Chhota Shakeel Gang MCOCA Court Judgement

7/31/2019 Chhota Shakeel Gang MCOCA Court Judgement

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.. 1 .. MCOC Spl.Case No.05/2007

IN THE SPECIAL COURT FOR GREATER BOMBAYUNDER MCOC ACT AT GR.BOMBAY

MCOC SPECIAL CASE NO.05 OF 2007

The State of Maharashtra,(at the instance of DCB CIDMumbai,C.R.No.84/2001) ..Complainant.

Versus

1. Salim Iqbal Qureshi @ Salim Fruit )

2. Jamil Haji Abdul Jabbar Shaikh )

3. Mohd. Sabir Suleman Shaikh )

4. Shahidmiyan Natthumiyan Qureshi )

5. Afzal @ Raju Chocolate Abdul )Kadar Supariwala )

6. Mohd.Salim Alim Khan )

7. Mushtaque Abdul Rehman Nawab ) ..Accused

8. Shaikh Shakeel Babu Mohiddin )Shaikh @ Chhota Shakeel )

9. Anwar Mohiddin Shaikh ) Wanted Accused

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Mr.D.M.Shah, Spl.P.P.for the State.Mr.S.Pasbola, advocate for accused no.1Ms.Trupti Shetty, advocate for accused no.2Mr.Jagdish Shetty,advocate for accused nos.3 to 5Ms.Saba Qureshi, advocate for accused nos.6 and 7.

CORAM : THE SPECIAL JUDGE UNDER MCOCACT SHRI S.T.MAHAJANCourt Room No.56

DATE : 24th January, 2011

ORAL JUDGEMENT

1. The accused nos.1 to 7 are charge sheeted by DCB

CID Unit-1,C.R.No.84/2001 (MRA Marg Police Station CR

No.360/01) for the offences punishable u/sec.387, 120(B

r/w 34 of IPC, r/w 3(1)(ii), 3(2) and 3(4) of M.C.O.C

Act 1999, on the complaint of Rahul Chabra and for the

State of Maharashtra by M.B. Kurne, ACP,Protection

Branch, Mumbai.

2. According to prosecution following is the

factual scenario:

That the complainant Rahul Chhabra is doing

business of selling and supplying bearings in the name

and style as A to Z Bearing Corporation, having office

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at first floor, Rohit Chambers, Janmabhumi Marg, Fort

Mumbai-400001. In the office of complainant, there are

two land line connection having No.2875541 and 2873623

The complainant Rahul Chhabra received number of

threatening calls from 1/10/2001 to 12/10/2001 from the

accused Salim Iqbal Qureshi @ Salim Fruit by fictitious

name as John on his office phone and mobile phone,

threatening the complainant at the behest of gangster

Chhota Shakeel for extortion of Rs.50,00,000/- and for

the amount of settled at Rs.5,00,000/- and he asked the

complainant to deliver the extortion amount to Raju, his

local associate.

3. On 12/10/2001 Raju called the complainant to

deliver the extortion amount near Shagun Hotel at Mumbai

Central at about 19 hours. After receiving the call

from said Raju, the complainant went to the Anti

Extortion Cell and narrated the fact to the police which

was registered vide C.R.No.360/01, u/sec.387 r/w 34 of

IPC at M.R.A. Marg police station.

4. Thereafter, further investigation was taken over

by Anti-Extortion Cell of DCB CID, Mumbai. On the basis

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of the complaint, a trap was laid at Mumbai Central near

Shagun Hotel where the accused Afzal @ Raju Chocolate

Abdul Kadar Supariwala and Mohd.Salim Ali Khan were

arrested red handed while accepting plastic bag

containing bundle of papers look like bundle of notes

from the complainant as extortion amount.

5. Police prepared seizure panchanama of plastic

bag containing bundle of papers looked like bundle of

notes and one chit having mobile phone number, diary and

STD bills from the arrested accused. Later on the

accused Mustaque Abdul Rehman Nawab was arrested as his

involvement also revealed in the offence.

6. The police, after due investigation, recorded

statements of the witnesses and filed charge sheet

against the arrested accused Afzal @ Raju Chocolate

Abdul Kadar Supariwala, Mohd.Salim Ali Khan, and

Mustaque Abdul Rehman Nawab in the Court of Addl.Chief

Metropolitan Magistrate, 19th Court, Esplanade, Mumbai

vide C.C.No.724/P/2003.

7. On 21/11/2006, the accused Salim Iqbal Qureshi @

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Salim Fruit, Jamil Haji Abdul Jabbar Shaikh and Mohamed

Sabir Suleman were arrested and police seized the two

mobiles from these accused under panchnama. During the

course of investigation, it was revealed that the

arrested accused are members of Organized Crime

Syndicate headed by Chhota Shakeel. They are indulging

in continuous unlawful activities of threatening for

extortion to the businessmen for pecuniary gain o

members of Organized Crime Syndicate and therefore it

attracts the provision of section 3(1)(ii), 3(2), 3(4)

of MCOC Act, 1999. Therefore police obtained prior

approval as per sec.23(1) of the MCOC Act from Jt

Commissioner of Police, (Crime) Branch, Mumbai, vide its

order dated 13/12/2006 and accordingly these provisions

of MCOC Act added to the original charge.

8. Thereafter, on 21/11/2006 police arrested the

accused Salim Iqbal Qureshi as he found involved in the

said offence and also member of Organized Crime

Syndicate. The police of DCB CID recovered chit from

the accused Salim Khan during trap under panchnama and

sent the same to handwriting expert by obtaining

specimen hand writing of accused Salim Khan. Then

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Deputy Commissioner of police, recorded confessional

statement of accused Shahidmiyan Natthumiyan Qureshi

Salim Iqbal Qureshi @ Salim Fruit and Jamil Haji Abdul

Jabbar Shaikh.

9. The complainant produced three audio cassette

before the police, then after arrest of the accused

police collected voice sample of the accused in presence

of panchas and sent all these cassettes to the Voice

Analyzer, Forensic Science Laboratory, Kalina.

10. The police also collected details in respect of

calls from mobile phone No.9821294817 from service

provider BPL mobile company.

11. After due investigation, police of DCB CID

obtained sanction from the Commissioner of Police

Mumbai u/sec.23(2) of MCOC Act 1999, dated 27/2/2007 for

prosecuting the accused and thereafter filed charge

sheet against all the accused in this Court.

12. From the material available on record, the

charges against accused nos.1 and 3 to 7 was framed on

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23/1/2009 vide Ex.8 and the charge against accused no.2

framed on 29/3/2010 vide Ex.85 by my predecessor at

office. The charges were read over and explained to the

accused to which they abjured and claimed to be tried.

13. The defence of the accused is of total denial

and of false implication. According to them, they are

innocent. Plea of the accused to that effect is

recorded vide Ex.9 to 14 and 86 respectively.

