Bombay High Court 2023 Digest On Special Criminal Acts - POCSO, UAPA, NDPS, PMLA

Case Title: Natraj Sanskrutik Kala Kendra through its proprietor Vishal Nandkishor Gangawane v. State of Maharashtra & Ors.

Citation: 2023 LiveLaw (Bom) 117

The Bombay High Court held that the performers license of Natraj Sanskrutik Kala Kendra, Nashik couldn't have been cancelled on the ground of crime registered against the proprietor as the alleged crime was not committed on the Kala Kendra's premises.

Justice RG Avachat added that since the proprietor has been acquitted of the crime, the ground for cancellation does not exist anymore.

2. Bombay High Court Quashes Sexual Assault Case Under POCSO After Child's Mother Consents

Case Title: Shiva Chanappa Odala v. State of Maharashtra & Anr.

Citation: 2023 LiveLaw (Bom) 131

The Bombay High Court has quashed an FIR registered against a 19-year-old male student under IPC and POCSO for the abduction and sexual assault of a minor teenager with the complainant's - mother's consent.

Justices Nitin Sambre and SG Dige observed that the couple was on “friendly terms” and lived together without informing the girl's parents. And this miscommunication was the reason behind the FIR.

3. 3.5 Yrs Old Girl Not Introduced To Own Organs, Not Expected To Give Exact Description Of Private Parts, Identify Accused From Photo: Bombay High Court

Case Title: Mahadev Gaur Bishwas v. State of Maharashtra & Anr

Citation: 2023 LiveLaw (Bom) 152

Observing that a three-year-old child cannot be expected to give an exact description of her private parts or identify the accused based on a photograph, the Bombay High Court upheld the 10 -year sentence of the child's neighbour under the Protection of Children from Sexual Offences Act (POCSO).

Justice Bharati Dangre upheld the neighbour's conviction by a Special Court for offences punishable u/s. 376(2) and Section 6 of the POCSO Act for raping the victim girl by penetrating his finger into the vagina.

“A little girl of 3 ½ years who is not even introduced to her own organs, cannot be expected to give exact description of her private parts, but in her statement recorded u/s.164, she has categorically stated that XXXX's father had touched her at the toilet place by his nails,” the judge observed

4. Six-Year-Old Not Expected To Know Culprit's Full Name: Bombay High Court Upholds Rape Conviction

Case Title: Satish s/o Ramesh Nandre v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 199

Observing that a 6-year-old child is not expected to know the full name of the person who raped her, the Bombay High Court upheld the conviction of a 38-year-old man who was booked after the child provided his nickname to the police.

A division bench of Justice Vibha Kankanwadi and Justice YG Khobragade sitting at Aurangabad held the fact that the child's mother provided the full name from the nickname given by the child does not mean that the accused is being implicated in the crime.

5. POCSO Act Not Meant To Punish Minors In Romantic Relationships: Bombay High Court

Case Title: Imran Iqbal Shaikh v. State of Maharashtra and Anr

Citation: 2023 LiveLaw (Bom) 231

The Protection of Children of From Sexual Offences Act (POCSO) was enacted to protect minors from sexual assault, not to punish minors in romantic or consensual relationship and brand them as criminals, the Bombay High Court said.

Justice Anuja Prabhudessai observed thus and granted bail to a 22-year-old accused of kidnapping and rape of a minor under sections 363, 376 of the IPC and section 4 of the POCSO Act.

6. [POCSO Act] Mere Non-Eruption Of Wisdom Teeth Not Conclusive Proof Of A Person's Minority: Bombay High Court

Case Title: Maherban Hasan Babu Khan v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 243

The Bombay High Court held that the mere non-eruption of wisdom teeth of a person is not sufficient to prove that the person is a minor, while acquitting a man convicted under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

Justice Anuja Prabhudessai held that the prosecution could not prove beyond reasonable doubt that the complainant was a child at the time of the incident.

“Eruption of wisdom tooth may at the most suggest that the age of the person is 17 years or above but non-eruption or absence of wisdom tooth does not conclusively prove that the person is below 18 years of age. Therefore, the mere fact that wisdom tooth have not erupted is not of great importance in assessing the age”, the court held.

