Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra , (SC) BS82557
SUPREME COURT OF INDIA

Before:- N. Santosh Hegde, B.P. Singh and S.B. Sinha, JJ.

Criminal Appeal No. 523 of 2005 (Arising out of SLP (Crl.) No. 3879 of 2004). D/d. 7.4.2005.

Ranjitsing Brahmajeetsing Sharma - Appellant

Versus

State of Maharashtra & Anr. - Respondent

For the Appearing Parties :- A. Sharan, Additional Solicitor General, S.K. Dholakia, V.R. Manohar, Sr. Advocates with Ms. Sandhya Goswami, Vikas Sharma, P. Parmeswaran, Siddharth Singla and Ankur, Shyam Dewani, Shrikant Shinde, Sanjay Sen, Rana S. Biswas, Manish Pratap Singh, Ms. Sarla Chandra, Ms. Usha Dahanwkar, S.S. Shinde, Ravindra K. Adsure, Advocates.

A. Maharashtra Control of Organised Crime Act, 1999 (for short 'MCOCA'), Sections 24 and 3(2) - Bail in an offence under MCOCA - If the Court, having regard to the materials brought on record, is satisfied that in all probability accused may not be ultimately convicted, an order granting bail may be passed - The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any other offence whatsoever be it a minor or major offence.

[Para 39]

B. Evidence Act, Sections 45 and 51 - DNA and scientific evidence - For admissibility in evidence Court may consider the following :-

[Para 75]

C. Maharashtra Control of Organised Crime Act, 1999 (for short 'MCOCA'), Section 3(2) and 24 - Abetment - Offence of abetment by Public servant - An offence may be committed by a public servant by reason of acts of omission and commission which would amount to tampering with the investigation or to help an accused - Section 3(2) having regard to the definition of the term 'abet' refers directly to commission of an offence or assisting in any manner an organised crime syndicate, Section 24 postulates a situation where a public servant renders any help or support both before or after the commission of an offence by a member of an organised crime syndicate or abstains from taking lawful measures under this Act.

[Paras 27 and 29]

D. Maharashtra Control of Organised Crime Act, 1999 (for short 'MCOCA'), Section 2 - Meaning of organised crime - An offence falling within the definition of organised crime and committed by an organised crime syndicate is the offence contemplated by the Statement of Objects and Reasons - There are offences and offences under the Indian Penal Code and other penal statutes providing for punishment of three years or more and in relation to such offences more than one chargesheet may be filed - Only because a person cheats or commits a criminal breach of trust, more than once, the same by itself may not be sufficient to attract the provisions of MCOCA - Mens rea is a necessary ingredient for commission of a crime under MCOCA.

[Paras 27 and 28]

E. Maharashtra Control of Organised Crime Act, 1999 (for short 'MCOCA'), Section 24 - Commission of offence by Public Servant under MCOCA - A public servant can be said to have committed an offence within the meaning of the said provision if he (i) renders any help or support in any manner in the commission of an organised crime; (ii) whether before or after the commission of an offence by a member of an organised crime syndicate; or (iii) abstains from taking lawful measures under this Act; or (iv) intentionally avoids to carry out the directions of any Court or of the superior police officers in this respect.

[Para 33]

F. Indian Penal Code, Section 21 - Offence by Public Servant - Every act of negligence or carelessness by itself may not be a misconduct - Some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision.

[Paras 39 and 42]

G. Constitution of India, Article 21 - Presumption of innocence is a human right - Article 21 of Constitution not only protects life and liberty but also envisages a fair procedure - Liberty of a person should not ordinarily be interfered with unless there exist cogent grounds therefor. (2004)10 SCC 699, para 31 relied.

[Para 36]

H. Criminal Procedure Code, Section 439 - For the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail - Duty of Court at the stage of bail is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities.

[Paras 45 and 46]

I. Maharashtra Control of Organised Crime Act, 1999 (for short 'MCOCA'), Section 21(4) - Grant of bail in offence under a special statute - MCOCA is a Special Act - For grant of bail under this Act, Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction - The findings recorded by the Court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial Court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby - In the instant case bail granted to accused as no prima facie offence under MCOCA was made out from record. 2005(1) RCR (Criminal) 629 (SC) and 2004(2) RCR (Criminal) 254 (SC) relied.

