Confessions under duress and random accusations could get you jailed for years without bail. Ajit Sahi and Rana Ayyub tracked the misuse of the draconian MCOCA in Maharashtra for two months
At his best, man is the noblest of all animals; separated from law and justice he is the worst.
– Aristotle
Pithy and profound, but what animal would Aristotle say man is if he uses law and justice in a manner that’s as deadly as being separated from both?
About 11 years ago, on February 24, 1999, the Maharashtra government promulgated an ordinance aimed at combating the ever-expanding spiral of underworld crime. That was the era when the rich and the powerful cowered in dread of extortionists brazenly threatening them on the phone, and then walking into their offices, shops and homes to collect ransoms. Many of those who refused to pay were attacked, even killed. The defining moment came when movie producer Gulshan Kumar was gunned down in broad daylight in 1997.
Anyone was game. Already, middle-of-the-street gun battles in Mumbai were spilling blood of rival gangs belonging to absconding dons such as Dawood Ibrahim and Chhota Rajan. About 20 people were killed in mafia violence in 1997. The number more than doubled next year. Yet newer mafia dons were breaking out on the scene, like an expanding family tree.
In desperation, the government unofficially adopted the extra-constitutional method of summarily executing suspected gangsters by police inspectors, in what has come to be known as ‘encounters’. But even this regressed, perhaps predictably, into anarchy, as it was alleged that rival gangs began to pay off these ‘encounter specialists’ to kill each other’s boys.
Politically, the burgeoning crime graph became a headache for the state government of BJP-Shiv Sena. The public outcry against its failure to curb the mafia threatened to extend all the way to the Assembly elections of 1999. It was in these circumstances that the Maharashtra Control of Organised Crime Ordinance was brought into existence. The government argued that the Indian Penal Code, written in 1860, was incapable of dealing with the mafia crimes, never as brutal in history as now. Later, the state Assembly legislated it into law.
Replacing ‘Ordinance’ with ‘Act’, the law came to be known by its acronym, MCOCA, popularly pronounced ‘Makoka’ or even ‘Moka’. The Act said it aimed “to make Special provisions for Prevention and Control of Organised Crime and for coping with Criminal Activity by Organized Crime Syndicates…”
A Statement of Objects and Reasons issued with the law gave the following rationale for its enactment: “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 fueled by illegal wealth generated by contract killing, 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 generated by the organised crime being very huge, it has had [a] serious adverse effect on our economy. It was seen that the organised criminal syndicates made a common cause with terrorist gangs and foster (sic) 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.
“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.”
For all the grandstanding in the legalese above, the key phrase is obviously “stringent and deterrent provisions”. Just what were these provisions of MCOCA and how has been the experience of the law over the last nearly 11 years? Of course, the state argues that MCOCA has brought rich dividends. After all, street-side bloodbaths are a thing of the past. At least the reporting of extortions has declined dramatically. Shooters don’t so often storm into people’s homes and offices. Mumbai Police inspectors do not go killing gangsters in ‘encounters’.
But few outside the precincts of south Mumbai’s sessions courts, where four special judges toil exclusively over MCOCA cases, know how this law has devastated lives and families because of what clearly appears to be its misuse, if not outright abuse. And unfortunately, it’s the “stringent and deterrent provisions” of the MCOCA that have wholly abetted such abuse.
HAVING EXAMINED about 100 cases over two months, in this issue of TEHELKA we bring you the bizarre stories of eight accused, seven of whom lived out the nightmare of MCOCA spending sleepless nights on their jail beds, only to be freed after months or years because, simply, there was no evidence against them. These have included the mighty, such as former Mumbai Police Commissioner RS Sharma – no less. Even the Supreme Court said Sharma seemed to have been wrongly accused.
Indeed, the law has proved to be a black hole for hundreds of the accused. Once charged under MCOCA, an accused is presumed guilty until he proves his innocence. It is sweeping in its scope, because under it the prosecution need offer no evidence beyond the confession of the accused to secure his conviction. Even if a judge eventually throws out such a confession, the accused has spent months to years behind bars because securing bail is next to impossible.
MCOCA is harsher than POTA and TADA. It was meant to curb only mafia gangs, but it has been badly subverted
The admissibility of a confession as evidence, given by an accused to a police officer above the rank of the Superintendent of Police or Deputy Commissioner of Police, is the most prominent – and controversial – provision in MCOCA. It is a howler, because it was exactly this provision that was massively misused to frame innocent people in previous anti-terror laws such as the Terrorism and Disruptive Activities Prevention Act (TADA) of 1987 and the Prevention of Terrorist Act (POTA) of 2002. For this reason alone, TADA was allowed to lapse in 1995. POTA was scrapped altogether in 2004.
Indeed, MCOCA is more draconian than POTA. POTA allowed confessions to be admissible as evidence against only the confessor. But under MCOCA, the confession of an accused “shall be admissible in the trial of such person or co-accused, abettor or conspirator”. This clause alone has had hellish consequences for hundreds accused under MCOCA. People have languished in jail merely because someone accused in the same case had allegedly named them in his or her confession.
Human rights campaigners have long argued that because the Indian Evidence Act of 1872 bars confessions made to the police from being admissible as evidence, laws such as MCOCA should not be allowed to use such confessions. It is widely known that the police routinely use torture to force confessions. Many accused under MCOCA have reported this to the judge, who has then disallowed their confessions.
Of course, on the face of it, the law prescribes safeguards to ensure confessions are not made under duress. “Confessions shall be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him,” the law says. “The police officer shall explain to the person making it that he’s not bound to make a confession.”
The police officer who has written down the confession of an accused must then send it to a Chief Judicial Magistrate, who, too, must meet the confessor within 24 hours and crosscheck if he made the confession voluntarily. So often the accused have told such a magistrate that he was either not shown the document he signed, or coerced into signing it, or that his signatures were taken on blank papers.
ANOTHER DAUNTING aspect of MCOCA is its stringent bail provisions. The law says bail can be given to an accused only if the court “is satisfied that there are reasonable grounds for believing he is not guilty of such offence…” This is staggering. Essentially, this means that regardless of the mildness of an alleged crime, the accused cannot get bail until either a chargesheet is filed, the trial has ended, or it is obvious that the accused has been framed.
Lawyers Say That In 11 Years Of The Law, Not Even One Percent Of The Accused Have Been Given Bail By The Trial Court
Defence lawyers say that in 11 years of the law’s operation, not even one percent of the accused have been given bail by the trial court. Many have even been turned down by the High Court. Many, such as RS Sharma, former Mumbai Police Commissioner, have had to go up to the Supreme Court to secure bail after months or years in jail. In fact, this bail provision seems to have irked the Supreme Court in the case of Sharma. Wrote the apex court: “We are furthermore of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too far.”
