LEENA PAULOSE v. STATE NCT OF DELHI

Judgment

#1. By way of this application under Section 439 of the Code of Criminal Procedure, 1973 [“CrPC”] (corresponding to Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 [“BNSS”]), the petitioner seeks regular bail in connection with FIR No. 208/2021, dated

07.08.2021, lodged at Police Station Special Cell, Delhi. The FIR was originally registered under Sections 170/384/385/388/419/420/506/120B BAIL APPLN. 1802/2024 Page 1 of 42 of the Indian Penal Code, 1860 [“IPC”], and Section 66D of the Information Technology Act, 2000 [“IT Act”]. At the time of filing of the chargesheet, Sections 3 and 4 of the Maharashtra Control of Organised Crime Act, 1999 [“MCOCA”], were also invoked.

#2. This is the second bail application filed by the petitioner before this Court. Her first bail application1 was dismissed by a judgment of this Court dated 11.07.2023 [hereinafter, “the 2023 judgment”]. Against the 2023 judgment, the petitioner approached the Supreme Court by way of a special leave petition2, which was withdrawn on 30.10.2023, with liberty to the petitioner to approach the Special Court afresh in view of some co- accused having been granted bail in the interregnum. Pursuant to this liberty, the petitioner applied for bail before the Special Court for the second time. The Special Court rejected her application vide order dated

09.04.2024, which has brought her back to this Court.

#3. I have heard Mr. Anant Singh Malik, learned counsel for the petitioner, and Mr. Sanjay Jain, learned Senior Counsel for the respondent – State. The prosecution has handed up a status report, which is taken on record. A.

#4. PROSECUTION CASE: The prosecution case, as it emerges from the FIR and status report, is summarized hereinbelow: A. FIR No. 208/2021, dated 07.08.2021, lodged at Police Station Special Cell, Delhi, Sections 1 BAIL APPLN. 3706/2022. 2 SLP (CRL.) No. 13605/2023. BAIL APPLN. 1802/2024 Page 2 of 42 170/384/385/388/419/420/506/120B of IPC and Section 66D of the IT Act, has been registered at the instance of one Ms. Aditi Singh. B. According to the complaint, on 15.06.2020, the complainant received a call on her mobile phone from a landline number. The caller introduced himself as a senior officer in the Ministry of Law and offered assistance in securing bail for her husband, who was in judicial custody in cases related to M/s Religare Enterprises Ltd. C. It is alleged that the caller demanded Rs. 50 crores in exchange for facilitating the bail and explained the method of delivering the money. D. Subsequently, through his associates, the caller allegedly extorted money from the complainant on multiple occasions between June 2020 to August 2021, amounting to a total of Rs. 217 crores. There are further allegations with regard to impersonation of senior officials, including the Home Secretary, Government of India, and misrepresenting involvement government functionaries, including the Home Minister. E. Acting on the said information, the police laid a trap and apprehended co-accused Pradeep Ramdanee while he was receiving the extorted amount. During interrogation, he disclosed that he was acting on the instructions of his brother, Deepak Ramnani, who was subsequently arrested. F. Using technical surveillance of the mobile phone used for making the calls, and the statements of co-accused, the caller was identified as one Sukesh Chandra Shekhar @ Sukash Chandra Shekhar [hereinafter, “Sukesh”], who is the husband of the petitioner. BAIL APPLN. 1802/2024 Page 3 of 42 G. At this time, Sukesh was already lodged in Tihar Jail as an undertrial prisoner in a separate case, involving allegations of collecting money from a political leader on the pretext of helping him retain a particular election symbol. He was later shifted to Rohini Jail. H. A raid was conducted on the intervening night of 07/08.08.2021 by the Special Cell, during which two mobile phones were recovered from Sukesh, while he was in custody, and he was formally