7. Juvenile Justice Board's Decision To Try Child As Adult Must Be Transparent And Fair: Bombay High Court

Case Title: XXX v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 314

Owing to several procedural lapses by the Juvenile Justice Board (JJB), Yavatmal, the Bombay High Court ordered re-adjudication of a plea to try two juveniles as adults in the case of a gang-rape of a minor girl.

Justice GA Sanap at the Nagpur bench noted that the JJB's roznama didn't specify if the juveniles or their advocates were even given a copy of the application, their psychiatric evaluation report or if they participated in the assessment process under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

The bench further observed that final order passed by the JJB to try the juveniles as an adult with such a half-hearted inquiry, "has caused prejudice not only to the JCLs, but to the informant and the victim.”

8. Bombay High Court Criticises Trial Judge For Awarding Lesser Than Minimum Sentence To POCSO Convict

Case Title: Rodu Bhaga Wagh v. State of Maharashtra & Anr.

Citation: 2023 LiveLaw (Bom) 432

The Bombay High Court criticised a Special Judge under the Protection of Children from Sexual Offences Act (POCSO Act) for awarding 3-year imprisonment to a man convicted for attempting to rape a child, observing that the Act calls for a greater punishment.

Justice Bharati Dangre observed that the prosecution neither brought this to the notice of the trial court, nor is there any recommendation, made for filing of an appeal, on behalf of the state against lesser sentence.

It is not open to a Court to impose a punishment lesser than the minimum that is prescribed, the court said.

9. POCSO Act | Bone Ossification Test Vital Only When Victim On Cusp Of Majority, Bombay HC Accepts Victim A Minor Based On Father's Evidence

Case Title: Sunil s/o Fattesing Sable v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 467

The Bombay High Court held that bone ossification test to determine the age of victim in a case under the Protection of Children from Sexual Offences Act, 2012 is required only when the victim is on the cusp of majority.

A division bench of Justice Vibha Kankanwadi and Justice Abhay S Waghwase sitting at Aurangabad dismissed a man's appeal against conviction and life sentence for raping a 14-year-old child and observed that her age was proved from her father's testimony.

10. Bombay High Court Grants Relief To Minor's Father Booked After Failed Prosecution, Says Purpose Of POCSO Act Not To Discourage Victims

Case Title: ABC v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 479

The Bombay High Court observed that the Protection of Children from Sexual Offences Act, 2012 is not meant to discourage victims from registering complaints due to the fear that they may be prosecuted for false evidence if the prosecution fails to prove its case.

Justice MS Karnik, while quashing a complaint against father of a minor victim booked for giving false evidence, observed –

“The object of the POCSO Act is to ensure justice to the victims who have suffered the offence...The purpose is to obligate reporting of cases and recording of offences and not to discourage victims with a sword of a prosecution hanging over them in case the prosecution is not successful in establishing the offence against the accused person/s. Section 22 provides for punishment for false complaint or false information. The present is not a case of making false complaint or providing false information. This is a case where the prosecution failed to prove the offence against the accused.”

The court held that merely victim and her father turning hostile in a case under the POCSO Act does not mean that they gave false evidence and are liable to be prosecuted under section 22 (punishment for false complaint or false information) of the Act, as there can be many reasons for a victim's change in stance.

11. Victim Or Guardian In POCSO Case Not Obligated To Appear Before Court In Appeals And Application For Sentence Suspension: Bombay High Court

Case Title: Rohit s/o Chandrakant Bhagat v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 549

The Bombay High Court clarified that the child victim of offenses under the Protection of Children from Sexual Offences (POCSO) Act or their guardians are not obligated to appear before the court in appeals or applications for suspension of sentence by the convict.

Justice Anil Pansare of the Nagpur Bench observed that confusion has arisen among advocates, investigating agencies, and court officials regarding the necessity of the presence of a child victim, through parents or guardians, in appeals under Section 374 or applications for suspension of sentence under Section 389 of the CrPC.

The court emphasized that the child's or the guardian's presence is not obligatory except in bail applications, as per directions given by the court in Arjun Kishanrao Malge v. State of Maharashtra.

The court admitted an appeal against conviction and directed the appellant to delete the victim's name from both the appeal and the application for suspension for sentence.