But the court has been pushed too far for nearly 11 years. The police in Maharashtra arrest people at will under MCOCA knowing full well that it is highly unlikely they will get bail anytime soon. Hence, the police don’t care to ensure that their cases against the accused meet the law’s other requirements.
For example, MCOCA stipulates that only those accused of being members of an “organised crime syndicate” and who are part of “continuing unlawful activity” can be tried under it. There have been bizarre cases where the police claimed that a family of 11 people accused of a double murder was a “criminal gang”, just so they could be booked under MCOCA, and thus denied bail. The law also explains what constitutes “continuing unlawful activity”. People can only be charged under MCOCA if there are at least two chargesheets against them for a crime of similar nature in the previous 10 years. It is mandatory for courts to take cognisance of these two chargesheets.
But in case after case we found the police had charged people under MCOCA even though there were no previous chargesheets against them. The story of property magnate Mahendra Agarwal is just one such case. In most of these cases, the accused had to languish in jail without bail until they were finally acquitted years later.
Another clearly stipulated feature of the law is the motive of the accused. MCOCA says that those accused under it must have undertaken the alleged crime “with the objective of gaining pecuniary benefits, or undue economic or other advantages for himself or any other person or promoting insurgency.”
The reference to “pecuniary benefit” is crucial, as the gangs that this law sought to control were obviously working on the principle of making money illegally through, among other means, extortions and money laundering. The framers of the law included this principle so that it was not misused to book those who might have committed a violent crime but not for monetary gain and should, therefore, be tried under the IPC.
And yet, in numerous MCOCA cases, the prosecution did not even bother to suggest that the accused had a “pecuniary benefit”. It may surprise the reader to know that in a large number of cases the judge eventually set the accused free, or ordered their trial under IPC, on the ground that the prosecution had failed to establish that the alleged crime was committed for “pecuniary benefit”. But the accused had to serve time in jail without bail till such judgement was passed.
Clearly, the Mumbai Police have used this law, often indiscriminately, only to put people behind bars and keep them there as long as possible. Mumbai Police Commissioner D Sivanandan virtually concedes this attitude when he says in an interview that the number of people jailed shot up from 50 in 1998 to 642 in 1999 after MCOCA was written.
Many people — including defence lawyers and certainly many of the former accused who were later ruled innocent — have therefore begun to demand that this draconian law must include a more stringent system of checks and balances. The most recurring suggestion is that the police must be made accountable. Radically, the suggestion goes, the policemen who framed the accused, must go to jail themselves.
Many, of course, would say, why limit that to MCOCA?
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CASE STUDY 1
Deemed Guilty Until Proven Innocent
SHAH ALAM, Former recruitment agent
ONE DAY early in July 2001, Mumbai resident Shah Alam’s mobile phone rang. Absconding underworld don Abu Salem was the caller. “I heard your father passed away,” Salem said, offering condolences. Over the next few days, Salem called again, several times in fact. “A few of my boys have been arrested in Mumbai,” he was in a panic. “I fear that the police will kill them in an encounter.” Shah Alam says Salem begged him to find the whereabouts of his ‘boys’.
Shah Alam did try and follow up on Salem’s request, if only for old times’ sake. But he ran into a dead-end and soon gave up. Salem, too, stopped calling. Five years went by. Shah Alam put the incident behind him and life went on.
As the cliché goes, 48-yearold Shah Alam has come a long way since migrating to Mumbai from his native village in Azamgarh district of Uttar Pradesh 25 years ago. His four daughters, all born here, have always been toppers at school and college. His youngest is studying microbiology. The oldest teaches botany. The third is to finish her MSc in information technology.
His second daughter, however, has broken ranks. Once a brilliant student of biotechnology, Naima went haywire when police arrested her father in 2006 and booked him under MCOCA. “She lost two years because each time she took her exams she shook so bad she couldn’t write anything,” rues Shah Alam.
Police claimed Shah Alam was Salem’s gangster. They named him a co-accused in the murder of Ajit Diwani, a secretary to several film stars who was shot dead in an upscale north Mumbai suburb on June 30, 2001. That was also the day Shah Alam’s father had died, for which Salem had called him a few days later.
While Shah Alam’s arrest came nearly five years after Diwani’s murder, six others had been arrested as conspirators within days of the crime. The police had claimed those were Salem’s goons acting on his orders. They had been booked under MCOCA. The case had dragged on. Four years later, Salem was famously deported from Portugal to India. Shah Alam was arrested barely months after that.
The police claimed that Shah Alam had sheltered one of the alleged gang members after the murder and also given him Rs 15,000. This man is alleged to have been hanging around the premises of the building where Diwani was murdered. (Astonishingly, the police never caught the three shooters that had brazenly walked into Diwani’s office and pumped bullets in him.)
As is common to nearly all MCOCA cases, the police had no evidence against Shah Alam save his own confession they claimed he voluntarily made to a police officer, which is admissible as evidence under MCOCA. But Shah Alam denied guilt and told a magistrate – who by law must verify if the confession is voluntary – as well as the trial judge that the police tortured him into signing the confession.
Still, Shah Alam spent three-and-a-half years in jail. He was lucky, because his coaccused had spent eight years before Special MCOCA Judge RG Avachat, in a voluminous judgment delivered in September 2009, acquitted six of the seven accused. (One accused is still missing since he reportedly absconded in Uttar Pradesh after the police took him there some years ago for another case.)
The MCOCA judge found no evidence to link Upendranath, the man Shah Alam is said to have sheltered, with Diwani’s murder. Wrote the judge: “As prosecution has failed to prove the guilt of the accused Upendranath, accused Shah Alam cannot be held guilty of the offence of having harboured [him].”
So what is Shah Alam’s connection with Abu Salem?
For generations, Shah Alam’s and Salem’s families have lived in neighbouring villages in Azamgarh. “My grandfather and his grandfather were friends. So were his father and mine,” Shah Alam says. “So were he and I.” When Shah Alam moved to Mumbai in the 1980s, he briefly shared office with Salem, who was then trying to set up a trading business.
Shah Alam was working as a recruitment agent, sending out semi-skilled workers hungry for better paying jobs in the Middle East. “Once I realised that Salem was getting into hanky-panky, I distanced myself from him.” When Alam was taken to a senior police officer after his arrest, Salem, too, was there. “I was so angry with Salem,” he says. To his credit, says Alam, Salem told the police to let Shah Alam go because he was uninvolved.
It is ironic that Salem himself wasn’t tried under MCOCA. The reason? Before he was deported from Portugal, the Indian government gave a Portuguese judge a list of laws under which Salem would be tried. It forgot to include MCOCA in the list. When charges under MCOCA were raised, Salem indignantly wrote to the Portuguese judge. The Indian government backed off quickly.
