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REPORTABLE        

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     1689      OF     2012   (Arising out of SLP (Crl.) No. 1522 of 2012)

The State of Maharashtra         .... Appellant(s)

Versus

Vishwanath Maranna Shetty               .... Respondent(s)

J     U     D     G     M     E     N     T      

P.     Sathasivam,     J.   

1) Leave granted.

2) This appeal is directed against the judgment and order  

dated 10.08.2011 passed by the High Court of Judicature at  

Bombay in Criminal Bail Application No. 872 of 2011 whereby  

learned single Judge of the High Court granted bail to the  

respondent herein - Accused No.9 in MCOC Special Case No.  

10 of 2010 pending before the Special Court under the  

Maharashtra Control of Organised Crime Act, 1999 for Greater  

Bombay.

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3) Brief facts:

(a) According to the prosecution, an “organised crime  

syndicate” headed by wanted accused Bharat Nepali and Vijay  

Shetty is operating overseas.  The said syndicate has indulged  

in various continuous unlawful activities in the nature of  

extortion and contract killings in Mumbai and other places  

through their members.  All the accused persons pending on  

the file before the MCOC Special Court, Greater Bombay are  

alleged to be the members of the said syndicate.   

(b) On 03.06.2010, one Farid Tanasha, known criminal, was  

shot dead at his residence at Tilaknagar, Chembur, Mumbai.  

On the same day, an FIR being No. 122 of 2010 was registered  

against the accused persons under Sections 302 and 452 read  

with Section 34 and Section 120-B of the Indian Penal Code,  

1860 (in short ‘IPC’) and under Sections 3, 25 and 27 of the  

Arms Act, 1959 at Tilaknagar Police Station.   

(c) During investigation, DCB, CID, Unit No. 6, Mumbai  

learnt that the murder was committed on the instructions of  

Bharat Nepali and Vijay Shetty (wanted accused).  Further, it  

was revealed in the investigation that one Dattatray Bhakare  

(Accused No. 7 therein) - a builder, had contracted Bharat  

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Nepali and Vijay Shetty for eliminating Farid Tanasha (since  

deceased), who agreed to help the members of a Co-op.  

Housing Society in order to settle their dispute with the  

builder.  It was also revealed in the investigation that the said  

builder allegedly financed a sum of Rs. 90 lakhs for the said  

killing.  

(d) It was further revealed during investigation that the  

respondent herein was an active member of the “organised  

crime syndicate” and was managing funds of the syndicate and  

through him the money changed hands from co-accused  

Dattatray Bhakare to Jafar Razialam Khan @ Abbas and  

Mohd. Sakib Shahnawaz Alam Khan, Accused Nos. 1 & 2  

respectively, who killed Farid Tanasha.  

(e) On 25.09.2010, Commissioner of Police, Greater Bombay,  

accorded sanction for prosecution of the arrested accused  

persons including the respondent herein under Section 3(1)(i),  

(2) and (4) of the Maharashtra Control of Organised Crime Act,  

1999 (in short ‘the MCOCA’) and hence the respondent is  

alleged to have committed the offences provided hereinabove  

along with the offence under Section 302 read with Section  

120B of the IPC.   

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(f) The respondent herein preferred an application for bail in  

Special Case No. 10 of 2010 before the MCOC Special Court,  

Greater Bombay.  By order dated 07.05.2011, the Special  

Court dismissed the said application.   

(g) Being aggrieved, the respondent herein preferred  

Criminal Bail Application No. 872 of 2011 before the High  

Court.  By impugned order dated 10.08.2011, the High Court  

accepted the case of the respondent and granted him bail by  

imposing certain conditions.

(h) Questioning the order granting bail to the respondent, the  

State of Maharashtra has filed the present appeal by way of  

special leave.

4) Heard Mr. Chinmoy Khaladkar, learned counsel for the  

appellant-State and Mr. U.U. Lalit, learned senior counsel for  

the respondent-accused.

5) The only point for consideration in this appeal is whether  

in the light of the allegations made and materials placed by the  

prosecution, the High Court was justified in granting bail,  

particularly, in the light of restriction imposed under Section  

21(4) of MCOCA?   