14. In order to bring home the guilt of the accused

the prosecution has examined in all 15 witnesses and

commenced its evidence by examining Rahul Chabra - PW 1

vide Ex.21, Lalu Abdulla Shaikh - PW 2 vide Ex.34, Mohd

Ayub Mohd.Omar Mogul - PW 3 vide Ex.38, Shakil Ismile

Patni - PW 4 vide Ex.40, Saifuddin Mohsinbhai

Kargonwalla - PW 5 vide Ex.41, Anil Ramchandra Avhad API

- PW 6 vide Ex.44, Manohar Jagannath Bhoir, DCP - PW 7

vide Ex.48, Jagdish Jagannath Kulkarni, PSI - PW 8 vide

Ex.59, Dilip Pralhad Ahiwale - PW 9 vide Ex.64

Vishwasrao Narsinh Salve, DCP - PW 10 vide Ex.68

Rakeshchandra Rambhuj Prajapati - PW 11 vide Ex.80

Pundalik Venkatrao Nigade, PI - PW 12 vide Ex.99

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Prashant Shivshankar Burde - PW 13 vide Ex.109, Anami

Narayan Roy - PW 14 vide Ex.124 and Madhukar Bhau Kurne

ACP - PW 15 vide Ex.127. The prosecution also filed

number of documents on record and finally closed its

case by filing evidence closure pursis vide Ex.131.

15. The statements of the accused u/sec.313 of

Cr.P.C. were recorded vide Ex.132 to 138 respectively

wherein they reiterated their theory of total denial and

of false implication. The accused did not examine

themselves on oath, nor they examined any witness in

their defence.

16. Heard learned Spl.P.P.Mr.D.M.Shah for the State

learned Advocate Mr.Pasbola for accused no.1, Ms.Trupti

Shetty for accused no.2, Mr.Jagdish Shetty for accused

nos.3 to 5 and Ms.Saba Qureshi for accused nos.6 and 7.

17. Considering the oral and documentary evidence on

record and submissions of both the sides, following

points arise for my consideration and determination

which I have replied accordingly for the reasons given

herein below:

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POINTS FINDINGS

1. Does the prosecution prove thatthe accused nos.1 to 7 and wantedaccused Shaikh Shakeel BabuMohiddin @ Chhota Shakeel andAnwar Mohiddin Shaikh, during the

period from 1/10/2001 to 12/10/2001agreed with each other to do orcaused to be done an illegal act,i.e.committing an offence ofextortion by threatening variousbusinessmen in Mumbai city forgetting huge ransom amount andbesides this above agreement, theaccused did an act in pursuance

of the above agreement i.e. gavethreatening calls to the complainantRahul Chhabra asking him to payextortion amount of Rs.50,00,000/-and threatened to kill him in caseif the above demand of extortionwas not complied by him and therebycommitted an offence punishable U/s120-B,r/w 387 of IPC? No.

2. Does the prosecution prove thatthe aforesaid offence ofextortion punishable u/sec.387of IPC amounts to an organizedcrime as defined in section 2(e)of the MCOC Act 1999 and thereby

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.. 10 .. MCOC Spl.Case No.05/2007

the aforesaid accused committedan offence u/sec.3(1)(ii)of the MCOC Act, 1999? No.

3. Does the prosecution provethat the accused nos.1 to 7conspired together, abettedeach other and/or knowinglyfacilitated the commissionof the aforesaid organizedcrime and/or acts preparatoryto the organized crime andthereby committed an offencepunishable u/sec.3 (2)ofthe MCOC Act,1999? No.

4. Does the prosecution prove

that the accused nos.1 to 7are the members of the organizedcrime syndicate headed byabsconding accused Shaikh Babu@ Chhota Shakeel and therebycommitted an offence punishableu/sec.3(4) of MCOC Act, 1999? No.

5. What order? As per final order.

R E A S O N S

POINT NO.1

18. In order to prove the charge under Sec.387

120(B) of the Indian Penal Code (IPC), the prosecution

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has examined complainant Rahul Chhabra, who has stated

that he is doing business of selling ball bearing of

automobile vehicles in the name of A to Z Bearing

Corporation, situated at Rohit Chambers, Janmabhum

Marg, Fort, Mumbai. According to him, in the year 2001

particularly on 1/10/2001, at about 6.30 p.m., he

received phone call and caller speaking that his name is

John and he is speaking for Chhota Shakil. He received

a same call on his land line No.2873623. He has scared

about that call. On the next day he also received call

from the same person and he demanded Rs.50 lakhs

otherwise threatened to kill him.

19. PW 1 further deposed that thereafter he received

threatening calls on his mobile phone bearing no

9820098507 and also received threatening call on his new

mobile number. Lastly he received a call on his land

line no.2873623. The caller was John and asked to pay

Rs.50/- lakhs. Even the caller reduced the ransom

amount upto Rs.10 lakhs and 5 lakhs. He has further

stated that the caller John, told him that he would send

his person viz., Raju to collect the cash amount of Rs

5/- lakhs from him. He would communicate the place

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where he was supposed to handover the cash of Rs.5/-

lakhs.

20. He has further deposed, thereafter he approached

to the crime branch office at Crawford Market, on

12/10/2001 and narrated the story to PSI Kulkarni

Accordingly, he gave statement. His statement was

recorded by PSI Kulkarni. He has further deposed that

on the very day PI Kulkarni, called him at the crime

branch office, at about 3.30 p.m., and asked him to

prepare paper packets in the size of currency notes so

as to handover the said packets to Mr.Raju. Two

witnesses were also called by the PSI Kulkarni

Accordingly, police party and two witnesses went to the

Shagun Hotel at Bombay Central. Complainant stood on

the road in front of hotel Shagun at about 6.30 p.m

Thereafter, two persons came there and he told him that

he was Raju, the said Raju asked him to handover the

packet to another person. While handing over the packet

police officers surrounded them and caught hold Raju and

his associate Salim Khan. Police also seized some chits

and diary from both of the accused under panchanama.

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21. From the statement of PW 1 the complainant, it

appears that, he started to receiving threatening calls

from 1/10/2001 and finally he decided to go to the

police.

22. In respect of this evidence of PW-1, it has been

submitted by the Spl.P.P.Mr.Shah, that evidence o

complainant is quite believable and sufficient

explanation is given about the telephonic threatening

calls received by the complainant, so also about the

trap led by the police.

23. Per contra defence advocates have submitted that

evidence of PW-1 is full of omissions and

contradictions. There is some discrepancies in respect

of actual filing of the complaint, therefore, such

evidence should not be believed.

