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Shiv

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.35 OF 2006

The State of Maharashtra

… Appellant

Vs.

Anwar Salim Sayyad & Ors.

… Respondents

Ms. S. S. Kaushik APP for the Appellant-State.

Mr. Lokesh Zade i/b Rohan Nahar for Respondent Nos.2, 4 to 7.

Mr. U. B. Nighot for Respondent No.3.

CORAM : S. M. MODAK, J.

DATED : 29TH NOVEMBER 2022.

P.C:-

1.

Heard Ms. S.S. Kaushik learned APP for the Appellant-State and

learned counsel Mr. Lokesh Zade for Respondent Nos.2, 4 to 7 and

learned Advocate Mr. U. B. Nighot for Respondent No.3.

2.

The Appeal was admitted on 15th December 2005, against

eight accused/Respondent Nos.1 to 8. However, on 15th June 2022,

this Court directed the Appellant to take necessary steps to serve

Respondents-accused Nos.1 and 8 within a period of four weeks,

failing which, it is observed that the Appeal will stand dismissed.

Unfortunately, no steps were taken and that’s how the Appeal stood

dismissed against Respondent No.1 and 8.

3.

The Special Judge under the Maharashtra Control of Organized

Crime Act, 1999 (hereinafter referred as “MCOC Act”) acquitted all

HEMANT

CHANDERSEN

SHIV

Digitally

signed by

HEMANT

CHANDERSEN

SHIV

Date:

2022.12.08

18:13:46

+0530

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eight accused as per the judgment dated 9th June 2005, for the

offences punishable under section 3(1)(i), 3(1)(ii), 3(2) and 3(4) of

MCOC Act. The correctness of said decision is challenged by way of

this Appeal. The Special Judge acquitted all accused persons for the

reason that there is failure of prosecution to prove that accused

persons were the members of organised crime syndicate headed by

absconding accused – Sham Manohar Shishupal. One more reason for

acquittal is that confession recorded under section 18 of the MCOC

Act for accused nos.1 and 2 was recorded by keeping certain lacuna in

it.

4.

Learned APP has taken me through reasons given in the

impugned judgment and evidence of 17 witnesses examined on behalf

of the prosecution. It is material to note that except the offence under

section 3 of the MCOC Act, they were not charge-sheeted for any other

offence under the Indian Penal Code or any other Penal law. It is

important to note that the Act came into force in 1999 and the

charge-sheet was filed in year 2001 and the judgment came to be

passed in year 2005. At that time implementation of this Act was at

nascent stage and all machinery including the Court, were not fully

aware about correct meaning of the terminologies used in the MCOC

Act.

5.

This Court as well as Hon’ble Supreme Court in various

judgments, have explained those terminologies and now law is almost

settled. When implementation of the Act is at nascent stage, the law

enforcing agencies are always in dilemma i.e. to say whether to adopt

this mode or whether to adopt that mode. Ultimately, they are

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expected to adopt particular mode. Even though the first informant,

has taken lot of pains in collecting all the crime details against eight

accused persons and sent proposal for approval, it seems that when

the stage of proving a case before the Special Judge has come, the

prosecution could not convert that material into legally admissible

evidence.

6.

It is also for the reason of certain procedural lacuna. There is

no reason to believe that they were deliberate but they have occurred

due to interpretation of provisions of the Act as appealed to their

conscious but finally it was not accepted by the Constitutional Courts.

The Constitutional Courts interprets law after hearing both sides. So

even though learned APP strenuously argued the matter, it has not

appealed to conscious of this Court also so as to interfere in the

findings of the trial Court. I will given reasons for arriving at that

conclusion hereinafter.

7.

When evidence of the first informant is perused, this Court finds

that the first