Mcoca-division Bench Order 26mar09

IN THE HIGH COURT OF JUDICATURE AT BOMBAY : NAGPUR BENCH, NAGPUR. CRI. APPEAL NO.308 OF 2002 WITH CRI.APPEAL NO.317 OF 2002 WITH CRI.APPEAL NO.318 OF 2002 WITH CRI. APPEAL NO.323 OF 2002 WITH CRI.APPEAL NO.324 OF 2002 WITH CRI.APPEAL NO.325 OF 2002 WITH CRI.APPEAL NO.374 OF 2002.

CRI.APPEAL NO.308/2002. Madan S/o. Ramkisan Gangwani, aged about 35 years, R/o. Itwari Bhaji Mandi, Nagpur (Dead). Shamsundar S/o. Ramkisan Gangwani. .... APPELLANT. // VERSUS // The State of Maharashtra through A.C.P. Crime Branch, NAGPUR. .... RESPONDENT. --------------------------------------------------------------------------------------------Shri R.M.Daga, Advocate for the Appellant. Mrs. Bharti Dangre & Shri S.S.Doifode, A.P.P. for Respondent/State. ---------------------------------------------------------------------------------------------


WITH CRI.APPEAL NO.317/2002. Milind S/o. Wamanrao Kharwade, aged about 26 years, Occu.: Business, (Presently lodged in Central Prison, Nagpur) R/o. Itwari Garud Khamb, Police Station, Nagpur. (Now in Jail) .... APPELLANT. // VERSUS // State of Maharashtra through A.C.P. Crime Branch, Nagpur. .... RESPONDENT. --------------------------------------------------------------------------------------------Shri J.M.Gandhi, Advocate for the Appellant. Mrs. Bharti Dangre & Shri S.S.Doifode, A.P.P. for Respondent/State. --------------------------------------------------------------------------------------------WITH CRI.APPEAL NO.318/2002. Bablya @ Hemant Narayan Mohite, Aged 30 yrs., R/o. Rukmini Nagar, Nagpur. .... APPELLANT. // VERSUS // State of Maharashtra through A.C.P., Crime Branch, Nagpur. .... RESPONDENT. --------------------------------------------------------------------------------------------Shri Sachin Zoting, Advocate for the Appellant. Mrs. Bharti Dangre Addl.P.P. & Shri S.S.Doifode, A.P.P. for Respondent/State. ---------------------------------------------------------------------------------------------

 WITH CRI.APPEAL NO.323/2002. Ashok S/o. Inderlal Botnis, aged about 39 years, R/o. Mahal, Nagpur. .... APPELLANT. // VERSUS // The State of Maharashtra Through A.C.P. Crime Branch, Nagpur. .... RESPONDENT. ---------------------------------------------------------------------------------------------------Shri R.S.Renu, Advocate for the Appellant. Mrs. Bharti Dangre & Shri S.S.Doifode, Addl.P.P. for Respondent/State. ---------------------------------------------------------------------------------------------------WITH CRI.APPEAL NO.324/2002. Santosh S/o. Shashikant Ambekar, aged about 31 years, Occu.: Nil, R/o. Itwari High School, Nagpur. .... APPELLANT. // VERSUS // The State of Maharashtra Through A.C.P. Crime Branch, Nagpur. .... RESPONDENT. WITH CRI.APPEAL NO.325/2002. 1. Shashikant S/o. Damodar Ambekar, aged about 68 years, Occu.: Business, 2. Sushma W/o. Shashikant Ambekar, aged 58 years, Occu.: Business. 3. Vandana W/o. Rajkumar Verma, Aged 35 years, Occu.: Household.

 All R/o. Shanti Road, Itwari, Nagpur. 4. Mahesh S/o. Mansingh Solanki, Aged 35 years, R/o. Juna Sakkardara, Nagpur. 5. Ashok S/o. Vishwanath Mathale, Aged about 43 years, R/o. Mahal, Nagpur. .... APPELLANTS. (Accused Nos.10 to 12, 5 & 6.) // VERSUS // The State of Maharashtra Through A.C.P. Crime Branch, Nagpur. .... RESPONDENT. --------------------------------------------------------------------------------------------Shri R.K.Tiwari, Advocate for the Appellant. Mrs. Bharti Dangre Addl.P.P. & Shri S.S.Doifode, A.P.P. for Respondent/State. --------------------------------------------------------------------------------------------WITH CRI.APPEAL NO.374/2002. Habib Abdul Rashid S/o. Abdul Rashid Rathod, Aged : 25 years, R/o. Itwari Bhajimandi, Post : Lakadganj, Nagpur. .... APPELLANT. // VERSUS // The State of Maharashtra through A.C.P. Crime Branch, Nagpur. .... RESPONDENT. --------------------------------------------------------------------------------------------------Shri A.M.Rizwy, Advocate for the Appellant. Mrs. Bharti Dangre & Shri S.S.Doifode, A.P.P. for Respondent/State. ----------------------------------------------------------------------------------------------------



CORAM: A.H. JOSHI & R.C.CHAVAN, JJ. Date of Reserving Judgment : 23.03.2009. Date of Pronouncing Judgment: 26.03.2009.

JUDGMENT : ( Per : R.C.Chavan, J) 1.

This bunch of appeals arise out of judgment dated

17.05.2002, by the learned Judge, Special Court under the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as “MCOCA” for the sake of brevity) in Special Criminal Case No.1 of 2000.

2.

Facts, which led to prosecution and conviction of appellants

have been elaborated by the learned Judge, Special Court under MCOC Act in her painstakingly written judgment. They may be briefly stated as under :

In Itwari area, which is commercial hub of Nagpur having large number of jewellers and goldsmiths, a gang led by appellant Santosh Ambekar (in Criminal Appeal No.324 of 2002) was operating. This gang indulged in extortion, forcing transfer of properties and other

 criminal acts whereby they amassed huge wealth. Appellant Santosh was working with builder Anil Ninawe, who was originally a goldsmith. Ninawe had engaged a commission agent by name Ashok Botnis (appellant in Criminal Appeal No.323 of 2002) for deals in property. Santosh and Ashok Botnis, who knew of Anil Ninawe's deals, started recovering money meant for Anil Ninawe without latter's knowledge. This led to clashes between Santosh and Anil.

3.

On 9-4-1999 after 5.30 p.m., Anil had received a telephonic

warning to save himself. After about 8.05 p.m., 15-16 persons armed with deadly weapons assaulted Anil Ninawe while he was about to board his car for returning home. Anil's brother Subhash attempted to ward off assailants by pelting stones but fled when assailants attacked him. Anil was lying in a pool of blood. He was taken to Mayo Hospital but was pronounced dead. An offence was registered against appellant Santosh and others at Police Station Lakadganj, which has been separately investigated into, and in which separate chargesheet was filed. In the said Sessions Case No.161 of 2000, appellants Santosh, Babloo and Prakash were acquitted by Court of Sessions on 5-8-2005.

 4.

PI Prakash Mahajan submitted a proposal on 20-8-1999 for

permission under Section 23(i)(a) of MCOC Act for registering information against appellant Santosh under MCOC Act. On 26-9-1999, necessary permission was granted by the Commissioner of Police, Nagpur.

ACP Kotwali Division was entrusted with investigation.

Accordingly, PI Mahajan registered Crime No.299 of 1999 for offences punishable under Sections 3 and 4 of MCOC Act and Sections 386, 387, 120-B and 109 of the Penal Code on 26-9-1999 and made over investigation to ACP Shri Siram.

5.

Appellant Santosh was absconding. A search was launched

and a proclamation too was issued. Since Santosh failed to appear, his properties were attached. Permission to tap telephone connections of relatives of Santosh was obtained and on the basis of information received from the intercepts, appellant Santosh was arrested at Mumbai Airport on 23-7-2000.

The intercepts also provided clues about

involvement of other accused.

6.

Upon transfer of ACP Siram, investigation was entrusted to

ACP Solanki and after him to ACP Rude. In course of investigation, other gang members were arrested, interrogated and at their instance

 properties were seized. drawn up.

Inventories of properties amassed were also

Criminal record of gang members was collected and on

finding that there was enough evidence of involvement of the accused persons in offences punishable under Sections 3 and 4 of MCOC Act along with other offences, permission was sought under Section 23(2) of MCOC Act to file chargesheet.

Upon receipt of such permission,

chargesheet was filed in the Special Court against the following accused persons (hereinafter referred to by their numbers in Trial Court).:

Sr. No.

Name of Accused

Appeal No.

Remarks

324/2002

Son of Accused Nos. 1 & 11, brother of Accused No.12.

2 Bablu @ Hemant Narayan Mohite

318/2002

-

3 Prakash Namdeo Dhande

No Appeal

No appeal

Habib Abdul Rashid S/o. Abdul 4 Rashid Rathod

374/2002

-

5 Mahesh Mansingh Solanki

325/2002

-

6 Ashok Vishwanath Matole

325/2002

-

7 Milind Wamanrao Kharwade

317/2002

-

8 Ashok Inderlal Botnis

323/2002

-

308/2002

Died after conviction. Appeal allowed to be prosecuted by brother Shamsunder S/o. Ramkisan Gangwani.

1

Santosh Shashikant Ambekar

9 Madan Ramkisan Gangwani

 Sr. No.

10

11

12

Name of Accused

Shashikant Damodar Ambekar

Sushma Shashikant Ambekar

Appeal No.

325/2002

Father of Accused No.1, Husband of Accused No.11.

325/2002

Mother of Accused No.1, wife of Accused No.10.

325/2002

Sister of Accused No.1, Daughter of Accused Nos. 10 & 11.

-

Acquitted by Trial Court.

Vandana Rajkumar Verma

Dhananjay @ Dhannu Haribhai 13 Dusane.

7.

Remarks

After hearing the prosecution and the accused, the learned

Judge, Special Court under MCOC Act charged the accused persons for offences punishable under Sections 3(1)(i)(ii), 3(2), 3(3), 3(4), 3(5) and 4 of MCOC Act and Sections 384, 386, 387 and 120-B of the Penal Code.

8. on trial.

The accused pleaded not guilty and, therefore, they were put The prosecution examined in all 81 witnesses.

After

considering their evidence in the light of defence of denial, the learned Judge, Special Court convicted the appellants of various offences and sentenced them as indicated below :



Sr. No.

Convicted for offence punishable under Sections

Accused Nos.

Sentence

A

3(1)(i) MCOCA read with 120 B IPC.

1 to 3

Convicted and sentenced to imprisonment for life and fine of Rs.One Lac each or in default imprisonment for 3 years.

B

3(1)(ii) MCOCA read with 120 B IPC.

1 to 7

Rigorous Imprisonment for ten years and fine of Rs.Five Lacs each or in default imprisonment for 3 years.

3(1)(ii) MCOCA 10 & 11 Rigorous Imprisonment for seven years read with 120 B and fine of Rs.Five Lacs each or in default IPC. imprisonment for 3 years. C

3(2) MCOCA read with 120 B IPC.

1 to 9

Rigorous Imprisonment for ten years and fine of Rs.Five Lacs each or in default imprisonment for 3 years.

3(2) MCOCA 10 to 12 Rigorous Imprisonment for seven years and fine of Rs.Five Lacs each or in default read with 120 B imprisonment for 3 years. IPC. D

3(4) MCOCA read with 120 B IPC.

1 to 9

Rigorous Imprisonment for ten years and fine of Rs.Five Lacs each or in default imprisonment for 3 years.

