THE STATE OF MAHARASHTRAversusVISHWANATH MARANNA SHETTY

                     [2012) 9 S.C.R. 873


              THE STATE OF MAHARASHTRA                              A
                               v.
             VISHWANATH MARANNA SHETTY
             (Criminal Appeal No. 1689 of 2012)

                     OCTOBER 19, 2012
                                                                    B
       (P. SATHASIVAM AND RANJAN GOGOi, JJ.]

    MAHARASHTRA CONTROL OF ORGANIZED CRIME
ACT, 1999:
                                                                    c
     ss. 21(4) and 10 of MCOCA read with s.439 CrPC - Bail
- Prosecution of respondent along with other accused persons
for offences punishable uls 3 of MCOCA and ss. 302, 452
read with s.34 and s.120-B, /PC - Bail declined by Special
Judge, but granted by High Court - Held: Section 21(4) of           D
MCOCA, interdicts grant of bail to the accused against whom
there are reasonable grounds for believing him to be guilty
of offence under MCOCA - In the instant case, High Court
failed to appreciate the fact that the materials placed against
the respondent consist of the confession made by the co-            E
accused which was recorded uls 18 of MCOCA, the statement
of the employee of the respondent which indicates that the
respondent handed over cash to him 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      F
respondent, prima facie, is of abetment of the offence
enumerated in MCOCA - A person accused of having
committed the offence under MCOCA is not only subject to
the limitations imposed u/s 439 CrPC but also subject to the
restrictions placed by clauses (a) and (b) of sub-s. (4) of s. 21
of MCOCA - Impugned order of High Court granting bail to            G
respondent having been passed ignoring the mandatory
requirements of s. 21(4) of MCOCA, is set aside and the order
of the Special Judge restored.

                             873                                    H
    874      SUPREME COURT REPORTS               [2012] 9 S.C.R.


A      Respondent-accused no. 9 in a MCOC Special Case
  pending before the Special Court under the Maharashtra
  Control of Organised Crime Act, 1999, was alleged to be
  a member of an "organized crime syndicate" involved in
  the murder of one 'FT', and was stated to have been
B managing funds of the said syndicate. The prosecution
  case was that through the respondent, money changed
  hands from accused no. 7, a builder, to accused nos. 1
  and 2, who killed 'FT'. The MCOCA Special Court denied
  bail to the respondent, but the High Court granted him
c bail. Aggrieved, the State Government filed the appeal.
          Allowing the appeal, the Court

         HELD: 1.1 It is relevant to note that MCOCA was
    enacted to make special provisions for prevention and
D   control of and for coping with, criminal activity by
    organized crime syndicate or gang, and for matters
    connected therewith or incidental thereto. Section 21 (4)
    of MCOCA interdicts grant of bail to the accused against
    whom there are reasonable grounds for believing him to
E   be guilty of offence under MCOCA. Section 21 (4) 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. Apart from giving
    an opportunity to the prosecutor to oppose the
F   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.
G   The satisfaction contemplated in clauses (a) and (b) of
    sub-s. (4) of s.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
H   prima facie grounds. The recording of satisfaction on
    both the aspects mentioned in clauses (~) and (b) of sub-
    STATE OF MAHARASHTRA v. VISHWANATH                 875
              MARANNA SHETTY

s. (4) of s.21 is sine qua non for granting bail under        A
MCOCA. It is also further made clear that a bare reading
of the non-obstante clause in sub-s. (4) of s.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 u/s 439 of the Code of Criminal    B
Procedure, 1973 but also subject to the restrictions
placed by clauses (a) and (b) of sub-s. (4) of s. 21. [para
10, 13, 18 and 21) [885-G-H; 887-G-H; 892-C; 893-F-H; 894-
A-C]

