshmukh was too
overburdened being in charge of Bund Garden police station and it B
was only Mulani who knew all the facets of the case.

(d) The investigation revealed that Ashok Basak, Addi. Chief Secretary
(Home), State of Maharashtra (for short, "Basak") had informed the
appli~ant on 6.9.2002 about Mulani being in telephonic contact with
Telgi, who was then lodged in Central Jail at Bangalore and his C
tainted role in fake stamp case. This information was passed on to
Basak by Adhip Choudhari, Addi. Chief Secretary (Home),
Government of Kamataka. The applicant had assured Ashok Basak
that he would remove Mulani from investigation. Despite this, Mulani
~as not neutalised by the applicant and he was allowed to continue
in the investigation team. D
(e) There is no dispute that atleast on 6.9.2002 Basak had shared the
said information with the applicant.

(f) A complaint of corruption dated 15.7.2002 received from President,
Pune Forum Citizeri, against ACP Mulani, was received by the E
applicant on 31.8.2002.

(g) Mulani was transferred to Jat, Dist-Sangli by the order of the
Government dated 4.9.2002. This order was received in Pune on
6.9.2002. The order of transfer of Mulani was not served till he had
obtained a stay against the transfer from the MAT on 6.9.2002 (Page p
12843).

(h) The Stay was for transfer to JA T Division and not for internal
transfer. Yet, Mulani was not transferred from the investigation of
C.R. No. 135/2002, on the other hand, Mulani was sent to Bangalore
on 18.9.2002 all alone without the 1.0. G
(i) The Government of Maharashtra had constituted Special Task
Force (STF) for enquiring into all the pending cases relating to
counterfeit stamps in the Sta~e of Maharashtra and the applicant was
appointed as the Chairman to head the STF. Not a single meeting of
this "STF was convened by the applicant. H
354 SUPREME COURT REPORTS [2005] 3 S.C.R.

A G) Mulani was allowed to be associated with the investigation till
30.9.2002 and he was transferred to Special Branch only on 30.9.2002
(Page No. 12846).

(k) On JO. I 0.2002 certain names were recommended for reward in
connection with the investigation of C.R. No. 135/2002. Although
B Mulani's name was not listed initially, it was specifically added by
the applicant in his own handwriting.

(1) The applicant did not ensure the filing of a properly reasoned
chargesheet in C.R. No. 135/2002 P.S. Bund Garden and did not
ensure the timely application ofMCOCA to the whole case. Reference
c statement of the Director General of Police, Maharashtra Shri S.C.
Malhotra. The filing of the chargesheet was hurried through by the
applicant (Reference statement of Kishore Jadhav - Page 11947).

II. On this background, on and from 1.1.2003 the applicant was posted
as Commissioner of Police, Mumbai.
D
(a) The applicant was well aware about various cases of stamps scam
which were pending in Mumbai, while he was working as Jt.
Commissioner, Mumbai during the year on 8.6.2002, he had sent a
wireless message calling for the details of these cases.

E (b) On 9.1.2003, DIG Jaiswal alongwith Addi. D.G. Karnataka Shri
Kumar personally met and informed the applicant about Telgi enjoying
all comforts in his flat at Cuffe Parade, Mumbai. He ought to have
immediately taken coercive action and ensured its implementation.

(c) Thereafter, a written report (Page 12181) dated 10.1.2003 was
F sent by DIG Jaiswal setting out in detail the facts noticed by him
during their visit to Cuffe Parade flat. Ori this letter, the applicant had
made a noting that API Kamat and the constables be placed under
suspension with immediate effect. However, the record shows that
they were not suspended till 15.1.2003 and no active steps were taken
by the applicant to ensure the immediate suspension though it was
G within his powers to ensure that the same was done with immediate
effect. The noting dated 15.1.2003 on (Page Nos. 12202 and 12203)
clearly shows that till 15.1.2003 these police personnel were not
suspended.
(d) It is significant to mention that DIG Jaiswal in his report had
H
RANJITSING BRAHMAJEETSING SHARMA v. STATE OF MAHARASHTRA [S.B. SINHA, J.] 355

specifically voiced an apprehension that a big seizure may be A
concocted in order to protect the erring police officer, API Dilip
Kamat and in fact, this apprehension came though because of the
conspiracy that was hatched between the officials of Crime Branch,
Mumbai (Statement of ACP Padwal at Page No. 11087).

III. According to the prosecution, following circumstances could not B
be explained by the applicant.

(a) The fact that he had a closed door meeting with A.K. Telgi in
isolation between himself and A.K.L. Telgi only to the exclusion of
other high ranking officers (Statement of ACP Supriya Patil at Page
No. 11912, DCP (H.Q.) Koregaonkar at Page No. 11898 and DCP C
Jay Jadhav at Page No. 111940).

(b) The applicant knew A.K.L. Telgi even when he was at Mumbai
earlier is also apparent from the statement of DCP Vasant Koregaonkar
(Page No. 11898)
(c) Brain Maping (P-300) of AKL Telgi, shows that he had given D
positive responses to the question relating to payment made to the
applicant, favour shown by the applicant in Pune cases and facilities
provided in Mumbai custody by the applicant (Page No. 12960 to
12963)."

The plea taken by the Appellant herein about his innocence was rejected E
by the High Court upon arriving the following findings :

- (i) Despite possession of powers which he could have used against
accused involved in the case, as also against the erring officers,
he protected and projected Mulani and Kamat as good and
responsible officers. The Appellant was aware of the tainted F
background and adverse antecedents of Mulani and both the
accused visited Bangalore with him. After the provisions of the
MCOCA were invoked and Dr. Jai Jadav was appointed as
investigating officer, the name of Mulani was included in the
investigation team by the Appellant herein. A calculated attempt G
was made by the Appellant herein to continue Mulani in the
investigation team and was assigned responsible role to play.
Despite his transfer to Jat, district Sangli by the order dated
4.9.2002 which was received on 6.9.2002, Mulani was not
neutralized till 30th September, 2002 although the Appellant had
received an information from the Additional Chief Secretary, H
356 SUPREME COURT REPORTS [2005] 3 S.C.R.

A Ashok Basak that Mulani had been contacting Telgi telephonically
who was then lodged in Central Jail.
(ii) "Instead, he allowed Mulani to continue in the investigation team
even after 6.9.02, this lapse on the part of the applicant under
any circumstances cannot be termed as innocent, innocuous and
B inadvertent. This observation becomes stronger if we look at ~he
subsequent events, i.e. overtacts of the applicant after 6.9.02.
After 6.9.02 Mulani was continued in the investigation team. He
was sent to Bangalore all alone on 18.9.02. When a proposal was
placed before the applicant to recommend names of officers for
rewards for their outstanding role in the fake stamps case
c consisting of nine names, the applicant on 10. l 0.02 included the
name of Mulani in his own handwriting in the said list of officers.
This cannotbe termed as innocent dereliction of duties. At every
stage it, prima fade, shows that there was a calculated attempt
on the part of the applicant to continue Mulani in the investigation ....
•
team and see that he is projected as most efficient officer despite
D
the knowledge of his adverse antecedents and the tainted role in
the investigation of fake stamps case."
(iii) "The facts of the case would go to show that his association with
Mulani were with actual knowledge or atleast there are reasonable
grounds to.believe that the applicant was aware that Mulani was
E engaged in assisting the organised crime syndicate of Telgi."
(iv) "In my opinion, the acts and commissions on the parts of the
applicant in helping and supporting Mulani and Kamat would,
primafacie, fall within the first part of Section 24 and therefore
it would not be correct to state that Section 24 is not attracted.
-
F The role of the applicant clearly demonstrates that he rendered
help and support to the member of an organised crime syndicate."
(v) "In so far as "Cuffe Parade flat" episode is concerned, it is true
that the applicant took over as Commissioner of Police Mumbai
on l.l.2003. The custody ofTelgi was with Mumbai police from
G 20.l 0.02 to 2 l. l.03. However, fact remains that on 9. l.2003,
DIG Jaiswal along with Addi. D.G. Kamataka-Shri Srikumar
had personally metthe applicant and informed him about Telgi's
enjoying all comforts in his flat at Cuffe Parade, and conducting
his unlawful activities on mobile phone, requesting him to take
immediate coercive action and ensure its implementation."
H
RANJITSING BRAHMAJEETSING SHARMA v. STA TE OF MAHARASHTRA [S.B. SINHA, J.] 3 57

(vi) As regard application of the provisions of the MCOCA, the High A
Court was of the opinion that as the Appellant knowingly
facilitated the commission of an organized crime through Mulani
at Pune and Kamat at Mumbai, prima facie, he committed an
offence under Section 3(2) of the MCOCA and having abetted
them also committed an offence under Section 4 thereof.
B
Submissions of Mr. V.R. Manohar, learned senior counsel appearing on
behalf of the Appellant are as under :

(a) The Appellant did not include Mulani in the investigating team.
In fact he was included in the field track team by Mr. Mushrif for the
purpose of tracing and arresting accused persons which does not C
come within the purview of the investigation of the offence or
interrogation of the accused.