3(4) MCOCA 10 to 12 Rigorous Imprisonment for seven years and fine of Rs.Five Lacs each or in default read with 120 B imprisonment for 3 years. IPC. E

3(5) MCOCA 1, 4 & 7 Rigorous Imprisonment for ten years and fine of Rs.Two Lacs each or in default read with 120 B IPC. imprisonment for 2 years. 3(5) MCOCA read with 120 B IPC.

8&9

Rigorous Imprisonment for ten years and fine of Rs.Two Lacs each or in default imprisonment for 3 years.

3(5) MCOCA 10 & 11 Rigorous Imprisonment for seven years read with 120 B and fine of Rs.Two Lacs each or in default IPC. imprisonment for 2 years. F

4 MCOCA read 1, 8 & 9 Rigorous Imprisonment for ten years and with 120 B IPC. fine of Rs.One Lac each or in default imprisonment for 2 years.

Sr. No.

Convicted for offence punishable under Sections

Accused Nos.

Sentence

4 MCOCA read 4, 10 & Rigorous Imprisonment for seven years with 120 B IPC. 11 and fine of Rs.One Lac each or in default imprisonment for 2 years. G

3(i)(ii) MCOCA, 384 IPC read with 120 B IPC. 3(i)(ii) MCOCA, 384 IPC read with 120 B IPC.

1 2 to 9

Rigorous Imprisonment for ten years and fine of Rs.Five Lacs each or in default imprisonment for 3 years. Rigorous Imprisonment for seven years and fine of Rs.Five Lacs each or in default imprisonment for 2 years.

3(i)(ii) MCOCA, 10 & 11 Rigorous Imprisonment for seven years 384 IPC read and fine of Rs.Five Lacs each or in default with 120 B IPC. imprisonment for 3 years. H

3(i)(ii) MCOCA, 1, 2, 10 Rigorous Imprisonment for seven years & 11 and fine of Rs.Five Lacs each or in default 384, 387 IPC imprisonment for 3 years. read with 120 B IPC. 3(i)(ii) MCOCA, 384, 387 IPC read with 120 B IPC.

Rigorous Imprisonment for seven years and fine of Rs.Five Lacs each or in default imprisonment for 2 years. 3 to 8

Rigorous Imprisonment for seven years 3(i)(ii) MCOCA, 384, 387 IPC and fine of Rs.Five Lacs each or in default imprisonment for 3 years. read with 120 B IPC. 10 to 12

9.

She acquitted accused No.13 of all the offences for which he

was charged.

All the accused were acquitted of offence punishable

under Section 386 read with Section 120-B of the Penal Code. Accused Nos.1 to 9 were acquitted of offence punishable under Section 3(3) of MCOC Act read with Section 120-B of the Penal Code. Accused Nos.2, 3,

 5, 6 and 12 were acquitted of offences punishable under Section 3(5) and 4 of MCOC Act. Accused Nos.5, 6 and 8 to 12 were acquitted of offences punishable under Section 3(1)(i) of MCOC Act read with Section 120-B of the Penal Code.

Accused No.12 was acquitted of

offences punishable under Section 3(1)(ii) of MCOC Act read with Section 120-B and Sections 384 and 386 read with Section 120-B of the Penal Code.

10.

Aggrieved by their convictions, appellants have preferred

these appeals. We have heard the learned counsel for appellants as also the learned Additional Public Prosecutor for State and with their help have gone through the record.

11.

As far as offences punishable under Sections 3(1)(i) and

3(1)(ii) of MCOCA, the learned counsel for appellants contended that the learned trial judge had held those offences as proved by ignoring the ingredients of organised crime. According to them : (i)

Evidence in respect of previous charge sheets filed before MCOCA came into force would, at worst, provide background, but would not help in holding appellants guilty of an offence which was not on statute book when those offences were registered;

 (ii)

Previous charge sheets unrelated to offences for pecuniary or other gain were not relevant;

(iii)

Previous charge sheets unrelated to offences committed by use of force were likewise not relevant;

(iv)

oral evidence of witnesses in relation to incidents covered by charge sheets already filed and trials separately held was irrelevant and inadmissible;

(v)

oral evidence in respect of incidents which were not referred to in the FIR under MCOCA was irrelevant and inadmissible ;

(vi)

Evidence in respect of previous charge sheets may at worst prove involvement in continuing unlawful activity, but not organised crime;

Therefore, they contended that there was really no evidence to prove complicity of appellants.

The learned Additional Public

Prosecutor contested this submission and contended that there was enough evidence to prove the charges.

12.

Before going to evaluation of evidence in light of above

points, it may be useful to mention that out of 81 witnesses, confidential

 witness Nos. 1 to 8 who were examined as P.W. 1 to 7 and 10 have refused to support the prosecution leading to failure to prove the charge “Sixthly”. They are all businessmen in Sarafa Area of Itwari Nagpur. Likewise, P.W. 12 Sanjay Khule has also refused to support the prosecution leading to failure to prove the charge “Ninethly”. P.W. 45 Rajesh Gadekar who was supposed to be panch witness at Exh.366 turned hostile. P.W. 50 Arvind Jaiswal who was supposed to state that appellant Santosh Ambekar took away TV set and VCR, turned hostile and refused to support the prosecution. P.W. 54 Mohd. Sabir Mohd. Issar who was supposed to be panch at seizure vide Exh.527, turned hostile. Significance of evidence of P.W. No.35 Rahat Irshad is not at all clear. He only states that Habib Rathod took a room on rent, paid rent to him and nothing is due from Habib Rathod. Though, even evidence of hostile witnesses can be considered, the evidence of these witnesses is unhelpful to support cases of prosecution as well as defence.

13.

P.W. 13 Girish Ingale has tendered evidence about his

daughter's kidnapping about 9 to 10 years ago by Santosh Ambekar and others in respect of which offence a trial had taken place in the Court of Sessions at Khamgaon bearing Criminal Case No.17/1992 in which appellant Santosh Ambekar was convicted. There is no dispute about

 this. This was long before MCOCA was enacted. Though technically this could be taken as an instance where chargesheet in respect of an offence punishable with imprisonment for more than 3 years was filed and congnizance taken within the preceding ten years it seems to be an isolated incident unconnected with any crime syndicate.

14.

In order to prove charge “firstly” i.e. offences punishable

under Sections 3(1)(i) & 3(1)(ii) of MCOCA read with Section 120B of IPC, among others, the prosecution examined P.W. 56 P.S.I. Govind Tamhankar who stated that, as directed by ACP Rude, he collected certified copies of 15 chargehseets Exh.572 to 585 from various courts and Record Section of District Court, Nagpur and handed them over to ACP Rude. P.W. 65 P.I. Hirachand Umbarkar stated that ACP Rude had asked him to furnish information about MPDA proceedings against the accused Santosh vide letter at Exh.649. Similar request was made about accused Bablu Mohite and Mahesh Solanki. He stated that he furnished necessary documents vide letter Exh.650 and the documents are at Exh.651 to 665.

Though documents in respect of other crimes referred

to in the charge could not be located, from the charge, as well as copies of chargsheets filed on record, chargesheeting of the appellants is indicated in the following offences :

  CHART SHOWING INVOLVEMENT OF ACCUSED IN SPECIAL CRI.CASE NO.1/2000. Sr. No.

Name of Police Station/ Crime No.

1

Section

2 Kotwali

1 170/88 Kotwali 2 126/89 Kotwali

3 60(667)/90 Kotwali

Cri. Case No. 3

395, 324, 323 IPC

Date of incident

4

5

266/88

6

Result

Remarks

8

A-2

406, 420, 32 58/90 IPC

Which accused was involved

A-1

Acquitted

08/04/89

343, 427, 34 69/90

A-2

IPC 294, 506 IPC 329/90

A-2

294, 506-B

160/91

A-2

17/92

A-1

4 166/90 Kotwali 5 271/90

IPC

6 Nandura,

363, 376

Distt.

IPC, r/w

Buldana

4/25 Arms Act.

153/91

Acquitted

06/04/88 Lakadganj 7

697/91 Dhantoli

147, 148, 108/92 149, 323 IPC

08/12/91

357/91

20-7-91

A-2

20-7-91

A-2, A-5

343/91

134, 148, 277/91 149, 143, 506 IPC & 4 Explosive Act

Sakkardara

135 B.P. Act.

A-2

395, 342

A-2

8 235/91 Kotwali 9

342, 395, 114 IPC

A-1, A-4

10 266/91 Dhantoli 11 235/91

IPC

Not Known PW 17 Ravindra Paraspure

Not Known

9

 Sr. No.

Name of Police Station/ Crime No. Mouda

12 181/91 Ramtek 13 203/91 Lakadganj 14 750/92 Lakadganj 15

277/94 Lakadganj

16 130/94 Kotwali

Section

Cri. Case No.

Date of incident

Which accused was involved

147,148,149, 267/92 302,324 IPC

A-2, A-5

364, 365, 368 r/w 34

A-2, A-5

294, 506-B IPC

210/93

147, 148, 148/05 149, 307 IPC 332, 354 r/w 196/94 34 IPC 324 IPC

14-9-92

09/05/94 21-2-94

308/94

Result

Acquitted

A-1

Not Known

A-1, A-4, A-7

Pending

A-1

Not Known

A-2

17 163/94 Sakkardara

324, 326, 34 Arms IPC

A-2

Imamwada

185 M.V. Act 180/95 (99)

A-5

Acquitted

Sakkardara

392, 435 34 IPC

113/96

A-5

Acquitted

324, 34 IPC

304/96

392, 34 IPC

45/97

324,34 IPC

248/96

A-5

Pending

394, 448, 427 r/w 34 IPC

267/97

A-3 A-5

Acquitted 25-2-99

18 418/95 19

20 35/96 Kotwali

15.01.96

19.4.99 A-2

21 226/96 Kotwali

26.11.96

A-2, A-5

22 471/96 Sakkardara 23 360/96 Sakkardara 24

197/97 Kotwali

25 336/97 Sakkardara 26 28/97 Sakkardara 27 416/97

06/04/97

452, 448, 137/98 294, 506 IPC

A-2

4/25 Arms Act

A-2

265, 342, 136, 506 IPC

A-2

Remarks

PW 22 Jayant Wankar

  Sr. No.

Name of Police Station/ Crime No. Tahsil

Section

Cri. Case No.

Date of incident

392, 34 IPC

Which accused was involved

Result

Remarks

A-2

28 226/1997 Kotwali

135 B.P. Act

50/97

A-5

142 B.P. Act

179/97

A-5

392, 506-II, 34 IPC

109/00

29 24/97 Imamwada 30 7/97 Lakadganj 31 387/99 Lakadganj 116/99 32 Tahsil

302, 34 IPC, 377/99 4/25 Arms Act, 135 B.P. Act

23-9-98

Pending

A-1, A-2, A-3

Acquitted on 5-8-05

A-1, A-3, A-5, A-6.

Acquitted on 5-3-05

09/04/99 18-9-09

290/99

399 IPC, 285/01 4/25 Arms Act, 135 B.P. Act

Kotwali

307, 34 IPC

117/00

18-10-99

294, 506, 323 IPC

79/99

24.04.99

33

A-1

PW 18 Subhash Ninawe

34 375/99 Tahsil 35

3054/99 Deolapar 15/00

302, 201 r/w 34

36

15.