[Para 46]

J. Maharashtra Control of Organised Crime Act, 1999 (for short 'MCOCA'), Sections 3(2) and 27 - Abetment by Public servant of offence under MCOCA - Any communication or association which has no nexus with the commission of organised crime would not come within the purview thereof - It must mean assistance to organised crime or organised crime syndicate or to a person involved in either of them - It, however, includes (a) communication or (b) association with any person with the actual knowledge or (c) having reason to believe that such person is engaged in assisting in any manner, an organised crime syndicate - Communication to, or association with, any person by itself, would not come within meaning of abetment.

[Paras 27 and 29]

Cases Referred :-

Shri Ram v. State of U.P., AIR 1975 Supreme Court 175.

Kehar Singh v. State (Delhi Admn.) [AIR 1988 Supreme Court 1883]

State of Karnataka v. L. Muniswamy [AIR 1977 Supreme Court 1489].

P.K. Narayanan v. State of Kerala [1995(1) SCC 142].

Sardar Sardul Singh Caveeshar v. State of Maharashtra, [(1964)2 SCR 378.

Saju v. State of Kerala, 2000(4) RCR (Criminal) 747 (SC) .

Narendra Singh v. State of M.P., 2004(3) RCR (Criminal) 613 (SC) : (2004)10 SCC 699.

Abdulla Mohammed Pagarkar etc. v. State (Union Territory of Goa, Daman and Diu) [AIR 1980 Supreme Court 499].

C. Chenga Reddy v. State of Andhra Pradesh, 1996(3) RCR (Criminal) 793 (SC) .

Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav, 2004(2) RCR (Criminal) 254 (SC) : [(2004)7 SCC 528].

Jayendra Saraswathi Swamigal v. State of T.N., 2005(1) RCR (Criminal) 629 (SC) : [(2005)2 SCC 13].

State v. Capt. Jagjit Singh, (1962)3 SCR 622 .

Gurcharan Singh v. State (Delhi Admn.), (1978)1 SCC 118 : (1978)2 SCR 358 .

Kartar Singh v. State of Punjab, 1994(2) RCR (Criminal) 168 (SC) : (1994)3 SCC 569.

Prakash Kumar alias Prakash Bhutto v. State of Gujarat, 2005(1) RCR (Criminal) 498 (SC) : [(2005)2 SCC 409].

Frye v. United States [293 F 1013 (DC Cir) (1923)].

Daubart v. Merryll Dow Pharmaceuticals Inc. [113 Sct 2786 (1993)].

General Electric Co. v. Robert K. Joiner [522 US 139 L.Ed. 2d].

Kumho Tire Co. Ltd. v. Carmichael [(1999) 119 S.Ct. 1167].

R. v. Watters [(2000) All ER (D) 1469].

JUDGMENT

S.B. Sinha, J. - Leave granted.

2. Interpretation and application of the Maharashtra Control of Organised Crime Act, 1999 (for short 'MCOCA') is involved in this appeal which arises out of a judgment and order dated 16th July, 2004 passed by a learned Single Judge of the Bombay High Court in Criminal Application No. 572/2004 refusing bail to the Appellant herein.

3. The Appellant is a former Commissioner of Police. He was posted in the city of Pune in the said capacity between 30th April, 2000 and 31st December, 2000. He was appointed Commissioner of Police, Mumbai on or about 1st January, 2003. Allegedly, he was so posted upon supercession of a few officers. A disciplinary proceeding was initiated against him on 25.11.2003 but without taking any further action thereupon, he was allowed to superannuate on 30.11.2003.

4. One Abdul Karim Ladsa Telgi (hereinafter referred to as 'Telgi') was arrested and proceeded against for alleged commission of offence of printing counterfeit stamps and forgery in various States including the State of Maharashtra. He was lodged in Bangalore Jail since November, 2001.