24. While perusing the cross-examination of PW-1, it

has been pointed out by the defence that on the FIR Ex

22 the date is mentioned as 12/10/2001. However, while

perusing the statement recorded by the complainant it

appears the date 11/10/2001, then again the next date is

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.. 14 .. MCOC Spl.Case No.05/2007

appeared 12/10/2001. Then while perusing the

supplementary statement of the PW-1, the date is

appeared 12/10/2001 and the third supplementary

statement dated 6/2/2007 is stated that his complaint

recorded on 11/10/2001. Such type of different version

about the filing of the complaint itself create doubt

about the actual filing of the complaint and on which

date. Apart from the differences in respect of date

though PW-8 PSI Kulkarni, stated that wrongly the date

11/10/2001 has been mentioned on the statement of the

complainant, but his explanation is not acceptable, in

view of the repeated statement by PW-1 before Court in

respect of his statement recorded on 11/10/2001.

25. Apart from this fact, the defence has pointed

out some important facts on record about recording of

FIR with the MRA Marg Police Station. In this respect

while perusing the evidence of PW-1, he has stated in

his cross-examination that he did not go to MRA Marg

Police Station and no officer of MRA Marg Police Station

contacted him. On the contrary, there is evidence of

PW-6 Anil Avhad, API, MRA Marg Police Station, who has

stated that on 12/10/2001 at about 3.30 p.m.

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complainant Rahul Chhabra was brought in MRA Marg Police

Station by PSI Nigade (PW-12) of Anti Extortion Cell for

registration of FIR and he registered C.R.No.360/2001

To this, again there is contradictory version came from

PW-8 PSI Kulkarni, who stated that he produced the

statement of Rahul PW-1 to MRA Marg Police Station for

registration of C.R. Again there is different version

from the mouth of PW-12, PI Nigade, DCB CID, who has

stated he did not see the report of complainant Rahul

He denied in cross-examination that he took Rahul to

MRA Marg Police Station, for registration of FIR.

26. In view of the four different testimonies in

respect of registration of FIR Ext.22 with the MRA Marg

Police Station, it is again create doubt about actually

registration of the same on 12/10/2001, or its

registration on 11/10/2001. In such circumstances, the

basic fact has not been properly established by the

prosecution.

27. Apart from the above controversy in respect of

registration of FIR and given statement by the

complainant, while perusing the cross-examination of the

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complainant, I found there are number of omissions and

contradictions in the evidence of PW-1. Such as, that

complainant in cross-examination stated that accused

Raju contacted him thrice asking him to deliver cash

amount at Hotel Shagun. The said fact is not found

place in a statement recorded by police. Then PW-1

stated that he was asked by PSI Mr.Kulkarni to prepare

packets in the size of currency notes and he carried the

same in the office of Anti Extortion Cell. Likewise the

fact stated by PW-1 that, Raju and Salim Khan both were

apprehended by police, such statement also not found

place in the statement of complainant.

28. There is also omission in the statement o

complainant that, that it was stated by him to the

police that he was threatened that he would be killed by

Jhon's men if he failed to pay him above ransom amount

Rs.50/- lakhs. He also not stated about identification

of John's voice from the cassette. He also not stated

that, every time John, used to call him on phone and

lastly John admitted to accept Rs.5/- lakhs. He also

not stated about mention of mobile number of John, on

chit. Such type of omissions goes to the root of the

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case, because police case is based on evidence of PW-1

about the extortion threatening calls.

29. Even PW-1 in the cross-examination stated that

he has not stated portion marked 'A' to the police and

therefore, it is not correctly recorded by police. This

portion mark contained about the seizure of diary and

chit from the accused nos.5 and 6. Therefore

considering the major omission which goes to the root of

the case, so also the filing of FIR and giving of

statement by the complainant variance dates in it, such

evidence of the complainant inspires no confidence.

30. In view of the above said fact, let us see what

is the evidence putforth by the police about the traps

allegedly led at Bombay Central, near Shagun Hotel. As

stated supra, the PW-1 stated that the police called two

witnesses at Anti Extortion Cell, he and two witnesses

and police personnel went to Shagun Hotel at Bombay

Central. He has stated that, he went there alone by

taxi. Contrary to it PW-2 Panch Lalu Shaikh has stated

that the police, another panch and he himself went to

Bombay Central, near Shagun Hotel by private Quali

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vehicle. Later on in the cross-examination PW-2 stated

that, they went there in jeepsy vehicle.

31. So far as this vehicle point is concerned, the

PW-8 PSI Kulkarni stated that they went there by private

vehicle. There is also difference about the parking o

vehicle at different places stated by the panch witness

PW-2 and PW-8 Mr.Kulkarni. Apart from this fact, the

vital admission has been given by the PW-1 in cross-

examination he has stated when he came, witnesses and

police party reached near Shagun Hotel, they all had a

discussion near Shagun Hotel about 15 minutes. It means

the police and complainant were together in front of

Hotel Shagun at Bombay Central. Then, in such

circumstances, it is not possible for the person for

whom the trap was there to go near the complainant for

demanding the cash. Therefore, the evidence which i

full of variance about the trap cannot be accepted.

32. Moreover, the fact which is admitted on record

that PW-2 Lalu Shaikh, is not at all independent

witness, he is a habitual panch to the DCB CID, I come

to this conclusion on the very evidence of PW-2 in

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cross-examination. He has admitted that on number of

occasions he acted as panch with the DCB CID. This

witness is appeared to be under the influence of police

as he is used to sell handkerchief near the C.P.Office

situated at Crawford Market, Mumbai. Therefore

evidence of such witness cannot be accepted as genuine

one. To this fact Mr.Kulkarni PW-8, also admitted that

PW-2 acted as a panch in some of the cases of DCB CID.

33. Of course, the PW-2 Lalu Shaikh, PW-1 Rahul and

PW-8 Kulkarni PSI, have stated that at the time of trap

the accused nos.5 and 6 were apprehended on the spot

To this fact except the corroboration of themselves such

as PW-1 and PW-2 I found that their evidence are not

trustworthy, no other independent witnesses examined for

the same. Moreover, while perusing the evidence of Lalu

Shaikh PW-2 and PSI Kulkarni PW-8, they have stated that

initially panchanama was prepared at DCB CID Office

Ex.35. He also stated after the trap, panchanama was

prepared Ex.35(A). In respect of this panchanama

particularly after trap panchanama Ex.35(A), I will come

later because there is another vital discrepancy in

respect recovery of chit allegedly from the accused

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during the trap. It is sufficient to mention that the

evidence of pre-trap and after trap by witnesses a

narrated above are not at all trustworthy and

believable.

34. About chit which is allegedly recovered from

accused Salim Khan at the time of trap near Shagun Hotel

at Bombay Central, it has been pointed out by the

defence that there is vital discrepancy about the actual

seizure of said chit at the trap. Of course, PW-1 the

complainant as well as PW-2 panch witness have stated

that there was a seizure of one diary and some receipts

of STD bills and chit having mobile number on it. Same

facts also been stated by PW-8 PSI Kulkarni, in his

evidence and on the basis of the said recovery the one

of the panchanama, i.e., after trap panchanama was

prepared Ex.35(A). While recording the evidence of PW-8

the chit which was allegedly seized from the accused

Salim Khan had been marked as Ex.25. This Ex.25 chit

shows the name of accused Salim Khan as well as two

mobile numbers. According to prosecution, this is the

same chit, which was seized from accused Salim Khan at

the time of trap.