While Abu Salem Was Not Charged Under MCOCA, Shah Alam Spent Three Years In Jail Before Being Acquitted
It is to comprehend intricacies of the law so as to save the innocent from becoming its victims that Shah Alam’s second daughter, Naima, has given up her cherished dream to be a biotechnologist and taken up the study of law. She is now in her second year. She had regularly attended her father’s trial.
What irks Shah Alam is that after all’s said and done, Salem still owes him about a lakh rupees he borrowed before he turned a gangster. “In jail, I would tell him, ‘Man, you haven’t paid me back,’” says Shah Alam. “And Salem would say, ‘Yes bhai, I will, bhai, let me get out, bhai.’”
FACT FILE
• Co-accused in the murder of Ajit Diwani, who was shot and killed in an upscale Mumbai suburb on June 30, 2001
• Police claimed Alam, along with six others arrested years earlier, was a gangster working for Abu Salem
• Charged with harbouring one of the alleged gang members after the murder and giving him Rs 15,000
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CASE STUDY 2
Businessman, Squash Fan, MCOCA Survivor
MAHENDRA AGARWAL, Property developer
BUILDER AND developer Mahendra Agarwal is also a keen squash enthusiast. On back-slapping terms with Mumbai’s Who’s Who, Agarwal helped build the squash courts in the Mumbai Police Gymkhana. His business card reflects most of his varied endeavours. It also lists a unique descriptor: “Ex-MCOCA”.
Three-and-a-half years ago, on July 5, 2006, police arrived at Agarwal’s bungalow in the middle of one night and hauled him out the bed. They interrogated him for five hours, and then promptly arrested him on the charge that he was operating on behalf of one of Mumbai’s absconding underworld dons, Ravi Pujari.
Along with Agarwal, his business partner was also arrested, as were four other associates. Eventually, they were all booked under MCOCA and packed off to jail.
“It was totally unbelievable,” says Agarwal, with a hearty laugh, sitting in his compact but plush office. “I mean here I was, someone who regularly partied with the top IAS and police officers in the state. Who dared to arrest me?”
But despite moving heaven and earth and hiring the best lawyers, Agarwal cooled his heels in the cell for 65 days. After that period, Mumbai’s Special MCOCA Judge Abhay Thipsay freed him and his associates on bail. Actually, they were very lucky. It is not easy to find another example of a MCOCA accused who was given bail within two months of arrest.
Agarwal and the other accused were charged with using the name of Pujari to threaten Brijlal Tiwari. Tiwari was a resident of an 8,000 sq metre shantytown that Agarwal had acquired in the north Mumbai suburb of Andheri East by paying off its residents with a view to pulling it down and replacing it with a modern building.
IT WAS Tiwari’s case that not everyone wanted to move out of that shantytown. Not true, said Agarwal, who claimed that Tiwari was fronting for a rival builder who wanted a piece of the cake. Agarwal had repeatedly obtained orders from the court in his favour, including permission to put up a board of his proposed construction work on the site. Agarwal says he had filed two cases against Tiwari and the rival builder during March 23-29, 2006.
The prosecution claimed before the MCOCA judge that Agarwal had called up Tiwari and threatened him from the landline in his Mumbai office on a particular day. But Agarwal submitted documents such as his passport and airline tickets proving that on the date he is alleged to have threatened Tiwari, he was holidaying in Europe with his wife, daughter, the daughter’s fiancé and his parents. In his judgement, the special MCOCA judge would find that there was no evidence against Agarwal, not even phone intercepts or records of Agarwal’s alleged calls.
Besides, MCOCA can only be slapped on an accused against whom courts had taken cognisance of in at least two criminal cases in the past 10 years. But none of the six accused, including Agarwal, had ever faced a single criminal charge. Too clever by half, the Mumbai Police tried to get around this shortcoming by making mafia don Pujari an accused in the case. The police said the fact that there were more than two criminal cases against Pujari in the past 10 years was enough to incriminate Agarwal and the other five. But the prosecution could not even produce any phone records or transcripts of phone conversations linking Agarwal and the other accused with Pujari.
The police could also not explain why Agarwal’s phone was not tapped, even after receiving Tiwari’s complaint that the builder was allegedly threatening him. Surely, if the police had wiretapped his phone, they would have found all the evidence they needed to connect Agarwal with the underworld.
On March 5, 2009, Agarwal and his fellow accused were predictably acquitted of the MCOCA charges.
After he was arrested, Agarwal and his family went through testing times. Many of his friends and relatives deserted him. But this has only stoked his hunger for justice. Agarwal says the entire jail experience taught him the harsh realities of life. He is now a man with a mission: taking the system head on for misusing MCOCA.
Today, he is an unlikely facsimile of a Bollywood hero, a man who, after having suffered under the system, is not content with his mere freedom. He wants the officials to own up for the mistake they made in arresting him.
Agarwal was overseas on the day police say he called the complainant from his office. He still spent 65 days in jail
“I have written to each and every official, bureaucrat and minister telling them how the law is being grossly misused and asking them why I was arrested,” he says. He has written to the Prime Minister, too.
“MCOCA could be useful but it is being misused,” he says. “It is being used to implicate innocent people like me for personal enmities.” Agarwal says he has now lost interest in the plot of land that landed him in trouble. “I think I will sell it off and move on to another project.”
FACT FILE
• Arrested on charges of operating on behalf of gangster Ravi Pujari. Spent 65 days in jail
• Proved he was in Europe on the day he allegedly made calls from his landline in Mumbai
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CASE STUDY 3
Done In By The Don Link, Saved By Bungling Cops
FAREED TANASHAH, Alleged Chhota Rajan aide
AS FAREED Tanashah enters the housing society in the north Mumbai suburb of Tilak Nagar and reaches his ground floor flat, his pet dogs, tied to a window grill by chains, jump up frantically and bark to catch their master’s attention. A goateed man Tanashah calls Chacha follows him like a shadow. Six men in their twenties, their firearms hidden from the casual gaze, line the outer precincts of the society looking out to snip trouble.
Tanashah, 37, has been accused of being a hitman for mobster Chhota Rajan. He has been booked under MCOCA for extortion. He, however, denies the charge.
This isn’t the first time such charges have come his way. Understandably, Tanashah does not feel safe even at home. “Only they are the most loyal,” he says, pointing at his Labradors.
The events of Tanashah’s life could make for a bestselling thriller. Although he studied to be a software engineer, Tanashah has faced criminal charges for more than a decade for allegedly being a gangster. In July 2005, a crime branch team of the Mumbai Police arrested him in New Delhi on charges of threatening Mumbai-based businessmen with the purpose of extorting money from them.
However, there were reports that Tanashah’s arrest was an embarrassment for Indian intelligence agencies, which had reportedly trained him for an undercover operation aimed at taking out Indian government’s long-time nemesis, the Pakistan- based underworld don Dawood Ibrahim. It was also reported that at the time of his arrest, Tanashah was in constant touch with a former director of the Intelligence Bureau (IB).