5. During the Appellant's tenure as Commissioner of Police, Pune, fake stamp papers worth Rs. 2.98 lacs were seized whereupon a first information report bearing C.R. No. 135 of 2002 came to be registered at Bund Garden Police Station, Pune under Sections 120B, 255, 249, 260, 263(a) and (b), 478, 472 and 474 read with Section 34 of the Indian Penal Code. The said offence was being investigated by one Mr. Deshmukh but having regard to the magnitude thereof, three teams lead by one Mr. S.M. Mushrif, Addl. Commissioner of Police (Crime) were formed. The said Mr. Mushrif is said to be a brother of a Minister of the Government of Maharashtra. On or about 16.07.2002, however, a proposal was mooted to invoke Section 3 of the MCOCA and upon obtaining the opinion of Senior Public Prosecutor therefor, the same was invoked.

6. One Mr. Mulani, Assistant Commissioner of Police (Crime Branch) had been included in the field work team along with other officers in connection with the investigation of the said crime. Overall supervision of the said crime, however, was entrusted to one Mr. Maheshgauri, Joint Commissioner of Police.

7. On the ground of alleged involvement in the aforementioned case, the Appellant was arrested on 1.12.2003 whereafter a remand application for 15 days of police custody was made but he was remanded to police custody from 2.12.2003 to 9.12.2003 and thereafter to judicial custody. His application for bail was rejected by the Special Court, Pune by an order dated 19.1.2004 whereupon he filed an application for grant of bail before the High Court. By reason of the impugned order, the said application has been rejected.

8. Before adverting to the rival contentions raised in this appeal, we may notice some admitted facts.

9. On the basis of the information received by the Appellant and on his direction to intercept the car and on his telephonic instruction thereabout, a first information report dated 7.6.2002 was lodged. During the course of the investigation of the said case, number of places were raided and huge quantity of stamps, printing machinery worth Rs. 21,28,47,63,824/- were seized from several accused persons.

10. The provisions of the MCOCA were invoked against Telgi who figured as accused No. 23 and Mr. Shabir Sheikh, accused No. 25 on the ground that a period of 90 days was coming to an end on 3.9.2002. On or about 22.11.2002, Mr. Jaiswal, DIG, SRPF, Mumbai granted an approval to invoke the provisions of the MCOCA whereupon DCP, Dr. Jai Jadhav took over investigation of the said case.

11. Before the High Court, the role of the Appellant was said to be rendition of help and support to organised crime syndicate by certain acts of omission and commission, i.e., by rendering help or support to Mulani, a co-accused when he was Commissioner of Police, Pune and through API-Dilip Kamat, co-accused while he was the Commissioner of Police, Mumbai.

12. The allegations against the Appellant as have been noticed by the High Court are as under :

13. The plea taken by the Appellant herein about his innocence was rejected by the High Court upon arriving the following findings :

14. Submissions of Mr. V.R. Manohar, learned senior counsel appearing on behalf of the Appellant are as under :

Mr. Jaiswal found the Appellant's guilt of dereliction of duty as early as on 3rd April, 2003 and despite the limited jurisdiction of the Special Investigation Team, he exceeded his brief implicating the Appellant. In this connection our attention has also been drawn to the recommendation made by SIT against various persons who do not figure as accused, viz., Prakash Deshmukh, Ashok Kamble, Kishore Jadhav, DCP Dr. Jai Jadhav, Vasant Koregaonkar which are as under :

It has been pointed out that despite such adverse comments both Mushrif and Maheshgauri have been cited only as witnesses and, thus, the Appellant was discriminated against.

15. According to the Appellant, however, in order of priority, the name of (1) PSI Shri Chavan, (2) P.I. Shri Prakash Deshmukh (3) P.I. Shri Kadam, (4) PC Shri Steven Sundaram, B.N. 756, (5) PC Shri Steven Sundaram, B.N. 756, (6) H.C. Lele were recommended and, furthermore, the following endorsement was made :

16. The names of ACP Mulani/Yadav and Davies, thus, were directed to be included only in the text, i.e., the history of the case and not for the purpose of grant of any reward.

17. Mr. A. Sharan, the learned Addl. Solicitor General appearing on behalf of the CBI, on the other hand, would contend that the Appellant had known Telgi both as a scamster as well as a person for a long time, *******as would appear from the statement of one Mr. R.S. Mopalwar, an IAS officer.

