JAMIRUDDIN GULAM RASUL ANSARI Vs. UNION OF INDIA

JUDGEMENT

(1.) Two Appeals, filed under Sec. 374 (2) of the Code of Criminal Procedure read with Sec. 12 of the Maharashtra Control of Organised Crime Act, 1999 (for short 'MCOCA), assailing the Judgment dtd. 9/1/2023, passed by the Special Judge under MCOCA, are admitted by this court on 21/3/2023. On the Appeals being admitted, the Appellants therein have taken out distinct Interim Applications viz. IA No.451/2023 and IA No.519/2023 under Sec. 389 of the Code, seeking suspension of the sentence imposed upon them, pending the hearing and final disposal of the Appeals and praying for their release on bail.

(2.) Heard learned senior counsel Mr. Ponda, for the Applicant in IA No.519/2023, who has preferred Criminal Appeal No.140/2023, and Mr.Sejpal for the Applicant in IA No.451/2023 who has filed Criminal Appeal No.63/2023. Respondent No.1-Union of India is represented by Special PP Mr.Pradeep Gharat. The learned senior counsel Mr. Ponda representing the Applicant, Jagdish Prasads Mohanlal Joshi (IA No.519/2023) would submit that the Applicant was never ever arrested during the course of trial and he was on bail throughout the trial and has been taken into custody upon his conviction under the impugned Judgment, but in no case, he is at flight risk. He would submit that the Applicant attended the entire trial and since he is having a permanent residence in Mumbai, there is no reasonable basis for harboring any apprehension, that he shall abscond or evade the process of law. As far as, Applicant Jamiruddin Gulam Rasul Ansari(IA No.451/2023) is concerned, it is urged by the learned counsel Mr.Sejpal, that he was on bail during the trial and never misused the liberty conferred upon him and hence awaiting the outcome of the Appeal, even he seek his release on bail. Both the respective counsel have invited my attention to the impugned Judgment, which according to them has failed to appreciate the evidence placed before the learned Judge and has resulted in serious error, in awarding the conviction under the provisions of MCOCA. It is specifically asserted that the provisions of MCOCA against the Applicants have been applied in mechanical manner without application of mind and, therefore, the bar specified under Sec. 21(4) of the MCOCA for releasing the Applicants on bail, cannot be attracted. Further, it is also the submission that other offence under IPC i.e. extortion, kidnapping are also not made out.

(3.) The crux of the arguments of Mr. Ponda, in support of his client is to the effect that the prosecution has failed to establish direct nexus between the Applicant and the organized crime syndicate, allegedly lead by Accused Nos.3 and 7 and there is no charge-sheet filed against the Applicant in preceding 10 years, wherein, the Court had taken cognizance of such offence. Apart from this, it is also argued by him that from the reading of the impugned Judgment, it is clearly evident that the prosecution has failed, beyond reasonable doubt to establish that the Applicant has derived any pecuniary gain or benefit as a part of continuing unlawful activity and hence the necessary ingredient of establishing an offence of MCOCA not being fulfilled by the prosecution, the conviction cannot be sustained. Mr.Sejpal would adopt the argument of Mr.Ponda, as even according to him the most essential factum of the Applicant being a member of organized crime syndicate, is not established by the prosecution and this aspect is completely ignored by the Special Judge.