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The true nature and import of the offence of criminal conspiracy is to be considered: Bombay High Court

Conspiracy to commit an offence is by itself a substantive offence and entails punishment. Every individual offence committed in pursuance of such conspiracy is separate and distinct offence for which the offenders are liable to be punished, independent of the offence of conspiracy. It is equally well recognized that the conspiracy is hatched in secrecy. In context of the Case No.118 of 2021 J.Kaleel Rahman vs. The State of Maharashtra. The judgment was passed by N.J. Jamadar.

The facts of the case are as follows The indictment against accused No.3 is that he entered into a criminal conspiracy with Danish Petiwala (accused No.1), Sarasvati @ Muskan (accused No.2) and Amir Mirza @ Rafi Shaikh, a wanted accused (WA), based in Malaysia, to smuggle Fake Indian Currency Notes (FICN) from Malaysia by using banking channel as well as postal services to damage monetary stability of India. The prosecution alleges that in furtherance of their common intention, accused No.1 and accused No.2 deposited genuine currency notes of Rs.45,000/- in the account of accused No.3 maintained with Lokhandwala Branch of ICICI Bank on 20th January 2020, on the instructions of Amir Mirza (WA) towards the cost of FICN of the face value of Rs.1,00,000/-. On the day of the said deposit, accused No.3 was in Malaysia. Accused No.3 flew back to India on 21 st January 2020. On 22nd January 2020, he withdrew an amount of Shraddha Talekar PS 3/22 cri.apeal-118-2021-J.doc Rs.50,000/-, in three tranches, from the aforesaid account.  Upon examination, Currency Notes Press, Nashik Road opined that the Suspected Forged Indian Currency seized at Hotel Aadiya International is a High Quality Counterfeit Note. A Look Out Notice was issued against accused No.3, who had travelled to Malaysia again on 8 th Shraddha Talekar PS 4/22 cri.apeal-118-2021-J.doc February 2020. On 27th February 2020, on his arrival at Chennai Air Port, accused No.3 was apprehended and brought to Mumbai. Eventually, the investigation came to be entrusted to National Investigation Agency (‘NIA’). Crime was re- registered at RC-04/2020/NIA/Mumbai on 27 th March 2020. Accused No.3 came to be arrested on 8th April 2020 and arraigned for the offences punishable under sections 120B and 489B read with 34 of the Penal Code and, section 16 read with sections 15(1)(a)(iii-a) and 18 of Unlawful Activities (Prevention) Act, 1967 (‘UAPA’). Accused No.3 preferred application for release on bail. The substance of the application before the learned Special Judge, NIA Court was that there was no material to indicate that the accused No.3 was a co-conspirator with the arrested accused and Amir Mirza (WA). In fact, there was nothing to indicate that accused No.3 had even known Amir Mirza (WA), who had allegedly dispatched FICN from Malaysia. Nor the Shraddha Talekar PS 5/22 cri.apeal-118-2021-J.doc accused No.3 had known accused No.1 and accused No.2, who had allegedly deposited the amount of Rs.45,000/- in his account. Mere deposit of the said amount of of Rs.45,000/- and withdrawal of the amount, even if taken at par, according to accused No.3, would not be sufficient to implicate him as a co-conspirator.

Having found that there was material which prima- facie rendered the accusation against accused No.3 true, the learned Special Judge opined that the interdict contained in section 43D(5) of UAPA came into play and, thus, the accused was not entitled to be enlarged on bail. In the backdrop of the aforesaid uncontroverted facts, the submissions canvassed by Ms. Raman and Smt. Pai fall for consideration.. Ms. Raman, the learned counsel for the appellant would urge that there is no prima-facie material to establish the nexus of the appellant with either co-accused i.e. accused No.1, accused No.2 or Shraddha Talekar PS 8/22 cri.apeal-118-2021-J.doc Amir Mirza (WA). Amplifying the submission, Ms. Raman submitted that the prosecution case is based on surmises and conjectures. Ms.Raman urged with a degree of vehemence that there is no accusation against the appellant that he had transported or used FICN. At best, the charge is of being a conduit. The deposit of the amount of Rs.45,000/- and withdrawal of the sum of Rs.50,000/-, within a couple of days of the said deposit, if considered in the entire setting of the matter, does not incriminate the appellant even remotely, submitted Mr. Raman. We are afraid to accede to the broad submission on behalf of the appellant that there should be a direct nexus between all the co-conspirators. The law recognizes that there can be a general conspiracy and separate conspiracies wherein a group of persons act together in furtherance and execute a part of the general conspiracy. In such cases, the doctrine of plurality of means in execution of a larger and general conspiracy is resorted to. In the case at hand, the material prima-facie does not appear to be such that the appellant could extricate himself on the premise that though he had the knowledge that the amount of Rs.45,000/- was deposited in his account yet he was not aware of the purpose for which the said amount was deposited. At the cost of repetition, it needs to be recorded that the appellant had the opportunity, at the very initial stage, to explain the purpose for which the said amount was deposited. No such explanation was Shraddha Talekar PS 22/22 cri.apeal-118-2021-J.doc forthcoming, even when the bail application was considered by the learned Special Judge, NIA Court.

The judgment passed was For the foregoing reasons, we are persuaded to hold that the interdict contained in section 43D(5) of UAPA operates with full force and vigour. In the circumstances, no fault can be found with the view of the learned Special Judge that the bar under section 43D(5) of UAPA came into operation. Resultant, no interference is warranted in the impugned order. Hence, the following order .The appeal stands dismissed. We, however, clarify that the consideration is confined to entitlement for bail and the NIA Court shall not be influenced by any of the observations made in the further proceedings of the trial.”

 

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