18. It was urged that from the statement of Mr. Maheshgauri, it would appear that the Appellant met Telgi alone, apparently for the purpose of interrogation, but no record thereof is available. The said statement is supported by Smt. Supriya Patil Yadav and Shri Vasant Koregaonkar, an affidavit of Mr. Mushrif in the Public Interest Litigation by Shri Anna Hazare.

19. According to the learned counsel the Appellant has helped those officers who did not want to make Telgi's wife, daughter and brother as accused by dragging his feet.

20. Mr. Sharan would contend that Mulani had in fact been involved in the investigating team work, as would appear from the notesheet file of investigation, inasmuch as he had interrogated some witnesses. Our attention has also been drawn to the answers given by the Appellant himself in response to the questionnaire dated 7.11.2003 contending that the Appellant accepted that Mulani had not been taken out of the team till 30th September, 2002 although he was transferred on 4th September, 2002.

21. Our attention has further been drawn to the brain mapping test of Telgi to show that the Appellant had accepted unlawful gratification from him.

22. According to the learned counsel, since beginning the Appellant had knowledge about the magnitude of the offence but despite the same, he helped Kamat by not implementing his order of suspension till 15th January, 2003 and, thus, allowed him to take steps to protect himself by arranging a fake seizure as was apprehended by Mr. Jaiswal. Drawing our attention to the judgment of the learned Single Judge, it was contended that having regard to the provisions of the MCOCA, the Appellant must be held to have conspired with the members of the organising team by facilitating commission of the crime. According to the learned counsel, in view of the sub-section (4) of Section 21 of the MCOCA, the High Court has rightly refused to grant bail to the Appellant.

23. MCOCA was enacted to make special provisions for prevention and control of, and for coping with, criminal activity by organised crime syndicate or gang, and for matters connected therewith or incidental thereto.

24. The Statement of Objects and Reasons for enacting the said Act are as under :

25. Section 2 is the interpretation clause. Section 2(1)(a), (d), (e) and (f) whereof read thus :

26. Sub-section (2) of Section 3 provides for punishment for organised crime in the following terms :

27. Section 4 provides for punishment for possessing unaccountable wealth on behalf of member of organised crime syndicate. Section 20 provides for forfeiture and attachment of property, sub-section (2) whereof reads as follows :

28. Section 21 provides for modified application of certain provisions of the Code of Criminal Procedure, sub-section (4) whereof is as under :

Section 24 reads, thus :

29. The interpretation clause as regard the expression 'abet' does not refer to the definition of abetment as contained in Section 107 of Indian Penal Code. It refers to such meaning which can be attributed to it in the general sense with grammatical variations and cognate expressions. However, having regard to the cognate meaning, the term may be read in the light of the definition of these words under Sections 107 and 108 of the Indian Penal Code. The inclusive definition although expansive in nature, "communication" or "association" must be read to mean such communication or association which is in aid of or render assistance in the commission of organised crime. In our considered opinion, any communication or association which has no nexus with the commission of organised crime would not come within the purview thereof. It must mean assistance to organised crime or organised crime syndicate or to a person involved in either of them. It, however, includes (a) communication or (b) association with any person with the actual knowledge or (c) having reason to believe that such person is engaged in assisting in any manner, an organised crime syndicate. Communication to, or association with, any person by itself, as was contended by Mr. Sharan, would not, in our considered opinion, come within meaning of the aforementioned provision. The communication or association must relate to a person. Such communication or association to the person must be with the actual knowledge or having reason to believe that he is engaged in assisting in any manner an organised crime syndicate. Thus, the offence under Section 3(2) of MCOCA must have a direct nexus with the offence committed by an organised crime syndicate. Such abetment of commission of offence must be by way of accessories before the commission of an offence. An offence may be committed by a public servant by reason of acts of omission and commission which would amount to tampering with the investigation or to help an accused. Such an act would make him an accessory after the commission of the offence. It is interesting to note that whereas Section 3(2) having regard to the definition of the term 'abet' refers directly to commission of an offence or assisting in any manner an organised crime syndicate, Section 24 postulates a situation where a public servant renders any help or support both before or after the commission of an offence by a member of an organised crime syndicate or abstains from taking lawful measures under this Act.