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35. However, while perusing after trap panchanama

Ex.35-A, the description of said chit appears to be

totally different on this chit it was mentioned name of

John and two mobile numbers. If one believed the

evidence of PW-1 and PW-2 in respect of trap or at least

in respect of recovery of some chit and diary, more

specifically the chit in dispute Ex.25, then the

description mentioned in the panchanama Ex.35-A is not

tallied with the same. Because Ex.25, which is produced

in the Court is not bears the name 'John' and the chit

which is produced in the court Ex.25 bears the name

'Salim Bhai'. Therefore, while perusing the evidence

particularly the I.O. of the previous case i.e.

Mr.Kulkarni PSI PW-8, he has not given the satisfactory

explanation about the discrepancies of said specific

chit, even PW-1 and PW-2 stick up with their case about

recovery of chit having mentioned name John on it. In

such circumstances and on the basis of total

contradictory fact, it is clearly appears that the Ex

25, which is produced in the Court a chit having the

name of 'Salim bhai' is totally manipulated document

Therefore, this document, i.e., chit which is allegedly

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recovered from the accused Salim is not acceptable and

believable.

36. On the basis of the above said findings in

respect of chit Ex.25, the evidence of PW-9 Dilip

Ahiwale, a handwriting expert, who has stated that he

compared the handwriting of the accused Salim Khan with

the chit Ex.25 and issued report Ex.66 and the reason

and conclusion is at Ex.67, has no use to the

prosecution.

37. Though the I.O.has stated that handwriting

specimen of accused Salim Khan was obtained and the same

was sent to handwriting expert PW-9 Dilip Ahiwale, but

mere establishing the fact of obtaining handwriting of

accused Salim and the handwriting on Ex.25, tallied with

the handwriting of accused Salim is not much important

in view of finding given supra about the manipulation of

the chit by the police on record.

38. Moreover, it is rightly submitted by the defence

advocate that report of the handwriting expert is not

the conclusive piece of evidence, it is only supporting

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or corroborative evidence, if other facts established by

the prosecution. In this respect Mr.Pasboala is relied

on the reported case Fakhruddin V/s. The State of Madhya

Pradesh (1967 Cri.L.J.1197). In it, it was held by the

Hon'ble Apex Court that,

The writing may be proved to be in thehandwriting of a particular individual by theevidence of a person familiar with thehandwriting of that individual or by thetestimony of an Expert competent to thecomparison of handwritings on a scientificbasis. A third method is comparison by theCourt with the writing made in the presenceof the Court or admitted or proved to by thewriting of the person. Both under Sec.45and Sec.47 the evidence is an opinion, inthe former by a scientific comparison and inthe latter on the basis of familiarityresulting from the frequent observationsand experience. In either case theCourt must satisfy itself by such means asare open that the opinion may be acted upon.

Where an expert's opinion is given, theCourt must see for itself and with theassistance of the expert come to its ownconclusion whether it can safely be held thatthe two writings are by the same person.

This is not to say that the Court mustplay the role of an expert but to say thatthe court may accept the fact proved only

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when it has satisfied itself on itsobservation that it is safe to accept theopinion whether of the expert or otherwitness. The Supreme Court in an appealalso is entitle to call for the writings formaking a comparison thereof.

39. Likewise Hon'ble Apex Court also held in

reported case Ram Chandra and another V/s. State of

Uttar Pradesh (1957 Cri.L.J.559). In it, it was held by

the Hon'ble Apex Court that,

It may be that normally it is not safe totreat expert evidence as to handwriting as

sufficient basis for conviction. It maybe, however, relied upon along with othervarious items of external and internalevidence relating to the documentsinquestion.

40. From the above said principle laid down by the

Hon'ble Apex Court, it is clear that the opinion of the

handwriting expert cannot take place of substantive

evidence. Moreover particularly in this case, in view

of the conclusion in the above said para, that chit Ex

25 is clear manipulation, therefore the handwriting

expert's report Ex.66, is not at all considerable in

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this case in order to establish the allegation of the

prosecution that the Ex.25 is the handwriting of accused

Salim.

41. In this particular case the prosecution also

relied on the evidence of PW-1, in respect of submission

of audio cassette which is allegedly the conversation in

between John and complainant was recorded by the

complainant with the help of cassette player.

42. PW-1 complainant has stated that on 12/10/2001

he handed over the three audio cassettes to the police

Same fact has also been stated by PW-8 PSI Kulkarni, who

recorded the statement of complainant. But in respect

of handing over the said three cassettes, interestingly

no panchanama was prepared about the seizure of the same

from the PW-1 by the PW-8. The PW-1 in the evidence has

stated that he does not know whether the said panchanama

was prepared or not. Apart from this on record no such

panchanama putforth by the prosecution.

43. Though it is believed that the complainant

handed over the three cassettes allegedly containing

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conversation between him and John. It is important to

note here that the said cassettes were played down on

6/2/2007, that is just after the gap of six years when

the MCOCA provision was applied to the accused and it is

though stated by PW-1, he was called by the police at

the office of DCB CID and played such a cassette and

conversations were recorded in presence of panchas. In

this respect there is evidence of PW-12 Nigade PI, DCB

CID, he has stated after calling PW-1 the complainant in

the office the said cassettes were played and the

conversations were recorded as per Ex.102.

44. During the trial at the time of evidence of PW-1

complainant, the said cassettes were played in open

court but the cassette number third was not played

properly, that conversation was not properly heard in

the Court. Likewise, in the cassette no.1, there was a

conversation in between complainant and his sister

which is not useful to the case. Apart from this fact

about the said cassettes PW-1 stated that PSI Kulkarni

handed over those cassettes to him, but PSI Kulkarni has

stated that, he handed over the said cassettes to PW-12

but as stated supra no panchanama was prepared for

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seizure. Even in the chargesheet no such conversation

has appeared to be produced by the IO PI Kulkarni in

that case.

45. Apart from this fact, it is appeared that PI

Nigade, PW-12, has exercised in respect of recording

sample voice of accused Salim, vide Ex.101, he also

recorded voice sample of accused Jamil Jabbar Shaikh

and the voice sample of accused Afzal @ Raju, vide

panchanama Ext.39. The said voice samples were sent to

the voice analyzer at Kalina Forensic Science

Laboratory. The voice samples, which were recorded in

the different cassettes examined by voice analyzer and

tallied with the voice/conversation recorded in the

three cassettes produced by complainant to the police

But there is no conclusive opinion given by the voice

analyzer in the report and therefore, the witnesses

though listed by the prosecution, i.e., voice analyzer

has not been examined. Therefore, the alleged recording

of conversation by the complainant with the person who

gave threatening calls is not established by the

prosecution by the cogent evidence. Hence, the evidence

of PW-1, PW-8 and PW-12 to that effect is not much

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helpful to the prosecution.