(b) As regard the allegation regarding abetment of Kamat, it was
pointed out that when custody of Telgi was taken by Mumbai Police
between 20th October, 2002 and 21.st January, 2003, one Mr. M.N D
Singh was the Commissioner of Mumbai Police during which period
Te1gi was allegedly not kept in custody and was staying in his own
flat or hotel and only on or about 9th January, 2003 when Mr. Jaiswal
upon visting the flat of Mr. Telgi found out the same and brought it
to the notice ofthe,Appellant orally whereupon the order of suspension E
was passed on telephone by him. On I 0th January, 2003 which
happened to be a Friday, Jaiswal addressed a letter to the Chief
Secretary, Maharashtra with a copy to the Appellant which 1¥as
received in his Office on 12th January, 2003 and on that day itself an
order of suspension was passed but the Joint Commissioner actually
placed Kamat and others on suspension on 15th January, 2003. (c)Even F
during the raids made in the Bhiwandi Godown on the night of 9th
January, 2003 seizure of stamps worth Rs.820 crores was made, out
of which some were found to be genuine ones and, thus, such seizures
whether directed against Telgi or Sheikh having resulted in demolition
ofTelgi empire, the Appellant cannot be said to have aided or abetted G
the commission of any offence. In any event, having regard to the
finding of the learned Single Judge that the Appellant thereby did not
aid or abet Telgi who was proceeded against under MCOCA, but
merely abetted the abettors and, thus, the provisions thereof are not
applicable.
H
358 SUPREME COURT REPORTS [2005] 3 S.C.R.

A (d) So far as alleged acts of omissions and commissions on the' part
of the Appellant between the period 9th January, 2003 to 15th January,
2003 are concerned, even in the chargesheet he is said to have only
aided Mulani and, thus, the provisions of the MCOCA are not
applicable.

B (e) As regard the allegations that the Appellant continued to keep
Mulani in the investigation team, our attention has been drawn to the
fact that immediately after the order of transfer was passed on 4th
September, 2002, Mulani moved the Administrative Tribunal and
obtained an order of stay on 6th September, 2002 which was in the
following terms :
c
"The Applicant, who is working as Assistant Commissioner of Poiice,
Crime Branch, Pune has to retire within about 11 months. His service
record seems to be very good. Hence transfer order of the applicant
dated 04-09-2002 is stayed until further orders. Respondents to file
a reply."
D
It is only on that date, the Appellant was informed by Shri Basak about
Mulani's integrity. Mulani was pulled out of the Crime Branch and posted in
a Special Branch by the Appellant despite threat of contempt and in fact a )
contempt petition was filed by Mr. Mulani in the Maharashtra State -
E Administrative Tribunal, at Mumbai.

(t) Even the Director General of Police had certified Mulani as an
excellent officer in the year 2003 and upon invocation of MCOCA,
Dr. Jai Jadav was appointed as investigating officer. Though he was
required to find out suitable officers to be included in his team, Dr.
F Jai Jadav made inquiries from the Appellant as also the Joint
Commissioner, as to the names of the suitable officers therefor and
the name of Mulani was suggested. Thus, it would not b~ correct to
contend that Mr. Mulanl was kept in the investigating team by the
Appellant.

G (g) Even assuming that there had been gross dereliction or carelessness
on the part of the Appellant, there is nothing on record to show that
the Appellant had benefitted himself in any manner whatsoever or
had the requisite mens rea. 1
\
As regard filing of chargesheet against the wife, daughter and brother
H of Telgi, there had been difference of opinion between Mushrif and

I
1
RANJITSING BRAHMAJEETSING SHARMA 1•. STATE OF MAHARASHTRA [S.B. SINHA, J.] 3 59

Deshmukh wherewith the Appellant was not involved. Mr. Jaiswal A
prejudged the Appellant's guilt.
(h) As regard initiation of disciplinary proceeding, our attention was
invited to the fact that the Special Investigation Team (SIT) was
constituted on 2nd November, 2002 in the following terms :

"Government Resolution : Government has decided to create a Special B
Investigation Team (S.l.T.) to make in-depth investigation and follow-
up of action in bogus stamp case headed by Shri S.K. Jaiswal, Deputy
Inspector General of Police S.R.P.F., Mumbai. He will be assisted by
one Deputy Commissioner of Police, one Assistant Commissioner of
Police, and three inspectors of Police. The names of these team C
members will be decided by the Director General of Police. The
infrastructural support in terms of manpower, vehicle and
communication, etc., will be provided by the Pune City Police.

The team will report to Shri A.K. Agarwal, Additional Director
General of Police, C.l.D., Pune. D
The Special Investigation Team will also look into the charges
made by Shri Mushrif, Additional Commission of Police, Pune."

Mr. Jaiswal found the Appellant's guilt of dereliction of duty as early as on
3rd April, 2003 and despite the limited jurisdiction of the Special Investigation E
Team, he exceeded his brief implicating the Appellant. In this connection our
attention has also been drawn to the recommendation made by SIT against
various persons who do not figure as accused, viz., Prakash Deshmukh, Ash0k
Kamble, Kishore Jadhav, DCP Dr. Jai Jadhav, Vasant Koregaonkar which are
as under :
F
"(v) Number of acts of omission and commission during the course
of investigation lie squarely at door of Senior formations of Pune
City Police. This investigation was extremely crucial as the case had
national ramifications and the financial structure of the State of
Maharashtra and Govt. of India was being undermined systematically.
Hence, it is for the Govt. to consider appropriate action against Shri G
S.M. Mushrif, Shri M.S. Maheshgauri and Shri R.S. Sharma for their
several acts of omission and commission as detailed earlier."

It has been pointed out that despite such adverse comments both Mushrif and
Maheshgauri have been cited only as witnesses and, thus, the Appellant was
discriminated against. H
360 SUPREME COURT REPORTS [2005] 3 S.C.R.

A (i) As regard application of MCOCA, the learned counsel would
contend that the provisions thereof cannot be given such wide
interpretation as has been done by the learned Single Judge.

(j) As Mulani never visited Bangalore alone, the learned Judge
committed a factual error in this behalf.
B
(k) As regard recommendations for grant of reward in favour of
Mulani, it was pointed out that the learned Judge had misread and
misinterpreted the context in which such recommendation was made.
It was pointed out that DCP Zone II on l 0.10.2002 gave a list of
officers who have done the best works which is as under :
c "(I) P.I. Shri Prakash Deshmukh

(2) PSI Shri Chavan

(3) PC Shri Katke N.K. BN 4059

D (4) PC Shri Steven Sundaram, B.N. 756

(5) P.I. Shri Kadam (who has refusf.d to take up investigation)

(6) API Shri Thakare

(7) PSI Shri Balla!
E
(8) API Shri Karnire

(9) Civilian Computer Software Engineer, Mr. Davis K.T.

(10) H.C. Lele"
F According to the Appellant, however, in order of priority, the name of
(l) PSI Shri Chavan, (2) P.I. Shri Prakash Deshmukh C:U P.I. Shri Kadam, (4)
PC Shri Steven Sundaram, B.N. 756, (5) PC Shri Steven Sundaram, B.N.
756, (6) H.C. Lele were· recommended and, furthermore, the following
endorsement was made :
G "I have indicated priority above. Also include names of ACP Mulani/
Yadav and Davies in the text."

The names of ACP Mulani/Yadav and Davies, thus, were directed to be
included only in the text, i.e., the history of the case and not for the purpose
H of grant of any reward.
RANJITSING BRAHMAJEETSING SHARMA v. STA TE OF MAHARASHTRA [S.B. SINHA, J.] 361

Mr. A. Sharan, the learned Addi. Solicitor General appearing on behalf A
of the CBI, on the other hand, would contend that the Appellant had known
Telgi both as a scamster as well as a person for a long time, as would appear
from the statement of one Mr. R.S. Mopalwar, an IAS officer

It was urged that from the statement of Mr. Maheshgauri, it would
appear that the· Appellant met Telgi alone, apparently for the purpose of B
interrogation, but no record thereof is available. The saicl ;tat.:inent is supported
by Smt. Supriya Patil Yadav and Shri Vasant Koregaonkar, an affidavit of
Mr. Mushrif in the Public Interest Litigation by Shri Anna Hazare.

