Mumbai: The Bombay High Court on Monday said that detaining an approver till the end of the trial is unfair especially when the trial takes long and it will deter those witnesses seeking tender of pardon in future.
It is for the prosecution to ensure that the approver is protected, the court said while granting bail to an approver facing trial in an extortion case involving members of the Dawood Ibrahim gang.
Criminal procedure law
As per the criminal procedure law, an accused who turns approver cannot be released on bail to protect the person from other accused. However, Justice MS Karnik called it an unfair practice while granting bail to an approver Danish Ahmed, who worked with Russian intelligence agents in arms deals along with Dawood Ibrahim’s nephew. Danish turned approver against the four other accused who are members of the D gang involved in the extortion case.
Justice Karnik said this was not the object behind the provisions of grant of pardon to the accused, more so when legislation like the Witness Protection Act is in place.
The court said if the witness feels threatened he can always approach the special court seeking protection and upon satisfaction, the courts can always refer the case to the special Witness Protection Committee.
Ahmed’s lawyer Karan Jain had first moved bail plea before the special MCOCA court earlier this year but it was rejected because of the provisions of pardon to accused bars grant of bail till the end of the trial. He hence moved to high court for bail. The prosecution objected to the bail citing the same rule saying there may be a threat to his life.
The high court observed, “If at all anything, it is the applicant who may be justified in asking for protection but his detention cannot be indefinitely continued at the cost of his liberty.”
Referring to the Maharashtra Witness Protection and Security Act, 2017, the court said that there was no legislation in place for witness protection when the CrPC was brought into force. Now with the Witness Protection Act in place, the dominant object of the applicant’s detention in custody until the termination of trial is to a large extent obliterated more so when the applicant has complied with the conditions of the tender. Having regard to the facts and circumstances of the present case, if the prosecution apprehends danger to the life of the applicant if he is enlarged on bail, it is incumbent on the prosecution to undertake the exercise of finding out the threat perception and ensure that adequate measures are provided for the protection of the applicant.”
The background of the case
Danish was granted pardon in April 2022, and later his testimony was recorded by the special MCOCA court. Danish, in his statement, stated that, in 2009, after the death of Dawood’s brother Noora Ibrahim, Noora’s son Sohel became a close friend, and both of them moved to Russia where he worked with Russian agents. Danish would travel by Russian chartered flights to Belgium, Dubai, Uganda, Algeria, Venezuela and other places to meet prospective customers and show them pictures of the products on offer.
In 2014, Danish and Sohel met three agents of the US Drug Enforcement Agency, who posed as Columbians seeking to purchase Russian arms for a revolt. After he showed them the pictures that he possessed, they chose Igla infra-red missile launchers. After the deal was confirmed in June 2014, Danish and Sohel travelled to Spain to collect the advance and provide the ‘Columbians’ with three samples.
Both were arrested when they went to meet the three Columbians in Spain and were taken to Madrid. Here, they pleaded guilty and were extradited to the US after spending a year and a half in a Madrid jail. Danish was released from the US prison in September 2018 and deported to India.