46. Moreover, one important fact also been pointed

out by the defence in the cross-examination of PW-8

that the voice sample of the complainant was not

recorded either by PW-8 Shri Kulkarni or by PW-12 Shri

Nigade. Therefore, without voice sample of complainant

for the tally or for establishment of conversation in

the audio cassettes the sending of only voice sample of

accused referred above has no value. Therefore

considering all these facts, the evidence of PW-3

Mohd.Ayub, in which presence the voice sample was

recorded by PW-12, has no value.

47. Therefore, considering the evidence of PW-1

which is full of omissions and contradictions about the

filing of complaint and about the trap. Likewise

evidence of PW-2, about pre-trap and particularly after

trap then manipulation of chit Ex.25 having the name of

accused Salim and lacuna in the evidence of about the

identification of voice conversation in the audio

cassettes submitted by the complainant. The prosecution

has failed to establish the fact that there was

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threatening call given by the accused for the extortion

of amount initially Rs.50/- lakhs, then Rs.10/- lakhs

and finally Rs.5/- lakhs.

48. So far as allegation of the prosecution against

the accused about the formation of criminal conspiracy

punishable under Sec.120-B of IPC is concerned, except

the above said evidence, so also except the confession

available on record of accused no.1 Salim, accused no.2

Jamil and No.4 Shahidmiyan, no other evidence putforth

on record to establish such criminal conspiracy. Of

course, I have to consider confessional statement of the

said accused recorded independently by three witnesses

I will consider this evidence later on. But it is

sufficient to mention that the prosecution has failed to

establish the common object of the accused in order to

extort money from the complainant by giving the

threatening calls under the pretext of gang leader

Chhota Shakeel.

49. Now let us consider the evidence of prosecution

about the recording of confessional statement of accused

no.1 Salim, accused no.2 Jamil and accused no.4

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Shahidmiyan. Let us see the confession of said accused

one by one and evidence in support of the same.

50. The prosecution has examined PW-7 Manohar Bhoir

DCP, in order to prove the confessional statement of

accused no.4 Shahidmiyan, he has stated that on

26/12/2006, he received a letter from Jt.C.P., Ex.49, in

order to record the confession of accused no.4

Shahidmiyan. In turn he wrote a letter (Ext.50) to ACP

for production of said accused. On the same day then he

received a letter Ext.51 from ACP about the production

of accused with PSI Dhumal.

51. According to PW-7 Bhoir, PSI Dhumal of MRA Marg

Police Station, produced accused no.4 for recording his

confession at his office. Then according to him, he

recorded part-I Ex.52 of accused Shahidmiyan, then after

putting the formal question on Ex.52 he obtained

signature of accused no.4 and he also put his signature.

52. Then he handed over accused no.4 to PI Kadam of

MRA Marg Police Station, for reflection vide his letter

Ext.53 and directed to produce the accused on

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28/12/2006. Accordingly, PI Kadam produced accused

Shahidmiyan and then after the formal question he

recorded the confessional statement of him, i.e., part-

II, Ex.52-A and then finally put up his certificate

about voluntariness, which is at Ex.52-B and later on

sent the accused and confessional statement to the Chief

Metropolitan Magistrate, vide his letter Ex.54.

53. In respect of his confession and its value and

what procedure has to be followed while recording the

same, it has been vehemently submitted by Mr.Pasbola

advocate for the accused no.1 and Mr.Jagdish Shetty for

accused no.3 to 5 that such evidence particularly PW-7

PW-10 and PW-13 shows that they have not followed the

procedure laid down under Sec.18 of the MCOC Act and

Rule thereunder and also not followed the guidelines

laid down in Kartar Singh V/s State of Punjab ([1994] 3

Supreme Court Cases 569). Therefore, they have

vehemently submitted that the confession recorded above

said witnesses are not at all genuine or voluntary

confession of the accused nos.1, 2 and 4. They have

further submitted that the said confessional statement

has not been corroborated by any of the prosecution

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witness. Therefore, as a rule of prudence certain

corroboration is necessary, particularly on the backdrop

of the evidence of PW-7, PW-10 and PW-13 about the same

on the basis of the said confession no conviction can be

based.

54. The learned defence Counsel also relied on the

following reported cases in respect of acceptance of

confession.

1. State of Rajasthan V/s. Ajit Singh and Others([2008] 1 Supreme Court Cases [Cri] 287).

2. State (NCT of Delhi) V/s. Navjot Sandhu aliasAfsan Guru (2005 Supreme Court Cases [Cri]1715).

3. State of Maharashtra V/s. Siraj Ahmed NisarAhmed & Others ([2007] 2 Supreme Court Cases[Cri] 472).

4. Bharatbhai @ Jimi Premchandbhai V/s. State ofGujarat (2003 ALL MR [Cri] 164 [SC]).

55. Per contra Shri Shah learned SPP has vehemently

submitted that in the evidence of PW-7 PW-10 and PW-13

they have specifically stated that accused nos.1, 2 and

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4 have voluntarily confessed about their guilt and they

have properly recorded the same by following due

procedure laid down under Sec.18 of the MCOC Act and

Rule thereunder. Therefore, he has submitted that mere

certain omission in the procedure will not sufficient to

disbelieve the version of responsible officer. He has

submitted that the confessional statement of prime

accused coupled with the corroborative statement of co-

accused prosecution established the criminal conspiracy

hatched by all the accused for extortion of money from

the complainant. As such, he has submitted that

accused be convicted.

56. In Kartar Singh's case cited supra the Hon'ble

Apex Court has laid down certain guidelines for

recording the confession of the accused. On the basi

of the said guidelines it is clear that while enacting

MCOC Act, 1999 the legislature incorporated all the

guidelines in Sec.18 and the rule thereunder for

recording confession by the Dy.SP.

57. On the basis of the above said guidelines and

specific provision of Sec.18 and Rule under MCOC Act, I

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have to minutely scrutinize the evidence of PW-7, PW-10

and PW-13.

58. Then while testing the evidence of PW-7 Manohar

Bhoir DCP, with provision of Sec.18 and Rule thereunder

for recording confession, the Prosecution though stated

that evidence of DCP PW-7 states that all the procedures

have been followed and this fact also been stated by

PW-7 in his evidence in the Court. But apart from the

formal letters and production of accused before PW-7 by

the police officer and communication of letter in

between them the vital part is principal stage of

recording statement of accused, i.e., part-I and part-II

of the confession.

59. In respect of following the procedure of

recording such confession of accused no.4, while

perusing the cross-examination of PW-7, he has stated

and specifically admitted that he has not stated to the

accused that he is authorized to record the confession

He also mentioned in the part-I Ext.52 that, he would

not be handover the custody to DCB CID, even though

accused refused to give the statement. He also not

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asked the question to the accused about any receiving of

threat, inducement, promised to be specific in para 12

of his cross-examination. He has stated that he has not

mentioned the fact about asking such question in his

part-I and part-II Ex.52 and 52-A.