According to the learned counsel the Appellant has helped those officers
who did not want to make Telgi's wife, daughter and brother as accused by C
dragging his feet.

Mr. Sharan would contend that Mulani had in fact been involved in
the investigating team work, as would appear from the notesheet file of
investigation, inasmuch as he had interrogated some witnesses. Our attention
has also been drawn to the answers given by the Appellant himself in response D
to the questionnaire dated 7 .11.2003 contending that the Appellant accepted
that Mulani had not been taken out of the team till 30th September, 2002
although he was transferred on 4th September, 2002.

Our attention has further been drawn to the brain mapping test of
Telgi to show that the Appellant had accepted unlawful gratification from E
him.

According to the learned counsel, since beginning the Appellant had
knowledge about the magnitude of the offence but despite the same, he
helped Kamat by not implementing his order of suspension till 15th January,
2003 and, thus, allowed him to take steps to protect himself by arranging a F
fake seizure as was apprehended by Mr. Jaiswal. Drawing our attention to the
judgment of the learned Single Judg1~, it was contended that having regard to
the provisions of the MCOCA, the Appellant must be held to have conspired
with the members of the organizing team by facilitating commission of the
crime. According to the learned counsel, in view of the sub-section (4) of
Section 21 of the MCOCA, the High Court has rightly refused to grant bail G
to the Appellant.

MCOCA was enacted to make special provisions for prevention and
control of, and for coping with, criminal activity by organized crime syndicate
or gang, and for matters connected therewith or incidental thereto.
H
362 SUPREME COURT REPORTS [2005] 3 S.C.R.

A The Statement of Objects and Reasons for enacting the said Act are as
under :

"Organised crime has been for I
quite some years now.
come up as a
very serious threat to our society. It knows no national boundaries
and is fueled by illegal wealth generated by contract, killing, extortion,
B smuggling in contrabands, illegal trade in narcotics kidnappings for
ransom, collection of protection' money and money laundering, etc.
The illegal wealth and black money generated by the organized crime
being very huge, it h~s had serious adverse effect on our economy.
It was seen that the organized criminal syndicates made a common
cause with terrorist gangs and foster terrorism which extend beyond
c the national boundaries. There was reason to believe that organized
criminal gangs have been operating in the State and, thus, there was
immediate need to curb their activities.

It was also noticed that the organized criminals have been making
extensive use of wire and oral communications in their criminal
D
activities. The interception of such communications to obtain evidence
of the commission of crimes or to prevent their commission would be
an indispensable aid to law enforcement and the administration of
justice.

E 2. The existing legal frame work i.e. the penal and procedural
laws and the adjudicatory system were found to be rather inadequate
to curb or control the menace of organized crime. Government,
therefore, decided to enact a special law with stringent and deterrent
provisions including in certain circumstances power to intercept wire,
electronic or oral communication to control the menace of the
F organized crime.

It is the purpose of this act to achieve these objects."

Section 2 is the interpretation clause. Section 2(1)(a), (d), (e) and (t)
whereof read thus :
G
2(1) In this act, unless the context otherwise requires;

(a) "abet", with its grammatical variations and cognate expressions,
includes, -

(i) the communication or association with atty person with the actual
H
RANJITSING BRAHMAJEETSING SHARMA v. STATE OF MAHARASHTRA [S.B. SINHA, J.] 363

knowledge or having reason to believe that such person is engaged A
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 document or matter
obtained from the organised crime syndicate; and B

- (iii) the rendering of any assistance, whether financial or otherwise,
to the organised crime syndicate;

(d) "continuing unlawful activity" means an activity prohibited by
law for the time being in force, which is a cognizable offence C
punishable with imprisonment of three years or more, undertaken
either singly or jointly, as a member of an organised crime syndicate
or on behalf of such syndicate in respect of which more than one
chargesheets have been filed before a competent Court within the
preceding period of ten years and that Court has taken cognizance of D
such offence;

(e) "organised crime" means any continuing unlawful activity by an
individual, singly or jointly, either as a member of an organised crime
syndicate or on behalf of such syndicate, by use of violence or threat
of violence or intimidation or coercion, or other unlawful means, E
with the objective of gaining pecuniary benefits, or gaining undue
economic or other advantage for himself or any other person or
promoting insurgency;

(f) "organised crime syndicate" means a group of two or more persons
who, acting either singly or collectively, as a syndicate or gang indulge F
in activities of organised crime;"

Sub-section (2) of Section 3 provides for punishment for organized
crime in the following terms :

"(2) Whoever conspires or attempts to commit or advocates, abets or G
knowingly facilitates the commission of an organized crime or any
act preparatory to organized crime, shall be punishable with
imprisonment for a tenn which shall be not less than five years but
which may extend to imprisonment for life, and shall also be liable
to a fine, subject to a minimum fine of rupees five lacs."
H
364 SUPREME COURT REPORTS (2005] 3 S.C.R.

A Section 4 provides for punishment for possessing unaccountable wealth
on behalf of member of organised crime syndicate. Section 20 provides for
forfeiture and attachment of property, sub-section (2) whereof reads as follows:

"(2) Where any person is accused of any offence under this Act, it
shall be open to the Special Court trying him, to pass on order that
B all or any properties, movable or immovable or both belonging to
him, shall, during the period of such trial, be attached, and where
such trial ends in conviction, the properties so attached shall stand
forfeited to the State Government, free from all encumbrances."

Section 2 I provides for modified applieation of certain provisie>ns of
C the Code of Criminal Procedure, sub-section (4) whereof is as under :
"(4) Notwithstanding anything contained in the Code, no person
accused of an offence punishable under this Act shall, if in custody,
be released on bail or on his own bond, unless
D (a) the Public Prosecutor has been given an opportunity to oppose the
application of such release; and

(b) where the Public Prosecutor opposes the application, the Court is
satisfied that there are reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to commit any offence
E while on bail."

Section 24 reads, thus : ·

"24. Whoever being a public servant renders any help or support in
any manner in the commission of organised crime, as defined in
F Clause (e) of Section 2, whether before or after the commission of
a_ny offence by a member of an organised crime syndicate or abstains
from taking lawful measures under this ?Ct or intentionally avoids to
carry out the directions of any Court or of the superior police officers
in this respect, shall be punished with imprisonment of either
G description for a term which may extend to three years and also with
fine."
. , . .

The interpretation clause as regard the expression 'abet' does not refer
to the definition of abetment as contained in S.ection l 07 of IPC. It refers to
~ch meaning which can be attributed to it in the general sense with
.H grammatical variations and cognate expressions. However, having regard to
the cognate meaning, the term may be read in the light of the definition of
RANJITSING BjlAHMAJEETSING SHARMA"· STATE OF MAHARASHTRA [S.B. SINHA, J] 365

these words under Sections I 07 and I 08 of the Indian Penal Code. The A
inclusive definition although expansive in nature, "communication" or
"association" must be read to mean such communication or association which
is in aid of or render assistance in the commission of organized crime. In our
considered opinion, any communication or association which has no nexus
with the commission of organized crime would not come within the purview B
thereof. It must mean assistance to organised crime or organised crime
syndicate or to a person involved in either of them. It, however, includes (a)
communication or (b) association with any person with the actual knowledge
or (c) having reason to believe that such person is engaged in assisting in any
manner, an organised crime syndicate. Communication to, or association with,
any person by itself, as was contended by Mr. Sharan, would not, in our C
considered opinion, come within meaning of the aforementioned provision.
The communication or association must relate to a person. Such
communication or association to the person must be with the actual knowledge
or having reason to believe that he is engaged in assisting in any manner an
organised crime syndicate. Thus, the offence under Section 3(2) of MCOCA
must have a direct nexus with the offence committed by an organised crime D
syndicate. Such abetment of commission of offence must be by way of
accessories before the commission of an offence. An offence may be committed
by a public servant by reason of acts of omission and commission which
would amount to tampering with the investigation or to help an accused.
Such an act would make him an accessory after the commission of the offence. E
It is interesting to note that whereas Section 3(2) having regard to the definition
of the tenn 'abet' refers directly to commission of an offence or assisting in
any manner an organised crime syndicate, Section 24 postulates a situation
where a public servant renders any help or support both before or after the
commission of an offence by a member of an organised crime syndicate or
abstains from taking lawful measures under this Act. F
... Interpretation clauses contained in Sections 2(d), 2(e) and 2(t) are inter-
related. An 'organised crime syndicate' refers to an 'organised crime' which
in tum refers to 'continuing unlawful activity'. As at present advised, it may
not be necessary for us to consider as t:o whether the words "or other lawful
means" contained iu Section 2(e) should be read "ejusdem generis"/ "noscitur- G
a-sociis" with the words (i) violence, (ii) threat of violence, (iii) intimidation
or (iv) coercion. We may, however, notice that the word 'violence' has been
used only in Section 146 and 153A of the Indian Penal Code. The word
'intimidation' alone' has not been used therein but only Section 506 occurring
in Chapter XXII thereof refers to 'criminal intimidation'. The word 'coercion' H
366 SUPREME COURT REPORTS [2005] 3 S.C.R.