He was brought to Mumbai and booked under MCOCA. It should seem extremely lucky that despite the past that he has, he managed to secure bail three years after his arrest. Actually, the events preceding and following his arrest ensured that this onetime alleged gangland shooter got bail.
One of the reasons Special MCOCA Judge RC Avachat gave Tanashah bail is that his arrest preceded the complaint that was lodged against him with the Mumbai police that year. While both Tanashah and his alleged accomplice Vicky Malhotra were arrested on July 10, 2005, the complaint against them is dated July 11, 2005. Prakash Shetty, Tanashah’s lawyer, says this fact clearly indicates an attempt to falsely implicate him in the case. According to Shetty, Tanashah was not convicted in any of the five MCOCA cases that had been brought against him before this particular case.
Police work has certainly been shoddy in his arrest. The prosecution claims that the police found seven mobile phones in the possession of Tanashah as well as with Malhotra, when the duo were arrested in New Delhi.
But the defence successfully argued before the judge that this fact is not reflected in the panchnama — the list of seizures prepared in front of witnesses — filed at the time of the arrests. Two complaints were filed on July 11 and 12, 2005 alleging that Tanashah had phoned the complainants and given them an international number to call Chhota Rajan. But the police now say those calls were made between May 31 and July 5, 2005, nearly two months before they were arrested. The police could not furnish any call log or transcripts of phone taps to back its claims. The absence of evidence led the judge to grant Tanashah bail.
Also, a co-accused named John D’Souza, who police said had named Tanashah in his confession, turned hostile. Judge Avachat also dismissed the confession because there was nothing in it to even suggest that D’Souza and Tanashah had ever committed any offence together. “There is no such material to indicate direct involvement of [Tanashah] in any of the crime much less the crime in question,” the judge said.
Last month, Tanashah found himself battling yet another controversy. Television news ran a shocking video that purportedly showed a senior officer of Mumbai Police dancing away at a Christmas party allegedly hosted by DK Rao, a man police say is a top lieutenant of Chhota Rajan. Rao was acquitted in a MCOCA case this year after being in jail for 11 years. Tanashah, too, was found making merry at that all-night party.
FACT FILE
• Alleged to be mobster Chhota Rajan’s hitman and close associate. Arrested in July 2005 on charges of extorting businessmen
• But MCOCA judge gave him bail three years later because the complaint was filed after his arrest in New Delhi
• Tanashah was back in controversy after videos emerged showing him and police officers dancing at a Christmas partry thrown by an alleged Rajan aide in Mumbai
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CASE STUDY 4
Top Cop At The Receiving End Of The Law
RANJIT SINGH SHARMA, Former Mumbai police chief
RANJIT SINGH Sharma had never seen a better day than the one in 1967 when he was commissioned as a second lieutenant in the Indian Army. Six years later, he cleared the civil services examination to join the prestigious Indian Police Service (IPS). Service norms allowed his time in the army to count for seniority. So although he joined the IPS in 1973, he came to belong to the 1968 batch.
“This caused heartburn among many officers who had joined the IPS before me,” grins Sharma, looking out at the vast Arabian Sea from his fifth-floor flat in Mumbai’s posh suburb of Worli Seaface. Sharma would notice such heartburn again towards the end of his long career, when, on January 1, 2003, he became Commissioner of Police in Mumbai ahead of several other officers. In the bizarre ways that the government works, one of them would soon become Sharma’s boss upon being appointed Maharashtra’s Director General of Police.
In Sharma’s view, this heartburn is the key to understanding why the Maharashtra Police arrested him on December 1, 2003, less than 24 hours after he retired from the IPS. It booked him under MCOCA as an accused in the widely publicised case of what the news media dubbed the ‘Telgi fake stamp paper scam’.
Abdul Karim Telgi, a native of Karnataka, was arrested in 2001. He was found to be the kingpin of an audacious illegal scheme in which he installed presses to print fake government stamp papers worth tens of thousands of crores of rupees and sold them liberally across India for over a decade before being busted.
As Police Commissioner in Pune in 2002 and as Police Commissioner in Mumbai in 2003, Sharma allegedly abetted Telgi’s scam by favouring two policemen investigating the case and who, in turn, were found favouring Telgi. Also, an IAS officer said he had seen Telgi and Sharma having tea in Sharma’s room in 1995. Police also claimed that Telgi had admitted in a narco analysis test that he had paid Sharma off.
Sharma contended that the case against him was cooked up. But the special MCOCA court rejected his bail plea, as did the Bombay High Court. Sharma was to stay in jail for 11 months, until the Supreme Court granted him bail.
“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,” the Supreme Court said, “… the appellant [Sharma] cannot be said to have conspired or abetted commission of an organised crime.” It also rejected Telgi’s narco analysis test.
In June 2007, Chitra Kiran Bhedi, special MCOCA judge in Pune, discharged Sharma without sending him for trial. The judge slammed the prosecution and instead raised questions at the investigation. “The fact,” wrote the judge, “that he [Sharma] was instrumental in unearthing this scam cannot be lost sight of.”
Bizarre as it may seem, it was Sharma as Pune’s Police Commissioner who had triggered the investigation into Telgi’s illegal empire after receiving, rather dramatically, an anonymous phone call at his home one night in June 2002. The caller claimed that some policemen had first stopped a carload of fake stamp papers but had inexplicably let it go. “I acted immediately,” says Sharma. Two men travelling in that car were arrested. They became Accused number 1 and Accused number 2 in the MCOCA case that would grow around the Telgi scam. (In time, Telgi would become Accused number 23. Sharma would become Accused number 60.)
Soon, Sharma’s probe teams raided godowns and found fake stamp papers worth a whopping Rs 2,000 crore. On Sharma’s recommendation, the state government set up a Special Investigative Team (SIT), led by another IPS officer named Subodh Kumar Jaiswal. Ironically, it was Jaiswal who arrested Sharma in December 2003.
The SIT claimed Sharma appointed a police officer, MC Mulani, to the probe and sent him to Bengaluru all by himself to meet Telgi in jail. It said Sharma did not move Mulani out of the investigation despite receiving complaints against him. But the judge found the charges to be bogus. It wasn’t Sharma but his deputy — a controversial police officer, SM Mushrif — who brought Mulani into the probe. Mulani had indeed gone to Bengaluru thrice but each time he was accompanied by seniors.
In fact, the judge slammed the SIT for not moving against Mushrif, who had opposed naming Telgi’s wife and son as accused in the case: “It appears that [the] prosecution is deliberately indulging in choose and pick policy. Mr. Mushrif against whom serious allegations are made by his colleagues and even superiors is left untouched.” (After the investigation was shifted to the CBI, Telgi’s wife was made an accused.)