A-4

A-1, A-2, A-4

PW 11 Rajesh Saxena Discharged Cognizance under not taken Section 169 of Cr.P.C.

This chart will show that : (i)

Accused Nos. 8 to 12 are not involved in any criminal activity prior to the recording of information in respect of present crime of MCOCA. Accused No.7 was involved only in crime at Sr.No.15 in the chart i.e. Crime No.277/1994 of Police Station, Lakadganj.



(ii)

Crimes at Sr.Nos. 1 to 31 were committed prior to date when MCOCA came into force.

(iii) Out of the remaining crimes, in crime at Sr.Nos. 32 & 33, the accused have been acquitted after the judgment under challenge was delivered. (iv) In crimes at Sr.Nos. 3 to 7, 9, 10, 12, 14 to 19, 21, 23, 25, 26, 29, 30, 32, 34, 35, 36

appellants are not

arraigned for gaining or attempting to gain any pecuniary benefits, or undue economic / other advantage, or for promoting insurgency. (v)

only crime allegedly committed after MCOCA came into force with the object of gaining pecuniary/ other advantage by use of force is crime of Sr.No.33, being Crime No.290/99 at P.S. Tahsil for offence of preparing to commit a dacoity, punishable under Section 399 of the Indian Penal Code and Section 4/25 of the Arms Act for which accused were acquitted on 05.03.2005 in Criminal Case No.285/2001.

16.

The learned counsel for the appellants relied on a judgment

of the Supreme Court in S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd. and others, reported at (2008) 2 SCC 492, on the

!#" question as to what amounts to taking cognizance of offences under FERA 1972 within two years of coming into force of FEMA on 1-6-2000. The Chief Metropolitan Magistrate had by his order dated 24-5-2002 (i.e. within two years from 1-6-2000) taken cognizance.

Summons

which was made returnable on 7-2-2003 was actually issued on 3-2-2003.

17.

The Court took a review of several judgments on the point.

In paras 36 and 37, the Court distinguished between issuing process and taking cognizance and held that issuing process was a sequel to taking cognizance. It is not clear as to how this judgment would help appellants.

In respect of past chargesheets, except Sr.No.36, Crime

No.15/2000 of Police Station, Deolapar, it is not shown that cognizance was not taken or processes were not issued. On the other hand, some of those cases seem to have culminated in acquittals or convictions. Crime No.15 of 2000 of Police Station Deolapar, would, however, have to be excluded.

18.

Coming next to the question of relevance of evidence about

charge sheets filed before MCOCA was enacted it may be seen from judgment in Appa @ Prakash Haribhau Londhe v. State of Maharashtra

$&% and Anr., reported at 2006 ALL MR (Cri.) 2804, that their significance is limited.

The Court observed as under in paragraph 10 of the

judgment : “10. For the purpose of organised crime there has to be a continuing unlawful activity and there cannot be continuing unlawful activity unless at least two chargesheets are to be found to have been lodged in relation to the offence punishable with three years imprisonment during the period of ten years. If no illegal activities as contemplated by MCOC Act are committed after 1999, then the past activities prior to 1999 may not be of any help for registering any FIR only on the basis of those past activities as has been observed by the Division Bench (R.M.S. Khandeparkar and P.V. Kakade, JJ.) of this court in Writ Petition No.689 of 2005 and other petitions, but if two or more illegal activities are committed after 1999, then the past activities can be taken into consideration in order to show the continuity. We are therefore not in agreement with the submissions made by Mr. Pradhan that on the date of registration of FIR against the petitioners they had not committed any act, as contemplated.” There can be no quarrel with these findings.

19.

On the question of significance of “pecuniary gain”, the

learned counsel relied on the judgment in Sherbahadur Akram Khan & ors. Vs. State of Maharashtra, reported at 2007(1) Bom.C.R.(Cri.) 26 = 2006 ALL MR 2895. A Division Bench of this Court was considering the appeals filed by the accused challenging orders rejecting their

' ' applications for discharge for the offence punishable under MCOC Act. The Court considered statement of objects and reasons, definition and other provisions of the Act and observed as under : “10. ..... An activity would be termed as a continuing unlawful activity if more than one charge-sheet has been filed before the competent Court against the members of the gang either individually or jointly within the preceding ten years. However, it must be established that such an offence or unlawful activity is undertaken by a person with the objective of gaining pecuniary benefits or gaining undue economic or other advantage for himself or any other person or for promoting insurgency. Such unlawful activity could include the use of violence or threat of violence or intimidation or coercion. 11. Taking into consideration the details of the various charge-sheets which have been filed by the prosecution and admitted by the learned A.P.P., it is obvious that some of the accused have been charged for offences which can, by no stretch of imagination, be considered to give the accused any pecuniary or undue economic or other advantage, either for the accused himself or for any other person. Offences punishable under sections 323, 324, 325 and 326 read with 34 are not such as would provide any pecuniary benefit or undue economic gain to the accused. Some of these offences have resulted from a quarrel at a public water tap. Fist blows have been allegedly used by the accused in most of the cases whereas in one or two instances the accused has allegedly used a chopper or an iron rod to assault the victim. ... 12. Apart from this, as aforesaid, the unlawful activity is not relatable to any pecuniary advantage or economic gain for the accused. The words in section

(*) 2(e) “with the objective of gaining pecuniary benefits or gaining undue economic or other advantage” will have to be given some effective meaning. Applying the principle of ejusdem generis the words “other advantage” would have to be interpreted in the same manner as the previous terms “pecuniary benefits” or “undue economic advantage”. A quarrel at a water tap which resulted in violence cannot be an offence which falls within this definition. Assaults on some persons also cannot be considered as offences which have been undertaken for pecuniary gain or undue economic advantage......”

20.

In view of this, it cannot be disputed that unless the crime

was aimed at pecuniary or other like advantage, it would be of no avail for proving offence of oganised crime.

21.

The learned Additional Public Prosecutor referred to the long

title of the Act, which reads as under : “An Act to make Special Provisions for Prevention and Control of Organized Crime and for coping with, Criminal Activity by Organized Crime Syndicate or Gang, and for matters connected therewith or incidental thereto.” She also took us through painstakingly collected resources from the internet on the definition of organised crime in various jurisdictions abroad.

She submitted that these resources would

highlight the concern of civilized society world over to combat organised crime. In this light, she argued that various terms in MCOC Act would

+#, need a broader interpretation which would advance the object of the Act as indicated in the long title. She submitted that this unusual law had to be enacted to overcome the threat from organised crime to the very existence of civilized society.

In view of this, according to her, the

definition of organised crime, contained in Section 2(e) of the Act ought to be considered only as an internal or intrinsic aid to interpretation and not as limiting or restricting the meaning of organised crime.

22.

As rightly countered by her learned adversaries, clinches and

platitudes have no place while judging conduct of a person which is alleged to be a serious crime attracting heavy punishment.

They

submitted that merely because long title of the Act also mentions that the Act was passed to prevent and control organised crime, it would not be open to first presume that a person is involved in organised crime because police say so and then deprive him of his liberty.

They

submitted that the manner in which the provisions of this stringent law has to be interpreted is no longer res integra and the Apex Court in Lalit Somdatta Nagpal v. K.K. Pathak, reported at 2005 ALL MR (Cri) 2164= (2007) 4 SCC 171, has categorically held that the provisions need to be constructed strictly. Thus read, in view of judgment Sherbahadur Akram Khan, crimes at Sr.Nos. 3 to 7, 9, 10, 12, 14 to 19, 21, 23, 25, 26, 29,

-/. 30, 32, 34, 35 and 36 would be unhelpful in establishing offence of organised crime. As already pointed out in view of judgment in Appa Londhe, crimes at Sr.Nos. 1 to 31, having been committed prior to coming into force of MCOCA can only provide a background and cannot in themselves constitute organised crime; leaving only crime at Sr.No.33 in the chart as relevant for the present purpose. Even so, independently of this, we would be examining contentions advanced by the State in respect of the crime chart.

23.

In Raipur Development Authority Vs. Anupam Sahkari Sanstha,

reported at (2000) 4 SCC 357 on which the learned Additional Public Prosecutor relied, the Supreme Court was interpreting the provisions of the M.P. Town and Country Development Act, 1973. It considered the mischief rule in Heydon's case and observed in para 16 as under : “16. Whenever there are two possible interpretations, the one which subserves to the intent of the legislature is to be accepted. The object of the aforesaid Act is for planned development and thus the interpretation, which upholds any such scheme should be followed. Heydon's principle is now well recognised in interpreting any enactment. It lays down that courts must see (a) what was the law before making of the Act; (b) what was the mischief or defect for which the law did not provide; (c) what is the remedy that the Act has provided; (d) what is the reason of the remedy. It states that courts must

0&1 adopt that construction which suppresses the mischief and advances the remedy. This has been approved by this Court in a number of decisions. One of them is K.P. Varghese v. ITO.” 24.

In Indian Handicrafts Emporium and others v. Union of India

and others, reported at (2003) 7 SCC 589, the Court was considering interpretation of the provisions under the Wild Life (Protection) Act, 1972 and in that context, observed in paras 98, 99 and 105 as under : “98. It is now well settled that for the purpose of interpretation of a statute the entire statute is to be read in its entirety. The purport and object of the Act must be given its full effect. 99. Furthermore, in a case of this nature, principles of purposive construction must come into play. 105. The words which are used in declaring the meaning of other words may also need interpretation and the legislature may use a word in the same statute in several different senses. In that view of the matter, it would not be correct to contend that the expression as defined in the interpretation clause would necessarily carry the same meaning throughout the statute.” 25.

In State of Maharashtra v. Marwanjee F. Desai and others,

reported at (2002) 2 SCC 318, in the context of interpretation of the provisions of the Bombay Government Premises (Eviction) Act, 1955, in para 11, the Court held as under:

23 “11. ... The statute shall have to be considered in its entirety and picking up of one word from one particular provision and thereby analysing it in a manner contrary to the statement of objects and reasons is neither permissible nor warranted. ... Statement of objects and reasons is undoubtedly an aid to construction but that by itself cannot be termed to be and by itself cannot be interpreted. It is a useful guide but the interpretations and the intent shall have to be gathered from the entirety of the statute and when the language of the sections providing an appeal to a forum is clear and categorical no external aid is permissible in interpretation of the same.” 26.

The learned APP rightly submitted that it would be necessary

to interpret the provisions concerned after reading the statute as a whole in a manner which would fulfill the purpose for which the statute is enacted. The Statement of Objects and Reasons for which Maharashtra Control of Organised Crime Act is enacted reads as under : 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 killings, 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 is very huge and has serious adverse effect on our economy. It is seen that the organised criminal syndicates make a common cause with terrorist gangs and foster narco terrorism which extend beyond the national boundaries. There is a reason to believe that

4&5 organised criminal gangs are operating in the State and thus, there is immediate need to curb their activities. It is also noticed that the organized criminals make 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 is an indispensable aid to law enforcement and the administration of justice. 2. The existing legal frame i.e. the penal and procedural laws and the adjudicatory system are found to be rather inadequate to curb or control the menace of organised crime. Government has, 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.” 27.

The Act then defines various terms used in Section 2 of the

Act. The definitions of “continuing unlawful activity”, “organised crime” and “organised crime syndicate” contained in Section 2(d), (e) and (f), which are relevant may be reproduced as under : “Sec.2(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, under-taken 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;

6#7

(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.” (Emphasis supplied).

28.

Other clauses define terms

'abet', 'Code',

'Competent

Authority' and 'Special Court'.