     1.2 In the instant case, the materials placed by the C
prosecution show that wanted accused 'VS' and the
respondent are members of wanted accused 'BN's
"organized crime syndicate". It is also the definite stand
of the prosecution that the said 'BN as well as 'VS', who
murdered the deceased are said to be out of India and D
are indulging into the organized crime through the
members of the syndicate. The materials placed further
show that A-7, a builder, was doing a project and some
members of the Co-operative Housing Society had some
dispute with him, therefore, they approached the E
deceased, who agreed to help them in their dispute with
the builder. On knowing this, A-7 contacted wanted
accused 'BN' and 'VS' for eliminating the deceased for a
sum of Rs.90 lakhs which was paid to the said wanted
accused persons through the arrested accused persons. F
The substance of the allegation against the respondent
is that part of the amount, which was given to the shooter
for killing the deceased, had been passed on through him
to the actual shooter. It is not in dispute that sanction u/
s 23(2) of MCOCA had been accorded by the G
Commissioner of Police on 25.09.2010. The material
placed by the prosecution also indicates that the
respondent has been working for the wanted accused
'VS' and he used to receive ill-gotten money for him. From
the materials placed, prima facie, it is clear that the H



,
    876    SUPREME COURT REPORTS              [2012] 9 S.C.R.

A respondent-accused hild association with the wanted
  accused 'VS' and 'BN', who are notorious criminals and
  the act of the respondent comes within the definition of
  'abet' as defined in s.2(1)(a) of MCOCA. The High Court
  failed to appreciate the fact that the materials placed
B against the respondent consist of the confession made
  by the co-accused which has been recorded u/s 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
c received by the respondent and handed over to the main
  accused were part of the illegal transaction. The act of
  the respondent, prima facie, is well within the definition
  and also the statement of object and reasons of the
  MCOCA. Considering the materials, particularly, in the
  light of the bar u/s 21(4) of MCOCA, the Special Court
0
  rightly rejected the application for bail filed by the
  respondent. [para 16-19) [890-F-H; 891-A-B, D-E, F-G; 892-
  B-C, D-G]

       1.3 Since the respondent has been charged with
E 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-s. (4)
  of s.21 has to be kept in mind. In view of the materials
F placed in the case on hand, this Court holds that the High
  Court has not satisfied the twin tests while granting bail.
  The impugned order of the High Court granting bail to the
  respondent having been passed ignoring the mandatory
  requirements of s. 21 (4) of MCOCA, is set aside and the
G order of the special Judge is restored. [para 21-23) [893-
  E-F; 894-E-G]

      Ranjitsing Brahmajeetsing Sharma vs. State of
  Maharashtra & Anr. 2005 (3) SCR 345 = (2005) 5 SCC 294;
  and Union of India vs. Rattan Mallik Alias Habul 2009 (1)
H SCR 533 = (2009) 2 sec 624 - relied on
    STATE OF MAHARASHTRA v. VISHWANATH                         877
              MARANNA SHETTY

                       Case Law Reference:                             A
     2005 (3) SCR 345            relied on              para 9

     2009 (1) SCR 533            relied on              para 15
    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal                 B
No. 1689 of 2012.
    From the Judgment & Order dated 10.08.2011 of the High
Court of Judicature at Bombay in Criminal Bail Application No.
872 of 2011.
      Chinmoy Khaladkar, Sanjay V. Kharde, Asha Gopalan Nair           C
for the Appellant.
    U.U. Lalit, A. Mariarputam, Ashwin C. Thod, Sushil
Karanjkar, Ratnakar Singh, K.N. Rai for the Respodent.
     The Judgment of the Court was delivered by                        D

     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            E
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.                                                                F
     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          G
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.
                                                                       H
    878     SUPREME COURT REPORTS                  [2012) 9 S.C.R.


A      (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
B 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
C was revealed in the investigation that one Dattatray Bhakare
  (Accused No. 7 therein) - a builder, had contracted Bharat
  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.
D 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
E crime syndicate" and was managing funds of the syndicate and
  through him the money changed hands frol\I co-accused
  Dattatray Bhakare to Jafar Razialam Khan @ Abbas and
  Mohd. Sakib Shahnawaz Alam Khan, Accused Nos. 1 & 2
  respectively; who killed Farid Tanasha.
F      (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
G 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.
        (f) The respondent herein preferred an application for bail
    in Special Case No. 10 of 201 O before the MCOC Special
H Court, Greater Bombay. By order dated 07.05.2011, the
      STATE OF MAHARASHTRA v. VISHWANATH                       879
        MARANNA SHETTY [P. SATHASIVAM, J.]