In October 2002, Telgi was transferred to Mumbai to assist in the investigations. On January 10, 2003, Jaiswal raided a flat of Telgi’s in the posh Cuffe Parade area – and found the kingpin there, instead of in jail. The SIT claimed that Sharma was responsible for illegally letting Telgi out of jail.
But the judge said Telgi “enjoyed comforts” in Mumbai even before Sharma became Police Commissioner on January 1, 2003. “MN Singh was Commissioner of Police, Mumbai when Telgi was in custody of Mumbai Police from 28.10.2002… No questions are asked about any commission or omission in this substantive period. On the contrary, the applicant [Sharma] is dragged [in] for alleged minor acts.”
WHEN THE SIT raided Telgi’s flat, two brothers were found there. Shockingly, Jaiswal had let them go. He hadn’t even mentioned them in his official report. Weeks later, the two brothers were arrested by Delhi Police with fake stamp papers. Jaiswal then rushed to get their custody.
The judge unequivocally slammed Jaiswal: “Jaiswal in his 1½ years of investigation has not done anything against Telgi. No significant recovery of stamps, no recovery of printing machines was made… He had not arrested the brothers [when he found them with Telgi at his flat].”
Ironically It Was Sharma Who, As Pune’s Police Chief, Triggered The Investigation Into Telgi’s Illegal Empire
The judge further wrote: “It is [an] irony of fate, that [Sharma] is facing trial in an offence unearthed by him and the prosecuting agency has to rely on the material seized during his regime.”
The IAS officer who claimed to have seen Telgi in Sharma’s room in 1995 is now embroiled in a case arising out of the scam. He had been Superintendent of Stamps for Maharashtra during the time Telgi operated his illegal business. A court has ordered that the IAS officer be investigated for complicity.
The nightmare is over, but Sharma isn’t letting go. “I will not rest until those who framed me are themselves prosecuted,” he says. “I will see them off to jail.”
FACT FILE
• Accused of abetting the multi-thousand crore-rupee Telgi fake stamp paper racket
• Allegedly favoured two police officers who helped Telgi while probing the scam
• Special MCOCA court and Bombay High Court denied him bail
• Jailed for 11 months before the Supreme Court gave him bail. Finally discharged by MCOCA court
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CASE STUDY 5
The Man Who Was Jailed By His Beard
ASIF KHAN, Businessman
THOUGH A pious Muslim, Asif Khan is unlikely to ever sport a beard. After growing one to mark his Haj in 1988, Asif Khan came to be known by the nickname ‘Asif Dadhi’ after the Hindi word for beard. Trouble came years later when the Mumbai Police began hunting for a realtor, also nicknamed Asif Dadhi, who they claimed was involved in deals with absconding mafia don Chhota Shakeel.
But this story is about Asif Dadhi, the former pilgrim. He loathes being known by that nickname, so we will call him Asif Khan. Perhaps it was inevitable that in the year 2000 the police arrested Khan — who then owned a shop in an upscale market — mistaking him for the realtor.
Khan was doomed by association, born and raised as he was in the central Mumbai district of Dongri. Dongri sits cheek by jowl with Bhendi Bazaar, the bustling Muslim sprawl that is sadly infamous for being the former home of Dawood Ibrahim, India’s most wanted underworld don, and his string of followers, including Shakeel. “Chhota Shakeel lived in a nearby lane, but that was years ago,” says Khan, regretting that he ever knew the gangster. “But if I wasn’t his partner in crime, how was I a criminal?”
After arresting him, the police claimed Khan had paid shooters in a murder case. He was charged under MCOCA. Under the law, only those with two previous criminal cases against them can be charged. Khan had never seen the inside of a police station. He thought he would at least get bail. But when his lawyer stood up in court, the judge said he was wasting his time. Bail was denied.
One day, shortly after his arrest, Khan’s mother came to see him. He sat quietly by her, head hung low in humiliation. The next morning, the police took him to a graveyard. “I begged a passerby to phone my family to ask why I was brought here,” he says. He found that after reaching home from the police station the previous day, his mother died of a heart attack.
After 17 months, Khan pushed his lawyer to urge the court for a speedier trial. The judge accepted his plea. The police failed to provide any evidence, not even the SIM cards the accused had allegedly used, though the police claimed they had arrested the gangsters “redhanded” while talking on mobile phones. The judge threw out the case. “After twentyfour days of trial,” he says, “I was free.”
By then, Khan had spent 18 months in jail. “I swore to myself I will never ever be seen anywhere near anyone even remotely connected with the underworld,” he recalls. After being released, Khan sold his shop and set up two drugstores near Mumbai’s JJ Hospital. He shaved off his beard and vowed to stay clean-shaven forever. Three years passed.
In 2003, police claimed they had intercepted a phone conversation between Dubaibased Iqbal Kaskar, brother of Dawood Ibrahim, and one of Kaskar’s affiliates in Mumbai. In this chat, Kaskar asked the aide to transfer some property to Asif Dadhi. The police sent for Khan and interrogated him. He swore that he wasn’t their man. They let him go.
But Khan wasn’t spared for long. A few months later, in 2004, the police claimed that funds that Shakeel was sending from Pakistan to pay the legal fees of several of his gang members arrested in Mumbai were being disbursed by Khan. Flustered, Asif Khan went underground.
“My mind was screaming that this can’t be happening to me again,” he says. When he learnt he could be declared an absconder, he surrendered after three months.
The media went to town, pitching him as a dreaded gangster. Newspapers said he was arrested while extorting money. As television news identified his drugstores, patients stopped buying medicines from them.
As per the law, the police must file charges in the court against an accused within 90 days of his arrest. When they did not do so in Khan’s case, the judge granted him bail. A year went by since his arrest. In September 2005, Mumbai Police submitted a five-page application before the MCOCA judge saying they had found no evidence against “Mohammad Asif Mohammed Rafiq Khan alias Asif Dadhi”.
Khan’s name had come up after an accused reportedly told the police during interrogation that Khan gave him slush money to distribute further. In the September 2005 application, the police, however, said that the confession of that accused, “did not reveal any role played by Asif Dadhi”. When a police team met this accused for verification, he denied ever saying that Asif gave him money.
After Picking Him Up For The Second Time Under MCOCA, The Police Admitted That They Had No Evidence Against Khan
THE POLICE also took printouts of the call records of Khan’s two landline phones and mobile phone. “A study of these printouts shows the accused [Khan] had neither made nor received calls to/from gangsters of Chhota Shakeel,” they told the judge. Sales tax records of his medical shop were scrutinised and “nothing adverse [was] noticed.” “There [were] no major deposits or withdrawals” in his and or his wife’s bank accounts. “Nothing incriminating was found” in his house. His employees and partners were interrogated. “Nothing incriminating [was] noticed.”