Unlawful Activities (Prevention) Act, 1967

1. 'Causing Bomb Blast Not An Official Duty': Bombay High Court Dismisses Lt Col Prasad Purohit's Plea For Discharge In Malegaon Blast Case

Case Title: Lt. Col. Prasad Purohit v. National Investigation Agency

Citation: 2023 LiveLaw (Bom) 2

The Bombay High Court rejected an appeal filed by Lieutenant Colonel Prasad Shrikant Purohit, a prime accused, seeking discharge in the case of 2008 Malegaon blast that killed six people and injured over 101.

A division bench of Justices AS Gadkari and Prakash Naik pronounced the order. "Even otherwise indulging into an activity of a bomb explosion causing the death of six persons is not an act done by the Appellant in his official duty," said the court and rejected his claim that a sanction was required to prosecute him

"After minutely perusing entire record we are of the considered opinion that, the offence/s alleged against the Appellant under Section 120-B r/w 302 and other related sections of the Indian Penal Code and under the provisions of UAP Act, of commission of murder of six persons and causing serious to grievous injuries to about 100 persons is nothing to do with his official duty. It has nothing to do or related in any manner with the discharge of the official duty of the Appellant," said the court.

2. Sanatan Sanstha Not Declared Banned Or Terrorist Organization Under UAPA: Bombay High Court

Case Title: Liladhar @ Vijay Lodhi v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 157

Sanatan Sanstha has not been declared a banned or terrorist organization under the Unlawful Activities (Prevention) Act, 2004, the Bombay High Court observed.

A division bench of Justice Sunil B Shukre and Justice Kamal Khata granted bail to two members of the Sanstha in the Sunburn Terror Attack Conspiracy 2017 and Nallasopara Arms Haul Case 2018.

“The most intriguing part of this case is that 'Sanatan Sanstha' is an organization which has not been declared to be a banned or terrorist organization or a frontal organization of any banned terrorist group within the meaning and contemplation of Unlawful Activities (Prevention) Act, 2004”, the court said.

The court said that the prosecution's evidence was “disappointing” and there was no prima facie evidence against the accused.

3. No Materials To Prima Facie Indicate UAPA Offences Against Mahesh Raut: Bombay High Court In Bhima Koregaon Case

Case Title: Mahesh Sitaram Raut v. National Investigation Agency

Citation: 2023 LiveLaw (Bom) 451

Observing that the material against forest rights activist Mahesh Raut couldn't lead to a prima-facie inference that he had indulged in a 'terrorist act' under Section 15 of the Unlawful Activities (Prevention) Act 1967, the Bombay High Court granted him bail in the Bhima Koregaon – Elgar Parishad larger conspiracy case.

“We are of the prima-facie opinion that on the basis of the material placed before us by the NIA, it cannot be said that there are reasonable grounds for believing that the accusations against the Appellant is prima-facie true to attract Sections 16, 17, 18, 20 and 39 of UAP Act,” the court of Justices AS Gadkari and Sharmila Deshmukh observed.

The court further noted the 5 years and three months Raut has already spent inside prison without trial.

4. Bhima Koregaon: Bombay High Court Permits Accused Poet Varavara Rao To Travel To Hyderabad For Cataract Surgery

Case Title: Dr. P. Varavara Rao v. National Investigation Agency and Anr.

Citation: 2023 LiveLaw (Bom) 495

The Bombay High Court granted octogenarian Telugu poet Varavara Rao permission to travel to Hyderabad for seven days to undergo cataract surgery in one of his eyes.

Justices AS Gadkari and Shyam Chandak further asked Rao to seek permission afresh from the trial court to undergo surgery for the other eye.

Rao had approached High Court in November 2022 against the Special NIA's court order refusing permission.

The poet is facing allegations under the UAPA over alleged Maoist links. The Supreme Court on August 10 2022 had granted him permanent medical bail but constrained him to stay within the limits of the city of Greater Mumbai. The court however, granted him liberty to approach the concerned NIA court for permission to go to Hyderabad.

5. "No Material To Infer Gautam Navlakha Committed Terrorist Act": Bombay High Court In Bail Order In Bhima Koregaon- Elgar Parishad Case

Case Title: Gautam P Navlakha v. National Investigating Agency

Citation: 2023 LiveLaw (Bom) 597

There is no material to infer senior journalist and accused Gautam Navlakha had committed a terrorist Act as contemplated under Section 15 of UAPA, the Bombay High Court observed in its detailed order granting him bail in the Bhima Koregaon – Elgar Parishad riots case.