60. The most important fact is missing in the

confessional statement, i.e., Part-I and part-II that he

has not intimated to the accused that the confession if

any made by him that would be used against him as

evidence. Though he has stated this fact in the oral

evidence, but unfortunately for the prosecution thi

fact did not find place either in part-I and part-II of

the confession. This is the major defect in recording

confession by PW-7, because by not asking such question

to the accused or not intimating the accused about the

same is clear violation of provision Sec.18 and Rule

framed under the MCOC Act.

61. Therefore, there is a doubt that whether such

confession given by the accused Shahidmiyan is voluntary

or not and if the prosecution failed to establish the

confession is voluntary, then such confession can not be

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used as evidence against the accused himself or against

the co-accused.

62. Here one important fact is to be noted after

recording part-I Ex.52, interestingly the custody of

accused no.4 Shahidmiyan was handed over to PSI Kadam

MRA Marg Police Station. Admittedly FIR was registered

with the MRA Marg Police Station, and therefore, if a

custody of accused handed over to such police station

certainly there is possibility of influence and threat

by such police on accused during the reflection period

This basic fact has not been considered by PW-7 while

recording the confession. More important fact is also

pointed out in the cross-examination by the defence that

the PW-7 has not asked any question to the accused that

whether during the reflection period any police officer

contacted him. Therefore, all the fact brought in the

cross-examination of PW-7 clearly indicates that all the

basic procedure has been lacking while recording the

confession of this particular accused Shahidmiyan

Therefore, such confession is not reliable and cannot be

used against the accused and also against the co-

accused.

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63. The one another important fact is pointed out by

the defence that the PW-7 has given certificate in

regard to voluntariness of accused on a separate sheet

and this is one another violation of rule for recording

the confession.

64. Therefore, on the basis of fact narrated above

the evidence of PW-7 is not trustworthy in order to find

that the accused no.4 gave his confessional statement

voluntarily to him and he recorded the same vide Ex.52

and 52-A.

65. Now let us turn towards the confessional

statement of accused no.1 Salim Iqbal Qureshi. In order

to establish the confessional statement recorded of this

accused the prosecution has relied on the evidence of

PW-10 Shri Vishwasrao Salve DCP, he has deposed that he

received Ex.69 direction from Jt.C.P., for recording

confession of this accused. Then he wrote a letter Ex

70 to D.C.P., for production of accused and vide Ex.71

accused no.1 was produced on 25/12/2006.

66. He has further stated that on 27/12/2006 accused

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Salim was produced before him and after putting the

formal question for gathering the voluntariness of the

accused for giving the confessional statement. He

recorded the confession of accused no.1 as per his

narration vide Ext.72-A. On the basis of the said

examination-in-chief the prosecution has submitted this

witness has recorded the confessional statement o

accused Salim, who gave voluntarily confession. But

while perusing the cross-examination of PW-10 he also

replied identically as replied by PW-7 Mr.Manohar Bhoir

DCP.

67. Apart from the procedural lacuna in recording

the confessional statement and which come out in the

cross-examination of PW-10, the one important fact has

been pointed out by the defence in the cross-examination

of PW-10 that on part-I Ex.72, the date is mentioned

below the signature of PW-10 in English dated

27/12/2006, as well as below the signature of accused

Salim dated 27/12/2006. The same signature of PW-10 and

accused Salim alongwith the date 27/12/2006 also

appeared on part-II Ex.72-A. It means from these two

parts, i.e., part-I and part-II, it is pointed out that

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on the very day on 27/12/2006, part-I and part-II were

recorded by PW-10 Shri Salve. From this fact it is

clear that no reflection period was given by the PW-10

to the accused Salim after recording the part-I and

giving such reflection period is mandatory as per Rule 3

Sub Rule 4 of the MCOC Rules 1999. Therefore, such

confession recorded by the PW-10 of accused Salim is not

at all legal confession.

68. Of course PW-10 Shri Salve was called by my

predecessor at the time of deciding bail application of

the accused, that time he produced the document, i.e.

part-I, which is marked during trial Ex.79. In this Ex

79 there is a signature of Shri Salve in Marathi script

and bears date 25/12/2006, contrary to it on Ex.72 and

Ex.72-A, which bear date 27/12/2006 bears a signature of

Shri Salve PW 10 in English. Therefore, it appears that

this was another attempt of police to hide their misdeed

in respect of recording confession of accused no.1 Salim

Qureshi. As such a confession on which police i

heavily relying cannot be acceptable for conviction of

accused and other co-accused whose name mentioned

therein.

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69. Now, turn to the confessional statement of

accused no.2 Jamil. In order to establish the

confessional statement of accused no.2, prosecution has

examined PW-13 Shri Prashant Burde, DIG, initially in

his evidence he has stated that, he received a letter

from Jt.C.P., Crime, Mumbai, on 23/12/2006, for

recording confession of accused Jamil Shaikh, in C.R.no

84/01 of DCB CID Ex.110. He also stated that, he issued

a letter Ex.111 to ACP Kurne, for production of said

accused on 26/12/2006, at about 11.30 a.m. Then PSI

Dhumal, produced the said accused alongwith the letter

Ex.112.

70. He has further stated that after putting formal

question to the accused Jamil Shaikh, he prepared part-I

Ex.113, then later on handed over custody of said

accused for reflection with the letter Ex.114 and

directed the police to reproduce the accused Jamil on

27/12/2006 vide letter Ex.116. Accordingly, he made

entry in station diary vide Ex.117. According to him on

27/12/2006, accused Jamil was produced before him at

about 2.40 p.m. Then after putting necessary question

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and getting information from accused Jamil he recorded

confessional statement of accused Jamil vide Ex.118

Then issued certificate Ex.119 and finally asked the

police vide his letter Ex.120 to produce the said

accused before Chief Metropolitan Magistrate, Bombay

alongwith envelope containing confessional statement.

71. While perusing cross-examination of this witness

PW-13, he also committed the same mistake about checking

voluntariness of the accused for giving the confessional

statement. He has not put up the necessary question and

getting necessary answer from the accused before

recording confession, in order to verify the fact that

the accused giving statement without any threat or under

influence by police or anybody. He specifically

admitted that he did not inform the accused that if he

would not make confession, he would not be sent the

custody of I.O. Even, he has stated that no medical

papers about examination of accused was produced and he

has not made inquiry about the same. Even, it is not

disclosed to the accused that he has empower to record

his confession under the MCOC Act. He also not

disclosed to the accused that the confession if recorded

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would be used against him and also against co-accused as

evidence. Such basic question for declaring the

confession voluntarily has not been putforth by this

witness to the accused, therefore, such confession also

cannot be held as genuine and voluntarily made by the

accused Jamil.