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6) Learned counsel for the State, after taking us through the  

averments in the FIR, confessional statement of Mohd. Rafiq  

Abdul Samad Shaikh @ Shankar (Accused No. 6 therein),  

relevant provisions of MCOCA and other materials, submitted  

that the Special Court was fully justified in rejecting the  

application for bail filed by the respondent, who is arrayed as  

Accused No. 9.  On the other hand, according to him, the High  

Court, having failed to notice the involvement of the  

respondent and his role in passing of the amount from  

Dattatray Bhakare - a builder to the actual killers, A-1 and A-

2, granted bail to him.   

7) Per contra, Mr. U.U. Lalit, learned senior counsel for the  

respondent, by pointing out the confessional statement of co-

accused, who retracted later, and in the light of the provisions  

of MCOCA, submitted that the High Court was fully justified in  

granting bail to the respondent.

8) In order to appreciate the rival contentions, it is useful to  

refer the relevant provisions of MCOCA which are extracted  

hereinbelow.  There is no dispute that apart from Section 302  

read with Section 120-B of IPC, the respondent was charged  

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with Section 3(1)(i), 3(2) and 3(4) of MCOCA.  The relevant  

provisions of MCOCA read as under:

Section 2 of MCOCA deals with various definitions:

“2. Definitions. (1) In this Act, unless the context otherwise  requires,—

(a) ‘abet’, with its grammatical variations and cognate  expressions, includes,—

(i) the communication or association with any person with the  actual knowledge or having reason to believe that such person  is engaged in assisting in any manner, an organised crime  syndicate; (ii) the passing on or publication of, without any lawful  authority, any information likely to assist the organised crime  syndicate and the passing on or publication of or distribution of  any document or matter obtained from the organised crime  syndicate; and (iii) the rendering of any assistance, whether financial or  otherwise, to the organised crime syndicate;

* * * * * *

(d) ‘continuing unlawful activity’ means an activity prohibited  by law for the time being in force, which is a cognizable offence  punishable with imprisonment of three years or more, undertaken  either singly or jointly, as a member of an organised crime  syndicate or on behalf of such syndicate in respect of which  more than one charge-sheets have been filed before a competent  court within the preceding period of ten years and that court  has taken cognizance of such offence;

(e) ‘organised crime’  means any continuing unlawful activity  by an individual, singly or jointly, either as a member of an  organised crime syndicate or on behalf of such syndicate, by use of  violence or threat of violence or intimidation or coercion, or other  unlawful means, with the objective of gaining pecuniary benefits,  or gaining undue economic or other advantage for himself or any  other person or promoting insurgency;

(f) ‘organised crime syndicate’  means a group of two or more  persons who, acting either singly or collectively, as a syndicate or  gang indulge in activities of organised crime;

(g)…….”

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“3. Punishment for organised crime- (1) Whoever commits  an offence of organised crime shall,  

(i) if such offence has resulted in the death of any person, be  punishable with death or imprisonment for life and shall  also be liable to a fine, subject to a minimum fine of rupees  one lac;  

(ii) in any other case, be punishable with imprisonment for a  term which shall not be less than five years but which may  extend to imprisonment for life and shall also be liable to a  fine, subject to a minimum fine of rupees five lacs.  

(2) Whoever conspires or attempts to commit or advocates,  abets or knowingly facilitates the commission of an  organised crime or any act preparatory to organised crime,  shall be punishable with imprisonment for a term which  shall be not less than five years but which may extend to  imprisonment for life, and shall also be liable to a fine,  subject to a minimum of rupees five lacs.  

(3) Whoever harbours or conceals or attempts to harbour or  conceal, any member of an organised crime syndicate; shall  be punishable with imprisonment for a term which shall not  be less than five years but which may extend to  imprisonment for life and shall also be liable to a fine,  subject to a minimum fine of rupees five lacs.  

(4) Any person who is a member of an organised crime  syndicate shall be punishable with imprisonment for a term  which shall not be less, than five years but which may  extend to imprisonment for life and shall also be liable to a  fine, subject to a minimum fine of rupees five lacs.  

(5) Whoever holds any property derived of obtained from  commission of an organised crime or which has been  acquired through the organised crime syndicate funds shall  be punishable with a term which, shall not be less than  three years but which may extend to imprisonment for life  and shall also be liable to fine, subject to a minimum fine of  rupees two lacs.”  

“4. Punishment for possessing unaccountable wealth on  behalf of member of organised crime syndicate.  