“There is no evidence to send him on charge sheet in the present case,” the police application concluded. It asked the judge to discharge Asif Khan.
After he was released, Khan sold off his two drugstores near JJ hospital. When, during the 2009 Lok Sabha elections, he tried to organise political meetings as a small-time Congress leader, television news channels screamed that the Congress was relying on gangsters to win the elections. He backed out hurriedly.
“If you leave nothing for me,” he says, dejected, “won’t I become Asif Dadhi?”
FACT FILE
• Asif Khan, also known as Asif Dadhi (he grew a beard after performing Haj) was mistaken for another Asif Dadhi – a realtor allegedly involved in deals with gangster Chhota Shakeel
• Khan was arrested for allegedly ordering a murder and jailed for 18 months before a judge threw out the case
• Three years later, arrested again for alleged ties to Chhota Shakeel but the police withdrew the case
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CASE STUDY 6
‘How Does A Poor Man Fight MCOCA?’
SAJID SYED, Jobless drifter
IF A class were to be taught on how not to prosecute a case under MCOCA, 37-year-old Sajid Syed’s story would be the perfect lesson. Like Kafka’s Joseph K, Sajid never got to know why he was implicated under MCOCA in a case of alleged extortion, or what was the evidence that kept him in jail for three years. What adds insult to injury is that the extortion case was clearly added as afterthought to the original case of a violent attack on a jeweller at his shop, and Sajid was simply lumped in with two other accused charged for that attack.
A man of no fixed work life, Sajid was arrested in October 2006 by a wing of Mumbai Police known as the Anti- Extortion Cell. The police claimed he had made phone calls to one of the two accused who had attacked the jeweller. All three were arrested seven months after the attack on the jeweller in March that year. Police claimed they were henchmen of gangster Faheem Machmach, who reportedly absconded from Mumbai in the 1980s and is said to live in Dubai. Police say Machmach is the right-hand man of the dreaded don, Chhota Shakeel.
Like the other two men accused of attacking the jeweller, Sajid, too, was booked under MCOCA. Police claimed he voluntarily confessed his guilt. Sajid is a seasoned player, having done two spells of several months each in the jail in the previous decade.
When he was brought before a magistrate, Sajid denied having made any confession. With absolutely no other evidence against him, Sajid should have logically been let go right then. “But,” he says, “The judge sent me back to jail.”
Shockingly, the police did not take samples of Sajid’s voice and send it for confirmation to build evidence against him. The police also did not offer any evidence to link him with Machmach. Indeed, the prosecution hardly focused on Sajid, being obsessed with proving the attack on the jeweller.
The 28-page judgment of Special MCOCA Judge MR Puranik, delivered on November 3, 2009, barely refers to Sajid, dealing mostly with the case of the other two accused.
And what a bumbling case that turned out to be. The two alleged assailants of the jeweller are named Jay and Rahul. At the time of the crime, police said there were three people in the shop: the jeweller, a shop assistant and a female customer.
It was the prosecution’s case that the two alleged attackers entered the jeweller’s shop and, after asking to be shown earrings, one attacked and wounded the jeweller. As those inside the shop raised an alarm, the duo fled. The shop assistant gave them chase but failed to nab them.
BUT IN court, the jeweller and his shop assistant contradicted each other. The assistant said Jay attacked the jeweller. The jeweller said Rahul attacked him. Earlier, after the men were arrested, the jeweller had been taken to the jail to identify the attackers in what is called a ‘test identification parade’. A jail nominee conducted that entire exercise.
This man’s testimony, too, was contradictory. Having witnessed that identification parade, he claimed in the court that the jeweller identified Jay as his attacker. A written report of the same parade, however, said that the jeweller had identified Rahul as his attacker.
The female customer who had allegedly been present in the shop when the attack occurred was taken to the jail to identify the accused. She could identify neither.
Confused, are you? Read on. The jeweller claimed he was attacked with a knife. The assistant claimed the jeweller was attacked with a chopper, which is a sort of machete. A chopper had been found in the shop after the alleged attackers had fled. The prosecution said that the chopper had been in a bag that was found lying at the door of the shop. But the shop assistant said that he found after returning from his failed chase of the assailants “one bag containing [a] chopper was placed by somebody else in front of the shop”. The police, of course, never found any knife. That’s because they never looked for it.
The jeweller was hospitalised after the attack. The police never asked the doctor that operated him if the wound was from a chopper or a knife. The police didn’t even take the chopper to the doctor to ask if it could have been the instrument of the attack. By the way, in all this, there was a fourth accused. Mysteriously, the prosecution let him be discharged before the trial. There is no mention in the judgment who he was, why was he arrested and why he was discharged.
The jeweller reportedly received phone calls while still at the hospital, threatening him for ransom. His brother, wife and daughter, too, received such calls. The police never examined his three relatives; nor did it offer them as prosecution witnesses. As already mentioned, the police did not take voice samples of Sajid or Rahul, so there was no way to know if they made those calls.
Let’s get back to the confessions. Police claimed both Sajid and Rahul gave voluntary confessions. Both the accused later denied that they had made them voluntarily.
“It is specifically stated by the accused no. 3 [Sajid] that he did not commit any offence and he signed [the] confession due to the pressure of the police officers,” the judge wrote in his order. “Accused nos. 1 [Rahul] and 3 have retracted their confessions at the earliest opportunity before the CMM [Chief Metropolitan Magistrate].”
Actually, such denial would be unnecessary, for the judge found that the police officer that had recorded Sajid’s confession failed to give him the “statutory warning” that he was “not bound to make the confession and if he did so, such confession may be used as evidence against him”. Wrote the judge: “Thus there are procedural lapses in the matter of recording confessions.” Sajid is both cynical and dismissive of the law. “My denial before the magistrate that I had made a confession is a matter of record,” he says. “But it was worthless. I was still in jail for three years.”
It shouldn’t surprise the reader, then, that the judge threw the case out the window, acquitting all three of the accused. He said the prosecution had even failed to prove that a violent attack on the jeweller took place in the first instance.
‘I asked the prosecution several times to show the corroborative evidence against me. They had none’
Sajid met TEHELKA barely 24 hours after he was freed on November 8, 2009, which was six days after the judge acquitted him. His son, who was just six months old when Sajid was arrested three years earlier, hung tentatively on his arm as he talked. “The police claimed that I belonged to the Chhota Shakeel gang,” Sajid says. “I asked the prosecution several times to show corroborative evidence against me. They had none.”
Sajid strongly argues that a review committee should be set up to conduct a random check on most litigation under MCOCA to weed out blatantly false cases. Such a committee is indeed envisaged under MCOCA but doesn’t exist. Yes, Sajid knows the law by heart now. Although he has only studied up to the eighth standard, he procured a copy of the law and read it back-toback several times.