29.

Section 3 of the Act provides for punishment for “organised

crime” in the following words : “3. Punishment for organised crime – (1)Whoever commits an offence of organised crime shall (i) if such offence has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees one lac; (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

8:9 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. (3) Whoever harbours or conceals or attempts to harbour or conceal, any 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. (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.” (Emphasis supplied)

;=< 30.

Section

4

unaccountable wealth.

prescribes

punishment

for

possessing

Sections 5 to 12 provide for constitution of

Special Courts, their jurisdiction and powers, public prosecutor, procedure, appeals, etc.

31.

Section 13 provides for appointing a competent authority for

authorizing interception, etc. under Section 14. Section 15 prescribes that such authorisation shall be reviewed by a Committee constituted under clause (2). Section 16 enacts safeguards to prevent abuse by prescribing punishment for such abuse. rules of evidence.

Section 17 contains special

Section 18 makes certain confessions admissible.

Section 19 ensures protection of witnesses.

Section 20 provides for

forfeiture and attachment of property. Section 21, modifies provisions in the Code relating to grant of bail and custody for the purpose of investigation of offences under MCOCA.

Section 22 mandates that the

Court shall presume that the accused had committed such offence if material is proved to have been seized from possession of accused and there is a reason to believe that such material was used in commission of such offence, etc. As to cognizance and investigation, Section 23 provides as under :

>@? “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.” 32.

Section 24 provides for punishment to public servant failing

to discharge their duties. Section 25 gives overriding effect to provisions of the Act. Section 26 protects actions taken in good faith. Section 27 requires the State Government to place before the Legislature an annual report about interception. Sections 28 and 29 give power to make rules and Section 30 is repeal and savings clause.

33.

After this survey of all the provisions of MCOCA, it may be

useful to have one more look at the relevant definitions in Section 2 of the Act.

The learned APP relied on the judgments in Ranjitsing

A A Brahmajeetsing Sharma v. State of Maharashtra and another, rendered by a learned Single Judge of this Court and reported at 2004 ALL MR (Cri) 2899, and one reported at 2005 Cri.L.J. 2533, rendered by the Supreme Court in the context of grant of bail, where the definitions had been considered.

34.

In Ranjitsingh's case the learned Single Judge observed that

the definitions, though intertwined in a cyclic order, are clear and unambiguous. Even the Apex Court in Bharat Shah's case (2008 AIR SCW 6431) observed that the definitions were not vague and they defined the terms with clarity. It would, therefore, follow that each ingredient in the definitions, or the alternative thereof provided by the definitions themselves, would have to be proved.

Viewed thus, for

charging a person of organised crime or being a member of organised crime syndicate, it would be necessary to prove that the persons concerned have indulged in: (i)

an activity,

(ii) which is prohibited by law, (iii) which

is

a

cognizable

offence

punishable

with

imprisonment for three years or more, (iv) undertaken either singly or jointly, (v) as a member of organised crime syndicate i.e. acting as a

B:C syndicate or a gang, or on behalf of such syndicate. (vi) (a) in respect of similar activities (in the past) more than one charge sheets have been filed in competent court within the preceding period of ten years, (b) and the court has taken cognizance of such offence. (vii) the activity is undertaken by : (a) violence, or (b) threat of violence, or intimidation or (c) coercion or (d) other unlawful means. (viii)(a) with the object of gaining pecuniary benefits or gaining undue or other advantage or himself or any other person, or (b) with the object of promoting insurgency.

35.

In Ranjitsingh the Courts had considered what amounts to

other unlawful means in Section 2(1)(e) of MCOC Act. The learned Single Judge of this Court had held in paras 28, 29 and 30 as under : “28. It is thus clear that the general words must ordinarily bear their natural and larger meaning and need not be confined to ejusdem generis to things previously enumerated unless the language of the statute spells out an intention to that effect. ...”

DE

“29. The specific enumeration in section 2(1)(e) are “use of violence, threat of violence, intimidation, coercion” and the general words “other unlawful means”. There is no difficulty in understanding what is meant by “violence”, “use of violence” or “threat of violence”. But on the basis of this enumeration, it is clear that they are contiguous to the class to which they all belong. All these enumerations are in relation to bringing about pecuniary benefits or undue advantages by actual or threatened pressures being applied to individuals. ...” “30. Having regard to the definitions of words “coercion” in the Contract Act and “intimidation” in IPC, when we take close look at the language of section 2(1)(e), one finds that the general words viz. “other unlawful means” were intended to receive their wide meaning and were not to be construed in a limited sense with the aid of ejusdem generis rule, more particularly when we read those words in the light of the Statement of Objects and Reasons of MCOCA. ... It is thus clear that the expression “other unlawful means” as occur in section 2(1)(e) of MCOCA, which defines “organised crime” must be given their natural wide meaning to cover each and every kind of unlawful activity referred to in the Statement of Objects and are not to be construed in a limited sense with the aid of “ejusdem generis” rule so as to defeat the object of the Act.”

36.

While considering the same aspect, the Apex Court held that

the words “unlawful means” cannot be so widely construed as to include “any unlawful means”. The Court observed in paras 31, 32 and 33 of the judgment as under :

F=G “31. Interpretation clauses contained in Sections 2(d), 2(e) and 2(f) are inter-related. An 'organised crime syndicate' refers to an 'organised crime' which in turn refers to 'continuing unlawful activity'. As at present advised, it may not be necessary for us to consider as to whether the words “or other lawful means” contained in Section 2(e) should be read “ejusdem generis”/”noscitur-a-socils” with the words (i) violence, (ii) threat of violence, (iii) intimidation or (iv) coercion. We may, however, notice that the word 'violence' has been used only in Sections 146 and 153A of the Indian Penal Code. The word 'intimidation' alone has not been used therein but only Section 506 occurring in Chapter XXII thereof refers to 'criminal intimidation'. The word 'coercion' finds place only in the Contract Act. If the words 'unlawful means' is to be widely construed as including any or other unlawful means, having regard to the provisions contained in Sections 400, 401 and 413 of the IPC relating to commission of offences of cheating or criminal breach of trust, the provisions of the said Act can be applied, which prima facie, does not appear to have been intended by the Parliament.” “32. The Statement of Objects and Reasons clearly state as to why the said Act had to be enacted. Thus, it will be safe to presume that the expression 'any unlawful means' must refer to any such act which has a direct nexus with the commission of a crime which MCOCA seeks to prevent or control. In other words, an offence falling within the definition of organised crime and committed by an organised crime syndicate is the offence contemplated by the Statement of Objects and Reasons. There are offences and offences under the Indian Penal Code and other penal statutes providing for punishment of three years or more and in relation to such offences more than one chargesheet may be filed. As we have indicated

H#I hereinbefore, only because a person cheats or commits a criminal breach of trust, more than once, the same by itself may not be sufficient to attract the provisions of MCOCA.” “33. Furthermore, mens rea is a necessary ingredient for commission of a crime under MCOCA. (Emphasis supplied)

Thus the Court had reversed the findings of the Bombay High Court.

37.

According to the learned Additional Public Prosecutor, the

observations of the Court in para 31 above, cannot be taken to mean that ejusdem generis rule can be applied for interpreting the expression “other unlawful means”.

She pointed out that the Apex Court had

specifically observed that it was not necessary for the Court at that point of time to decide whether the words “other unlawful means” should be read ejusdem generis. We are afraid that this caveat in para 31 cannot permit us to ignore observations that follow in paras 31 and 32. Even if the Apex Court is taken to have not decided the question, the Court did consider arguments advanced and did make observations which would, in any case, bind this Court as dicta of the Apex Court.

J=K 38.

Therefore, as observed by the Apex Court, offences like

cheating or criminal breach of trust which have an element of passivity, but not feeling of being rendered helpless, cannot come within the sweep of activities covered in the expression “by used of violence .... etc.” This helplessness on account of various factors enumerated in the said clause is the crux of offence of organised crime.

The learned

Additional Public Prosecutor submitted that the word “coercion” used in the clause is not to be read as cognate of term “violence or threat of violence” but as understood in the Law of Contract as cognate of coercion, undue influence and fraud. Violence implies use of greater degree of force as defined in Sections 349 and 350 of the Penal Code. “Intimidation” referred to in the clause need not be criminal intimidation as defined in Section 503 of the Penal Code.

These

expressions have to be understood as indicating use of physical or mental force to make the victim succumb to do something which will result in pecuniary or other advantage to the accused or others at his behest.

39.

The learned counsel for appellants submitted that this would

also eliminate recourse to crime at Sr.No.33 in the chart, since it is an offence of being caught while preparing to commit a dacoity, since an

L:M actual offence was not committed. They also point out that in respect of this offence appellants concerned have been acquitted by the competent Court on 05.08.2005.

40.

The learned Additional Public Prosecutor rightly submitted

that conviction or acquittal are not relevant and for this purpose relied on observations in judgments in Bharat Shah's case [2003 ALL MR (Cri) 1061 (para 27) and 2008 AIR SCW 6431] on which even the learned counsel for appellants had placed reliance.

41.

Since conviction or acquittal in a case previously filed are

irrelevant, it would be unnecessary to look into evidence in respect of such crimes tendered in the present trial.

The learned counsel for

appellants has sought to assail admissibility of such evidence on the twin grounds of double jeopardy and possibility of two courts coming to contradictory findings in respect of same incident. It may be seen that though constitutionality of MCOCA on the ground of retrospective criminalisation and violations of articles 14 and 21 was challenged, the question of double jeopardy was not judicially decided.

N O 42.

The learned counsel for the appellants further submitted that

treating continuing unlawful activity as synonymous with organised crime by convicting a person merely on the basis of cognizance taken in more than one chargesheet would violate the mandate of Articles 21 and 14 as also Article 20(2) of the Constitution and for this purpose cited the following authorities :

43.

In S. Krishnan and others v. The State of Madras and another,

reported at AIR 1951 SC 301, the Court was considering the provisions of

Article

22

of

the

Constitution

and

Preventive

Detention

(Amendment) Act, 1951. The learned counsel for the appellants have referred to the observations of the minority judgment of Justice Vivian Bose in para 43 of the judgment.

Though contained in minority

judgment, there should be no dispute about the principle enunciated therein, namely, that it is the duty of the Courts to ensure that the right and the guarantee (in Article

22) are not rendered illusory and

meaningless and wherever there is a scope for difference of opinion on a matter of interpretation, the interpretation, which favours the subject, must always be used and the doubts, if any, must be resolved in favour of the subject.

PQ 44.

In Smt. Maneka Gandhi v. Union of India and another,

reported at AIR 1978 SC 597, the celebrated decision on procedural due process, the Court had considered inter-relationship between Articles 14, 19 and 21 and observed that the law must be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of personal liberty and there is consequently no infringement of the fundamental right conferred by Article 21, such law in so far as it abridges or takes away any fundamental right would have to meet the challenge of articles 14 and 19. Referring to the judgment of the Supreme Court in R.C. Cooper v. Union of India, reported at AIR 1970 SC 564, the Court reiterated the need to satisfy the requirements of other fundamental rights such as Article 19 even if law of preventive detention passes the test of Article 22.

45.