30. Interpretation clauses contained in Sections 2(d), 2(e) and 2(f) are inter-related. An 'organised crime syndicate' refers to an 'organised crime' which in turn refers to 'continuing unlawful activity'. As at present advised, it may not be necessary for us to consider as to whether the words "or other lawful means" contained in Section 2(e) should be read "ejusdem generis"/"noscitur-a-sociis" with the words (i) violence, (ii) threat of violence, (iii) intimidation or (iv) coercion. We may, however, notice that the word 'violence' has been used only in Sections 146 and 153A of the Indian Penal Code. The word 'intimidation' alone has not been used therein but only Section 506 occurring in Chapter XXII thereof refers to 'criminal intimidation'. The word 'coercion' finds place only in the Contract Act. If the words 'unlawful means' is to be widely construed as including any or other unlawful means, having regard to the provisions contained in Sections 400, 401 and 413 of the Indian Penal Code relating to commission of offences of cheating or criminal breach of trust, the provisions of the said Act can be applied, which prima facie, does not appear to have been intended by the Parliament.

31. The Statement of Objects and Reasons clearly state as to why the said Act had to be enacted. Thus, it will be safe to presume that the expression 'any unlawful means' must refer to any such act which has a direct nexus with the commission of a crime which MCOCA seeks to prevent or control. In other words, an offence falling within the definition of organised crime and committed by an organised crime syndicate is the offence contemplated by the Statement of Objects and Reasons. There are offences and offences under the Indian Penal Code and other penal statutes providing for punishment of three years or more and in relation to such offences more than one chargesheet may be filed. As we have indicated hereinbefore, only because a person cheats or commits a criminal breach of trust, more than once, the same by itself may not be sufficient to attract the provisions of MCOCA.

32. Furthermore, mens rea is a necessary ingredient for commission of a crime under MCOCA.

33. In Shri Ram v. The State of U.P. [AIR 1975 Supreme Court 175], it was stated :

34. Sub-section (2) of Section 3 inter alia provides for facilitating conspiracy or abetting or commission of a crime by a person knowingly or any act preparatory to organised crime.

35. The expression 'conspiracy' is not a term of art. It has a definite connotation. It must be read having regard to the legal concept which is now well-settled having regard to several decisions of this Court in Kehar Singh and others v. The State (Delhi Admn.) [AIR 1988 Supreme Court 1883], State of Karnataka v. L. Muniswamy and others [AIR 1977 Supreme Court 1489] and P.K. Narayanan v. State of Kerala [1995(1) SCC 142].

In Kehar Singh (supra), it is stated :

In P.K. Narayanan (supra), it is stated :

36. In Saju v. State of Kerala, 2000(4) RCR (Criminal) 747 (SC) , this Court held :

It was observed :

37. Mens rea, thus, to commit the crime must be established besides the fact of agreement.

38. The High Court does not say that the Appellant has abetted Telgi or had conspired with him. The findings of the High Court as against the Appellant are attributable to allegations of abetting Kamat and Mulani. Both Kamat and Mulani were public servants. They may or may not have any direct role to play as regard commission of an organised crime but unless a nexus with an accused who is a member of the organised crime syndicate or an offence in the nature of organised crime is established, only by showing some alleged indulgence to Kamat or Mulani, the Appellant cannot be said to have conspired or abetted commission of an organised crime. Prima facie, therefore, we are of the view that Section 3(2) of MCOCA is not attracted in the instant case.

39. Section 24 of MCOCA must be given a proper meaning. A public servant can be said to have committed an offence within the meaning of the said provision if he (i) renders any help or support in any manner in the commission of an organised crime; (ii) whether before or after the commission of an offence by a member of an organised crime syndicate or (iii) abstains from taking lawful measures under this Act or (iv) intentionally avoids to carry out the directions of any Court or of the superior police officers in this respect.

40. The purported acts of omission and commission on the part of the Appellant does not attract the first part of Section 24 of MCOCA. It is not the contention of the Respondents that he has committed any act which comes within the purview of Clauses (3) and (4) hereinbefore. The provisions of MCOCA, as for example, Section 20 casts a duty upon the persons concerned to see that properties of a member of the organised crime syndicate are attached. In view of Section 4, it also becomes the duty of the persons connected with the investigation of crime to see that persons, who are in possession of movable or immovable property which cannot be satisfactorily accounted for are brought to book.

