JUDGMENT

Surinder Singh Nijjar, J.

1. This appeal is directed against the judgment and order of the Bombay High Court dated 21st August, 2008 passed in Criminal Appeal No. 1044 of 2006 whereby the High Court dismissed the appeal by confirming the conviction and sentence imposed on the Appellant (A5) by the Special Judge of the Maharashtra Control of Organized Crime Act, 1999 (hereinafter referred to as "MCOC Act") in Special Case No. 3 of 2005.

2. The aforesaid appeal came up for hearing along with Criminal Appeal No. 1040 of 2006 filed by original accused No. 1, Vinod Sitaram Yadav @ Bapu and the original accused No. 3, Jagdish Bhaskar Shetty @ Raghu. Criminal Appeal No. 1048 of 2006 has been filed by original accused No. 4, Amit Suryakant Dalvi and Criminal Appeal No. 1049 of 2006 has been filed by original accused No. 2, Vishwanath Atmaram Jadhav.

PROSECUTION CASE

3. According to the prosecution, accused Nos. 1, 2, 3 and 5 are active members of the organized crime syndicate of Chhota Rajan. Accused No. 4 has aided, abetted and conspired with accused Nos. 1, 2, 3 and 5 in commission of various offences punishable under the MCOC Act. It had come to the notice of the police that there was a conspiracy to eliminate a prominent businessman of Mumbai, namely Bharat Shah. The plan was to kill him at the pan shop near `Mehta Bhuvan'. The office of Bharat Shah is situated at `Mehta Bhuvan', Charni Road, Mumbai. In order to successfully carry out the assassination, movements of Bharat Shah were kept under close watch. His office timings were communicated to these accused through telephone no. 0060133402008 by Bharat Nepali. The information about the conspiracy was received on or before 14th October, 2004 by D.C.P. (Detection), Mr. Dhananjay Dattatraya Kamlakar, PW-42 from his sources. He was informed that gangster Chhota Rajan, his gang members, and Bharat Nepali were communicating with the associates and other members of their syndicate on the aforesaid telephone number. According to the information of PW-42, the telephone number was of Malaysian origin. Although, the aforesaid telephone number was under surveillance of P.S.I. Vijay Dalvi (PW- 17) since 1st October, 2004, on receipt of the definite information with regard to the conspiracy, a request was put up to the Additional Chief Secretary (Home) seeking permission to intercept the aforesaid telephone number. The request was made on 14th October, 2004 and it was approved on 20th October, 2004.

4. Although the tapping of the aforesaid telephone had been officially approved since 20th October, 2004, P.S.I. Dalvi (PW-17) did not hear any worthwhile conversation till 28th October, 2004. On that day, he intercepted and recorded a conversation on the aforesaid telephone number. According to the prosecution, this was a conversation between the absconding accused Bharat Nepali on one hand and the accused Nos. 1, 2 and 5 on the other hand. The duration of the conversation recorded was of 9.16 minutes. The recorded conversation revealed a conspiracy to spread terror in the Dawood group in Mumbai. The conversation was also about the nature of the weapons to be used; the manner in which the assassination was to be carried out; behaviour of the assassin in the completion of the alleged crime; use of the weapons, i.e., one being .45 revolver and the other three being .38 bore revolver. The conversation on the telephone having been recorded, PW-17 noted the date and time of the cassette. He took the cassette to the senior officer, D.C.P. Kamlakar, PW-42. On receipt of cassette, D.C.P. Kamlakar played the cassette and heard the details about the conspiracy.

5. It is further the case of the prosecution that five accused and Bharat Nepali have contacted each other on their respective cell phones. The entire conspiracy was hatched on the cell phones. The police had, therefore, obtained printouts of the cell phones of the accused from the concerned telephone companies. The numbers of those cell phones of