If any person on behalf of a member of an organised crime  syndicate is, or, at any time has been, in possession of  movable or immovable property which he cannot  satisfactorily account for, he shall be punishable with  imprisonment for a term which shall not be less than three  

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years but which may extend to ten years and shall also be  liable to fine, subject to a minimum fine of rupees one lac  and such property shall also liable for attachment and  forfeiture, as provided by section 20.”

“21. Modified application of certain provisions of the  Code.- (1)… (2)… (3)… (4) Notwithstanding anything contained in the Code, no  person accused of an offence punishable under this Act  shall, if in custody, be released on bail or on his own bond,  unless—

(a) the Public Prosecutor has been given an opportunity to  oppose the application of such release; and

(b) where the Public Prosecutor opposes the application,  the court is satisfied that there are reasonable grounds for  believing that he is not guilty of such offence and that he is  not likely to commit any offence while on bail.”

9) The very same provisions have been considered by this  

Court in Ranjitsing Brahmajeetsing Sharma vs. State of  

Maharashtra & Anr. (2005) 5 SCC 294.  In this case, the  

provisions of MCOCA were invoked against one Telgi who 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 figured as  

Accused No. 23 and one Shabir Sheikh as Accused No.25.  

After narrating all the details, this Court posed the following  

question:

“36. 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  

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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?”

In an answer to the same, this Court held as under:

“38. 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.”

“44. 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,  

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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.”

“46. 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.”

10) It is relevant to note that MCOCA was enacted to make  

special provisions for prevention and control of, and for coping  

with, criminal activity by organized crime syndicate or gang,  

and for matters connected therewith or incidental thereto.  The  

Statement of Objects and Reasons for enacting the said Act is  

as under:

“Organised crime has for quite some years now come up  as a very serious threat to our society. It knows no national  boundaries and is fuelled by illegal wealth generated by  contract killings, extortion, smuggling in contrabands, illegal  trade in narcotics, kidnappings for ransom, collection of  

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protection money and money laundering etc. The illegal  wealth and black money generated by the organised crime  being very huge, it has had serious adverse effect on our  economy. It was seen that the organised criminal syndicates  made a common cause with terrorist gangs and foster  terrorism which extend beyond the national boundaries.  There was reason to believe that organised criminal gangs  have been operating in the State and, thus, there was  immediate need to curb their activities.

It was also noticed that the organised criminals have been  making extensive use of wire and oral communications in  their criminal activities. The interception of such  communications to obtain evidence of the commission of  crimes or to prevent their commission would be an  indispensable aid to law enforcement and the administration  of justice.

2. The existing legal framework i.e. the penal and  procedural laws and the adjudicatory system were found to  be rather inadequate to curb or control the menace of  organised crime. Government, therefore, decided to enact a  special law with stringent and deterrent provisions including  in certain circumstances power to intercept wire, electronic  or oral communication to control the menace of the  organised crime.

It is the purpose of this Act to achieve these objects.”

We have already mentioned the relevant definitions including  

the definition of ‘abet’, ‘continuing unlawful activity’,  

‘organised crime’ and ‘organised crime syndicate’.   

11) Keeping the above Objects and Reasons and various  

principles in mind, statutory provisions of MCOCA, restrictions  

for the grant of bail and the materials placed by the  

prosecution, let us consider whether the respondent has made  

out a case for bail?

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12) Considering the arguments advanced by both the sides,  

we have meticulously analysed the reasoning of the special  

Court rejecting the application for bail filed by the respondent  

herein and impugned order of the High Court granting him  

bail.  The materials placed indicate that the respondent is  

having an association with the overseas base wanted accused  

Nos. 1 and 2.  It also indicates that the respondent knowingly  

handled the funds of the syndicate.  The statement of one of  

the witnesses indicates that the respondent had asked the said  

witness to collect a sum of Rs.25 lakhs from the co-accused –  

Ravi Warerkar, however, the same was not materialized.  In  

addition to the same, there is a statement of co-accused –

Mohd. Rafiq that he collected Rs.15 lakhs from co-accused –  

Dattatray Bhakare and delivered it to the respondent.  The  

confessional statement further indicates that the wanted  

accused - Vijay Shetty used to make calls using cell phone no.  

0061290372184 to the respondent.  The confessional  

statement also reveals that Accused No. 6 received Rs. 6 lakhs  

from the man of the respondent-accused.  On perusal of the  

materials relied on by the prosecution, the special Judge  

concluded that the respondent had been working for the  

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wanted accused, Vijay Shetty, and he used to receive ill-gotten  

money for him and prima facie the ingredients of the offence  

punishable under Section 4 of MCOCA attracts against the  

respondent-accused.