arrested in connection with the present FIR. His interrogation led to the identification and arrest of other associates and co-conspirators. I. During investigation, it was found that Sukesh was involved in multiple cases, including attempt to murder, criminal intimidation, cheating, and extortion, often by impersonating high-ranking officials. J. The investigation revealed that Sukesh, alongwith the petitioner herein, had allegedly been operating an organized crime syndicate since 2013 with the objective of unlawful financial gain through cheating and extortion. Four criminal cases had been registered against the petitioner, in all of which Sukesh was also a co-accused. Details of the said cases are as follows: i. FIR No. 186/2017, lodged at Police Station Crime Branch, Delhi, under Sections 201/120B of IPC and Sections 7/12/13 of the Prevention of Corruption Act, 1988. ii. Crime No. 24/2013, registered at Central Crime Branch Police, Chennai, under Sections 406/409/420/34 of IPC and Section 66D of the IT Act. BAIL APPLN. 1802/2024 Page 4 of 42 iii. Crime No. 33/2015, registered at Economic Offences Wing, Mumbai, under Sections 420/120B of IPC and Sections 3/4 the Prize Chits and Money Circulation Schemes (Banning) Act, 19783. iv. Crime No. 64/2013 [RC 6E/2014/BSFC] registered at Central Crime Branch, Chennai, under Sections 406/409/420/120B of IPC and Sections 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988. K. During further investigation, it emerged that co-accused Kamlesh Kothari, B. Mohan Raj, Joel Daniel Jose, Arun Muthu, Subhash Batra, and Dharam Singh Meena, were actively involved in operating the organized crime syndicate led by Sukesh and the petitioner, with the objective of obtaining unlawful financial gains and other benefits. L. Furthermore, as more than one chargesheet had been filed against the petitioner for offences punishable with imprisonment of three years or more, and cognizance had been taken in those cases by the Trial Court within the last ten years, Sections 3 and 4 of the MCOCA, were invoked with due approval from the competent authority. M. Investigation indicated that the petitioner maintained continuous contact with Sukesh while he was lodged in prison, where he was allegedly allowed the use of mobile phones, with the assistance of 3 The petitioner was not chargesheeted in Crime No. 33/2015, registered at Economic Offences Wing, Mumbai. BAIL APPLN. 1802/2024 Page 5 of 42 jail staff. Further, she also maintained contact with Dharam Singh Meena and Subhash Batra, who were officials of Rohini Jail. N. It is alleged that the petitioner was actively and continuously coordinating with Sukesh as well as his associates, in furtherance of organised crime and disposal of proceeds of crime. Specifically, she paid for a “Silent Calling App” 4, used by Sukesh to commit the foundational offence of extortion, while in custody. She also received funds from Sukesh through hawala channels with the assistance of associates such as Joel Daniel Jose, Kamlesh Kothari, B. Mohan Raj, and Arun Muthu. The petitioner facilitated the routing of funds into her accounts through various entities and individuals, against cash provided by her. These funds were then invested in luxury cars, real estate, and her business ventures. A total of 23 high-end luxury vehicles were reportedly seized, out of which 16 were seized from the petitioner’s premises in Chennai in August 2021. O. On 05.09.2021, the petitioner was formally arrested in this case. During her interrogation, she disclosed that since Sukesh was lodged in jail, she handled disposal of the money obtained through cheating and extortion, with the assistance of B. Mohan Raj, Kamlesh Kothari, Arun Muthu, Sudhir, and Joel Daniel Jose. She further admitted that she utilized funds sent to her by Sukesh through hawala channels. She also disclosed that on 09.08.2021, upon learning about Sukesh’s arrest in the extortion case, she BAIL APPLN. 1802/2024 Page 6 of 42 contacted Arun Muthu via WhatsApp and instructed him to move and park 7–8 luxury vehicles at his premises. P. During the investigation, several other accused persons involved in the crime syndicate, being the petitioner, Arun Muthu, B. Mohan Raj, Joel Daniel Jose, Kamlesh Kothari, and Sukesh, were arrested. Q. Disclosure statements of multiple accused persons, including Arun Muthu, B. Mohan Raj, Joel Daniel Jose, Kamlesh Kothari, and Sukesh, were recorded, wherein all have attributed active roles to Sukesh and the petitioner, as the leaders of the organised crime syndicate. R. Additionally, confessional statements under Section 18 of the MCOCA were made by Sukesh, B. Mohan Raj, and Dharam Singh Meena. Sukesh disclosed that hawala funds were received in Chennai and distributed among associates such as Sudheer, Joel, Mohanraj, Kamlesh Kothari, and Arun Muthu, each handling specific aspects like collection, investment, and banking entries. B. Mohanraj, in his statement, confirmed his association with Sukesh, who had contacted him in June 2020 to buy cars and houses in the name of other persons, and the same were utilised by the petitioner. He also admitted that the petitioner started a business, being M/s Super Car Artistry and got cash converted to be shown as legitimate business funds. Dharam Singh Meena, in his statement, confirmed being in contact and coordinating with the petitioner, who was actively monitoring the activities of the crime syndicate. 4 I was informed by learned counsel for the parties that the “Silent Calling App” permits generation of masked telephone numbers, which makes it difficult to identify the caller, despite caller identification BAIL APPLN. 1802/2024 Page 7 of 42 S. During investigation, bank statements of several proprietorship firms operated by the petitioner, namely M/s Nail Artistry, M/s Super Car Artistry, M/s LS Fisheries, M/s LS Education, and M/s News Express Post, were obtained. It was found that three of these entities, namely Nail Artistry, Super Car Artistry, and News Express Post, were extensively used to park and layer the proceeds of crime by disguising them as legitimate business transactions. Between June 2020 and August 2021, approximately Rs. 21 crores was deposited into these accounts through cash deposits, card swipes, and arranged banking entries, all of which were alleged to be sham transactions intended to legitimize illicit funds. T. The proceeds of crime have also been used by Sukesh for various other purposes, including gratification of jail officials for provision of facilities such as single use of barrack, uninterrupted use of mobile phones, electronic gadgets to run the syndicate, and gifts to celebrities. Some of the other co-accused are alleged to have provided for adjustment of the proceeds of crime in their accounts. U. The material against the petitioner has been detailed in the status report, as follows: • “ Involvement in four cases with Sukash, i.e. 1. FIR No. 33/2015 u/s 420, 120 B IPC & 3, 4, Price Chits and Money Circulation Act. EOW, Mumbai, 2. FIR No. 24 of 2013, Central Crime Branch Police Chennai, u/s 406, 420 r/w 34 I.P.C. and u/s 66 D of Information Technology Act and 3. FIR No. 186/2017 u/s 7/12/13 POC Act & 120B IPC, PS Crime Branch, Delhi. 4. CCB Crime No. 64/13, now RC 6E/2014/BSFC u/s on the recipient’s telephone. BAIL APPLN. 1802/2024 Page 8 of 42 406,409,420, 120B IPC & 13(2) r/w 13(1)(d) of PC Act, 1988 Chennai. • Recharge of Silent Calling APP & mobile number 9311910260 (Sukash) from her account. • Recovery of 26 high end cars, Benami property papers (purchased in the name of Jitender Kothari, cousin of Kamlesh Kothari), details of other costly items worth in crores. • Cash amount in A/Cs of her two firms, i.e. Super Car Artistry and Nail Artistry as well as her personal bank accounts. • Money spent in opening of three salons (at Chennai, Bangalore, and Cochin) received through hawala channels and used debit/credits cards of various persons who swapping purpose for escalating the fake sale in the saloons during even Corona/Pandemic period. • Statements u/s 18(1) MCOC Act of Sukash, B. Mohan Raj and D.S. Meena. • 9311910260 – This number belongs to Sukash & recovered from him. Recharge of this number was done through Leena by using a/c of one Noufal. • Statement u/s 161 Cr.P.C. of Naufal, Surender Panwar, Sarvan Priyan, Shiva Subramanium, T. Macheil, Jitender Kothari, Bharat K. Duggar, Jagdish K. Naveen Kumar, Alok Damani, T. Shobby Paul, and Anand Murthy were recorded, examination of these witnesses clearly established accused/applicant was instrumental in carrying out the illegal activities of organized crime syndicate.” B.