A finds place only in the Contract Act. If the words 'unlawful means' is to be
widely construed as including any or other unlawful means, having regard to
the provisions contained in Sections 400, 40 I and 413 of the IPC relating to
commission of offences of cheating or criminal breach of trust, the provisions
of the said Act can be applied, which prima facie, does not appear to have
B been intended by the Parliament.

The Statement of. Objects and Reasons clearly state as to why the said
Act had to be enacted. Thus, it will be safe to presume that the expression
'any unlawful means' must refer to any such act which has a direct nexus
with the commission of a crime which MCOCA seeks to prevent or control.
C In other words, an offence falling within the definition of organised crime
and committed by an organised crime syndicate is the offence contemplated
by the Statement of Objects and Reasons. There are offences and offences
under the Indian Penal Code and other penal statutes providing for punishment
of three years or more and in relation to such offences more than one
chargesheet may be filed. As we have indicated hereinbefore, only because
D a person cheats or commits a criminal breach of trust, more than once, the
same by itself may not be sufficient to attract the provisions of MCOCA.

Furthermore, mens rea is a necessary ingredient for commission of a
crime under MCOCA.

E In Shri Ram v. The State of UP., AIR (1975) SC 175, it was stated:

"6 ..... Thus, in order to constitute abetment, the abettor must be shown
to have "intentionally" aided the commission of the crime. Mere
proof that the crime charged could not have been committed without
the interposition of the alleged abettor is not enough compliance with
F the requirements of Section 107. A person may, for example, invite
another casually or for a friendly purpose and that may facilitate the
murder of the invitee. But unless the invitation was extended with
intent to facilitate the commission of the murder, the person inviting
cannot be said to have abetted the murder. It is not enough that an
act on the part of the alleged abettor happens to facilitate the
G commission of the crime. Intentional aiding and therefore active
complicity is the gist of the offence of abetment under the third
paragraph of Section 107."

Sub-section (2) of Section 3 inter alia provides for facilitating conspiracy
H or abetting or commission of a crime by a person knowingly or any act
RANJITS!NG BRAHMAJEETSING SHARMA"· STATE OF MAHARASHTRA (S.B. SINHA, J.) 367

. preparatory to organised crime. A
The expression 'conspiracy' is not a term of art. It has a definite
connotation. It must be read having regard to the legal concept which is now
well-settled having regard to several decisions of this Court in Kehar Singh
and Ors. v. The State (Delhi Admn.), AIR (1988) SC 1883, State of Karnataka
v. L. Muniswamy and Ors., AIR (1977) SC 1489 and P.K. Narayanan v. B
State of Kera/a, [ 1995) I SCC 142.

In Kehar Singh (supra), it is stated :

"275. From an analysis of the section, it will be seen that Section I0
will come into play only when the court is satisfied that there is C
reasonable ground to believe that two or more persons have conspired
together to commit an offence. There should be, in other words, a
prima facie evidence that the person was a party to the conspiracy
before his acts can be used against his co-conspirator. Once such
primafacie evidence exists, anything said, done or written by one of D
the conspirators in reference to the common intention, after the said
intention was first entertained, is relevant against the others. It is
relevant not only for the purpose of proving the existence of
conspiracy, but also for proving that the other person was a party to
it. It is true that the observations of Subba Rao, J., in Sardar Sardul
Singh Caveeshar v. State of Maharashtra, [1964] 2 SCR 378 : AIR E
(l 965) SC 682 lend support to the contention that the admissibility
of evidence as between co-conspirators would be liberal than in English
law. The learned Judge said : (at p. 390)
"The evidentiary value oftht: said acts is limited by two circumstances,
namely, that the acts shall be in reference to their common intention F
and in respect of a period after such intention was entertained by any
one of them. The expression "in reference to their common intention"
is very comprehensive and it appears to have been designedly used
to give it a wider scope than the words "in furtherance of' in the
English law; with the result, anything said, done or written by a co- G
conspirator, after the conspiracy was formed, will be evidence against
the other before he entered the field of conspiracy or after he left it."

In P.K. Narayanan (supra), it is stated :

"10. The ingredients of this offence are that there should be an
agreement between the persons who are alleged to conspire and the H
[
368 SUPREME COURT REPORTS [2005) 3 S.C.R.

A said agreement should be for doing of an illegal act or for doing by ·
illegal means an act which by itself may not be illegal. Therefore the
essence of criminal conspiracy is an agreement to do an ille~rrl act
and such an agreement can be proved either by direct evidence or by
circumstantial evidence or by both and it is a matter of common
experience that direct evidence to prove conspiracy is rarely available.
B Therefore the circumstances proved before, during and after the
occurrence have to be considered to decide about the complicity of
the accused. But if those circumstances are compatible also with the
innocence of the accused persons then it cannot be held that the
prosecution has successfully established its case. Even if some acts
c are proved to have been committed it must be clear that they were so -r
r
committed in pursuance of an agreement made between the accused
who were parties to the alleged conspiracy. Inferences from such
proved circumstances regarding the guilt may be drawn only when
such circumstances are incapable of any other reasonable explanation.
From the above discussion it can be seen that some of the
D circumstances relied upon by the prosecution are not established by
cogent and reliable evidence. Even otherwise it ca,nnot be said that
those circumstances are incapable· of any other reasonable
interpretation."

E In Saju v. State of Kera/a, AIR (200 I) .SC 17 5, this Court held :

"7. In a criminal case the onus lies on the prosecution to prove
affinnatively that the accused was directly and personally connected
with the acts or omissions attributable to the crime committed by
him. It is a settled position of law .that act or action of one of the
F accused cannot be used as evidence against another. However, an
exception has been carved out under Section I 0 of the Evidence Act
in the case of conspiracy. To attract the applicability of Seetion I 0 of
the Evidence Act, the court must have reasonable ground to believe
that two or more persons had conspired together for committing an
offence. It is only then that the evidence of action or statement made
G by one of the accused could be used as evidence against the other."

It was observed :

" ........ In short, the section can be analysed as follows : (I) There shall
be a prima facie evidence affording a reasonable ground for a court
H to believe that two or more persons are members of a conspiracy; (2)
RANJITSING BRAHMAJEETSING SHARMA v. ST ATE OF MAHARASHTRA [S.B. SINHA, J .] 369

ifthe said condition is fulfilled, anything said, done or written by any A
one of them in reference to their common intention will be evidence
against the other; (3) anything said, done or written by him should
have been said, done or written by him after the intention was formed
by any one of them; (4) it would also be relevant for the said purpose
against another who entered the conspiracy whether it was said, done B
or written before he entered the conspiracy or after he left it; (5) it
can only be used against a co-conspirator and not in his favour."

Mens rea; thus, to commit the crime must be est~blished besides the
fact of agreement.

The High Court does not say that the Appellant has abetted Telgi or
e
had conspired with him. The findings of the High Court as against the
Appellant are attributable to allegations of abetting Kamat and Mulani. Both
Kamat and Mulani were public servants. They may or may not have any
direct role to play as regard commission of an organised crime but unless a
nexus with an accused who is a member of the organised crime syndicate or D
an offence in the nature of organised crime is established, only ~y showing
some alleged indulgence to Kamat or Mulani, the Appellant cannot be said
to have conspired or abetted commission of an organised crime. Prima facie,
therefore, we are of the view that Section 3(2) of MCOCA is not attracted
in the instant case.
E
Section 24 of MCOCA must be given a proper meaning. A public
servant can be said to have committed an offence within the meaning of the
said provision if he (i) renders any help or support in any manner in the
commission of an organised crime; (ii) whether before or after the commission
of an offence by a member of an organised crime syndicate or (iii) abstains F
from taking lawful measures under this Act or (iv) intentionally avoids to
carry out the directions of any Court or of the superior police officers in this
respect.