In Bachan Singh v. State of Punjab, reported at AIR 1982 SC

1325, which reported a minority view of Bhagwati, J., on which the learned counsel for the appellants placed reliance, it was observed in para 10, “the rule of law permeates the entire fabric of the Constitution and indeed forms one of its basic features. ... 'Law' in the context of rule of law does not mean any law enacted by the legislative authority, howsoever

RTS arbitrary or despotic it may be. ... What is a necessary element of rule of law is that the law must not be arbitrary or irrational and it must satisfy the test of reason and the democratic form of polity seeks to ensure this element by making the framers of the law accountable to the people”. (The majority view is to be found at AIR 1981 SC 898).

46.

In Olga Tellis and others v. Bombay Municipal Corporation

and others, reported at AIR 1986 SC 180, on which the learned counsel for the appellants placed reliance, the Court was considering the right of pavement dwellers and in this context held that the procedure prescribed by any law for deprivation of right conferred by Article 21 must be fair, just and reasonable. In para 40, the Court held that the substance of the law cannot be divorced from the procedure which it prescribed, for, how reasonable the law is, depends upon how fair is the procedure prescribed by it.

47.

It is not necessary to dwelve at length on the submissions

made in relation to violation of Articles 21 and 14 of the Constitution. These aspects were duly considered in Bharat Shah's case by a Division Bench of this Court which read the provisions in order to ensure that they do not offence the constitutional guarantees by holding that

UWV continuing unlawful activity is relevant only to see the antecedents of the person and not to convict. This part of the judgment of this Court is left undisturbed by the Apex Court. Observations of another Division Bench while considering challenge based on Article 20(1) of the Constitution in Jaisingh Ashrfilal Yadav [2003 ALL MR (Cri) 1506] are equally apposite.

48.

In State of Tamil Nadu and others v. S. Nalini and others,

reported at 1999 Cri.L.J. 3124, on which the learned counsel for the appellants placed reliance, the Court was considering the provisions of TADA Act in the context of assassination of Rajiv Gandhi. The Court considered the scope of protection provided by Article 20(2) of the Constitution and Section 300 of the Code of Criminal Procedure. It may be useful to reproduce the observations in paras 238 to 242 of the judgment. “238. The period of the aforesaid activities, as involved in that case, covered between 1987 and end of 1991. Section 300(1) of the Code of Criminal Procedure contains the ban against a second trial of the same offence against the same person. Sub-section (1) reads thus : “A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other

X X offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-section (2), thereof.” “239. The well-known maxim 'nemo debet bis vexari pro eadem cause” (no person should be twice vexed for the same offence) embodies the well established Common Law rule that no one should be put to peril twice for the same offence. The principle which is sought to be incorporated into Section 300 of the procedure Code is that no man should be vexed with more than one trial for offences arising out of identical acts committed by him. When an offence has already been the subject of judicial adjudication, whether it ended in acquittal or conviction, it is negation of criminal justice to allow repetition of the adjudication in a separate trial on the same set of facts.” “240. Though Article 20(2) of the Constitution of India embodies a protection against second trial after a conviction of the same offence, the ambit of the sub-article is narrower than the protection afforded by Section 300 of the Procedure Code. It is held by this Court in Manipur Administration v. Thokehom Bira Singh, (1965(2) Cri LJ 120) : AIR 1965 SC 87 that “if there is no punishment for the offence as a result of the prosecution, Article 20(2) has no application”. While the sub-article embodies the principle of autrefois convict Section 300 of the Procedure Code combines both autrefois convict and autrefois acquit.” “241. Section 300 has further widened the protective wings by debarring a second trial against the same accused on the same facts even for a different offence if a different charge against him for such offence could have been made under Section 221(1) of the Code, or he could have been convicted for such other offence under Section 221(2) of the Code. In this context it is useful to extract Section 221 of the Procedure Code.

Y[Z “221. Where offence has been committed.--

it

is

doubtful

what

(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.”

“242. As the contours of the prohibition are so widely enlarged it cannot be contended that the second trial can escape therefrom on the mere premise that some more allegations were not made in the first trial. We have absolutely no doubt that the offences which we have indicated above were fully covered by the trial in CC 7 of 1992, and therefore the prosecution is debarred in this case from proceeding against A-16 and A-17 for the aforesaid offences. Consequently the conviction and sentence passed by the Designated Court as per the impugned judgment for offences under Sections 3(3), 3(4) and 5 of TADA and also Section 5 of the Explosive Substances Act as well as Section 3(1) of the Arms Act on A-16 and A-17 are hereby set aside.”

49.

It may be seen from the observations in this judgment that

wider protection provided by Section 300 of the Code of Criminal Procedure could be invoked by the accused to avoid such double jeopardy. While MCOC Act provides for modified application of certain

\] provisions of the Code of Criminal Procedure, significantly it neither modifies Section 300 nor makes it inapplicable to trials under MCOC Act.

50.

There is indeed a fresh thinking amongst jurists about

continued utility of protection against double jeopardy in the present times particularly in the context of possibilities of discovery of unimpeachable scientific evidence after the trial ended in acquittal. It is felt that in such cases trial ought to be re-opened. Attempt of the State in the present case to have accused punished is, however, not based on discovery of any new evidence but merely on the foundation of the fact that previously a trial was held. This would hardly justify departure from the principle enunciated in Section 300 of the Code of Criminal Procedure, which in any case, cannot be violated in the absence of any express provision.

51.

The learned counsel for appellants submitted that evidence

of P.Ws. 11 Rajesh, 17 Ravindra, 18 Subhash and 22 Jayant could not be received in this case, since it pertained to an offence which was separately tried. They relied on judgment in Vijay Kisan Mate Vs. State of Maharashtra, reported at 2007 ALL MR (Cri.) 3471, where the Court

^*_ was considering an appeal under Section 12 of the MCOC Act against an order rejecting the application by the accused to defer crossexamination.

This came in the context of an application by the

prosecution to amend the charge so as to exclude charge of murder of one Swapnil Shirke in respect of which a separate chargesheet has been filed. Thereafter, the prosecution resiled from its own stand and sought to tender evidence of murder in case of MCOC Act. The learned single Judge held that in the said case under MCOC Act the actual proof of crime need not be offered unless that crime was also being tried together. The learned single Judge, therefore, held as corollary that the act of the Special Judge allowing the eyewitness of a murder case to be examined in MCOC Act trial, without there being a joint trial of both the offences, will have to be quashed and that the said witness shall not be further examined in MCOC Act case, and that the case should be tried as if the said witness was never examined at MCOC Act trial.

52.

For proving the offence of organised crime, it has to be

proved among other things that accused indulged in continuing unlawful activity.

For proving involvement in continuing unlawful

activity, it is not necessary to prove the past crime, but only the fact that a chargesheet has been filed in respect of that crime that the crime bears

`a punishment of three years or more and that the Court has taken cognizance of the crime. Therefore, examining witnesses in proof of past crime itself is unnecessary and also undesirable, because it is not the requirement or ingredient of offence under MCOC Act. Therefore, testimonies of PWs 11 Rajesh, 17 Ravindra, 18 Subhash and 22 Jayant are irrelevant.

53.

The learned Additional Public Prosecutor submitted that the

prosecution case does not rest only on past crimes of appellants. She submitted

that

there

is

sufficient

evidence

unearthed

during

investigation after information was recorded under MCOCA, about appellants' involvement in incidents of organised crime after MCOCA came into force in respect of which they have not been /are not being separately tried. This evidence is about incidents deposed to by P.Ws. 8, 14, 15, 16, 19, 20, 33 and 42.

54.

The learned counsel for the appellants submitted that

evidence in respect of incidents about which PWs 8, 14, 15, 16, 19, 20 and 42 depose cannot be received in this case for three reasons. First, the information recorded under MCOC Act did not pertain to these instances. Secondly, charges “Seventhly”, “Ninethly” and “Tenthly” in

b c respect of these instances are vague and lastly, that they cannot be tried together at one trial in view of the provisions of Section 221 of the Code of Criminal Procedure.

55.

The learned counsel for the appellants submitted that

approval for recording information required under Section 23 of MCOC Act is not an empty formality.

In

Altaf Ismail Sheikh Vs. State of

Maharashtra, reported at 2005 ALL MR (Cri.) 2403 a Division Bench of this Court was considering the question of approval for recording a crime under MCOC Act i.e. was considering the challenge to F.I.R. In relation to Section 23 of the Act, the Court observed in paragraph 24 of the judgment as under : “24. The Section 23 of the MCOC Act which opens with non-obstante clause and further clothed with negative words clearly discloses the mandate of the legislature that the cognizance of the offences under the MCOC Act should not be in routine course, but only upon the facts disclosing the applicability thereof and satisfaction of the officer of the high rank, the minimum being of the rank of Deputy Inspector General of Police, in that regard. In fact, the officer of such high rank is required to decide about the approval even for recording of FIR in relation to any offence under the MCOC Act. This obviously discloses that the approving authority has to apply its mind about the applicability of the provisions of the MCOC Act to the facts disclosed in a matter before allowing the recording of FIR and for the purpose, he must be, prima-facie, satisfied about the commission of

dfe offence of organized crime under the MCOC Act by the person or persons against whom the FIR is to be recorded. Obviously, for prima facie satisfaction regarding the commission of the offence of organized crime or of participation therein in whatever manner, the approving authority must have some materials before it disclosing the activities of the person or the persons to be of the nature of offence under the MCOC Act and having committed such activities on or after 24th February, 1999. In other words, the activities of a person to be termed as the offence under the MCOC Act, the same should inevitably disclose to have been committed on or after 24th February, 1999. If the activity of the person is relation to the period prior to 24th February, 1999, obviously, it cannot be said to be an offence under MCOC Act, even though the activity may be an offence under the provisions of some other statute in force at the relevant time. For the same reason, when the approval is granted for recording of FIR and the FIR is recorded, then such FIR should apparently disclose the activities constituting offence under the MCOC Act having been committed on or after 24th February, 1999. When the FIR does not disclose on the face of it that the offence was committed on or after 24th February, 1999, obviously, the concerned authority must be able to establish the said fact, at least, by referring to the records which were available and placed before the concerned authority before granting approval and before recording FIR. It should not be understood that the power vested in the authority under Section 23(1) of the MCOC Act can be exercised either as automation or as autocrat. The power should be exercised on application of mind to the facts of the case and with necessary prudence and circumspection.” 56.

The learned counsel, therefore, submitted that since

information is allowed to be recorded in respect of a specific offence,

gih investigation in respect of other crimes and sanction for prosecution of such other crimes would be impermissible and, therefore, this evidence cannot be considered.

The learned Additional Public Prosecutor

countered by submitting that FIR just marks commencement of investigation and does not lay down parameters limiting investigation.

57.

In John D'Souza v. Assistant Commissioner of Police, Mumbai

and others, reported at 2007(2) Mh.L.J. (Cri.) 313, on which the learned Additional Public Prosecutor relied, a Division Bench of this Court was considering the following questions : “(i) Whether it is necessary that a separate information under section 23(1)(a) of Maharashtra Control of Organised Crime Act, 1999 (“for short, “MCOCA”), should be recorded after the approval is accorded under this section even in cases where the crime had already been registered after recording the FIR under section 154 of the Code for the offences under the Indian Penal Code ? (ii) Whether a police officer, other than the officer mentioned in section 23(1)(a) of MCOCA, has power to club two or more similar offences together, having been committed by the very same organised crime syndicate before the sanction under section 23(2) is accorded, without seeking a fresh approval in respect thereof and the police officer mentioned in sub-section 23(1)(b) can proceed to investigate them as a single offence ?

jlk

(iii) Whether the sanction accorded under section 23(2) of MCOCA would be rendered invalid on the ground that the prior approval under section 23(1)(a) was not obtained for recording an information about an offence registered earlier bearing DCB, CID No.87/2005, which is clubbed with the offence bearing DCB, CID No.86/2005 for which the approval had been granted ? 58.