“The actual involvement of the appellant in any terrorist act cannot be even inferred from any of the communications and/ or statements of the witnesses,” the court observed.

The bench of Justices AS Gadkari and Shivkumar Dige granted bail to Navlakha an, accused in the Bhima Koregaon- Elgar Parishad case over alleged Maoist links.

Navlakha, a journalist and activist was arrested on April 14, 2020 for his alleged involvement in the violence that erupted at Bhima Koregaon village in Pune district on January 1, 2018. He has been in jail for over 3 years and 8 months.

Narcotic Drugs and Psychotropic Substances Act, 1985

1. [S.52A NDPS Act] Bombay High Court Grants Bail To Accused As Samples Collected In Front Of Magistrate Not Sent For Chemical Analysis

Case Title: Santosh Pandurang Parte v. Amar Bahadur Maurya and Anr.

Citation: 2023 LiveLaw (Bom) 348

The Bombay High Court granted bail to a 35-year-old man arrested after commercial quantity of Ganja was allegedly seized from his farmhouse, on the ground that the authorities did not send samples collected in front of the Magistrate to the Chemical Analyzer.

Justice SM Modak observed –

“learned Magistrate has taken the inventory and drawn few of the samples as mentioned in the para no. 14 of certificate on page no. 128 but fact remains that these samples were not sent to the Chemical Analyzer. So it is true that the directions in para no. 31(1) of the observations in case of Union of Indian Vs. Mohanlal were not followed. Ultimately when the evidence will be adduced during the trial, there will not be Chemical Analyzer report available on the basis of the analysis done about samples taken before learned Magistrate what will be available is Chemical Analyzer report about samples taken at the spot/office.”

2. S.42 NDPS Act | No Reason For Search After Sunset Without Warrant: Bombay HC Grants Bail To Man Booked For Alleged Possession Of 50 Kgs Ganja

Case Title: Shivraj Gorakh Satpute v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 445

The Bombay High Court granted bail to a 22-year-old man booked for possession of commercial quantity of Ganja after 50 Kgs Ganja was allegedly seized from his home between sunset and sunrise based on information given by another accused.

Justice Anuja Prabhudessai observed that the seizure was not a chance recovery, and there was nothing to show the officer's reasonable belief that obtaining a warrant for search between sunset and sunrise would allow the offender to escape.

3. NDPS Act | Non-Compliance With S.52A Does Not Automatically Entitle Accused To Bail, Stringent Conditions For Bail U/S 37 Still Apply: Bombay HC

Case Title: Mukesh Rajaram Chaudhari v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 482

The Bombay High Court held that an accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 would not become entitled to bail merely because samples sent for forensic analysis were not drawn in front of a magistrate.

Justice MS Karnik refused bail to a man arrested for allegedly possessing commercial quantity of Codeine observing that the stringent conditions for bail under section 37 would continue to apply even if procedure prescribed under section 52A for drawing samples is not followed.

“At the stage when the court is concerned with the question of granting or refusing bail, this cannot be the sole consideration. It may be one of the relevant considerations but cannot be the sole consideration on the basis of which the moment it is shown that the procedure under Section 52A of the NDPS Act is not followed, the accused automatically becomes entitled to bail as a matter of right. The rigors of Section 37 of the NDPS Act would continue to apply”, the court held.

4. Bombay High Court Grants Bail In NDPS Case After Seized Charas Found 10 Grams Lighter At The Time Of Inventory

Case Title: Sunil Shishupal Nayak v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 505

The Bombay High Court granted bail to a man accused of possession of commercial quantity of 'Charas' under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) after the weight of Charas seized from him supposedly reduced in police custody.

The prosecution claimed that the weight of Charas at the time of seizure was 1 kg and 10 grams. However, when presented before the magistrate for inventory, it weighed 1 kg only.

The court held that since the contraband seized from Nayak weighed 1 kg at the time of inventory before the Magistrate, qualifying as an intermediate quantity, the strict conditions for bail under section 37 of the NDPS Act would not apply.

The court clarified that whether the weight at the time of seizure or the weight before the Magistrate during inventory has to be considered for determining guilt of the accused will be decided at the time of trial.