The purported acts of omission and commission on the part of the
Appellant does not attract the first part of Section 24 of MCOCA. It is not G
the contention of the Respondents that he· has committed any act which
comes within the purview of Clauses (3) and (4) hereinbefore. The provisions
of MCOCA, as for example, Section 20 casts a duty upon the persons
concerned to see that properties of a member of the organised crime syndicate
are attached. In view of Section 4, it also becomes the duty of the persons H
connected with the investigation of crime to see that persons, who are in
370 SUPREME COURT REPORTS [2005] 3 S.C.R.

A possession of movable or immovable property which cannot be satisfactorily
accounted for are brought to book.

The Act is deterrent in nature. It provides for deterrent punishment. It
envisages three to ten years of imprisonment and may extend to life
imprisonment. Death penalty can also be imposed if somebody commits a
B murder. Similarly, fines ranging between three to ten lakhs can. be imposed.

Presumption of innocence is a human right. [See Narendra Singh and
Anr. v. State of MP., (2004] IO SCC 699, para 31 Article 21 in view of its
expansive meaning not only protects life and liberty but also envisages a fair
. procedure. Liberty of a person should not ordinarily be interfered with unless
C there exist cogent grounds therefor. Sub-Section (4) of Section 21 must be
interpreted keeping in view the aforementioned salutary principles. Giving an
opportunity to the public prosecutor to oppos'e an application for release of
an accused appears to be reasonable restriction but Clause (b) of Sub-section
(4) of Section 31 must be given a proper meaning. Does this statute require
D that before a person is released on bail, the court, albeit prima facie, must
come to the conclusion that he is not guilty of such offence? Is it necessary
for the Court to record such a finding? Would there be any machinery available
to the Court to ascertain that once the accused is enlarged on bail, he would
not commit any offence whatsoever?

E Such findings are required to be recorded only for the purpose of arriying
at an objective finding on the basis of materials on records only for grant of
bail and for no other purpose .

We are furthermore of the opinion that the restrictions on the power of
the Court to grant bail should not be pushed too far. If the Court, having
F regard to the materials brought on record, is satisfied that in all probability
he may not be ultimately convicted, an order granting bail may. be passed.
The satisfaction of the Court as regards his likelihood of not committing an
offence while on bail must be construed to mean an offence under the Act
and not any offence whatsoever be it a minor or major offence. If such an
expansive meaning is given, even likelihood of commission of an offence
G under Section 279 of the Indian Penal Code may debar the Court from releasing
the accused on bail. A statute, it is trite, should not be interpreted in such a
manner as would lead to absurdity. What would further be necessary on the
past of the Court is to see the culpability of the a.ccused and his involvement
in the commission of an organised crime either directly or indirectly. The
H Court at the time of considering the application for grant of bail shall consider
RANJITSING BRAHMAJEETSING SHARMA v. STATE OF MAHARASHTRA [S.B. SINHA, J.] 371

the question from the angle as to whether he was possessed of the requisite A
mens rea. Every little omission or commission, negligence or dereliction may
not lead to a possibility of his having culpability in the matter which is not
the sine qua non for attracting the provisions of MCOCA. A person in a
given situation may not do that which he ought to have done. The Court may
in a situation of this nature keep in mind the broad principles of law that B
some acts of omission and commission on the part of a public servant may
attract disciplinary proceedings but may not attract a penal provision.

In Abdulla Mohammed Pagarkar etc. v. State (Union Territory of Goa,
Daman and Diu), AIR (1980) SC 499, it is stated :

"15. Learned counsel for the State sought to buttress the evidence C
which we have just above discussed with the findings recorded by the
learned Special Judge and detailed as items (a) to (e) in paragraph 5
and items (i) and (iii) in paragraph 6 of this judgment. Those findings
were affirmed by the learned Judicial Commissioner and we are clearly
of the opinion, for reasons which need not be restated here, that they D
were correctly arrived at. But those findings merely make out that the
appellants proceeded to execute the work in flagrant disregard of the
relevant Rules of the G.F.R. and even of ordinary nonns of procedural
behaviour of government officials and contractors in the matter of
execution of works undertaken by the government. Such disregard
however has not been shown to us to amount to any of the offences E
of which the appellants have been convicted. The said findings no
doubt make the suspicion to which we have above adverted st.ill

-- stronger but that is where the matter rests and it cannot be said that
any of the ingredients of the chargti have been made out. Apart from
the findings and evidence referred to earlier in paragraph, no material p
has been brought to our notice on behalf of the\I State such as would
indicate that the bills or the summaries in question were false in any
material particular."

In C. Chenga Reddy and Ors. v. State of Andhra Pradesh, AIR (1996)
SC 3390, it is stated : G
"55. The learned counsel appearing for all the appellants also during
the course of their arguments were unable to point out any error in
those findings and according to them in the established facts and
circumstances of the case, the irregularities, administrative lapses and
violation of the codal provisions, could only have resulted in a H
372 SUPREME COURT REPORTS [2005] 3 S.C.R.

A departme_ntal action against the officials but criminal prosecution was
not justified. Their argument has force and appeals to us .. "

Every act of negligence or carelessness by itself may not be a
misconduct.

B The provisions of the said ·Act, therefore, must receive a strict
construction so as to pass the test of reasonableness.

Section 21(4) of MCOCA does not make any distinction between an
offence which entails punishment of life imprisonment and an imprisonment
for a year or two. It does not provide that even in case a person remains
C behind the bars f~r a period exceeding three years, although his involvement
may be in tenns of Section 24 of the Act, the court is prohibited to enlarge
him on bail. Each case, therefore, must be considered on its own facts. The
question as to whether he is involved in the commission of organized crime
or abetment thereof must be judged objectively. Only because some allegations
D have been made against a high ranking officer, which cannot be brushed
aside, may not by itself be sufficient to continue to keep him behind the bars
alth~mgh on an objective consideration the court may come to the conclusion
that the evidences against him are not such as would lead to his conviction.
In case of circumstantial evidence like the present one, -not only culpability
or mens rea of the accused should be primafacie established, the Court must
E also consider the question as to whether the circumstantial evidence is such
whereby all the links in the chain are complete.

The wording of Section 21(4), in our opinion, does not lead. to the
conclusion that the Court must arrive at a positive finding that the applicant
for bail has not committed an offence under the Act. If such a construction
-
F is placed, the court intending to grant bail must arrive at a finding that the
applicant has not committed such an offence. In such an event, it will be
impossible for the prosecution to obtain a judgment of conviction of the
applicant. Such cannot be the intention of the Legislature. Section 21 (4) of
MCOCA, therefore, must be construed reasonably. It must be so construed
G that the Court is able to maintain a delicate balance between a judgment of
acquittal and conviction and an order granting bail much before
commencement of trial. Similarly, the Court will be ·required to record a
finding as to the possibility of his committing a crime after grant of bail.
However, such an offence in futuro must be an offence under the Act and not
any other offence. Since it is difficult to predict the future. conduct of an
H accused, the court must necessarily consider this aspect of the matter having
RANJITSING BRAHMAJEETSING SHARMA v. STATE OF MAHARASHTRA [S.B. SINHA, J.J 373

regard to the antecedents of the accused, his propensities and the nature and A
manner in which he is alleged to have committed the offence.

It is, furthermore, trite that for the purpose of considering an application
for grant of bail, although detailed reasons are not necessary to be assigned,
the order granting bail must demonstrate application of mind at least in
serious cases as to why the applicant has been granted or denied the privilege B
of bail.

The duty of the court at this stage is not to weigh the evidence
meticulously but to arrive at a finding on the basis of broad probabilities.
However, while dealing with a special statute like MCOCA having regard to
the provisions contained in Sub-section (4) of Section 21 of the Act, the C
Court may have to probe into the matter deeper so as to enable it to arrive
at a finding that the materials collected against the accused during the
investigation may not justify a judgment of conviction. The findings recorded
by the Court while granting or refusing bail undoubtedly would be tentative
in nature, which may not have any bearing on the merit of the case and the D
trial court would, thus, be free to decide the case on the basis of evidence
adduced at the trial, without in any manner being prejudiced thereby.

In Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav and
Anr., [2004] 7 SCC 528, this Court observed :

"18. We agree that a conclusive finding in regard to the points urged E
by both the sides is not expected of the court considering a bail
application. Still one should not forget as observed by this Court in
the case Puran v. Rambilas and Anr., SCC p. 344, para 8 :

"Giving reasons is different from discussing merits or demerits. At
the stage of granting bail a detailed examination of evidence and F
elaborate documentation of the merits of the case has not to be
undertaken ....... That did not mean that whilst granting bail some
reasons for prima facie concluding why bail was being granted did
not have to be indicated."