To be honest, Sajid didn’t quite think he’d get out so quickly: “I had told my wife she should be ready for the long haul.”
“My trial lasted only seven days,” Sajid shakes his head in disbelief. “But I was in jail for three years.”
He still doesn’t know why.
FACT FILE
• Arrested for alleged ties with gangster Faheem Machmach. Accused of extortion
• Prosecution provided no evidence of his phone calls for extortion, nor of links to Machmach
• He denied that he had confessed to his guilt. But he stayed in jail for three years, until his acquittal in November
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CASE STUDY 7
The Grim Tale Of The Azmi Brothers
ABRAR AZMI, Perfume mixer
ANWAAR AZMI, Construction site supervisor
ABRAR AZMI mixes scents in a backyard perfume factory for five thousand rupees a month. He was born and raised in central Mumbai’s dense Muslim neighbourhood of Bhendi Bazaar, where he lives with his wife and three sons. In the back alleys here, Abrar and the local lads played cricket as children. One of them was Faheem. Almost 20 years ago, Faheem ran away and no one claims to have seen him since. He is now known as Faheem Machmach, the right-hand man of underworld don Chhota Shakeel.
“I can’t believe Faheem became a gangster,” chuckles Abrar, rolling his eyes. “Back then, he always got beaten up by everyone else.” On February 10, 2005, Mumbai Police arrested Abrar and a younger brother, Anwaar. Their alleged crime: being gangsters of Faheem Machmach, threatening and extorting money in his name. On February 1, 2005, nine days before their arrest, a local woman had complained to the police that the brothers had accosted her and her daughter in broad daylight on a busy street. She said the brothers threatened they would have Machmach order her and her family killed.
The police also arrested a cousin of the Azmi brothers, claiming they had taped a telephone chat between this cousin in Mumbai and Machmach in Dubai. They sent this intercept along with the cousin’s voice sample to the government’s Central Forensic Science Laboratory (CFSL), which subsequently confirmed that the voice on the tape was indeed the cousin’s.
IT ALL seemed pat. A special MCOCA judge agreed there was enough evidence to try the brothers for being members of what MCOCA defines as an “organised crime syndicate”. Three months after their arrest, the Azmi brothers were charged under MCOCA. This draconian law makes it virtually impossible for the accused to secure bail. Still, Abrar tried. His plea was, however, turned down, first by the trial judge and then by the High Court. Abrar didn’t have the money to move the Supreme Court.
But once the trial began, the case began to unravel. Admittedly, the complainant was a controversial local leader known as a troublemaker. (She passed away before the trial concluded.) In cross-examination, her daughter and son — who claimed to have witnessed the alleged crime — admitted that their family and Faheem Machmach’s had long been hostile neighbours, “not on good terms, [with] constant quibbling and hot exchanges of words”. The siblings also admitted that their family and the Azmis had been friends for years until 2003, when some violence between them turned them into foes.
In fact, Abrar’s father, Gulzar Azmi, once arbitrated in a property dispute involving the complainant woman. Gulzar Azmi is a well-known leader among Indian Muslims and currently heads the Maharashtra wing of the Jamiat Ulema-e-Hind.
The complainant’s children admitted that their mother had had a long association with the police. On February 1, 2005, the day of the alleged crime, she had met the local DCP, who had asked his subordinates to act on her complaint. The question arose, if the Azmi brothers were indeed gangsters of Machmach, shouldn’t the police have registered a criminal case against them the day the complaint was made? Instead, the police took eight days to register the case.
“There is substance in the submission by the defence that this delay might have been used for shaping up the case against the accused and Faheem Machmach,” wrote Special MCOCA Judge MR Bhatkar in her order of November 2007, acquitting all the accused.
The judge noted that not once in those eight days did the police meet the complainant to investigate her complaint. In those eight days, not once did the complainant go back to the police to follow up on her complaint.
The Prosecution Could Not Even Offer Such Basic Facts As The Names Of People The Brothers Allegedly Extorted
Of gaping holes, there were more. Allegedly, the Azmi brothers accosted the complainant and her daughter in a busy lane around noon in the heart of their neighbourhood. “The entire incident took place for 12 to 13 minutes,” wrote the judge. “How could the police not get any independent witnesses?”
The prosecution claimed the Azmi duo were involved in “criminal activities such as threatening, abusing, assaulting people and recovering money for Faheem Machmach”. But when asked for evidence, it offered the oral claims of none other than the complainant’s son and daughter. When the court asked for specifics of the Azmi brothers’ alleged activities — such as the names of people extorted from and dates — they could offer none. Both admitted they had never received any calls from Faheem Machmach.
The prosecution lined up a paan-seller, a public phone booth operator and a barber as witnesses to the alleged activities of the brothers. They, too, failed to give specific instances. “These general submissions cannot prove the offence,” the judge wrote.
Most damaging to the case, however, was the matter of the forensic report from the CFSL which supposedly confirmed that Abrar’s cousin had spoken to Machmach. For the report to be admissible as evidence, the law says, it should have been signed by the CFSL’s Director or Deputy Director or Assistant Director. But it was a mere ‘Junior Scientific Officer’ who signed the report. Predictably, the judge threw it out. Why would the CFSL, which routinely sends reports to courts, make this basic mistake, especially in a case involving a mafia don?
SO AFTER 33 months and 15 days in jail, the Azmi brothers walked free. Even the state knew that the case against them was indefensibly weak, if not outright fabricated: It did not appeal the trial judge’s order. There is little doubt that had the case been tried under the Indian Penal Code, the Azmis would have had a shot at bail, perhaps right in the first few days after arrest. But MCOCA kept them jailed for three summers.
Anwaar is now back in his job as a site manager for a construction contractor. On December 22, 2009, his wife delivered their first child, a son, who Anwaar’s father named Kaab, after the Companion of the Prophet.
“I always knew I would be freed because I was innocent,” says Anwaar. “But I was worried, because there were so many MCOCA accused who had been in jail for far longer than us, waiting for their trial.” He pauses, then adds, “We were lucky to get out early.”
FACT FILE
• The Azmi brothers grew up in the same Mumbai locality where gangster Faheem Machmach was their neighbour and playmate
• The brothers were arrested for allegedly threatening a local female leader in the name of Machmach
• After nearly three years in jail, the case was thrown out for lack of evidence and unreliable witness statements
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CASE STUDY 8
Married To The Mob And Paying The Price For It
GANGUBAI, Housewife
THE THINGS that love can make one do. Gangubai met her future husband when still in her teens. That he was a Muslim and already married didn’t faze her. She converted to Islam and became his wife in 1982. In time, she bore him a son. He kept his promise to give her a separate household.