Prevention of Money Laundering Act, 2002

1. Bombay High Court Quashes ED Investigation Against Jet Airways Founder Naresh Goyal, Wife Anita

Case Title: Naresh Goyal v. Directoratate Of Enforcement And Anr

Citation: 2023 LiveLaw (Bom) 115

The Bombay High Court quashed the Enforcement Directorate (ED)'s ECIR against former Jet Airways Chairman Naresh Goyal and his wife Anita.

The division bench comprising Justices Revati Mohite Dere and Prithviraj Chavan passed the order on a petition filed by the duo seeking quashing of the ECIR registered against them under the Prevention of Money Laundering Act (PMLA).

“admittedly there is no scheduled offence as against the petitioner in both the petitions, in view of the closure report filed by the police, which was accepted by the Courts as stated aforesaid. There being no predicate offence i.e. scheduled offence, the impugned ECIR registered by the respondent No.1 – ED will not survive and as such the said ECIR will have to be quashed and set aside”, the court observed.

2. Yes Bank-DHFL Loan Fraud Case: Bombay High Court Rejects Second Bail Plea By Rana Kapoor

Case Title: Rana Kapoor v. Directorate of Enforcement and Anr

Citation: 2023 LiveLaw (Bom) 234

The Bombay High Court denied bail to Yes Bank founder Rana Kapoor in the Yes Bank-DHFL loan fraud case.

Justice PD Naik reasoned that Kapoor is facing serious allegation of laundering public money, and refused bail on ground of long incarceration.

Though the Supreme Court and Bombay High Court have granted bail on the ground of long incarceration, gravity of accusations cannot be brushed aside, the court said.

The court further noted that Kapoor is involved in seven other similar cases. Allegedly, Rs. 378 Crores out of proceeds of crime of Rs. 600 Crores have been invested overseas. Thus, the court held that Kapoor is not entitled to bail considering his alleged role and magnitude of the crime.

3. PMLA | SC Judgment In 'Pankaj Bansal' On Informing Grounds Of Arrest In Writing Applies Prospectively: Bombay High Court In Naresh Goyal's Case

Case Title: Naresh Goyal v. Directorate of Enforcement

Citation: 2023 LiveLaw (Bom) 522

Refusing relief to Jet Airways founder Naresh Goyal in the money laundering case, the Bombay High Court held that the Supreme Court's recent judgement in Pankaj Bansal's case on giving the accused a physical copy of the grounds of arrest would apply only prospectively.

In a habeas corpus plea filed through his wife, Goyal contended he was not provided the Grounds of Arrest in writing under section 19(1) of Prevention of Money Laundering Act (PMLA), violating his rights under Articles 14, 21 and 22 of the Constitution. Further, the Sessions Judge authorised his detention without recording reasons for such detention.

A division bench comprising Justices Revati Mohite Dere and Gauri Godse noted that Goyal was arrested on September 1, a month prior to the SC judgement interpreting Section 19 of PMLA.

While the Enforcement Directorate may not have given Goyal a physical copy of the grounds of arrest but he was shown the grounds of arrest. He signed the document maintained by the ED, court noted in its order.

4. Bombay High Court Refuses Bail To Sadanand Kadam, 'Close Aide' Of Shiv Sena (UBT) MLC Anil Parab In Dapoli Resort Case

Case Title: Sadanand Gangaram Kadam v. Directorate of Enforcement and Anr.

Citation: 2023 LiveLaw (Bom) 569

The Bombay High Court refused bail to Sadanand Kadam, a close associate of Shiv Sena (UBT) MLC Anil Parab, accused in a money laundering case in connection with the construction of an allegedly illegal resort named 'Sai Resort' in Dapoli, situated in Maharashtra's Ratnagiri district.

Justice MS Karnik observed that merely because a separate ECIR is not registered on the basis of an FIR by the Block Development Officer will not mean that there is no predicate offence for the purpose of PMLA. The court noted that some of the offences pertaining to the FIR are scheduled offences under PMLA. The complaint is filed on the basis of the materials which form a part of the investigation into the MoEF complaint as well as the FIR.

The ECIR was registered on the basis of the MoEF complaint. The process issued under the MoEF complaint was quashed by the revisional Court. However, the court noted, the complaint under Section 45 of the PMLA before the Special Court concerns the MoEF complaint as well as the FIR.

The Enforcement Directorate (ED) arrested Kadam in March 2023 in the money laundering case. He approached the High Court after his bail application was rejected by the Special PMLA Court in October.