We respectfully agree with the above dictum of this Court. We also G
feel that such expression of prima facie reasons for granting bail is
a requirement of law in cases where such orders on bail application
are appealable, more so because of the fact, that the appellate court
has every right to know the basis for granting the bail. Therefore, we
are not in agreement with the argument addressed by the learned H
374 SUPREME COURT REPORTS [2005] 3 S.C.R.

counsel for the accused that the High Court was not expected even
A
to indicate a prima facie finding on all points urged before it while
granting bail, more so in the background of the facts of this case
where on facts it is established that a large number of witnesses who
were examined after the respondent was enlarged on bail had turned
hostile and there are complaints made to the court as to the threats
B administered by the respondent or his supporters to witnesses in the
case. In such circumstances, the Court was duty-bound to apply its
mind to the allegations put forth by the investigating agency and
ought to have given at least a prima facie finding in regard to these I
I
allegations because they go to the very root of the right of the accused
\
c to seek. bail. The non- consideration of these vital facts as to the
allegations of threat or inducement made to the witnesses by the
respondent during the period he was on bail has vitiated the conclusions
arrived at by the High Court while granting bail to the respondent.
The other ground apart from the ground of incarceration which
appealed to the High Court to grant bail was the fact that a large
D number of witnesses are yet to be examined and there is no likelihood
of the trial coming to an end in the near future. As stated herein
above, this ground on the facts of this case is also not sufficient either

-
individually or coupled with the period of incarceration to release the
/
respondent on bail because of the serious allegations of tampering
with the witnesses made against the respondent." \
E
In Jayendra Saraswathi Swamigal v. State of T.N., [2005) 2 SCC 13,
\
this Court observed :

"16. The considerations which normally weigh with the Court in
granting bail in non-bailable offences have been explained by this
.F
Court in State v. Capt. Jagjit Singh, [ 1962) 3 SCR 622: AIR (1962)
SC 253 and Gurcharan Singh v. State (Delhi Admn.), [1978) I SCC
118: (1978) 2 SCR 358: AIR (1978) SC 179: and basically they are
- the nature and seriousness of the offence; the character of the
evidence; circumstances which are peculiar to the accused; a reasonable
G possibility of the presence of the ,accused not being secured at the
trial; reasonable apprehension of witnesses being tampered with; the
larger interest of the public or the State and other similar factors
which may be relevant in the facts and circumstances of the case"

In Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav and
H Anr., [2005] 2 sec 42, this Court observed :
RANJlTSING BRAHMAJEETSING SHARMA t'. STATE OF MAHARASHTRA [S.B. SINHA, J] 3 75

"l 8. It is trite law that personal liberty cannot be taken away except A
in accordance with the procedure established by law. Personal liberty
is a constitutional guarantee. However. Article 21 which guarantees
the above right also contemplates deprivation of personal liberty by
procedure established by law. Under the criminal laws of this country,
a person accused of offences which are non bailable is liable to be B
detained in custody during the pendency of trial unless he is enlarged
on bail in accordance with law. Such detention· cannot be questioned
as being violative of Article 2 l since the same is authorised by law.
But even persons accused of non bailable offences are entitled for
bail if the court concerned comes to the conclusion that the prosecution
has failed to establish a prima facie case against him and/or if the C
court is satisfied for reasons to be recorded that in spite of the existence
of prima facie case there is a need to release such persons on bail
where fact situations require it to do so. In that process a person
whose application for enlargement on bail is once rejected is not
precluded from filing a subsequent application for. grant of bail if D
there is a change in the fact situation. In such cases ifthe circumstances
then prevailing requires that such persons to be released on bail, in
spite of his earlier applications being rejected, the courts can do so."

It was, however, observed :

"42. While deciding the cases on facts, more so in criminal cases the
E
court should bear in mind that each case must rest on its own facts
and the similarity of facts in one case cannot be used to bear in mind
the conclusion of fact in another case"

We are not oblivious of the fact that in certain circumstances, having F
regard to the object and purport of the Act, the Court may take recourse to
principles of 'purposive construction' only when two views are possible.

The High Court, in our considered view, considered the matter from a
wrong perspective. Only because the Appellant had the power, the same
would not by itself lead to a conclusion that he was a privy to the crime. As G
regard Mulani's visit to Bangalore, it is accepted that on all occasions he was
accompanied by other officers. The purpose of such visit was to have a high
level conference so as to enable the Government of Maharashtra to obtain
custody of Telgi. On 9.7.2002, Mulani visited Bangalore in the company of
the Appellant. On 23.7.2002, he visited in the company of Appellant as also H
376 SUPREME COURT REPORTS [2005] 3 S.C.R.

A the Additional Chief Secretary, Shri Basak. Those two visits were prior to
6.9.2002. On I Ith September, 2002, he went to Bangalore in the company of
Shri Sampat Kadam as the case of Telgi was fixed on that day. He is said to
have been sent by Shri Mushrif. Dr. Jai Vasantrao Jadhav in his investigation
note dated 15.12. 2003 stated :
B "On 09/09/2002 Mushrif sahib called me to his office and told me the
story of his trip to Bangalore. He himself had gone there with the L

transfer warrant to bring Telgi to Pune. Similarly, he informed me '
about the future date i.e. 12/09/2002, set by the Bangalore court for
hearing and that Advocate general of Maharashtra P. Janardanan and
c an advocate from Pune Raman Agrawal as special public prosecutor
will be going there for the hearing. For the said hearing ACP Mulani,
police inspector Sampat Kadam were to procered to Mumbai and
they will go to Bangalore court along with P. Janardanan. In this

D
connection a discussion had already been held, said Mushrif."

On 18.9.2002, Mr. Mulani visited Bangalore in the company of the
Addi. Advocate General of Maharashtra on which date the Court passed the
-
order under Section 268 of the Code of Criminai Procedure.

As regards Mr. Mulani's participation in the investigation, we may /
E notice that Dr. Jadav again in his statement dated 2.4.2002 stated : •I
"He has done the work of searching the absconding accused in the
aforesaid crime and he should be deputed with the same work.
Accordingly, ACP Shri Mulani was assisting me in the work of
searching the absconding accused."
F As regards his inclusion in the team, Dr. Jadav had stated :

"The investigation of Crime 135/2002, of Bund Gart;len Police Station
was handed over to me on 4.9.2002 under written orders. Thereafter,
a meeting had taken place between Police Commissioner Shri R.S.
Sharma, Joint Police Commissioner Shri Mahesh Gauri and myself
G
for deciding which officers should be included for the investigation
work. At that time Shri Sharma Saheb told me that you take whatever
officers you want for the investigation. On this, I told him that I do
not personally know the officers in Pune. Being on the post of DCP
-
(Departmental Enquiries), I am not conversant with the investigating
H skill of the officers in Pune city. After I told so, they finalized the
RANJ!TSING BRAHMA.IEETSING SHARMA v. STATE OF MAHARASHTRA [S.B. S!NHA,.I.] 377

names of the members of the investigation team. In that the name of A
ACP Mulani was first."

The Appellant, therefore, did not suggest the name of Mulani himself.
He did so at the instance of Dr. Jadav and that too both by him as also the
Joint Commissioner.
B
So far as the recommendation of the Appellan• fo: inclusion of Mr.
Mulani's name in the list of officers who were to be rewarded for having
done best work, is concerned, it appears that 10 names were suggested for the
said purpose. The Appellant changed the priority in the mann.er as indicated
hereinbefore. Only those persons whose names are referred in the list were
to receive award. The names of Mulani, Yadav and Davies were directed to C
be included in the text wh.ich would mean mentioning of their names in the
history of case, as evidently they were involved in the investigation throughout.

Furthermore, the name of Mulani alone was not added but names of
two other officers were also added. We may further notice that the Appellant D
by letter dated 22.11.2002 addressed to the Director General of Police made
serious complaints against Mr. Mushrif stating :

"The request of Additional Commissioner of Police Mr. Mushrif for
removing the names of near relatives of Mr. Abdul Kareem Ladsab
Telgi, his wife and daughter because of their financial partners. Thus, E
being a supervising officer it was his duty to collect evidence during
the investigation and to take proper decision like the Investigating
Officer, being a Supervisory Officer. It appears that Shri Mushrifhas
neglected these things intentionally.

Prior to this also Shri Mushrifhas written letters to the Investigating p
Officers to obstruct the investigation directly or indirectly, which
came to be noticed because of the complaints made by the officers.
Similarly, he being Officer of the rank of Deputy Inspector General
of Police, he was capable of invoking provisions of Maharashtra
Control of Organised Crime Act, still Mr. Mushrif despite being the
Senior Officer of the crime avoided to invoke the said provision. G
From all these things the otherwise intention of Mr. Mushrifto obstruct
the investigation is apparent.