#5. RELEVANT PROVISIONS: Statutory provisions referred to by learned counsel for the parties in the course of their arguments are set out below for ease of reference5. a. MCOCA: “Section 2: Definitions. (1) In this Act, unless the context otherwise requires,- (a) “abet”, with its grammatical variations and cognate expression, includes, 5 Learned counsel for the parties also referred to the bail provisions in Narcotic Drugs and Psychotropic Substances Act, 1985 [Section 37], and Prevention of Money-Laundering Act, 2002 [Section 45]. These are not separately reproduced as they are pari materia to Section 21(4) MCOCA. BAIL APPLN. 1802/2024 Page 9 of 42 (i) the communication or association with any person with the actual knowledge or having reason to believe that such person is engaged in assisting in any manner, an organised crime syndicate; (ii) the passing on or publication of, without any lawful authority, any information likely to assist the organised crime syndicate and the passing on or publication of or distribution of any document or matter obtained from the organised crime syndicate; and (iii) the rendering of any assistance, whether financial or otherwise, to the organised crime syndicate; (d) “continuing unlawful activity” means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a Competent Court within the preceding period of ten years and that Court has taken cognizance of such offence; (e) “organised crime” means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency; (f) “organised crime syndicate” means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime; Section 3: Punishment for organized crime. (1) Whoever commits an offence of organised crime shall,— (ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs. (2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organised crime or any act preparatory to organised crime, shall be punishable with imprisonment for a term which shall be not less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs. BAIL APPLN. 1802/2024 Page 10 of 42 (4) Any person who is a member of an organised crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs. (5) Whoever holds any property derived or obtained from commission of an organised crime or which has been acquired through the organised crime syndicate funds shall be punishable with a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum fine of rupees two lacs. Section 17: Special rules of evidence. (1) Notwithstanding anything to the contrary contained in the Code, or the Indian Evidence Act, 1872 (I of 1872), for the purposes of trial and punishment for offences under this Act or connected offences, the Court may take into consideration as having probative value, the fact that the accused was,- (a) on any previous occasion bound under section 107 or section 110 of the Code; (b) detained under any law relating to preventive detention; or (c) on any previous occasion was prosecuted in the Special Court under this Act. (2) Where it is proved that any person involved in an organised crime or any person on his behalf is or has at any time been in possession of movable or immovable property which he cannot satisfactorily account for, the Special Court shall, unless contrary is proved, presume that such property or pecuniary resources have been acquired or derived by his illegal activities. (3) Where it is proved that the accused has kidnapped or abducted any person, the Special Court shall presume that it was for ransom. Section 18: Certain confessions made to the police officer to be taken into consideration. (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (I of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not below the rank of the Superintendent of Police and recorded by such police officer either in writing or on any mechanical devices like cassettes, tapes or sound tracks from which sounds or images can be reproduced, shall be admissible in the trial of such person or co- accused, abettor or conspirator: BAIL APPLN. 1802/2024 Page 11 of 42 Provided that, the co-accused, abettor or conspirator is charged and tried in the same case together with the accused. (2) The confession shall be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him. (3) The police officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he is satisfied that it is being made voluntarily. The concerned police officer shall, after recording such voluntary confession, certify in writing below the confession about his personal satisfaction of the voluntary character of such confession, putting the date and time of the same. (4) Every confession recorded under sub-section (1) shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Special Court which may take cognizance of the offence. (5) The person from whom a confession has been recorded under sub-section (1) shall also be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under sub-section (4) alongwith the original statement of confession, written or recorded on mechanical device without unreasonable delay. (6) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon. Section 21: Modified application of certain provisions of the Code. (4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond, unless- (a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and (b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. BAIL APPLN. 1802/2024 Page 12 of 42 Section 23: Cognizance of, and investigation into, an offence. (1) Notwithstanding anything contained in the Code,- (a) no information about the commission of an offence of organised crime under this Act, shall be recorded by a police officer without the prior approval of the police officer not below the rank of the Deputy Inspector General of Police; (b) no investigation of an offence under the provisions of this Act shall be carried out by a police officer below the rank of the Deputy Superintendent of Police. (2) No Special Court shall take cognizance of any offence under this Act without the previous sanction of the police officer not below the rank of Additional Director General of Police.”6 b. The Unlawful Activities (Prevention) Act, 1967 [“UAPA”]: “Section 43-D: Modified application of certain provisions of the Code. (5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”7 C.