13) In the earlier part of our judgment, we extracted Section  

21(4) of MCOCA which bars the Court from releasing the  

accused of an offence punishable under the said Act subject to  

the conditions prescribed in clauses (a) and (b) therein.  We are  

of the view that sub-section (4) of Section 21 mandates that it  

is incumbent on the part of the Court before granting of bail to  

any person accused of an offence punishable under MCOCA  

that there are reasonable grounds for believing that he is not  

guilty of such offence and he is not likely to commit any offence  

while on bail.   

14) In the Narcotic Drugs and Psychotropic Substances Act,  

1985 (in short ‘the NDPS Act’), similar provision, namely,  

Section 37, corresponding to Section 21(4) of the MCOCA has  

been substituted by Act 2 of 1989 with effect from 29.05.1989  

with further amendment by Act 9 of 2001 which reads as  

under:   

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“37. Offences to be cognizable and non-bailable.—(1)  Notwithstanding anything contained in the Code of Criminal  Procedure, 1973 (2 of 1974),— (a) every offence punishable under this Act shall be  cognizable; (b) no person accused of an offence punishable for offences  under Section 19 or Section 24 or Section 27-A and also for  offences involving commercial quantity shall be released on  bail or on his own bond unless— (i) the Public Prosecutor has been given an opportunity to  oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the  court is satisfied that there are reasonable grounds for  believing that he is not guilty of such offence and that he is  not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause  (b) of sub-section (1) are in addition to the limitations under  the Code of Criminal Procedure, 1973 (2 of 1974) or any  other law for the time being in force, on granting of bail.”  

Sub-clause (2) also makes it clear that the limitations on  

granting of bail specified in clause (b) of sub-section (1) are in  

addition to the limitations under the Code of Criminal  

Procedure, 1973 or any other law for the time being in force,  

on granting of bail.

15) The above provision was considered by this Court in  

Union of India vs. Rattan Mallik Alias Habul, (2009) 2 SCC  

624.  In this case, Union of India filed an appeal before this  

Court challenging the order of the Allahabad High Court  

suspending the sentence awarded by the trial Court to the  

respondent/accused therein for having committed offences  

under Sections 8/27-A and 8/29 of the NDPS Act and granting  

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him bail.  Considering the limitation imposed in sub-section (1)  

(b) of Section 37 of the NDPS Act, this Court held thus:

“12. It is plain from a bare reading of the non obstante  clause in Section 37 of the NDPS Act and sub-section (2)  thereof that the power to grant bail to a person accused of  having committed offence under the NDPS Act is not only  subject to the limitations imposed under Section 439 of the  Code of Criminal Procedure, 1973, it is also subject to the  restrictions placed by clause (b) of sub-section (1) of Section  37 of the NDPS Act. Apart from giving an opportunity to the  Public Prosecutor to oppose the application for such release,  the other twin conditions viz. (i) the satisfaction of the court  that there are reasonable grounds for believing that the  accused is not guilty of the alleged offence; and (ii) that he is  not likely to commit any offence while on bail, have to be  satisfied. It is manifest that the conditions are cumulative  and not alternative. The satisfaction contemplated regarding  the accused being not guilty, has to be based on “reasonable  grounds”. 13. The expression “reasonable grounds”  has not been  defined in the said Act but means something more than  prima facie grounds. It connotes substantial probable causes  for believing that the accused is not guilty of the offence he is  charged with. The reasonable belief contemplated in turn,  points to existence of such facts and circumstances as are  sufficient in themselves to justify satisfaction that the  accused is not guilty of the alleged offence (vide Union of  India v. Shiv Shanker Kesari). Thus, recording of satisfaction  on both the aspects, noted above, is sine qua non for  granting of bail under the NDPS Act. 14. We may, however, hasten to add that while considering  an application for bail with reference to Section 37 of the  NDPS Act, the court is not called upon to record a finding of  “not guilty”. At this stage, it is neither necessary nor  desirable to weigh the evidence meticulously to arrive at a  positive finding as to whether or not the accused has  committed offence under the NDPS Act. What is to be seen is  whether there is reasonable ground for believing that the  accused is not guilty of the offence(s) he is charged with and  further that he is not likely to commit an offence under the  said Act while on bail. The satisfaction of the court about the  existence of the said twin conditions is for a limited purpose  and is confined to the question of releasing the accused on  bail.”