Special Court dismissed the said application.                          A
     (g) Being aggrieved, the respond~nt 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 grar.ited him bail by imposing
                                                                       8
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           C
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       0
prosecution, the High Court was justified in granting bail,
particularly, in the light of restriction imposed under Section
21(4) of MCOCA?
      6. Learned counsel for the State, after taking us through
 the averments in the FIR, confessional statement of Mohd. Rafiq       E
 Alldul Samad Shaikh @ Shankar (Accused No. 6 therein),
 relevant provisions of MCOCA and oth~rnaterials, 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          F
,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. Percontra, Mr. U.U. Lalit, learned senior counsel for the
respondent, by pointing out the confessional statement of              G
coaccused, who retract~d 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     H
     880       SUPREME COURT REPORTS                   [2012] 9 S.C.R.


A    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
     with Section 3(1)(i), 3(2) and 3(4) of MCOCA. The relevant
     provisions of MCOCA read as under:
.s         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
c          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
D
                  (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
E                 matter obtained from the organised crime
                  syndicate; and
                  (iii) the rendering of any assistance, whether
                  financial or otherwise, to the organised crime
                  syndicate;
F
                  ***
                  ***
                  (d) 'continuing unlawful activity' means an activity
G          prohibited by law for the time being in force, which is a
           cognizable offence punishable with imprisonment of three
           years or more, undertaken eitheF singly or jointly, as a
           member of an organised cri_me syndicate or on behalf of
           such syndicate in respect of which more than one charge-
           sheets have been filed before a competent court within
H
           tf1e preceding period of ten years and that court has taken
STATE OF MAHARASHTRA v. VISHWANATH                         881
  MARANNA SHETTY [P. SATHASIVAM, J.]
cognizance of such offence;                                        A
       (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        8
objective of gaining pecuniary benefits, or gaining undue
economic or other advantage for himself or any other
person or promoting insurgency;

    _(!) 'organised crime syndicate' means a group of two          c
or more persons who, acting either singly or collectively,
as a syndicate or gang indulge in activities of organised
crime;
      (g) ......."
                                                                   D
"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      E
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.             F

(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            G
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;            H
    882           SUPREME COURT REPORTS             [2012] 9 S.C.R.


A         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
B         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.

c         (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 thar
          three years but which may extend to imprisonment for life
D         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
E         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
          years but which may extend to ten years and shall also be
F         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
G         Code.-
          (1 ) .. .
          (2) .. .
          (3) .. .
H
    STATE OF MAHARASHTRA v. VISHWANATH                        883
      MARANNA SHETTY [P. SATHASIVAM, J.]

    (4) Notwithstanding anything contained in the Code, no            A
    person accusec;t 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        8

          (b) where the Public Prosecutor opposes the
    application, tpe 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."   c
     9. The very same provisions have been considered by this
Court in R.anjitsing 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              D
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:                                                             E
           "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
    necessary for the court to record such a finding? Would
    there be any machinery available to the court to ascertain.       F
    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            G
    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 r.ot be ultimately convicted, an order
                                                                      H
    884      SUPREME COURT REPORTS                    [2012] 9 S.C.R.

A         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 whafaoever be it a minor or major
          offence. If such an expansive meaning is given, even
B         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
c         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
D
          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
E         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."

F                "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
G
          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
H
     STATE OF MAHARASHTRA v. VISHWANATH                       885
       MARANNA SHETTY [P. SATHASIVAM, J.]
    to maintain a delicate balance between a judgment of             A
    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       B
    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                 c
    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                D
    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      E
    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                F
    prejudiced thereby."
      10. It is relevant to note that MCOCA was enacted to make
special provisions for prevention and control of, and for coring
with, criminal activity by organized crime syndicate or gang, and
for matters connected therewith or incidental thereto. The           G
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        H
    886       SUPREME COURT REPORTS                   [2012] 9 S.C.R.