72. Here one important fact also been pointed out by

the defence particularly Shri Pasbola and Shri Shetty

advocate, that all the accused, who allegedly gave

confessional statement as immediately retracted before

the Chief Metropolitan Magistrate, when they produced

before the respective officers. While perusing the

reports of Chief Metropolitan Magistrate, in respect of

all the three accused, i.e., accused no.1, 2 and 4, they

have reported that all the three accused retracted from

their statements allegedly given before PW-7, PW-10 and

PW-13.

73. In short, in view of the such retracted

confessional statements of accused nos.1, 2 and 4 and

also in view of the finding given supra about that such

confession are not voluntarily recorded by DCP and DIG

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Then as a rule of prudence, particularly in this case

certain corroboration is must in order to establish the

guilt against the accused in such serious cases.

74. In respect of confession, while perusing the

observation laid down by Hon'ble Apex Court in reported

case State of State of Rajasthan V/s. Ajit Singh cited

supra it was held that,

The non compliance of Rule with Sec.(5) ofthe Terrorist and Disruptive Activities(Prevention) Rules 1987, such confessioncould not be, therefore, be taken into

consideration for any purpose.

75. The identical observation has been laid down by

the Hon'ble Supreme Court in State of Maharashtra V/s

Siraj Ahmed Nisar Ahmed & Others, case cited supra that,

Under the TADA Act, considerable amount ofconfidence has been reposed on the seniorpolice officials for recording theconfessional statement. A confessionalstatement to police is not admissible underthe general law connected with administrationof criminal justice, which is made admissible

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under the TADA Act, and, therefore, strictcompliance with the procedure prescribedunder Sec.15 of the TADA Act read with Rule15 of the TADA Rules is expected to befollowed. Any confession made in defiance ofthe safeguards provided therein, would not berelied upon by a court.

76. The identical observation also been laid down by

the Hon'ble Apex Court in State (NCT of Delhi) V/s

Navjot Sandhu alias Afsan Guru and Bharatbhai @ Jimi

Premchandbhai V/s. State of Gujarat, cited supra.

77. Like provision laid down in TADA Act, similar

provision is also been incorporated in respect of

recording confession under Sec.18 of the MCOC Act

Precautionary rule have been framed, i.e., Rule-3 sub

rule thereunder in the MCOC Rules 1999. Therefore, the

above said observation of the Hon'ble Apex Court, though

laid down in the TADA cases are clearly applicable in

the cases under the MCOC Act, in respect of confessions

recorded by the police officials.

78. On the backdrop of basic principles laid down by

the Hon'ble Apex Court and precautionary measures for

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recording confession of the accused, so also the

provisions of Sec.18 and Rule-3 of the MCOC Rules and on

the basis of the evidence discussed above, I have no

hesitation to hold that all the confessional statements

of accused nos.1, 2 and 4, are not at all voluntary one

Therefore, no reliance can be placed on these

confessions for conviction of accused, who gave the

confessional statements as well as such confession

cannot be used as a piece of evidence against the co-

accused in this case.

79. Therefore, though the prosecution come with the

case of criminal conspiracy hatched between the above

said accused and wanted accused Chhota Shakil and Anwar

Shaikh, but there is lacuna in the evidence to establish

such conspiracy. Interestingly neither PW-8 Kulkarni

PW-12 Nigade and PW-15 Shri Kurane has stated a single

line in their respective evidence that there was such a

conspiracy in between all the accused to extort money

from complainant or others, such as PW-4 and PW-5.

80. So far as allegation of extortion against the

accused from PW-1 is concerned, I already held supra the

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evidence of PW-1. Other witnesses PW-2 and PW-8 are not

sufficient to establish the guilt of the accused even

the alleged trap has not been proved by the prosecution

on the backdrop of manipulation of chit Ex.25 and non-

compliance of provision in recording of confessional

statement.

81. Of course the prosecution examined PW-11

Rakeshchandra Prajapati, Nodal Officer of BPL Mobile

Communication Ltd., it is sufficient to say in single

line that this witness is not the person who taken out

printout Ex.81, and, therefore, Ex.81 is not properly

proved by the prosecution. Though the document

exhibited during the course of trial the contents is

required to be proved by the prosecution with sufficient

material and connected witnesses and not from any other

witnesses. Therefore, such testimony of PW-11 is not

sufficient to establish the contents of the printout of

Ex.81.

82. Of course, the PW-12, PI Nigade, has stated that

he has arrested accused Salim Fruit, Jamil and Sabir

Shaikh and recovered two mobile handsets from them and

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prepared arrest panchanama Ex.100. But on the backdrop

of above said fact and the conclusion arrived, the

evidence of PW-12 about mere arrest of accused no.1, 2

and 3 is not sufficient.

83. On the basis of the evidence stated supra the

prosecution failed to establish the guilt of the accused

for the offences punishable under Secs.387, 120-B r/w.34

of the Indian Penal Code, therefore, I answer the point

no.1 in the negative.

POINTS NO.2 TO 4

84. In respect of application of MCOC provisions to

these accused advocates Mr.Pasbola, Ms.Shetty and

Mr.Jagdish Shetty have vehemently submitted that the

provision of MCOC Act, not at all applicable to this

case on the backdrop of failure of the prosecution to

establish the offences punishable under section of the

Indian Penal Code.

85. They have also submitted that the sanction

accorded by PW-14 Shri Anami Roy, is mechanical one

There was non application of mind, therefore, the

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evidence of PW-14, likewise evidence of PW-4 and PW-

for establishing the provisions of MCOC Act, are not

believable. In order to support their contention for

non-application of provisions of MCOC Act, they have

relied on the following reported cases:

1. Madan Ramkisan Gangwani V/s. State ofMaharashtra, (2009 ALL MR [Cri] 1447).

2. Prafulla Uddhav Shende V/s. State ofMaharashtra, (2009 ALL MR [Cri] 870).

3. Criminal Appeal no.265 of 2010 in betweenNazeem Ahmed Wahid Ahmed Khan @ Raju V/s.State of Maharashtra decided on23/11/2010 by Hon'ble Bombay High Court.

86. The prosecution in order to prove the sanction

and also the application of mind for giving the

sanction by the PW-14 examined Shri Anami Roy, who has

deposed that after receiving of the report from

investigating officer ACP Kurne, about crime no.84/01

DCB CID, he perused the same and accorded the sanction

for prosecution against the accused under sec.23(2) of

the MCOC Act, vide Ex.125. He has stated that he has

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perused all the papers of investigation for according

sanction under Sec.23(2) of the MCOC Act. But important

fact is admitted by him in the cross-examination that

when he accorded sanction the report of CFSL regarding

Voice Spectrum Analysis was not received. In short

investigation paper was sent by IO Shri Kurne, the main

evidence was not before C.P. PW-14. Because by that

time it was not established about the connection of the

arrest of the accused except accused no.5 and 6, who

were allegedly arrested during the trap.