These questions arose in the background of the following

facts : An offence punishable under Section 387 read with Section 34 of the Penal Code was registered vide Crime No.128 of 2005 at Dr. D.B. Marg Police Station against Vikki Malhotra and Farid Ahmed for threatening the informer to extort a sum of Rs.1 Crore. On the same day, Crime No.195 of 2005 was also registered against the same person in L.T. Marg Police Station. The investigation of both these offences was transferred to DCB, CID and they were registered afresh as C.R. Nos.86 of 2005 and 87 of 2005 and the petitioner came to be arrested in connection with these offences though his name did not figure in any of the First Information Reports.

Eventually, after completion of

investigation, sanction under Section 23(2) of MCOC Act was sought and granted for prosecution of the petitioner as well as the co-accused. The petitioners' application for bail was rejected and, therefore, the

m=n petitioner filed writ petition seeking to quash the Special Case as against him.

59.

In this context, after considering the relevant provisions, the

Court observed in para 10 that there are two categories of cases wherein the provisions of MCOC Act could be invoked. The first being the cases where an offence has already been registered after recording FIR, disclosing cognizable offence under ordinary law, and other being the cases where a police officer even before registering an offence under Indian Penal Code, straightway, seeks approval for registering an offence under MCOC Act and records FIR.

60.

In para 11, referring to a Full Bench judgment of this Court in

Ashok Gyanchandra Vohra & etc. v. State of Maharashtra and anr. etc., reported at 2006 Cri.L.J. 1270, the Court observed that the word “information” in Section 23(1) of MCOC Act means First Information Report contemplated by Section 154 of the Code of Criminal Procedure.

61.

In para 13, the Court observed that in short, the non-obstante

clause employed in section 23 of MCOCA overrides the procedure contemplated under the Code in respect of recording of FIR,

ofp investigation, submitting a report under section 173 etc. However, it does not put any impediment in assigning to the word “information” the meaning assigned under section 154 of the Code.

62.

The Court observed in para 17 that : “It is thus clear, that recording of FIR and registration of an offence, though appear to be independent acts, where latter follows the former, FIR cannot be recorded without it being registered as an offence or there cannot be registration of an offence without recording FIR. In other words, an “information” about the commission of a cognizable offence, becomes FIR within the meaning of section 154 of the Code or even section 23(1)(a) of MCOCA, only if and when the offence is registered on the basis thereof, otherwise it would, at the most, be a statement under section 161 of the Code. These two acts, in fact, are performed simultaneously. The word “information” and the expression “shall be recorded” employed in section 23(1)(a), thus, mean “registration of an offence” in the case where the offence had already been registered under ordinary law. ...”

63.

The Court observed in para 24 that : “A conjoint reading of all the three definitions clearly demonstrate that seeking prior approval of the competent police officer for recording information about the commission of an offence of “organised crime” under MCOCA is a condition precedent and it is mandatory in nature. It does not provide for the prior approval in relation to any single act of crime constituting an offence but the approval is in relation to “organised crime and continuing unlawful activity of organised crime

q q syndicate”. Merely because a police officer approaching the competent police officer seeking prior approval under section 23(1)(a) making reference to a particular crime does not mean that the prior approval pertains to only that crime. In our opinion, an act of making reference to only one crime is with a view to seek the approval for registering the commission of an offence of “organised crime” by a particular organised crime syndicate and in respect of continuing unlawful activity under MCOCA and to set the criminal law in motion and marks the commencement of investigation. ...In our opinion, once the approval is granted, until the stage of seeking sanction reaches, there is no prohibition or fetter on the powers of such investigating officer to club other offence/s committed by the very same organised crime syndicate and which, in the opinion of the investigating agency, is a part of organised crime, namely, continuing unlawful activity of the very same organised crime syndicate.” The Court then dismissed the petition.

64.

In Vinod G. Asrani v. State of Maharashtra, reported at

(2007) 3 SCC 633, on which too, the learned Additional Public Prosecutor relied, the Supreme Court held that non-inclusion of petitioner's name in the approval under Section 23(1)(a) of MCOC Act was not fatal. In para 9, the Court observed as under : “9. ... The scheme of the Code of Criminal Procedure makes it clear that once the information of the commission of an offence is received under Section 154 of the Code of Criminal Procedure, the investigating authorities take up the investigation and file chargesheet against whoever is found during the investigation to have been involved in the commission of such offence.

ris There is no hard-and-fast rule that the first information report must always contain the names of all persons who were involved in the commission of an offence. Very often the names of the culprits are not even mentioned in the FIR and they surface only at the stage of the investigation. The scheme under Section 23 of MCOCA is similar and Section 23(1)(a) provides a safeguard that no investigation into an offence under MCOCA should be commenced without the approval of the authorities concerned. Once such approval is obtained, an investigation is commenced. Those who are subsequently found to be involved in the commission of the organised crime can very well be proceeded against once sanction is obtained against them under Section 23(2) of MCOCA.

65.

In Anil Sadashiv Nanduskar v. State of Maharashtra, reported

at 2008(3) Mh.L.J. (Cri.) 650, the question was in respect of approval granted under Section 23 of MCOC Act. In that approval, involvement of petitioner in the offence of organised crime was not referred to. It was urged on behalf of the State that order of approval and that of the sanction are merely to initiate the proceedings. The observations of the Court in para 24 may be usefully reproduced as under : “24. The contention that the order of approval or order of sanction should disclose consideration of material qua each of the accused sought to be prosecuted is devoid of substance. That is not the import of section 23 of MCOC Act. Section 23(1)(a) as well as section 23(2) with reference to approval and sanction speaks of commission of offence and cognizance of the offence. ... As already seen above section 23(1)(a) of MCOC Act speaks of approval for

tvu recording of information about commission of offence of organized crime under MCOC Act, whereas sanction is for initiating proceeding for the offence under MCOC Act. The sanction order or the approval order on the face of it need not speak of the individual role of each of the accused. Being so, contention that the order of approval or sanction should reveal consideration of the overt acts or otherwise of each of the accused while granting approval or sanction is totally devoid of substance. Of course, the involvement in organized crime of each of the persons sought to be prosecuted should necessarily be considered by the concerned authority before the grant of approval or sanction, but need not be specifically stated in the order and the consideration thereof can be established in the course of trial.” 66.

In view of these clear judicial pronouncements, the objection

to inclusion of incidents in relation to PWs 8, 14, 15, 16, 19, 20 and 42 in the chargesheet, which was filed pursuant to sanction accorded, has to be rejected. It would be necessary to examine the evidence of these witnesses to find out if offence of organised crime is made out and against which appellants. Contrary impressions, if any, in judgment, dated 18th November, 2008, in Criminal Appeal No.664 of 2002 would have to be held as not correct.

67.

P.W. 8 Sangita is widow of Anil Ninawe who was allegedly

murdered by the gang of the appellants.

She stated that she was

wix running a beauty parlour and her husband was doing business of sale and purchase of gold and silver. Before Anil's death he had started his construction business and was a builder.

One Ratnakar Armarkar

allegedly introduced to her husband appellant Santosh Ambekar, who was gas cylinder delivery boy at that time. Anil started construction of “Radhe” building in partnership with appellant Santosh Ambekar and one Raju Khule.

She stated that Santosh Ambekar used to receive

amounts from various people without informing her husband. The land on which Radhe building was constructed was purchased in the names of Sangita and appellant Santosh Ambekar. Appellant Ashok Botnis also entered the business around that time and used to be sent by her husband to obtain her signatures whenever necessary.

Appellant

Santosh Ambekar had not contributed any capital for construction of Radhe building. Appellant Santosh Ambekar also worked as commission agent for her husband for sale of the properties. Ashok Botnis nurtured clashes between Santosh Ambekar and her husband.

Her husband's

faith in Ashok Botnis grew from the profit in construction of Radhe building.

68.

It is clear from Sangeeta's evidence that appellants Santosh

as well as Ashok were working with her husband and even she was a

yfz partner/co-owner of a building along with appellant Santosh.

Her

evidence does not indicate involvement of either Santosh or Ashok in any crime till her husband was killed. Her evidence would give the impression that appellants Ashok and Santosh were in fact hostile towards each other and Ashok nurtured clashes between Santosh and her husband. The learned counsel for the appellants submitted that this destroys the very foundation of the case as it negates existence of an organised crime syndicate.

69.

The learned Additional Public Prosecutor contested this

conclusion. According to her, rivalry amongst minions in a gang does not rule out existence of a gang.

While this possibility cannot be

rejected outright, the evidence of PW 8 Sangeeta would rule out Ashok and Santosh working together for achieving any particular object. It is also pertinent to note that till Anil Ninawe was murdered, appellant Ashok was not involved in any crime. He was not an accused in the offence of murder of Anil Ninawe. Only crime in which he was shown as an accused is Crime No.290 of 1999 of Police Station Tahsil under Section 399 of Penal Code (preparation to commit dacoity) and Sections 4 and 25 of the Arms Act in which he has been acquitted on 53-2005 (See entry at Serial No.33 in the charge in para 13 above).

{| Thus the possibility of Ashok having nothing to do with Santosh or the alleged crime syndicate of Santosh cannot be ruled out.

70.

P.W. 8 Sangeeta states that construction of “Gayatri Building”

was commenced in the name of Ashok Botnis. Santosh Ambekar came to know of this and then her husband was killed on 09.04.1999. She further stated that after the death of her husband Ashok Botnis took her brother to the house of one Anil Dhawade and eventually, by persuading Sangita that she will not be able to carry on her husband's business, the property at Bhandara road was agreed to be sold to Dhawade for Rs.Ten Lacs, though, only Rs. Seven lacs were paid.

The documents were

created in the name of deceased accused Gangwani. She does not state about use of any force, much less criminal force, intimidation, coercion or undue influence in bringing about this transaction.

71.

About 3-4 months after the death of her husband, appellant

Santosh allegedly demanded amount of Rs.Fifty Thousand from her but she did not budge.

Appellant Santosh and Ashok Botnis allegedly

pressurised her to sell her shop to one Chhotu Parsapure for Rs.3,25,000/-. Since the sale deed, which was agreed to be executed within two months, was not so executed, she questioned Santosh. The

} ~ sale deed was eventually executed, when appellants Santosh and Ashok were in jail. If this is taken as an instance of Sangeeta being pressurised to sell property, it is not clear as to why she should question appellant Santosh about delay in execution of sale deed, as also as to why she did execute the sale deed when the pressure was off. This is thus not an instance of being pressurised.

72.

She stated that Chandu Nakhate and Sawarkar, through

Ashok Botnis, recovered proceeds of Gayatri Building and paid it to Santosh instead of paying it to her. Except this bland statement, there is no evidence of such a thing and no details as to what amounts were recovered from whom.

73.

PW 8 Sangita's claim that proceeds of sale from “Gayatri”

building were recovered by Chandu Nakhate and Sawarkar through Ashok Botnis and that they paid the same to Santosh instead of paying her does not inspire confidence, as rightly submitted by the learned counsel for the appellants, for two reasons. First, she herself stated that building itself was constructed in the name of Ashok Botnis, and so, if he recovered sale proceeds, there would be nothing wrong. Secondly, in the absence of evidence of Chandu Nakhate or Sawarkar, it cannot be

€ shown that money actually flowed to Santosh.