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After saying so, on going into the materials placed and the  

reasoning of the High Court for grant of bail, this Court has  

concluded that the order passed by the High Court clearly  

violates the mandatory requirement of Section 37 of the NDPS  

Act and set aside the same with a liberty to decide afresh in  

the light of the limitations imposed.  In the case on hand, we  

have already extracted the limitation/restrictions imposed in  

Section 21(4) of MCOCA for granting bail.

16) It is relevant to point out that the materials placed by the  

prosecution show that one Vijay Shetty and the respondent are  

members of Bharat Nepali’s “organized crime syndicate”.  It is  

also the definite stand of the prosecution that the said Bharat  

Nepali as well as Vijay Shetty, who murdered Farid Tanasha  

are said to be out of India and are indulging into the organized  

crime through the members of the syndicate.  The materials  

placed further show that Dattatray Bhakare-a builder, was  

doing a project at Chembur, Mumbai and some members of  

the Co-operative Housing Society had some dispute with him,  

therefore, they had approached Farid Tanasha, who had a  

criminal background and he also agreed to help those persons  

in their dispute with the builder.  On knowing this, Dattatray  

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Bhakare contacted Bharat Nepali and Vijay Shetty for  

eliminating Farid Tanasha and for that he allegedly financed a  

sum of Rs.90 lakhs which was paid to the said wanted accused  

persons through the arrested accused persons.  The  

investigation also reveals that about Rs. 9 lakhs were given to  

the main shooter –  Mohd. Sakib Shahnawaz Alam Khan  

(Accused No.2) through Mohd. Rafiq (Accused No. 6).  The said  

Accused No.6 made a confessional statement as far as the  

respondent herein is concerned.  It was alleged that Accused  

No.6, on the instructions of the wanted accused - Vijay Shetty,  

used to collect money from the respondent and on several  

occasions, he handed over the same to Accused No. 2.  It was  

also alleged that on the instructions of the wanted accused –  

Vijay Shetty, Accused No. 6 paid a sum of Rs. 15 lakhs to the  

respondent herein on 28.05.2011. It is the  further case of the  

prosecution that in the third week of June, 2010, Accused No.  

6 received an amount of Rs. 6 lakhs from an employee of the  

respondent.  The substance of the allegation against the  

respondent is that part of the amount, which was given to the  

shooter for killing Farid Tanasha, had been passed on through  

him to the actual shooter.  It is not in dispute that sanction  

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under Section 23(2) of MCOCA had been accorded by the  

Commissioner of Police on 25.09.2010.

17) Considering the materials, particularly, in the light of the  

bar under Section 21(4) of MCOCA, the Special Court rightly  

rejected the application for bail filed by the respondent herein.  

From the materials placed, prima facie, it is clear that the  

respondent-accused had association with the wanted accused,  

Vijay Shetty and Bharat Nepali, who are notorious criminals  

and the act of the respondent comes within the definition of  

‘abet’ as defined in Section 2(1)(a) of MCOCA.

18) As rightly pointed out by the learned counsel for the State  

that the High Court ought to have appreciated the statement of  

the co-accused-Mohammad Rafiq that on 28.05.2010, he  

collected Rs. 15 lakhs from co-accused- Dattatray Bhakare  

and delivered it to the respondent.   The confessional  

statement further indicates that the wanted accused, Vijay  

Shetty used to make calls from cell phone no. 0061290372184  

and call records also indicate that the cell phone that was  

being used by the respondent did receive overseas calls.    The  

confessional statement further indicates that he received Rs. 6  

lacs from the man of the respondent.  The material placed by  

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the prosecution also indicate that the respondent has been  

working for the wanted accused-Vijay Shetty and he used to  

receive ill-gotten money for him.  We have already extracted  

Section 21(4) which interdict grant of bail to the accused  

against whom there are reasonable grounds for believing him  

to be guilty of offence under MCOCA.   

19) We are satisfied that the High Court failed to appreciate  

the fact that the materials placed against the respondent  

consist of the confession made by the co-accused –  Mohd.  

