2006 Supreme(Bom) 1399

IN THE HIGH COURT OF BOMBAY
(A. M. Khanwilkar, J.)
MOHAMAD IQBAL FAROOQ SHEIKH and another - Appellants.
vs.
STATE OF MAHARASHTRA - Respondent.
Cri. Appeal No. 115 of 2001
Decided on 4/5-9-2006

Advocates Appeared
For appellant No. 1 : Nitin Sejpal, appointed as amicus curiae
For appellant No.2: Nitin Sejpal with Ms. Pooja P. Bhojane
For respondent-State: V. B. Konde-Veshmukh, APP

The confessional statements of the accused were found to be inadmissible due to the lack of certification by the recording officer below the confession about his personal satisfaction of the voluntary character of such confession, as required by section 18 of the MCOC Act.

Headnote:

MCOCA - Appeal by accused Nos. 2 and 3 - Section 3(2) of MCOC Act - Summary

Fact of the Case:

The appellants, along with one other accused, were charge-sheeted and tried for offences under section 307 read with section 120-B, Indian Penal Code, and also under section 3 read with section 25, section 5 read with section 27 of the Arms Act, and further under section 3(1)(ii), 3(2), and section 3(4) of the Maharashtra Control of Organised Crime Act, 1999. The incident in question occurred on 19th March, 1999, where the accused attempted to commit murder and caused hurt to the victims.

Finding of the Court:

The trial Court recorded finding of guilt against all the accused. The trial Court passed an operative order finding accused No. 1 guilty for various offences and sentencing him accordingly. Accused No. 2 was found guilty for offences punishable under section 120-B, Indian Penal Code read with section 3(2) of the M.C.O.C. Act, 1999 and was sentenced to suffer R.I. for 5 years and to pay a fine of Rs. 5 lakhs. Accused No. 3 was also found guilty for similar offences and was sentenced accordingly. The substantive sentences of imprisonment imposed against accused No. 1 to run concurrently except sentence imposed in default of payment of fine. The case against the absconding and wanted accused was to remain on dormant file.

Issues: The main issues considered by the Court were the admissibility and sufficiency of the confessional statements of accused No. 1 and 2, and the efficacy of the test identification parade conducted by the Special Executive Officer.

Ratio Decidendi: The confessional statements of accused No. 1 and 2 were found to be inadmissible and were discarded due to the lack of certification by the recording officer below the confession about his personal satisfaction of the voluntary character of such confession, as required by section 18 of the MCOC Act. The test identification parade conducted by the Special Executive Officer was found to be ineffective due to inordinate and unexplained delay in holding the parade and the failure to question the witnesses about their opportunity to see the accused or their photographs before the parade.

Final Decision: The appeal was allowed, the impugned Judgment and order was set aside, and the appellants were acquitted of the charge for which they were found guilty by the trial Court. The appellants were to be set at liberty, unless required to undergo sentence in any other offence.