Her husband’s older brother, Sher Bahadur Akram Khan, was a patriarch of the extended family that lived around a shantytown on the picturesque hills of Powai in north Mumbai. On March 20, 2004, the peace of the family was destroyed. Around twilight that day, two activists of the Vishwa Hindu Parishad (VHP) were attacked and killed in the shantytown with swords and sharp weapons.
For this crime, police arrested Khan, three of his sons, a son-in-law, a younger brother, two brothers-in-law and two nephews. They were charged with conspiring to commit and carry out the murders. Three months later, police also arrested Gangubai. They said she gave money to three of the accused, including her son, Amin, after the murders and sent them off to hide at her brother’s. Police said Amin led them to her house where his bloodstained clothes were found.
Under the Indian Penal Code (IPC), this crime would attract Section 302, which covers the offence of murder, besides sundry other laws dealing with, among others, unlawful assembly, conspiracy and bearing arms. But the Mumbai Police booked the family under MCOCA. Only members of an organised crime syndicate can be tried under this law. Well, then, said the prosecution, the family was actually a gang: the “Sher Bahadur Akram Khan gang”.
All 11 accused moved the Bombay High Court arguing that MCOCA could not be applied to them because they were a family, not an organised crime syndicate. The High Court told them to go back to the Special MCOCA Court. A year and a half later, the MCOCA judge denied their plea, accepting the argument that the Khans were indeed a gang.
So the family moved the Bombay High Court again. In December 2006, more than two and a half years after the family members’ arrests, the High Court struck down the charges under MCOCA and ruled that the family be tried under the IPC. Said the High Court: “The mere fact that the accused are related to each other and have committed offences either individually or jointly, would not, in our opinion, lead to the inference that the accused formed an organised crime syndicate.”
Once the double murder case went to trial under the IPC, as should have been done in the first place, bail was given to Gangubai because she was not accused of murder but only of being an accessory after the crime. She walked free in February 2007, having spent more than thirty-one months behind bars.
IN MAY 2009, a Mumbai sessions Judge who tried the family under the IPC found ten of the 11 accused guilty of the murders and sentenced them to life imprisonment. Gangubai, however, was acquitted. The judge said there was “absolutely no evidence” to show that on the day of the murders of the VHP activists, Gangubai had given Rs 2,000, as alleged, to three of the accused and sent them to her brother’s. “None of the witnesses examined has deposed about this fact,” the judge wrote, adding that there was “no evidence” to prove that she knew that they were offenders or that she wanted to protect them from punishment.
Of course, Gangubai’s version of what happened differs vastly from the police’s. According to her, she was visiting her father in Karnataka with her daughter- in-law when the police suddenly arrived there on March 23, 2004, three days after the murders. The police forced her and her daughterin- law into a vehicle and drove them non-stop for a full day, bringing them to Mumbai.
“They called me to the police station everyday and said that if Amin doesn’t surrender, they’ll arrest me,” she says. Amin surrendered. Three months later, they arrested her anyway. The only person left behind, Gangubai’s daughter-in-law, Amin’s wife, shifted to her father’s with their little daughter.
There is little doubt that Gangubai would never have had to spent two and a half years in jail without bail had she been booked under the IPC and not MCOCA to begin with. The Khan family has now moved the Bombay High Court against their conviction and sought a reversal of that order. “Amin had nothing to do with the murders,” Gangubai says forcefully. “I am sure he, too, will be freed one day.”
FACT FILE
• Several of Gangubai’s family members, including her son, were arrested by police for allegedly murdering two VHP activists in their shantytown
• Three months later, she was also arrested for giving money to three of the accused and sending them to hide at her brother’s place
• Gangubai was given bail after the MCOCA charge was dropped. She was eventually acquitted
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‘MCOCA Has Never Been Misused By Anyone’
Despite the courts throwing out case after case under the draconian law, Mumbai Police Commissioner D Sivanandan defends MCOCA, saying it has succeeded in curbing organised crime.
MCOCA was enacted a decade ago to control organised crime in Maharashtra. Has the law made any difference?
MCOCA is excellent. It’s been very successful. As far as tackling crime is concerned, it’s the only law in the country with some kind of teeth. It’s the only law that allows police officers of DCP rank and above to record confessions of an accused [as evidence]. TADA and POTA [which also did so] have been scrapped.
What is the conviction rate under MCOCA?
Fifty-six percent.
What is the reason behind this high conviction rate?
Criminal gangs have been controlled due to several factors. MCOCA is one of them. Earlier, we had the Maharashtra Preventive Detention Act under which about 50 people would be jailed every year. In 1999, [when MCOCA was enacted] we jailed 642. Detention and seizures were used. The gun culture was controlled. Extortionists were arrested and convicted. Encounter [killings] also had a role.
Defence lawyers who specialise in MCOCA cases say that the conviction rate is not even 10 percent and that even of those few, about half are overturned by the High Court.
Rubbish. That’s ridiculous.
Critics say the police have misused MCOCA a lot.
I don’t agree.
Former Mumbai police commissioner RS Sharma was accused under MCOCA in the fake stamp paper scam but the trial court discharged him. Sharma says MCOCA was misused to frame him.
I will not comment about Sharma’s case. You have come to me with a preconceived notion.
But even the Supreme Court spoke strongly against the police in Sharma’s case. And so did the trial judge while discharging him.
MCOCA has never been misused by anyone. A law isn’t misused if it’s applied in good faith and enough evidence is collected.
But so many of the accused have been acquitted.
Just because the judge acquits someone doesn’t mean the acquittal is correct.
How many big gangsters have been convicted under MCOCA?
None. Many of the top chaps are abroad.
Dawood Ibrahim’s brother Iqbal Kaskar was acquitted.
I will not comment on Iqbal Kaskar’s case.
Under MCOCA one can’t get bail easily, so even innocent people spend years in jail. Defence lawyers say a committee should review such cases.
The law is very tight. There’s no need for a review committee. The law has had a serious impact on the underworld. We are subject to the political process. The Supreme Court and High Court are breathing down our necks.
Most MCOCA cases are based on confessions given to police officers. Many accused later say the police tortured them into signing fake confessions.
There has been no misuse of confessions in the last 10 years. If a jail inmate confesses to another, it’s admissible as evidence. What’s wrong if confessions are given to police?
The Indian Evidence Act says that confessions to police officers cannot be admitted in a trial. TADA and POTA were scrapped because confessions to police were being misused.
We have been demanding for the last 100 years that the [Indian] Evidence Act be amended and police officers above a certain rank be given the right to record confessions.
Are you saying that there is no misuse of MCOCA?
Should we do away with electricity because some people get electrocuted?
But POTA was scrapped because it was being misused.
[A law like] POTA is needed for India. A law with death penalty should be enacted. That will deter criminals.
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ajit@tehelka.com
rana@tehelka.com
