RAFIQUE A MALIK Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an application by the accused who is involved in a scam presently and popularly known as 'Shoe scam of Mumbai'. It appears that the petitioner had previously applied to the Sessions Court, Mumbai, as well as this court for grant of anticipatory bail, but these applications came to be rejected. The petitioner then moved Supreme Court for grant of anticipatory bail and the Supreme Court by its order dated 29-11-1996 directed the petitioner to surrender before the concerned Court and accordingly the petitioner surrendered on 6-12-1996 before the Additional Chief Metropolitan Magistrate, Mumbai, whereupon he was remanded to police custody for some days and thereafter to judicial custody. Thereafter, he moved the Sessions Court, for grant of bail, but that application came to be rejected. That is how, the present application has been filed.

(2.) I have heard Shri Nitin Pradhan for the petitioner and Shri Namjoshi with Shri Huldikar, Special Public Prosecutors for the State.

(3.) IT is not disputed that right from 6-12-1996, the petitioner has been in custody and period of 70 days has now elapsed. I have been taken through the grounds reiterated by the Respondent-State for resisting application for grant of bail. It will be seen that right from the stage of remand as well as while opposing anticipatory bail application self same grounds and contentions are raised. After hearing both sides, the only ground which survives for consideration in this case is the apprehension of the Respondent-State regarding tampering by the petitioner with prosecution witnesses. It is nowhere disputed by Shri Namjoshi Spl.P.P. that there is no possibility of the petitioner absconding in this case and, therefore, that ground does not survive and the only possibility and apprehension expressed by the respondent-state regarding tampering with prosecution witnesses by the petitioner will have to be considered in this case. In this behalf, Shri Namjoshi, Spl.P.P. submitted a chart of progress made in the investigation of the case and also remaining part of the investigation. It was submitted that in regard to the bank officials and the persons from whom petitioner and others purchased finished products of leather, if the interrogation is started after release of the petitioner on bail, he may caution these witnesses and that way tamper with the evidence. It was submitted that this was very delicate aspect of the matter and, therefore, it is necessary that the petitioner is not released until this part of the investigation is over. In this connection, it is to be seen that investigation in this case started from October 1996. Thereafter, petitioner had applied for grant of anticipatory bail to the Sessions Court, Mumbai, and he was granted temporary interim bail on certain conditions including that he shall report to GB, CB, CID, Mumbai, which he had been attending. If that was the position, then it is to be seen that there was no complaint of tampering with evidence at any time. It cannot also be said that there is absolutely no merit in the submission of Shri Namjoshi. However, more than two months have elapsed and the respondent-state had opportunity to complete the investigation so far as the witnesses in regard to whom possibility of tampering is apprehended. That could have been done long back. Even then, mere apprehension at this stage would not be enough and in case it is found that the petitioner has indulged in tampering in the slightest way, it would be open to the respondent-state to move for cancellation of the bail in favour of the petitioner. Thus, having regard to the facts and circumstances of the case and the facts that the petitioner has been in custody for more than two months, I find that the petitioner cannot be kept indefinitely in custody. Shri Namjoshi even went to the extent of contending that maximum period of 90 days is permissible for filing charge sheet and petitioner should be kept in custody because even during that time investigation is not likely to be completed. It was submitted that this is a very grave and serious offence affecting economy of the State and in these circumstances, by its very nature, petitioner should be kept in custody for the maximum period permissible in law. I do not think that this submission could be accepted at this stage and merely on the ground of gravity of the offence, persons cannot be indefinitely detained in custody. It is also to be seen that law regarding bail at present is in favour of grant of bail and not jail.