Mr. Mushrif has written a letter on 23.10.2002, in which it is
stated that the Investigating Officer should remove the names of the
five accused persons, who are absconding, without giving any reason H
378 SUPREME COURT REPORTS [2005] 3 S.C.R.

A and with the malafide and corrupt intention he has suggested the
addition of six names as absconding accused. The copy of the said
letter is already submitted to you.

In fact it is said that the five names which are removed are the
part of information prepared on the computer of Mr. Mushrif. Out of
B which, I have submitted the clear report that we have no objection if
the cases of Shri Manoj Kotharath and Shri Bajrang are transferred
to Central Crime Investigation Department.

Shri Mushrif is informing the media that the Inquiry of this matter
be conducted by Shri P.D. Director General of Police, Anti Corruption
c Bureau or Shrigarvel Director General of Police. In this connection,
I wish to state that all these matters be investigated immediately and
therefore a retired Judge of the High Court be appointed for the said
purpose. Thereby not only allegations made by Mr. Mushrif will be
enquired into but this also will be seen as to in these important crime,
which is spread over the entire country when the investigation is
D reached upto the very important stage, who is trying to indirectly
help the main kin pin of the crime Telgi by obstructing the investigating
.right from the beginning?

Since now the investigation of this crime is being made by the
Special Investigation Team, it is requested that the truth behind all
E
these matters be brought to surface and the appropriate action be
taken against the concerned persons at t~e earliest."

About Mulani's lack of integrity, admittedly facts were made known to
the Appellant only on 6.9.2002. Prior thereto, Mulani received very good
p remarks from his superior officers as would appear from a letter dated
21.3.2002 addressed by Shri A.K. Sharma to M.C. Mulani.

It is undisputed, as would appear from the stand taken by the State
before the Maharashtra State Administration Tribunal, that transfer of Mulani
was not by way of penalty but on administrative grounds. The State
G Government through Shri Ashok Basak also could have suspended Mulani.
It does not appear from the records that apart from field work and searching
for the accused Mulani took any part in investigation between 6.9.2002 and
30.9.2002.

Mr. Mushrif in answer to the questionnaire categorically stated that
H four teams were formed for investigation and Mulani was in the team of field
RANJITS!NG BRAHMAJEETS!NG SHARMA 1·. STATE OF MAHARASHTRA [S.B. SINHA, J.] 379

work. He, having been brought by Mr. Mushrif, had been working earlier. A
Mr. Mushrif accepts that the Appellant had asked him to supervise the
investigation of the teams. He had drawn a broad outline as to how to proceed
systematically :

"On I 2.6.2002 I had drawn a broad outline as to how to proceed
systematically. My concept was as under : B
(a) A team for appraised of seized evidence paperwork.

(b) Investigation team

(c) Field work"
c
It is also noteworthy that in the said statement, in certain matters, the
Appellant's role was described as under :

"12. CP's source infonnation led to the registration of Cr. No. 135/
2002. When you received infonnation about this? Being incharge of
Crime branch, What immediate steps were taken by you for further D
investigation?

It seems that a verifiable infonnation was received by Shri Kale,
PI Crime, P.S. Bundgarden. In this connection he sent for two suspects.
The suspects did not reveal much. The informer was asked to further
cultivate the suspects. That two suspects had been allowed to go was E
mistaken that they are being left off. This infom1ation came to the
notice of CP who intervened and asked Sr. P.I. Deshmukh, P.S.
Bundgarden, to apprehend the suspects and further interrogate them.
This interrogation revealed vital infonnation implicating the suspects
and the others. Interrogations revealed further information that to a p
trap. PI Kale himself lodged the complaint and the F.I.R. came to be
registered."

So far as the inspection of Cuffe Parade flat is concerned, the High
Court failed to notice that at the time of inspection of the flat Jaiswal could
have taken certain action which he did not. At least he could have seized his G
mobile. The Appellant took all steps which he could take. He passed
telephonically an order of suspension of the officers in presence of JaiswaJ
when the matter was brought to his notice. When the letter dated l 0 .1.2003
reached him on 12.1.2003 he also passed an order of suspension in writing.
It was for the Joint Commission to implement the said order of suspension. H
380 SUPREME COURT REPORTS [2005] 3 S.C.R.

A It is too much to expect that an officer passing an order of suspension must
also see to it that his order is implemented by all concerned. The High Court
is also not correct in attributing motive to the Appellant as regards seizure of
fake stamps and genuine stamps from the Bhiwandi godown on 12.1.2003.
The Appellant had no role to play therein. Before the learned Single Judge
admittedly a wrong contention was raised on behalf of the Respondents that
B Jaiswal had at one point of time expressed a suspicion that the magnitude of
Kamat's involvement may be minimized by making a fake raid.

For all intent and purport, the High Court has placed the onus of proof
upon the Appellant, which is impermissible.
c The Appellant faced a contempt petition before the Maharashtra State
Administrative Tribunal and in his affidavit, he categorically stated that neither
Mulani was the investigating officer nor supervisory officer. In his affidavit,
as regard reason for his transfer to Special Branch from Crime Branch, he
stated :
D
"8. With reference to paras 6(5)(v) of the application, I say that this
was a very sensational murder case and the applicant was the
immediate supervisory officer of its investigation. But as the main
culprit could not be arrested, the case was transferred to State C.l.D.
by the C.l.D. It transpired that the deceased Faizulla Khan along with
E two other persons had met the applicant in his office a couple of
hours before his assignation. But this vital information was not
disclosed by the applicant anywhere in the investigation, though h~
was the immediate Supervisory Officer of the case. Thus, his conduct
was found to be highly suspicious in this sensational case. Under
these circumstances it was not desirable to keep the applicant in the
F Crime Branch. This is one of the reasons for his transfer out of the
Crime Branch.

17. With reference to para 6(13) of the application, I say the allegations
in this para are denied as the applicant has been retained as A.C.P.,
Pune City. However, there is no stay granted to the internal orders
G issued by the respondent No. 2 of the applicant. Neither the applicant
has prayed in his O.A. No. 863/2002 that he should not be transferred
anywhere from the Crime Branch, Pune City."

In Kartar Singh v. State of Punjab, [1994] 3 SCC 569, this Court
H , observed :
RANJITSING BRAHMAJEETSING SHARMA v. ST ATE OF MAHARASHTRA [S. B SINHA, J.] 381

"352. It is true that on many occasions, we have come across cases A
wherein the prosecution unjustifiably invokes the provisions of the
TADA Act with an oblique motive of depriving the accused persons
from getting bail and in some occasions when the courts are inclined
to grant bail in cases registered under ordinary criminal law, the
investigating officers in order to circumvent the authority of the courts B
invoke the provisions of the TADA Act. This kind of invocation of
the provisions of TADA in cases, the facts of which do not warrant,
is nothing but sheer misuse and abuse of the Act by the police.
Unless, the public prosecutors rise to the occasion and discharge their
onerous responsibilities keeping in mind that they are prosecutors on
behalf of the public but not the police and unless the Presiding Officers C
of the Designated Courts discharge their judicial functions keeping in
view the fundamental rights particularly of the personal right and
liberty of every citizen as enshrined in the Constitution to which they
have been assigned the role of sentinel on the qui vive, it cannot be
said that the provisions of TADA Act are enforced effectively in D
consonance with the legislative intendment."

In Prakash Kumar Alias Prakash Bhutto v. State of Gujarat, [2005] 2
SCC 409, the Constitution Bench of this Court while noticing Kartar Singh
(supra) observed :
E
"44. In our view the above observation is eloquently sufficient to
caution police officials as well as the Presiding Officers of the
Designated Courts from misusing the Act and to enforce the Act
effectively and in consonance with the legislative intendment ~hich
would mean after the application of mind. We reiterate the same."
F
The learned Additional Solicitor General, however, had drawn our
attention to the statement of Mr. R.S. Mopalwar. The said statement was
recorded on 21.6.2004. Shri U.K. Goel has also not been examined on the
ground that he has gone out of the country. This material was not used before
the learned Single Judge. G
Mr. Saran, laid emphasis on the fact that Telgi was interrogated alone
by the Appellant after asking all others to leave the room without maintaining
any record therefor.

In this connection, we may notice the questionnaire and statement of H
Shri Maheshgauri, question No. 50 whereof reads as under :
382 SUPREME COURT REPORTS [2005] 3 S.C.R.

A "50) Did CP ever interrogate Telgi in prison? Did CP ever record his
statement on the tape recorder? Are you aware about it?

