Gajender Singh vs State

Mukta Gupta, J.—By this petition the Petitioner seeks bail in FIR No. 27/2009 u/s 3 of the Maharashtra Control of Organized Crimes Act, 1999 (in short "MCOCA") registered at PS Special Cell, Delhi. Learned counsel for the Petitioner contends that the Petitioner is in custody since 8th March, 2009. He was allegedly apprehended from near the metro station in a car along with the co-accused Raj Kumar. The necessary ingredients of offence punishable u/s 3 of MCOCA are not made out as the Petitioner is allegedly involved only in one case, that is, FIR No. 11/2009 at the time when they were apprehended. Even as per the case of the prosecution he has been allegedly associated with the Syndicate since middle of the year 2008 only. The other case alleged, that is, case FIR No. 429/2008 under Sections 394/ 120B IPC registered at Haridwar the Petitioner has already been acquitted as the witnesses failed to identify him. Even in the sanction sought for registering the present case there was no mention of the FIR No. 11/2009 under Sections 186 /353 /307 IPC. Some telephonic intercepts are being used against the Petitioner however, none of the conversation show that the Petitioner was involved in the working of the syndicate. The Petitioner is being sought to be connected allegedly on the basis of some conversion of his mother with the co-accused. There is no evidence that the Petitioner has obtained any pecuniary advantage. Reliance is placed on Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra and Another, , Chenna Boyanna Krishna Yadav Vs. State of Maharashtra and Another, State of Maharashtra and Others Vs. Lalit Somdatta Nagpal and Another, , Shridhar Sumant Vagal Vs. State of Maharashtra and Another, Shridhar Sumant Vagal Vs. State of Maharashtra and Another,

Learned APP for the State on the other hand contends that the facts of FIR No. 11/ 2009 dated 8th March, 2009 under Sections 186 /353 /402 /420 /467 /468 /120B /34 IPC and 25 /26 Arms Act, PS Special Cell, Delhi were put up to the competent authority for seeking approval u/s 23(1) of the MCOCA is evident from the order granting approval itself wherein the details of the case are clearly mentioned. Nothing was concealed from the competent authority. The fact that the Petitioner has been acquitted in FIR No. 429/2008 of robbery along with other members of the syndicate still attracts the provision of Section 3 of the MCOCA. From a perusal of the intercepted conversation it is evident that the ill-gotten money of the syndicate was being invested in properties, banks accounts trucks, cars etc. The Petitioner is an active BC of PS Paharganj, Delhi who has been involved in a number of cases. The Petitioner has already been convicted in case FIR No. 454/1997 under Sections 392 /397 /34 IPC registered at PS Kamla Market and awarded an imprisonment for a period of seven years with fine. Reliance is placed on Union of India (UOI) Vs. Shri Shiv Shanker Kesari,

I have heard learned counsel for the parties.

A perusal of the case of the prosecution shows that on a secret information that members of the syndicate involved in committing robberies are roaming in Rohini area in Santro Car bearing No. DL 3C AP 6338 a raid was conducted. The Petitioner and the co-accused Raj Kumar @ Dhanwant, the main kingpin of the syndicate were found in the Santro car. The Petitioner and the co-accused had got down and when the police party wanted to nab them, on seeing they tried to run away while co-accused Raj Kumar open fired. After a chase two of them were arrested and the pistol of Raj Kumar with live cartridges and open shells recovered from the spot were seized. On the said incident case FIR No. 11/2009 dated 8th March, 2009 was registered as abovementioned. During investigation it was revealed that the car in which the Petitioner was traveling with Raj Kumar was registered in the name of the father of the Petitioner. On their interrogation two more accused namely Baljender@ Balwinder Singh @ Satnam and Sachin Kamal @ Raju were arrested in this case. On their interrogation it was revealed that the Petitioner and his co-accused had criminal records and were involved in sensational robberies. Though initially they were indulging in these activities separately however, since middle of the year 2008 four of them joined hands and organized crime syndicate under Raj Kumar @ Dhanwant with the objective of committing bank robberies on gun point for the pecuniary gain of the syndicate. A perusal of the facts show that the Petitioner had been involved in eight criminal cases, three out of which are pending trial and in two he has been acquitted. The crime syndicate has been involved in 5 criminal cases of robberies in one of which i.e. FIR No. 429/2008 u/s 394 /120B IPC at P.S. Haridwar, Uttaranchal, the Petitioner was involved. The association of the Petitioner with the syndicate is evident from the fact that at the time when the Petitioner was apprehended, both Petitioner and the main kingpin of the syndicate Raj Kumar was traveling in the same car, the car belonging to the Petitioner''s father. Raj Kumar was armed with pistol. On ballistic examination, it has been found that the pistol which the co-accused Raj Kumar was possessing was linked to the empty shell recovered in case FIR No. 18/2009 u/s 393 /397 /120B /34 IPC and 25 /27 Arms Act registered at P.S. Kamla Market wherein the bank staff of Oriental Bank of Commerce were made hostage and robbery was committed. A perusal of the intercepted conversation done prior to the arrest of the Petitioner also show the links between the Petitioner, his family and the co-accused including main accused Raj Kumar. The conversation related to the sale of weapon possessed by the Petitioner, the money given by Gajender and the ?Bainama? of the Hastinapur property to be prepared in favour of the mother of the Petitioner. Further the mobile phone number used by the Petitioner was subscribed in the name of one Ram Kishore Tiwari on a non-existent address, The Petitioner has already been convicted in FIR No. 454/1997 u/s 392 /397/ 34 IPC and sentenced to imprisonment for a period of 7 years and fine. In Chenna Boyanna (supra) their Lordships laid down that a bare reading of the non-obstantive Clause in Sub-Section 21(4) MCOCA provides that the power to grant bail by the High Court or the Court of Sessions is not only subject to the limitations imposed under 439 Cr.P.C. but also subject to limitations placed by Section 21(4) of MCOCA. Besides granting opportunity to the public prosecutor the twin conditions required to be satisfied are that the accused is not guilty of the alleged offence and he is not likely to commit any offence while on bail, the conditions being cumulative and not alternative. Looking at the past history of the Petitioner, that he has been involved in offences of robbery wherein in one of the cases he has already been convicted and he has been associated with the syndicate for illegal pecuniary gain, no prima facie conclusion can be drawn that the Petitioner is not guilty of the alleged offence and that he will not commit the said offence while on bail. In the facts and circumstances of the case, I do not find it to be a fit case for grant of bail.

Petition is dismissed.