A         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 protection money and money
          laundering etc. The illegal wealth and black money
B         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
c         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
D         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.
E               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
F         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
G
          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
H for the grant of bail and the materials placed by the prosecution,
    STATE OF MAHARASHTRA v. VISHWANATH                        887
      MARANNA SHETTY [P. SATHASIVAM, J.]
let us consider whether the respondent has made out a case             A
for bail?
      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                 B
granting him bail. The materials placed indicate that the
respondent ishaving an association with the overseas base
wanted accused Nos. 1 and 2. It also indicates that the
respondent kr.owingly handled the funds of the syndicate. The
statement of one of the witnesses indicates that the respondent        C
had asked the said witness to collect a sum of Rs.25 lakhs from
the co-accused - Ravi Warerkar, h,owever, 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                 D
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.           E
On perusal of the materials relied on by the prosecution, the
special Judge concluded that the respondent had been working
for the 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           F
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        G
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      H
    888      SUPREME COURT REPORTS                   . [2012] 9 S.C.R.

A 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
8 with further amendment by Act 9 of 2001 which reads as under:

          "37. Offences to be cognizable and non-ballable.-
          (1 y Notwithstanding anything contained in the Code of
          Criminal Procedure, 1973 (2 of 1974),-
c         (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
D         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,
E
          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
F         (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
G 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
H
     STATE OF MAHARASHTRA v. VISHWANATH                      889
       MARANNA SHETTY [P. SATHASIVAM, J.]
Union of India vs. Rattan Mallik Alias Habul, (2009) 2 SCC          A
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         B
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        C
    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             o
    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   E
    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            F
    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     G
    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 Kesan). Thus,
    recording of satisfaction on both the aspects, noted above,
    is sine qua non for granting of bail under the NDPS Act.        H
    890       SUPREME COURT REPORTS                    [2012] 9 S.C.R.


A         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
B         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
c         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."
  After saying so, on going into the materials placed and the
D 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
E have already extracted the limitation/restrictions imposed in
  Section ~1(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".
F It is also the definite stand of the prosecution that the said
  Bharat Nepali as well as Vijay Shetty, who murdered Farid
  Tariasha 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,
G 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,
H
     STATE OF MAHARASHTRA v. VISHWANATH                      891
      MARANNA SHETIY [P. SATHASIVAM, J.]
Dattatray Bhakare contacted Bharat Nepali and Vijay Shetty for       A
eliminating Farid Tanasha and for that he allegedly financed a
sum of Rs.90 lakhs which was paid to the said wanted accused
pe~sons 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                   B
(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              c
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,
                                                                     0
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      E
sanction 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    F
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.
                                                                     G
    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-
                                                                     H
    892      SUPREME COURT REPORTS                  [2012] 9 S.C.R.

A 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
B overseas calls. The confessional statement further indicates
  that he received Rs. 6 lacs from the man of the respondent. The
  material placed by 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
c 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
D   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
E   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
F   offence enumerated in MCOCA. At any rate, the materials
    placed by the prosecution show that the respondent had
    received illgotten money for the wanted accused - Vijay Shetty
    and, therefore, ingredients of Section 4 of MCOCA were
    attracted against him. We are satisfied that all these aspects
G   have been correctly appreciated by the Special Court.
          20. Though the High Court has adverted to all the
  abovementioned 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
H believing that the applicant (respondent herein) has not
     STATE OF MAHARASHTRA v. VISHWANATH                       893
       MARANNA SHETTY [P. SATHASIVAM, J.]

committed an offence punishable under the MCOCA", on an               A
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
                                                                      B
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         C
necessary on the part of the Court is to see the culpability of
the accused and his involvement in the 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             D
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       E
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.         F
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         G
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 to oppose the
application for such release, the other twin conditions, viz., (i)
the satisfaction of the Court that there are reasonable grounds
                                                                      H
    894       SUPREME COURT REPORTS                  [2012] 9 S.C.R.


A 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
B 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
c 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
D 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
  the materials placed in the case on hand and we hold that the
E High Court has not satisfied the twin tests as mentioned above
  while granting bail.                             ·
       23. In -0ur opinion, the impugned order having been passed
  ignoring the mandatory requirements of Section 21(4) of
  MCOCA, cannot be sustained. Accordingly, the impugned order
F 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
G 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.
H R.P.                                             Appeal allowed.