#6. JUDGMENT DATED 11.07.2023: As noted above, an earlier bail application filed by the present petitioner before this Court, was dismissed by the 2023 judgment. It was Mr. Malik’s submission that the Court must re-consider the question of the petitioner’s entitlement to bail, in light of lapse of two and half years since then. However, he rightly accepted that this Court is bound by the 6 Emphasis supplied. 7 Emphasis supplied. BAIL APPLN. 1802/2024 Page 13 of 42 factual and legal findings contained in the said judgment. It is therefore necessary to enumerate the following prima facie factual findings and legal conclusions recorded in the 2023 judgment: A. After noticing the case of the prosecution and the contents of various statements recorded in the course of investigation, the Court considered the submissions made on behalf of the present petitioner, including as to the petitioner’s independent source of income, good faith use of money received from her husband – Sukesh, conduct in joining the investigation, and that the petitioner has firm roots in society, being a successful professional, qualified as a dentist, and a businesswoman in her own right. B. In order to satisfy the ingredients of Sections 2(1)(d) of MCOCA, it is not necessary that the chargesheet should be against an individual, but a chargesheet against the syndicate as a whole, would also suffice8. C. Individual members of the syndicate may have different roles in the commission of the crime. Channelising the money obtained through the foundational crime of extortion is, in fact, sufficient to make out an offence under MCOCA9. D. Membership of the syndicate itself constitutes an offence under Sections 2(1)(d) and 2(1)(e) of MCOCA10. E. The question of whether confessional statements recorded under Section 18 of MCOCA can be read into evidence in the absence of 8 2023 judgment, paragraph 45. 9 2023 judgment, paragraph 46. 10 2023 judgment, paragraph 47. BAIL APPLN. 1802/2024 Page 14 of 42 independent corroboration is a matter of trial11. Confessional statement may also be attributable to the co-accused12. F. Objections with regard to validity of the sanction under Sections 23(1)(a) and 23(2) of MCOCA can only be examined at trial, except when they touch upon inherent lack of jurisdiction, which was not argued in this case13. G. The twin conditions for grant of bail incorporated in Section 21(4) of MCOCA requires the Court to be satisfied that there are “reasonable grounds for believing that the accused is not guilty of such offence”, which is “something more than prima facie grounds”14. H. The present petitioner “was involved in running an organized crime syndicate since 2013 with the motive of pecuniary gain by cheating and extortion”. She was in continuous contact with Sukesh, who was using a mobile phone despite being in custody, as well as co- accused Dharam Singh Meena and Subhash Batra, who were jail officials. She was coordinating with Sukesh and his associates in furtherance of organized crime and disposal of crime proceeds. She procured bank entries from various entities/persons to whom she provided cash received from Sukesh through hawala transactions, and invested thereafter in high-end cars, properties, and her business firms. She is also stated to have made the payment for the 11 2023 judgment, paragraph 49. 12 2023 judgment, paragraph 50. 13 2023 judgment, paragraph 54. 14 2023 judgment, paragraph 55. BAIL APPLN. 1802/2024 Page 15 of 42 “Silent Calling App” used by Sukesh to allegedly commit the foundational crime of extortion15. I. These conclusions are supported by various statements recorded under Sections 161 and 164 of the CrPC16. J. During the period of offence [June 2020 to August 2021], a sum of Rs. 21 crores was deposited into the bank accounts in the name of the petitioner or her proprietorship concerns, namely M/S Nail Artistry, M/S Super Car Artistry, and M/S News Express Post17. K. Although a mini trial is not called for at this stage, the present petitioner was involved in the organized crime syndicate, and cannot be found to have accepted such large sums of money from her husband, only in the context of the matrimonial relationship18. D.