87. Apart from this fact, though the prior approval

under Sec.23(1) of the MCOC Act, vide Ex.138 was there

and which was proved by PW-15 Shri Kurne, for

application of MCOC provision. But sanction under Sec

23 sub-clause (2) is just necessary and for giving the

same there should be application of mind on the part of

the person who accorded the same. In order to establish

the organized crime syndicate or whether the accused are

the members of the syndicate at least some prima facie

evidence is required for according the sanction by C.P

In this particular case, except the retracted confession

of accused nos.1, 2 and 4 and except two chargesheets

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filed against wanted accused Chhota Shakeel, Ex.129 and

130, no other material were placed before the PW-14

Therefore, it is clear that none of the accused except

accused Chhotal Shakeel were prosecuted previously or

chargesheeted in respect of any of the offence of any of

the police station within Mumbai jurisdiction. Even in

the previous chargesheet in this particular case filed

by Shri Kulkarni, wanted accused Chhota Shakeel was not

shown as accused, therefore, in such circumstances, the

material placed before the PW-14 was not sufficient to

accord the sanction, till then such sanction has been

accorded. Therefore, though it is open to the

prosecution to establish that proper sanction has been

accorded by C.P., under Sec.23 sub-clause (2) of the

MCOC Act, during the trial, but on the basis of evidence

stated supra, I come to the conclusion even the sanction

accorded by PW-14 was a clear non application of mind.

88. For application of provision of MCOC Act, our

Hon'ble High Court has laid down certain guidelines in

Madan Gangwani case cited supra it was held that,

In order to constitute organised crime, thecrimes committed prior to coming into force

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of MCOCA, can only provide a background andcannot in themselves constitute organisedcrime.

It has further held that,

For establishing organised crime the proof

of each ingredients in the definitions laiddown under Sec.2 and 3 of the MCOC Act or thealternative thereof provided by suchdefinitions would have to be proved.

89. In short Hon'ble Parent High Court has laid down

a basic principle that each and every ingredients laid

down under Secs.2 and 3 in the definition of organized

crime and continuation of crime must be established.

90. In this particular case, in order to application

of provisions of MCOC Act, the prosecution has come with

the case that the accused are members of organized crime

syndicate headed by wanted accused Chhota Shakeel, but

none of the evidence produced on record to establish

such a fact except the confessional statement of accused

nos.1, 2 and 4, which I have held are not genuine

document and such statements are not voluntarily made by

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the accused.

91. Therefore, now remains only evidence of PW-4 and

PW-5 for showing alleged continuation of crime by the

organized crime syndicate. PW-4 Shakil Patni, has been

examined by the prosecution, but unfortunately for the

prosecution this witness turned hostile and not

supported the prosecution case saying that he has not

received the threatening calls from the gangster Chhota

Shakeel. The detail cross-examination has been held by

SPP of this witness PW-4, but nothing come out to

support the prosecution.

92. Now remains the evidence of PW-5 Saifuddin

Khargonwala, he has stated that the he gave Rs.10/-

lakhs to the caller, who disclosed his name as John and

also gave Rs.5/- lakhs to the same caller and he

identified accused no.5 Afzal in the court, who

allegedly received the said ransom Rs.10/- lakhs and 5/-

lakhs in the month of October, 2001.

93. Here one fact should be noted that this witness

was called by the DCB CID in the year 2006, it means

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just after the six years of the alleged incident o

handing over of the ransom to the accused no.5. During

the cross-examination he has admitted that accused no.5

was pointed out to him by the investigating officer Shri

Kurane, in the police station. Interestingly, after

2001 till 2006, when his statement recorded he has no

occasion to see accused no.5. Even he has stated he

collected that amount Rs.10/- lakhs from his relative

Tahir Hussein, but again prosecution has not established

the fact about receiving of the said amount by PW-5, and

handed over to accused no.5.

94. Apart from these above facts, the prosecution

has not established the case in which manner they came

to know that PW-5 also received such threatening calls

from the accused particularly accused no.5 and from

John. Therefore, on the backdrop of above said evidence

and lacuna in the prosecution case, I am not inclined to

believe on the evidence of PW-5 who allegedly handed

over the ransom Rs.10/- lakhs and Rs.5/- lakhs twice to

accused no.5 Afzal @ Raju. Therefore, by looking all

angles, the prosecution failed to establish that the

accused are the members of organized crime syndicate

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headed by Chhota Shakeel and their criminal activities

are continued. The prosecution has also not established

that the accused threatened to the complainant by giving

calls again and again for ransom. Therefore, I answer

above points no.2 to 4 are in the negative.

95. To sum up prosecution failed to establish

allegation against the accused punishable under Secs

387, 120-B r/w.34 of the IPC and Sec.3(1)(ii), 3(2)

3(4) of the MCOC Act, 1999. Therefore, all the accused

deserves to be acquitted, with this conclusion, I

proceed to pass the following order:

O R D E R

1. The accused no.1 Salim Iqbal Qureshi @ Salim

Fruit, no.2 Jamil Haji Abdul Jabbar Shaikh, no.3

Mohd. Sabir Suleman Shaikh, no.4 Shahidmiyan

Natthumiyan Qureshi, no.5 Afzal @ Raju Chocolate

Abdul Kadar Supariwala, no.6 Mohd.Salim Alim

Khan and no.7 Mushtaque Abdul Rehman Nawab are

hereby acquitted u/sec.235(1) of Cr.P.C., of the

offences punishable u/secs.120B, 387 r/w 34 of

the Indian Penal Code and u/sec.3(1)(ii), 3(2)

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and 3(4) of Maharashtra Control of Organised

Crime Act 1999.

2. Their bail bonds stand cancelled.

3. Unmarked Muddemal, i.e., two mobile handsets one

make of Nokia Company with battery and another

make of Samsung company be forfeited to the

State Government and it be sold in auction and

sale proceed be credited to the Government of

Maharashtra.

4. Muddemal Art.1 colly., grey colour bag, paper

slips of the size of currency notes, Arts.no.2

3 and 4 Cassettes, Art.5 polythene bag, wrapper

alongwith label, Art.no.6 label with signature

of panchas on cassettes and Unmarked articles

Six cassettes and one small cassette and all

unmarked wrapper and label being worthless be

destroyed after the period of one year under

para 73(d) of Criminal Manual

5. In respect of wanted accused namely, Shaikh

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Shakeel Babu Mohiddin Shaikh @ Chhota Shakeel

and Anwar Mohiddin Shaikh, the investigating

officer is directed to file separate chargesheet

whenever they found.

(S.T.MAHAJAN)Date: 24/1/2011 Special Judge under

MCOC Act

1. Date of dictation :24.01.20112. Date of transcription :08.02.20113. Date of Signing :09.02.20114. Delivered to certified

copy section on :

-// True Copy //-

(S.T.MAHAJAN)Special Judge under

MCOC Act

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Chhota Shakeel Gang MCOCA Court Judgement

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