Anil Deshmukh May Not Get Convicted, Sachin Waze's Statements Contradictory : Bombay High Court In Bail Order

"All these factors if considered on the anvil of the test enunciated in the case of Ranjitsingh Sharma (supra) may persuade the Court to hold that, in all probabilities, the Applicant may not be ultimately convicted," the court observed.

Justice NJ Jamadar in his judgement on Wednesday said that a collection of Rs.4.70 Crores from the bar owners by dismissed cop Sachin Waze would be "proceeds of crime" and there was evidence demonstrating this. However, there was a dispute regarding who was the money being collected for, Deshmukh or former police commissioner Parambir Singh, as there were several contradictory statements.

Param Bir Singh and Sachin Waze's Claims on Transfers and Postings "Hear-Say"

Significantly, the bench found Param Bir Singh and Waze's allegations about Deshmukh making money over police transfers and postings to be "hear-say" as both Waze and Singh claimed to have 'learnt or heard' that money changed hands. Moreover, there was nothing in the charge sheet to show that Deshmukh had purchased a particular property with this money etc.

"These statements ex-facie cannot bear weight of the allegation of generation of proceeds of crime out of the alleged predicate offence of exercise of influence over the transfers and postings of the police officials. These statements ex-facie lack the element of certainty as to the source, time and place. They prima facie appears to be hear-say."

Who is No. 1?

According to the ED, Waze had met with bar owners on Deshmukh's insistence in mid-December 2020 and asked them to pay him money to be handed over to 'No.1', a code word for Deshmukh. Sachin Waze and Param Bir Singh supported this case.

However, ACP Sanjay Patil said that when he asked Waze who is No. 1, Waze said it was Param Bir Singh and not Deshmukh, the bench noted. It further observed that Patil was consistent with his statements before the ED and in other cases recorded by the Mumbai police, unlike Waze.

Moreover, in the Mumbai police case, several bar owners had said in their statements recorded before a Magistrate under section 164 of the CrPC, that in common parlance the Commissioner of Police (Param Bir Singh) was considered to be No.1 in police hierarchy.

"These statements which were recorded before the learned Magistrate stand on a higher footing than the statements extracted by the ED under Section 50 of the PMLA."

Waze Not Credible Witness

With witnesses making contradictory statements regarding who is No. 1, the court refused to rely solely on Waze's statements considering his contradictory stand before the Justice Chandiwal Commission wherein he denied all the allegations against Deshmukh. The court also cited Waze's chequered past to prima facie discredit him as a witness.

"In my view, the material, prima facie, renders it unsafe to place reliance on the statement of Mr. Sachin Waze, a co-accused, that cash amount was collected and delivered to Mr. Kundan Shinde at the instructions of the Applicant (Deshmukh)."

"In the least, the tenure of Mr. Sachin Waze as a police officer has been controversial. He was under suspension for almost 16 years. He came to be arrested by NIA in C.R.No.35 of 2021 for the alleged murder of a person in connection with the occurrence of a gelatin laden SUV. His statements were recorded by ED whilst he remained in the custody of jurisdictional Court," the bench observed.

Unaccounted Donations in Trust Held By Deshmukh's Family

It was the ED's case that from 2011-2021 over Rs. 13 crore of illegal gratification collected by Dehsmukh, with the help of his son, was transferred to Delhi based shell companies through hawala operators and rooted as donations to Shri Sai Shikshan Sanstha, a charitable Trust, managed and controlled by Deshmukh's family.

They specifically alleged that Rs. 1.71 crore was deposited in the trust in 2021 from the money Waze collected from bar owners and handed over to Deshmukh's secretary Kundan Shinde.

At the outset the court said that there is no allegation that all the property had been derived or obtained as a result of criminal activity relating to scheduled offence (CBI case.) Regarding the Rs 1.71 crore, court held that Waze's claims could not be relied on to show that he handed over cash to Shinde in the first place.

Can Consider Health of Accused Despite Bail Plea on Merits

Lastly, the bench held that there was no bar on considering Deshmukh's medical condition under the first proviso of Section 45 of PMLA, despite his bail application being filed on merits of the case.

"The proviso can be taken into account even when the Court is considering the Application for bail on merits and not necessarily only when the accused seeks bail on the grounds mentioned in the proviso…

In the light of the material on record, it would be audacious to observe that the Applicant is not a sick person."

Conditions for Release

Furnishing a P.R. bond of Rs.1 Lakh and one or two sureties in the like amount to the satisfaction of the learned Judge, PMLA, Mumbai.

2. Report to ED every Monday between 10.00 a.m. to 12.00 noon for a period of two months from the date of release. Thereafter, report every alternate Monday from 10.00 a.m. to 12.00 noon for next four months.

3. Attend each and every date of the proceedings before the PMLA Court, Mumbai.

4. Remain within the jurisdiction of the PMLA Court i.e. Greater Mumbai till the trial is concluded and shall not leave the area without prior permission of the PMLA Court.

5. Surrender Passport

6. No tampering with witnesses.

The High Court has also stated that the bail order will be effective only from October 13, so as to enable the ED to approach the Supreme Court (which is reopening after Dusshera break on October 10)