#7. SUBMISSIONS BY LEARNED COUNSEL FOR THE PETITIONER: In the light of the findings already recorded in the 2023 judgment, Mr. Malik confined his submissions to two broad aspects: i. Prolonged incarceration and likely delay in completion of trial. ii. Parity with other co-accused who have already been granted bail. i. Re: Prolonged incarceration and delay in completion of trial

#8. Mr. Malik submitted that the petitioner has already been in custody for a period of over four and half years, but charges have not yet been framed. The prosecution filed the first chargesheet in November 2021, but also filed five supplementary chargesheets thereafter, the last of which was filed only on 04.10.2024. Thus, filing of chargesheets itself 15 2023 judgment, paragraphs 56-57. 16 2023 judgment, paragraphs 58-59. 17 2023 judgment, paragraphs 60-62. 18 2023 judgment, paragraph 76. BAIL APPLN. 1802/2024 Page 16 of 42 took a period of almost three years. The arguments on charge were commenced upon filing of each of the chargesheets, but were disrupted on account of filing of successive chargesheets. He submitted that, even after the filing of the last chargesheet, arguments were addressed, but there was a change in the Presiding Officer of the Special Court on

05.12.2025, after which arguments recommenced. It is specifically urged that, as far as the present petitioner is concerned, there was no delay whatsoever in advancing arguments on charge, either before the predecessor Judge or before the Judge presently presiding over the Special Court. As the case involves 23 accused persons, 403 witnesses cited in the chargesheets, and the chargesheets collectively exceed 10,000 pages, Mr. Malik submitted that the trial is unlikely to conclude within a reasonable time.