41. The Act is deterrent in nature. It provides for deterrent punishment. It envisages three to ten years of imprisonment and may extend to life imprisonment. Death penalty can also be imposed if somebody commits a murder. Similarly, fines ranging between three to ten lakhs can be imposed.

42. Presumption of innocence is a human right. [See Narendra Singh and Another v. State of M.P., 2004(3) RCR (Criminal) 613 (SC) : (2004)10 SCC 699, para 31] Article 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exist cogent grounds therefor. Sub-section (4) of Section 21 must be interpreted keeping in view the aforementioned salutary principles. Giving an opportunity to the public prosecutor to oppose an application for release of an accused appears to be reasonable restriction but Clause (b) of Sub-section (4) of Section 31 must be given a proper meaning.

43. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence ? Is it necessary for the Court to record such a finding? Would there be any machinery available to the Court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever ?

44. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on records only for grant of bail and for no other purpose.

45. We are furthermore of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Indian Penal Code may debar the Court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What would further be necessary on the part of the Court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The Court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done. The Court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision.

46. In Abdulla Mohammed Pagarkar etc. v. State (Union Territory of Goa, Daman and Diu) [AIR 1980 Supreme Court 499], it is stated :

47. In C. Chenga Reddy and Others v. State of Andhra Pradesh, 1996(3) RCR (Criminal) 793 (SC) , it is stated :

48. Every act of negligence or carelessness by itself may not be a misconduct.

49. The provisions of the said Act, therefore, must receive a strict construction so as to pass the test of reasonableness.

50. Section 21(4) of MCOCA does not make any distinction between an offence which entails punishment of life imprisonment and an imprisonment for a year or two. It does not provide that even in case a person remains behind the bars for a period exceeding three years, although his involvement may be in terms of Section 24 of the Act, the court is prohibited to enlarge him on bail. Each case, therefore, must be considered on its own facts. The question as to whether he is involved in the commission of organised crime or abetment thereof must be judged objectively. Only because some allegations have been made against a high ranking officer, which cannot be brushed aside, may not by itself be sufficient to continue to keep him behind the bars although on an objective consideration the court may come to the conclusion that the evidences against him are not such as would lead to his conviction. In case of circumstantial evidence like the present one, not only culpability or mens rea of the accused should be prima facie established, the Court must also consider the question as to whether the circumstantial evidence is such whereby all the links in the chain are complete.

51. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the Court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.

52. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.

53. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-section (4) of Section 21 of the Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the Court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby.

54. In Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Another, 2004(2) RCR (Criminal) 254 (SC) : [(2004)7 SCC 528], this Court observed :

55. In Jayendra Saraswathi Swamigal v. State of T.N., 2005(1) RCR (Criminal) 629 (SC) : [(2005)2 SCC 13], this Court observed :

56. In Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Another [2005(2) SCC 42], this Court observed :

It was, however, observed :

57. We are not oblivious of the fact that in certain circumstances, having regard to the object and purport of the Act, the Court may take recourse to principles of 'purposive construction' only when two views are possible.

58. The High Court, in our considered view, considered the matter from a wrong perspective. Only because the Appellant had the power, the same would not by itself lead to a conclusion that he was a privy to the crime. As regard Mulani's visit to Bangalore, it is accepted that on all occasions he was accompanied by other officers. The purpose of such visit was to have a high level conference so as to enable the Government of Maharashtra to obtain custody of Telgi. On 9.7.2002, Mulani visited Bangalore in the company of the Appellant. On 23.7.2002, he visited in the company of Appellant as also the Additional Chief Secretary, Shri Basak. Those two visits were prior to 6.9.2002. On 11th September, 2002, he went to Bangalore in the company of Shri Sampat Kadam as the case of Telgi was fixed on that day. He is said to have been sent by Shri Mushrif. Dr. Jai Vasantrao Jadhav in his investigation note dated 15.12. 2003 stated :

59. On 18.9.2002, Mr. Mulani visited Bangalore in the company of the Addl. Advocate General of Maharashtra on which date the Court passed the order under Section 268 of the Code of Criminal Procedure.