74.

Sangeeta claimed that in April, 2000 appellant Ashok Botnis

demanded a sum of Rs.One Lac from her for match fixing and agreed to return the same within two months. She stated that Ashok Botnis compelled her to encash Kisan Vikas Patra at the instance of appellant Santosh. She paid the amount.

He failed to repay and agreed to repay

in instalment of Rs. Ten Thousand each, but repaid only four instalments. She stated that this transaction was recorded on a stamp paper. Ashok gave a cheque of Rs.One Lac which bounced.

Had this

been a transaction of extortion, Ashok would not have executed a stamped agreement, or issued a cheque, or repaid Rs.40,000/-.

75.

Sangeeta and Panch P.W. 52 Ramakant proved seizure

panchnama at Exh.83 and the documents at Exh.83(1) to 83(15) seized thereunder. These documents at Exh.83(1) to 83(15) do not prove any ingredient of the offences charged. Evidence of Sangeeta does not prove involvement of appellants Santosh Ambekar and Ashok Botnis in any offence aimed at gaining pecuniary or other benefit by use of force, coercion, undue influence or the like.

‚ 76.

P.W. 14 Rajesh Vasani states that he is a broker in grocery

articles and his telephone No. is 767369 and Mobile Phone No.is 9823081493.

He stated about the businesses run by his family

members. He stated that he had received telephone call of accused Santosh Ambekar demanding Rs.25,000/- in the month of June, about 1-1/2 years before his deposition which was recorded on 04.10.2001, which he declined to pay. He stated that he had received telephone calls 2-3 times. He claims that out of fear he sent his wife to Bombay.

77.

P.W. 15 Bharat Vasani, brother of P.W.14 Rajesh also claimed

to have received telephone calls on his mobile No. 98230 45045 from Santosh Ambekar demanding money. He stated that he declined to pay, whereupon Santosh Ambekar was annoyed. Both these witnesses knew Santosh Ambekar well.

78.

P.W. 16 Tanaji More, who was also dealing in gold and silver,

stated that he knew Santosh Ambekar for the last fifteen years.

He

stated that his friend Bandu Patne has a jewellery shop having telephone No.762465 and also has a residential telephone No.770974. He claims to have been told by Bandu Patne that he received telephone call from Santosh Ambekar demanding money. Santosh Ambekar had told Bandu

ƒ„ on telephone that he would be going to Bandu's house. At that time this witness was at the house of Bandu Patne. Santosh Ambekar allegedly asked this witness to bring Bandu Patne out.

One Diwakar

Chinchmalatpure and Ravi Peigwar intervened and settled the matter. He stated that thereafter when he gone to attend a funeral, appellant Santosh Ambekar quarreled with him.

79.

P.W. 19 Prakash Patne is another jweller running business in

Itwari area. He claimed to have purchased a shop in Radhe building from Anil and Anil's partner Santosh Ambekar. He claimed to have sold the shop to one Umesh for Rs.1,50,000/-.

He stated that Santosh

Ambekar's friend Santosh Mandalkar had demanded Rs.20,000/- from him which he refused to pay. He claims to have received 2-3 calls from Santosh in his shop demanding money which he refused to pay. He stated about receiving telephone calls by accused Santosh at his house. Santosh came to his house. He stated that P.W. 16 Tanaji was in his bed room at that time. Santosh asked Tanaji about Bandu's whereabouts. The matter was, however, amicably settled due to intervention of Diwakar Chinchmalatpure and Ravi Paigwar.

…† 80.

PW 20 Rajkumar Gupta, stated that he was having a

jewellery shop in Itwari and knew appellant Santosh Ambekar, who was doing the work of polishing ornaments. He claims to have received telephone call from appellant Santosh in January, 2000 demanding money, but he declined to pay.

81.

PW 21 Suresh Rahate has a jewellery shop. His wife Kunda

was dealing in sarees. In a house purchased by his wife, from one Sibabai, Abdul Rashid Rathod (who is no more), father of appellant Habib Abdul Rashid, was residing as Sibabai's relation. Abdul had filed a case against Kunda, claiming the property as theirs. After the suit was filed heirs of Abdul Rashid vacated a portion of house on receiving Rs.2 lacs in 1999, on executing a stamped agreement, which he proved at Exh.114 upon seizure vide Exh.113. Possession of remaining portion is yet not received.

82.

In respect of this evidence, the learned counsel for appellant

Habib Abdul Rashid submitted first, that no offence was ever reported, and secondly, it was a civil dispute between landlord and tenant and had no element of any extortion, even if the allegations are taken to be true.

Therefore, this evidence cannot be taken into consideration.

‡ ‡ There is decidedly some merit in the contention that in this landlordtenant dispute of a personal nature there is no element of forcing anyone to part with property and therefore, no criminality, though receiving a premium for vacating tenanted premises may be unlawful under the rent laws.

83.

P.W. 42 Sanjay Agrawal stated the he was running a

Bichhayat Kendra. He had telephone Nos. 550880, 543494, 522379 and mobile No. 98230 54729. He stated that in June, 2000 he received telephone calls from Santosh Ambekar demanding Rs.1,00,000/- by way of hand loan. He stated that every time Santosh made a call to him, he assured Santosh that he would make arrangement for money.

He

admitted in his cross-examination that he was not having any licence for running Bichhayat Kendra or Catering Services. The mobile phone on which he had received telephone call was received by him from one Sibrat Kanungo in January, February, 1999.

84.

The learned counsel for the appellants submitted that even if

evidence of PW 14 Rajesh Vasani, PW 15 Bharat Vasani, PW 20 Rajkumar Gupta and PW 42 Sanjay Agrawal is accepted for face value, it only shows that these persons had received telephone calls on their

ˆ‰ mobile phones from appellant Santosh Ambekar demanding money which they declined to pay. The learned counsel submitted that there is no evidence in the form of data from concerned telecom company to corroborate the word of these two witnesses that calls originated from Santosh Ambekar's telephone and landed on the lines of these witnesses. Further, according to the learned counsel, not only was money not paid, there is no evidence that any threats were given or force was used. Therefore, this evidence is useless to conclude that any offence, muchless that of organised crime was committed. The evidence of PW 76 PSI Gadve, who intercepted telephone lines also does not show any threatening conversation with any of these witnesses.

85.

The learned Additional Public Prosecutor submitted that the

fact that PW 14 Rajesh stated that out of fear he had sent his wife to Mumbai, showed the fear that word of Santosh Ambekar instilled in the minds of witnesses.

We are afraid that this does not satisfy the

requirements for proving offence of organised crime.

86.

The learned counsel for the appellants submitted that story

of PW 16 Tanaji and PW 19 Prakash Patne is not much different. They too state about demand by Santosh, not only telephonically, but also in

Š ‹ person. But both do not state that either of them had to pay because of threats or use of force.

Such ambivalent evidence cannot help the

prosecution in booking offenders for a serious crime.

87.

P.W. 9 Kalyanrao Himte stated that he had purchased a

house in the year 1974 for Rs.14,500/-. He wanted to sell the house for marriage and education of his daughter. In 1998 one Prashant Deshpande brought appellant Santosh at his house. Consideration was settled at Rs.8,01,000/- after negotiations. Appellant Santosh paid him Rs.Five Thousand as earnest and after some days another sum of Rs.Fifty Thousand. Appellant Santosh demanded original sale deed and also execution of agreement, which the witness refused, whereupon Santosh threatened the witness. He stated that complaints were lodged with the police by both the parties. He stated that people were not ready to purchase his house because of fear of appellant Santosh. According to him on 24.03.2000 accused No.10 Shashikant father of the appellant Santosh came to him and demanded refund of Rs.Fifty Five Thousand, whereupon the witness told that he would return the amount on return of all original documents.

He also stated that

Santosh called him and his wife at Santosh's house where 8-10 unknown persons were present. Santosh intimidated him to execute

Œ agreement but on telephonic intervention by his maternal uncle he budged. Presuming what this witness states to be true, incident about exerting force to get an agreement is of the year 1998, i.e. before MCOCA came into force. Incident dated 24.03.2000 does not show any use of force or compulsion.

88.

P.W. 33 Amarchand Mehta states that in 1990 he purchased

house property from Sanjay Kurve for Rs.2,10,000/- by registered sale deed in 1998.

He wanted to sell the property because he had to

undergo by-pass surgery and therefore, contacted Bhushan Jain who works as broker, who settled the deal after negotiations for a sum of Rs.8,21,000/-. Sushma Ambekar entered into an agreement with him and paid a sum of Rs.11,000/-.

In November, 1999 he received

Rs.3,10,000/- and an agreement was reduced into writing.

He also

received a post dated cheque for Rs.5,00,000/-. This agreement was executed through mediation of Advocate Paresh Thakkar. He stated that he knew accused Santosh since he met him in connection with this transaction 2-3 times. Sale deed was to be executed by 22.02.2000, but is still not executed and the cheque is also dishonoured. He stated that he had not taken any action since the purchaser was a lady and he was not keeping well. He admitted in cross-examination that he does not

Ž@ have any complaint in respect of this transaction since he believes that he will receive his money. He states that he was aware that Sushma as well as Santosh are behind the bars since about 1-1/2 years since he deposed. Thus, there is nothing in his evidence to support prosecution case. Thus, the evidence of all these witnesses does not lead anywhere.

89.

To sum up, this evidence tendered does not show that

appellants were involved in any continuing unlawful activity by use of violence or threat of violence with the objective of gaining any pecuniary advantage,

and charges “Seventhly”,

“Ninethly”

and

“Tenthly” could not have been held as proved.

90.

This takes us to the question whether past charge sheets

alone would be enough to prove the offence of organised crime. In cross-examination P.W.79 P.I. Mahajan admitted that there was no incident of 20th September, 1999 when offence under MCOCA was registered. He stated that there was an incident on 18.09.1999 for which a crime was registered, investigation was commenced and chargesheet was also filed in the Court. He admitted that from 1994 to 1999 there was no crime registered against appellant Santosh. He denied that in 1999 a drive to falsely implicate Santosh was started and therefore,

‘ crimes came to be registered. He admitted that there was no crime registered against Ashok Botnis, Shashikant Ambekar and Sushma Ambekar.

91.

P.W. 75 Additional Commissioner of Police Prabhat Ranjan

stated that he had received report from ACP. Kotwali for grant of permission to record information under Section 23 (1)(a) of the MCOCA against Santosh Ambekar.

He stated that he called the concerned

officers along with all the concerned documents. Meetings were held in succeeding 2-3 days and thereafter since he was satisfied, he accorded permission vide Exh.603 to record information under MCOCA agianst accused Santosh Ambekar. He stated in cross examination that apart from anonymous complaints, chargehseets showed that appellant Santosh was involved in offences punishable with imprisonment for over three years for gaining money, Therefore, he granted such permission.

92.

It was strenuously contended on behalf of the appellants that

unless there is a substantive offence, mere past chargesheets would not constitute the offence of organised crime. On the other hand, it was contended on behalf of the State that offence of organised crime itself comprises of chargesheets filed in the past of which cognizance is taken.