#9. Mr. Malik submitted that, in Union of India v. K.A. Najeeb,19 and several later cases, the Supreme Court has clearly held that the mandate under Article 21 of the Constitution prohibits prolonged pre-trial incarceration of an accused, particularly when there is no reasonable likelihood of expeditious conclusion of proceedings. He submitted that, in KA Najeeb, this principle was applied even to UAPA, which also incorporates similar stringent conditions for the grant of bail, as in MCOCA.

#10. Relying upon Section 479 of the BNSS [corresponding to Section 436A of CrPC], Mr. Malik submitted that the petitioner has already been in custody for close to the minimum period of sentence under Section 3(1) of MCOCA, which is five years. Although the sentence can extend to BAIL APPLN. 1802/2024 Page 17 of 42 life imprisonment, he submitted that the allegations in the present case are not at all commensurate with such a sentence and that the petitioner, being a woman, would in any event be entitled to release after seven years.

#11. Mr. Malik also drew my attention to several judgments and orders of the Supreme Court and this Court, in which bail has been granted on this ground even in cases under MCOCA, to which I shall refer at the appropriate stage. ii. Re: Parity with co-accused

#12. Mr. Malik, in support of the argument on parity with other co- accused, pointed out that four co-accused have been granted bail – Joel Daniel by the Special Court20, and Avtar Singh Kochhar21, Pinky Irani22 and Sunil Kumar23 by this Court. He submitted that the role attributed to the petitioner in the commission of the offence is no graver than that attributed to the co-accused. E. SUBMISSIONS BY THE RESPONDENT-STATE: i. Re: Prolonged incarceration and delay in completion of trial

#13. Mr. Jain, on the other hand, submitted, on the basis of the statement of objects and reasons of MCOCA, that the offences contemplated thereunder are serious offences with the potential of prejudicing the security of the nation. In the present case, he emphasized that the offences alleged against the syndicate were committed by impersonation of senior government officials, on the inducement of securing bail for the 19 (2021) 3 SCC 713 [hereinafter, “KA Najeeb”]. 20 Order dated 21.11.2022 in SC 308/2021. 21 Avtar Singh Kocchar v. State of NCT of Delhi; BAIL APPLN 1811/2023, decided on 29.11.2023. 22 Pinky Irani v. Govt. of NCT of Delhi; BAIL APPLN 1127/2023, decided on 20.10.2023. 23 Sunil Kumar v. State of NCT of Delhi; BAIL APPLN. 1130/2023, decided on 02.04.2024. BAIL APPLN. 1802/2024 Page 18 of 42 complainant’s husband. He argued that the offence thus involves a grave attempt to interfere with the administration of justice, which is further underlined by the fact that Sukesh committed the offence while lodged in jail, by procuring the complicity of jail officials. He submitted that the seriousness of the offences, and the facts relating to the petitioner’s involvement have already been determined in the 2023 judgment, and ought not to be revisited by this Court.

#14. Mr. Jain also urged that, on the question of admissibility of confessional statements under Section 18 of MCOCA, the MCOCA regime is stricter than the corresponding regime under the NDPS Act24, rendering the judgments under the NDPS Act inapplicable to a case under MCOCA.

#15. Specifically on the question of prolonged incarceration, Mr. Jain submitted that the bail provisions in MCOCA are materially different from the corresponding provision in UAPA, and have been held to be “on a higher pedestal”. In any event, Mr. Jain argued that several judgments of the Supreme Court and this Court make it clear that, in the case of special statutes incorporating conditions restricting bail, prolonged incarceration is not by itself a ground for release of an accused on bail. Reference to the said judgments is included at the appropriate juncture in this judgment.