Ans: - CP did interrogate Telgi in camera in his own chamber. We
were present in chamber of CP when AKL Telgi was ushered in by
either Mulani or PI Deshmukh. By we I mean DCP Koregaokar was
B also present when Teigi entered. CP said, "~ cfi ~ ~ \ill ~
i1fl'ik(YI cfi" C\1T '1 31T<:JT Cfi\ffi ~ ~" Then we moved out. I do
not know if the conversation was tape recorded."

If the Appellant was knowing Telgi, there was no reason to seek to
C identify Telgi by reference to a person who used to visit Bombay Hospital,
Dargah. Our attention has also been drawn to the report of the brain mapping
test of Telgi. In the said report, it is stated :

"Pursuant to the request made vide letter cited under reference, accused
Mr. Karim Telgi was brought for polygraph examination on 20th
D December 2003. The cited suspect was first interviewed and
interrogated. It was found during the interrogation and the interview
that the suspect appeared to be concealing some of the relevant
information and not truthful to his statement with regard to the
involvement of politician and police officers in the fake stamp paper.
He was further subjected for "Brain Mapping" test on 21 December
E
2003."

As regard what transpired in the meeting with Telgi during interrogation
by the Appellant, Dr. Jadhav made the following statement in the investigation
note :
F
"On 19/ l 0/2002 accused Telgi was granted magisterial custody and
hence, he was to be taken to Yerwada jail. But police commissioner
Mr. Shanna ordered us, "Bring the accused to my chamber for the
purpose of interrogation" and we had to comply. We took accused
Telgi to the office of the police commissioner at around 18.00 hrs.
G We kept Telgi outside and informed commissioner Sharma by going
into his chamber that we had brought Telgi in the office. Then on his
direction, we came out of the chamber and sent accused Telgi alone
inside as per Mr. Sharma's instructions. After this, Sharma Sahib
interrogated the accused Telgi from 18.00 hrs. to 20.00 hrs. The
H Yerwada jail officials do not allow the accused in the jail late in the
RANJITSING BRAHMAJEETSING SHARMA v. STATE OF MAHARASHTRA [S.B. SINHA, J] 3 83

night as a regular practice. When we came to know about this, we A
informed additional police commissioner Mahesh Gauri, accordingly.
Then on Mr. Gauri's direction, we went inside Mr. Sharma's cabin
and informed him accordingly. That time he said that, he would
finish within ten minutes. Then after 10-15 minutes Sharma sahib
called us in and ordered us to take Telgi away. Then along with B
Telgi, we started moving outside the commissioner's office and
towards the Yerwada jail and we asked Telgi about the interrogation
by the Sharma Saheb. Here, Telgi told us, "Sharma sahib asked me
about the place where I had hided the remaining stamps? To whom
and how much money did I give? Who are the political figures of my
acquaintance? etc. his main thrust was on these questions, After asking C
the questions, Mr. Sharma's right hand was moving towards the button
of the tape-recorder as he wanted to tape my answers. I was not able
to see the tape recorder, but it was evident from the movements of his
hand that he was trying to switch on the tape for recording my
answers." Then we reached the Yerwada Jail. Police sub inspector
Mr. Hanumansingh Subbalkar (crime branch, Pune Police D
Commissionerate) was the chief officer appointed to keep the custody
of Telgi and party."

Therefore, there is some substance in the contention of Mr. Manohar
that the Commissioner of Pol ice may not like to interrogate an accused person E
as regard his political connections, if any, in presence of others, but the line
of interrogation was revealed by Telgi immediately after he came out of his
chamber. It further appears from the record that even Mushrif had interrogated
Telgi exclusively. ·

Furthermore, it appears that it is Mushrif who wanted to keep wife, p
daughter and brother of Telgi out of the chargesheet, as would appear from
the statement of Mr. Kishore Eknath Yadav to the following effect:

"Names of accused Fathima and Javed were mentioned in the case
diary as suspects however full names and addresses of these accused

/'
could not be made accused. Because the infonnation is not available G
against them and they are only servants, such instructions were issued
by Addi. Commissioner of police during the time of beginning of the
investigation and on other occasions.

It was further stated :
H
384 SUPREME COURT REPORTS [2005) 3 S.C.R.

A "Although for the said purpose note was made for seeking written
orders, Honourable Additional Commissioner of Police has not made
any specific order. Apart from this who should be made accused or
not was the primary right of D.C.P. Zone II as per the decision taken
by Additional Commissioner of Police and the final decision about
the same was to be that of Addi. Commissioner of Police (Order
B dated 13/6/2002).

Apart from the fact that nothing has been brought on record to show
as to how far a report of brain mapping test can be relied upon, the report
appears to be vague. It appears, the Respondents themselves did not want to
C put much reliance on the said report.

Furthermore, the admissibility of a result of a scientific test will depend
upon its authenticity. Whether the brain mapping test is so developed that the
report will have a probative value so as to enable a court to place reliance
thereupon, is a matter which would require further consideration, if and when
D the materials in support thereof are placed before the Court.
.."'.',
In Frye v. United States, 293 F 1013 (DC Cir) (1923), the principles
to determine the strength of any investigation to make it admissible were
stated in the following terms :

E "Just when a scientific principle or discovery crosses the line between
the experimental and demonstrable stages is difficult to define. Some
where in the twilight zone the evidential force must be recognized,
and while the Courts will go a long way in admitting the expert
testimony deducted from a well recognized scientific principle or
discovery, the thing from which the deduction is made must be
F sufficiently established to have gained general acceptance in the
particular field in which it belongs.
Frye (supra), however, was rendered at a time when the technology, the
polygraph test, was in its initial stage and was used in few laboratories. The
guidelines issued therein posed a threat of lack of judicial adaptation of the
G new developments and ignored the reliability on a particular piece of evidence.

A change of approach was, however, found in Daubart v. Merry/I Dow
Pharmaceuticals Inc., 113 Set 2786 (1993) where the courts while allowing
"general acceptance" stated that this might not be a precondition for
admissibility of the scientific evidence, for which the Court may consider the
H following :
RANJITSING BRAHMAJEETSING SHARMA v. STATE OF MAHARASHTRA [S.B. SINHA, J.) 385

(a) Whether the principle or technique has been or can be reliably A
tested?

(b) Whether it has been subject to peer review or publication?

(c) It's known or potential rate of error?

(d) Whether there are recognized standards that control the procedure B
of implementation of the technique?
(e) Whether it is generally accepted by the Community? And

(f) Whether the technique has been introduced or conducted
independently of the litigation?
c
In a case involving an issue as to whether on-job-exposure to the
manufacturers products promoted small cell Jung cancer, the U.S. Supreme
Court in General Electric Co. v. Robert K. Joiner, 522 US 139 L.Ed. 2d
following Daubert (supra), held that in cases involving the issue of expert
evidence the appellate court should only consider whether there is any abuse·
of discretion in admitting such evidence by the trial courts and should not go D
into reviewing the evidence itself as it is for the trial courts to assume the
"gate keeper's role" in screening such evidence to ensure whether it is not
only relevant but also reliable, This was further expanded in Kumho Tire Co.
Ltd. v, Carmichael, (1999) 119 S.Ct. 1167, whereby the 'gate keeping'
obligation of the Trial Judge to ensure the relevancy and reliability for E
admitting the evidence extended not only to scientific but also to all kinds of
expert evidence.

In R. Vs. Watters, [2000] All ER D 1469, it was held :

"DNA evidence may have a great significance where there is F
supporting evidence, dependent, of course, on the strength of that
evidence."

" ..... .in every case one has to put the DNA evidence in the context of
the rest of the evidence and decide whether taken as a whole it does
amount t-0 a primafacie case." G
As at present advised, thus, and having regard to the fact that the
prosecution did not rely upon the said report before the High Court, we also
for the purpose of the present matter do not intend to place any reliance
thereupon.
H
386 SUPREME COURT REPORTS [2005) 3 S.C.R.

A Mr. Manohar's contention to the effect that those officers whose conduct
was not above board and who did not take any action for attaching the
property of the accused and his relations in terms of the Act, have not been
made accused, may also be correct. He has further brought to our notice that
witnesses have also changed their stand after the Appellant was placed under
B arrest. At this juncture, it may not be necessary for us to go into details on
the aforementioned contention.

We have referred to the aforementioned materials only for the purpose
of showing that the High Court may not be entirely correct irt coming to the
conclusion that the Appellant prima facie committed an offence under Section
C 3(2) as well as Section 24 of MCOCA.

For the reasons aforementioned, we are of the opinion that the order
dated 4.11.2004 granting interim bail to the Appellant should continue subject
to the same conditions~ ',

D This appeal is allowed.

R.P. Appeal allowed.