Rafiq which has been recorded under Section 18 of MCOCA,  

the statement of the employee of the respondent which  

indicates that the respondent handed over cash to him in the  

third week of June, 2010 and that the money received by the  

respondent and handed over to the main accused were part of  

the illegal transactions.  The act of the respondent, prima facie,  

is well within the definition and also the statement of object  

and reasons of the MCOCA which we have already extracted.  

The act of the respondent is of the abetment of the offence  

enumerated in MCOCA.  At any rate, the materials placed by  

the prosecution show that the respondent had received ill-

gotten money for the wanted accused –  Vijay Shetty and,  

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therefore, ingredients of Section 4 of MCOCA were attracted  

against him.  We are satisfied that all these aspects have been  

correctly appreciated by the Special Court.   

20) Though the High Court has adverted to all the above-

mentioned aspects and finding that all those aspects have to  

be considered during the trial and even after finding that “it  

cannot be said that there are no reasonable grounds for  

believing that the applicant (respondent herein) has not  

committed an offence punishable under the MCOCA”, on an  

erroneous view, granted him bail which runs contrary to  

Section 21(4) of MCOCA.  

21) While dealing with a special statute like MCOCA, having  

regard to the provisions contained in sub-section (4) of Section  

21 of this 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.  

Similarly, the Court will be required to record a finding as to  

the possibility of his committing a crime after grant of bail.  

What would further be necessary on the part of the Court is to  

see the culpability of the accused and his involvement in the  

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commission of an organized 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.  In view of the  

above, we also reiterate that when a prosecution is for  

offence(s) under a special statute and that statute contains  

specific provisions for dealing with matters arising there under,  

these provisions cannot be ignored while dealing with such an  

application.  Since the respondent has been charged with  

offence under MCOCA, while dealing with his application for  

grant of bail, in addition to the broad principles to be applied  

in prosecution for the offences under the IPC, the relevant  

provision in the said statute, namely, sub-section (4) of Section  

21 has to be kept in mind.  It is also further made clear that a  

bare reading of the non obstante clause in sub-section (4) of  

Section 21 of MCOCA that the power to grant bail to a person  

accused of having committed offence under the said Act is not  

only subject to the limitations imposed under Section 439 of  

the Code of Criminal Procedure, 1973 but also subject to the  

restrictions placed by clauses (a) and (b) of sub-section (4) of  

Section 21.  Apart from giving an opportunity to the prosecutor  

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to oppose the application for such release, the other twin  

conditions, viz., (i) the satisfaction of the Court that there are  

reasonable grounds for believing that the accused is not guilty  

of the alleged offence; and (ii) that he is not likely to commit  

any offence while on bail, have to be satisfied.   The  

satisfaction contemplated in clauses (a) and (b) of sub-section  

(4) of Section 21 regarding the accused being not guilty, has to  

be based on “reasonable grounds”.  Though the expression  

“reasonable grounds”  has not been defined in the Act, it is  

presumed that it is something more than prima facie grounds.  

We reiterate that recording of satisfaction on both the aspects  

mentioned in clauses (a) and (b) of sub-section (4) of Section 21  

is sine qua non for granting bail under MCOCA.  

22) The analysis of the relevant provisions of the MCOCA,  

similar provision in the NDPS Act and the principles laid down  

in both the decisions show that substantial probable cause for  

believing that the accused is not guilty of the offence for which  

he is charged must be satisfied.  Further, a reasonable belief  

provided points to existence of such facts and circumstances  

as are sufficient to justify the satisfaction that the accused is  

not guilty of the alleged offence.  We have already highlighted  

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the materials placed in the case on hand and we hold that the  

High Court has not satisfied the twin tests as mentioned above  

while granting bail.        

23) In our opinion, the impugned order having been passed  

ignoring the mandatory requirements of Section 21(4) of  

MCOCA, cannot be sustained.  Accordingly, the impugned  

order of the High Court dated 10.08.2011 in Criminal Bail  

Application No. 872 of 2011 granting bail to the respondent is  

set aside and the order of the special Judge dated 07.05.2011  

in M.C.O. Special Case No.10 of 2010 is restored. In view of  

the same, the respondent is directed to surrender before the  

Special Court within a period of two weeks from the date of  

passing of this order, failing which, the special Court is  

directed to take appropriate steps for his arrest.

24) The appeal of State of Maharashtra is allowed.

...…………….…………………………J.            (P. SATHASIVAM)                                  

..…....…………………………………J.    (RANJAN GOGOI)  

NEW DELHI; OCTOBER 19, 2012.  

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