#16. Factually, it was argued by Mr. Jain that the present case is not one where delay can be attributed to the prosecution alone, so as to enable the Court to grant bail to the petitioner on this ground. He submitted that, in 24 Section 67 of the NDPS Act read with the judgment of the Supreme Court in Tofan Singh v. State of T.N., (2021) 4 SCC 1. BAIL APPLN. 1802/2024 Page 19 of 42 fact, several adjournments have been taken by the accused, resulting in delay in framing of charges. ii. Re: Parity with Co-accused

#17. On the ground of parity, Mr. Jain submitted that the roles of the co- accused who have been enlarged on bail were materially different. The petitioner is the leader of the syndicate and played a central role in the foundational offence of extortion. She made payments for the “Silent Calling App,” which Sukesh allegedly used from jail to carry out the foundational crime of extortion, and remained in constant contact with Sukesh through mobile phones illegally used by him while in jail, as well as actively facilitated the handling and disposal of the proceeds of crime. In contrast, the roles of the other co-accused were limited and distinct – Avtaar Singh Kochhar acted as a hawala operator, Joel Daniel was a salaried employee, Sunil Kumar was a jail official, and Pinky Irani was involved in arranging meetings with celebrities. F. ANALYSIS i. Re: Prolonged incarceration and delay in completion of trial a) Statement of Objects and Reasons of MCOCA

#18. In order to appreciate the statutory scheme of MCOCA in its proper context, reference may be made to the Statement of Objects and Reasons of the statute, which is re-produced hereinbelow: “Statement of Objects and Reasons Organised crime has been 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 serious adverse effect on our economy. It BAIL APPLN. 1802/2024 Page 20 of 42 was seen that the organised criminal syndicates made a common cause with terrorist gangs and foster narco terrorism which extend beyond the national boundaries. There was reason to believe that organised criminal gangs have been operating in the State and thus, there was immediate need to curb their activities. It was also noticed that the organized criminals have been making extensive use of wire and oral communications in their criminal activities. The interception of such communications to obtain evidence of the commission of crimes or to prevent their commission would be an indispensable aid to law enforcement and the administration of justice.

#2. The existing legal framework i.e. the penal and procedural laws and the adjudicatory system were found to be rather inadequate to curb or control the menace of organised crime. Government, therefore, decided to enact a special law with stringent and deterrent provisions including in certain circumstances power to intercept wire, electronic or oral communication to control the menace of the organised crime. It is the purpose of this act to achieve there objects. An Act to make special provisions for prevention and control of, and for coping with, criminal activity by organized crime syndicate or gang, and for matters connected therewith or incidental thereto. Whereas it was expedient to make special provisions for prevention and control of, and for coping with, criminal activity by organized crime syndicate or gang and for matters connected therewith or incidental thereto; And whereas both Houses of the State Legislature were not in session; And whereas it is expedient to replace the said Ordinance by an Act of the State Legislature; It is hereby enacted in the Fiftieth Year of the Republic of India as follows—..”25 b) Legal Principles

#19. Before turning to the judgments cited on both sides, as several of them are under UAPA, it may be noted that the bail provision under the two statutes (reproduced above) are not identical. It has been held that 25 Emphasis supplied. BAIL APPLN. 1802/2024 Page 21 of 42 Section 21(4) of MCOCA provides for a stricter regime, than Section 43D(5) of UAPA. Both in National Investigation Agency v. Zahoor Ahmad Shah Watali26 and Kekhriesatuo Tep & Ors. v. National Investigation Agency27, the Supreme Court has indicated that the test under MCOCA requires a much stronger degree of satisfaction, than the corresponding stipulation in UAPA. The key distinction, as analysed by the Court, lies in the difference in the formulation of the test: in UAPA, the Court must be satisfied that “there are reasonable grounds for believing that the accusation against such person is prima facie true”, whereas under MCOCA, the satisfaction required is that “there are reasonable grounds for believing that he is not guilty of such offence”.

#20. The Division Bench of this Court in Neelam Ranolia v. State of NCT of Delhi28 has also followed the aforesaid decisions. KA Najeeb, and other judgments under UAPA, must therefore be read in this context.

#21. That said, it is also clear from the judgments and orders of the Supreme Court under MCOCA itself, that prolonged incarceration is a relevant ground, despite the distinction in the bail provisions.

#22. Mr. Malik has, in this context, relied upon the following orders and judgments of the Supreme Court, all being cases of offences under MCOCA: i. In Rockysingh Jalindersingh Kalyani v. State of Maharashtra29, the Supreme Court granted bail to the accused having regard to the fact