60. As regards Mr. Mulani's participation in the investigation, we may notice that Dr. Jadav again in his statement dated 2.4.2002 stated :

61. As regards his inclusion in the team, Dr. Jadav had stated :

62. The Appellant, therefore, did not suggest the name of Mulani himself. He did so at the instance of Dr. Jadav and that too both by him as also the Joint Commissioner.

63. So far as the recommendation of the Appellant for inclusion of Mr. Mulani's name in the list of officers who were to be rewarded for having done best work, is concerned, it appears that 10 names were suggested for the said purpose. The Appellant changed the priority in the manner as indicated hereinbefore. Only those persons whose names are referred in the list were to receive award. The names of Mulani, Yadav and Davies were directed to be included in the text which would mean mentioning of their names in the history of case, as evidently they were involved in the investigation throughout.

64. Furthermore, the name of Mulani alone was not added but names of two other officers were also added. We may further notice that the Appellant by letter dated 22.11.2002 addressed to the Director General of Police made serious complaints against Mr. Mushrif stating :

65. About Mulani's lack of integrity, admittedly facts were made known to the Appellant only on 6.9.2002. Prior thereto, Mulani received very good remarks from his superior officers as would appear from a letter dated 21.3.2002 addressed by Shri A.K. Sharma to M.C. Mulani.

66. It is undisputed, as would appear from the stand taken by the State before the Maharashtra State Administration Tribunal, that transfer of Mulani was not by way of penalty but on administrative grounds. The State Government through Shri Ashok Basak also could have suspended Mulani. It does not appear from the records that apart from field work and searching for the accused Mulani took any part in investigation between 6.9.2002 and 30.9.2002.

67. Mr. Mushrif in answer to the questionnaire categorically stated that four teams were formed for investigation and Mulani was in the team of field work. He, having been brought by Mr. Mushrif, had been working earlier. Mr. Mushrif accepts that the Appellant had asked him to supervise the investigation of the teams. He had drawn a broad outline as to how to proceed systematically:

68. It is also noteworthy that in the said statement, in certain matters, the Appellant's role was described as under :

69. So far as the inspection of Cuffe Parade flat is concerned, the High Court failed to notice that at the time of inspection of the flat Jaiswal could have taken certain action which he did not. At least he could have seized his mobile. The Appellant took all steps which he could take. He passed telephonically an order of suspension of the officers in presence of Jaiswal when the matter was brought to his notice. When the letter dated 10.1.2003 reached him on 12.1.2003 he also passed an order of suspension in writing. It was for the Joint Commission to implement the said order of suspension. It is too much to expect that an officer passing an order of suspension must also see to it that his order is implemented by all concerned. The High Court is also not correct in attributing motive to the Appellant as regards seizure of fake stamps and genuine stamps from the Bhiwandi godown on 12.1.2003. The Appellant had no role to play therein. Before the learned Single Judge admittedly a wrong contention was raised on behalf of the Respondents that Jaiswal had at one point of time expressed a suspicion that the magnitude of Kamat's involvement may be minimised by making a fake raid.

70. For all intent and purport, the High Court has placed the onus of proof upon the Appellant, which is impermissible.

71. The Appellant faced a contempt petition before the Maharashtra State Administrative Tribunal and in his affidavit, he categorically stated that neither Mulani was the investigating officer nor supervisory officer. In his affidavit, as regard reason for his transfer to Special Branch from Crime Branch, he stated:

72. In Kartar Singh v. State of Punjab, 1994(2) RCR (Criminal) 168 (SC) : [(1994)3 SCC 569], this Court observed :

73. In Prakash Kumar alias Prakash Bhutto v. State of Gujarat, 2005(1) RCR (Criminal) 498 (SC) : [(2005)2 SCC 409], the Constitution Bench of this Court while noticing Kartar Singh (supra) observed :

74. The learned Additional Solicitor General, however, had drawn our attention to the statement of Mr. R.S. Mopalwar. The said statement was recorded on 21.6.2004. Shri U.K. Goel has also not been examined on the ground that he has gone out of the country. This material was not used before the learned Single Judge.

75. Mr. Saran laid emphasis on the fact that Telgi was interrogated alone by the Appellant after asking all others to leave the room without maintaining any record therefor.

76. In this connection, we may notice the questionnaire and statement of Shri Maheshgauri, question No. 50 whereof reads as under :

77. If the Appellant was knowing Telgi, there was no reason to seek to identify Telgi by reference to a person who used to visit Bombay Hospital, Dargah. Our attention has also been drawn to the report of the brain mapping test of Telgi. In the said report, it is stated :

78. As regard what transpired in the meeting with Telgi during interrogation by the Appellant, Dr. Jadhav made the following statement in the investigation note :

79. Therefore, there is some substance in the contention of Mr. Manohar that the Commissioner of Police may not like to interrogate an accused person as regard his political connections, if any, in presence of others, but the line of interrogation was revealed by Telgi immediately after he came out of his chamber. It further appears from the record that even Mushrif had interrogated Telgi exclusively.

80. Furthermore, it appears that it is Mushrif who wanted to keep wife, daughter and brother of Telgi out of the chargesheet, as would appear from the statement of Mr. Kishore Eknath Yadav to the following effect:

It was further stated :

81. Apart from the fact that nothing has been brought on record to show as to how far a report of brain mapping test can be relied upon, the report appears to be vague. It appears, the Respondents themselves did not want to put much reliance on the said report.

82. Furthermore, the admissibility of a result of a scientific test will depend upon its authenticity. Whether the brain mapping test is so developed that the report will have a probative value so as to enable a court to place reliance thereupon, is a matter which would require further consideration, if and when the materials in support thereof are placed before the Court.

83. In Frye v. United States [293 F 1013 (DC Cir) (1923)], the principles to determine the strength of any investigation to make it admissible were stated in the following terms :

84. Frye (supra), however, was rendered at a time when the technology, the polygraph test, was in its initial stage and was used in few laboratories. The guidelines issued therein posed a threat of lack of judicial adaptation of the new developments and ignored the reliability on a particular piece of evidence.

85. A change of approach was, however, found in Daubart v. Merryll Dow Pharmaceuticals Inc. [113 Sct 2786 (1993)] where the courts while allowing "general acceptance" stated that this might not be a precondition for admissibility of the scientific evidence, for which the Court may consider the following :

86. In a case involving an issue as to whether on-job-exposure to the manufacturers products promoted small cell lung cancer, the U.S. Supreme Court in General Electric Co. v. Robert K. Joiner [522 US 139 L.Ed. 2d] following Daubert (supra), held that in cases involving the issue of expert evidence the appellate court should only consider whether there is any abuse of discretion in admitting such evidence by the trial courts and should not go into reviewing the evidence itself as it is for the trial courts to assume the "gate keeper's role" in screening such evidence to ensure whether it is not only relevant but also reliable. This was further expanded in Kumho Tire Co. Ltd. v. Carmichael [(1999) 119 S.Ct. 1167] whereby the 'gate keeping' obligation of the Trial Judge to ensure the relevancy and reliability for admitting the evidence extended not only to scientific but also to all kinds of expert evidence.

87. In R. v. Watters [(2000) All ER (D) 1469], it was held :

88. As at present advised, thus, and having regard to the fact that the prosecution did not rely upon the said report before the High Court, we also for the purpose of the present matter do not intend to place any reliance thereupon.

89. Mr. Manohar's contention to the effect that those officers whose conduct was not above board and who did not take any action for attaching the property of the accused and his relations in terms of the Act, have not been made accused, may also be correct. He has further brought to our notice that witnesses have also changed their stand after the Appellant was placed under arrest. At this juncture, it may not be necessary for us to go into details on the aforementioned contention.

90. We have referred to the aforementioned materials only for the purpose of showing that the High Court may not be entirely correct in coming to the conclusion that the Appellant prima facie committed an offence under Section 3(2) as well as Section 24 of MCOCA.

91. For the reasons aforementioned, we are of the opinion that the order dated 4.11.2004 granting interim bail to the Appellant should continue subject to the same conditions.

92. This appeal is allowed.

Appeal allowed.