’&“ It was contended on behalf of the appellants that if such a contention were to be accepted, it would amount to giving a handle to the police to send anybody to a long term of imprisonment merely by filing chargesheets in respect of more than one offence. It was pointed out that when a police report in respect of an offence is filed in a criminal court, it is not scrutinized, the way a private complaint is. Routinely such chargesheets are registered as criminal cases and processes are issued, and therefore, accepting mere chargesheets as the foundation for offence of organised crime would amount to permitting the police to send anybody behind bars by merely filing two false or not entirely true chargesheets against such person.

Police authorities may file a

chargesheet to make out an offence of attempt to commit murder from a simple hurt. Even if the accused were to be eventually acquitted in such cases, or convicted only for offence punishable under Section 323 of the Penal Code, that of causing simple hurt, since he was accused of an offence of attempt to commit murder, which is punishable with imprisonment for more than three years, of which cognizance was taken, such person would be booked for offence of organised crime. Therefore, according to them, such an interpretation is impermissible. It was further contended that taking into consideration the previous chargesheets would amount to exposing the person concerned to double

”T• jeopardy which is specifically prohibited under Section 300 of the Code of Criminal Procedure. The learned counsel submitted that convicting a person merely because a chargesheet had been filed in the past (in which case the person may have even been acquitted after trial) would amount to convicting him only on a chargesheet, which has been disapproved by the Supreme Court in Dalip Singh Vs. State of Punjab, reported at 1997(3) Current Criminal Journal 223.

93.

Sitting singly, both of us had considered this question and in

the judgment rendered by one of us (A.H. Joshi, J.) in Amarsingh Kisansingh Thakur v. State of Maharashtra, reported at 2006 ALL MR (Cri) 407, the following conclusions were drawn in paras 18 and 21 : “18. It can be seen that in all these offences either of the accused persons jointly with one amongst the three and some amongst the outside offender are subject matter of charge-sheet and further process of taking cognizance thereon has occurred. The evidence so brought before the Court adequately proves the charge framed against the accused under Section 3(1) and 3(4) of M.C.O.C. Act of being a member of organized criminal syndicate and remaining thereof as a device of livelihood.” “21. This Court, therefore, holds that finding of trial Court holding the accused guilty was like an infalliable conclusion based on an arithmetic equation about which trial Court was rendered

–@— optionless. Conviction is based on objective evidence. No subjective element is at all involved. The conviction under appeal, therefore, cannot be faulted as erroneous or an unavailable conclusion. The appeal, therefore, reveals to have no merit.” 94.

Similar view was taken by learned Single Judge in Dinesh

Mahadev Bhondve Vs. State of Maharashtra, reported at 2007(2) Mh.L.J.(Cri.) 718 on which the learned counsel for parties relied. In that case, a complaint from one Pujari of Kamshet was received for offence punishable under Section 387 read with Section 34 of the Penal Code and the same was registered as Crime No.95 of 2001. During the enquiry it transpired that several criminal cases of serious offences were registered in the past against accused No.1, who was the head of gang, which was indulging in these offences.

Therefore approval under

Section 23(1)(a) of MCOC Act was sought and the Special Inspector General accorded approval, whereupon Crime No.54 of 2001 was registered under MCOC Act. After completing investigation, a report was submitted to the Director General of Police, who accorded sanction for prosecution. The prosecution was simpliciter under the provisions of MCOC Act and not associated with the offence reported by one Pujari of Kamshet. The Trial Court had convicted the appellants of offence under MCOC Act. While deciding the appeal, the learned Single Judge had

˜š™ quoted in para 18 of his judgment from paragraphs 25, 27 and 28 in Bharat Shah's case. The observations of the Court in paras 19, 21 and 22 of the judgment may be usefully reproduced as under : “19. ...Besides filing of more than one chargesheet in respect of the alleged activity prohibited by law, the Court must have taken cognisance of such offences. In other words, mere filing of more than one charge sheet is not enough. In addition, such continuing unlawful activity has been committed by individual singly or jointly as a member of 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. The question is : whether all these requirements are attracted in the present case or whether there is evidence to substantiate each of this aspect. 21. The ocular as well as documentary evidence on record supports the prosecution case that stated criminal activities were committed during the relevant period in succession in the locality by the appellants and their henchmen or associates. There is evidence that the accused No.1 was the mastermind and kingpin of the gang of which others including accused Nos.3 and 4 (appellants herein) were members. The said persons were operating in the locality for quite some time and had created reign of terror in the area. The accused were indulging in such crimes singly or jointly as member of the gang led by accused No.1 or on behalf of that gang. Further, most of the offences indulged by them were covered

›œ within the offences under Chapter XVI and XVII of Indian Penal Code (of offences affecting the human body and of offences against property) with objective of gaining pecuniary benefits or gaining undue economic or other advantage for themselves and to reign supremacy or terror in the area. The fact that the reported offences committed by the appellants and other members of the gang were ascribable to offences under Chapter XVI and XVII of Indian Penal Code presupposes that the unlawful activity indulged in was by use of violence or threat of violence or intimidation or coercion or other unlawful means. Each of the appellants have indulged in an offence of organised crime and were members of the organised crime syndicate or gang headed by accused No.1. A priori, the conclusion recorded by the trial Court holding appellants guilty of offence punishable under section 3(1)(ii) as well as section 3(4) of the Act is inevitable. 22. ...In such a situation, it was not necessary for the prosecution to produce evidence to establish that, in fact, the accused had indulged in commission of the respective unlawful activities indicated against his name. However, all that the prosecution is expected to establish is that more than one charge sheet have been filed before the competent Court against that accused within the preceding period of 10 years for invoking MCOCA provisions qua him; and that the Courts have taken cognisance of such unlawful activities which are punishable with imprisonment of 3 years or more, undertaken either singly or jointly by the accused as member of the organised crime syndicate or on behalf of such syndicate by use of violence or threat of violence or coercion or any 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.” (Emphasis supplied)

  95.

From the above observations, at the first blush it may seen

that in Dinesh Bhondwe's case this Court had taken the view that by merely establishing that more than one charge sheets in respect of offence punishable with imprisonment for over two years cognizance whereof has been taken by Court concerned, offence of organised crime is proved.

However, it has to be noted that the Court had duly

considered and quoted the observations in paragraph 27 in Bharat Shah's case that limited purpose of “continued unlawful activities” was to see the antecedents of the persons and not to convict. After having done so the learned Single Judge could not have taken a contrary view and could not have held that the offence is complete upon proof of two earlier charge sheets. The Court then proceeded to dismiss the appeals after considering the other aspects of the matter.

96.

One of us (R.C. Chavan, J.) had the advantage of elaborate

arguments on this question duly supported by several judgments having a bearing on the issue including judgment in Amarsingh's case, but not that in Dinesh's case, while deciding Criminal Appeal No.664 of 2002 and others (Prafulla s/o Uddhav Shende v. State of Maharashtra) by a judgment dated 18-11-2001.

After considering the ratione` of these

judgments, one of us (R.C. Chavan, J.) had come to the conclusion that

žŸ an offence of organised crime can not be established merely by proof of filing two or more chargesheets showing involvement of the accused in offence punishable with imprisonment of two years or more of which cognizance has been taken by the Competent Courts.

97.

After considering the several judgments cited at Bar, keeping

aside the views taken by us individually, we have re-examined the whole question.

All the relevant provisions of MCOCA have already been

discussed in earlier part of this judgment.

98.

In some of the judgments cited, apart from the previous

chargesheets, there was some substantive crime, information in respect of which was recorded under MCOC Act. Hence, the question of only previous charge sheets constituting the offence did not strictly arise in those cases, for instance, Ramakant Jamunasingh Singh v. The State of Maharashtra, reported at 2002 ALL MR (Cri) 1269, Bhaya @ Raju S. Rajput Vs. State of Maharashtra, reported at 2006 ALL MR (Cri) 1979, Gulab Vs. State of Maharashtra, reported at 2007(2) Mh.L.J.(Cri.) 538, Mohd. Iqbal Vs. State, reported at 2007(1) Mh.L.J. (Cri.) 385 and Sidharth Janmajay Vs. State, reported at 2005 ALL MR (Cri) 460.

 @¡ 99.

In Bharat Shantilal Shah Vs. State of Maharashtra, reported

at 2003 ALL MR (Cri) 1061 a challenge to the constitutional validity of MCOC Act, was considered by a Division Bench of this Court. Definition of continuing unlawful activity in Section 2(1)(d) was sought to be attacked by advancing the following arguments : “19. Dealing with the next definitions in section 2(1)(d) of 'continuing unlawful activity' it was submitted that it suffers from violation of article 14 as it treats unequals as equals. It makes an activity continuing unlawful activity if more than one charges of cognizable offence punishable with imprisonment of three years or more are filed in competent court, it does not touch an activity as continuing unlawful activity if undertaken by a person who is known to be a criminal but more than one charge sheets have not been filed against him. A person charged ten times of an offence though acquitted on every occasion may yet be roped in as a person engaged in continuing unlawful activity. Whereas a person who is convicted for an offence for three years punishment cannot be touched by this definition if he is not charged with more than two of such offences. The definition therefore treats as equal persons who are hopelessly unequal ... The arguments appear to be attractive at the first blush, but deeper scrutiny reveals the hollowness of the argument.” 100.

Dealing with the objections to this definition the Court

observed in paragraph 25 of the judgment as under : “25. ... In our opinion, there is no violation of article 14 by this definition. If we read the definition again, what has been defined as continuing unlawful activity is a member of organized crime syndicate in

¢£ respect of which any activity prohibited by law and done repeatedly i.e. more than once for which charge sheet has been filed in the court of competent jurisdiction in the past ten years. The purpose of definition is to define what continuing unlawful activity is and it is for the purposes of defining what is continued unlawful activity that those charges are to be taken into consideration. Mere taking into consideration of such charges cannot result in discrimination of the kind alleged by Shri Manohar. The activity must be continuing unlawful activity and to define it with clarity it is provided that any person who in the past was charge sheeted for more than one charge of such activity or crime the cognizance of which has been taken and imprisonment for which is more than three years should be taken into account. The fact of the person having been charge sheeted in such cognizable offences in the past makes the unlawful activity, continuing unlawful activity. This section only defines what the activity is. It does not itself provide for any punishment for that activity. Had punishment been provided the submission that it treats while punishing unequals as equals may carry weightage. That being not the case in the challenge to section 2(1)(d) of the Act we see no vagueness or violation of article 14 by the definition. We find that the provision treats all those covered by it in a like manner and does not suffer from the vice of class legislation.” (emphasis supplied) In paragraph 27 the Court then went on to observe as under : “27. We also do not find substance in the challenge that the equality clause in the Constitution is violated because the definition ropes in anyone charged more than once, irrespective of whether the charge resulted in an acquittal or conviction. The circumstances that followed the charge are not material. The provision only defines what is continued unlawful activities and refers to whether a person has been charged over a period of ten years for the purpose of seeing whether the person is charged for the first time or

¤ ¥ has been charged often. The circumstance of conviction or acquittal that followed the charge are not material. The limited purpose is to see antecedents of the person. Not to convict.” (emphasis supplied). 101.

The Court held that Sections 3 and 4 of MCOC Act inherently

contemplate mens rea. The Court held the provisions of MCOC Act except those contained in Sections 13 to 16 to be valid and struck down the provisions of Sections 13 and 16 as beyond the legislative competence of State Legislature. This Court also held that the words in sub-section (5) of Section 21 of the Act “or under any other Act on the date of the offence in question” were violative of Article 14 of the Constitution and, therefore, were to be deleted.

102.

This judgment was challenged by the State of Maharashtra

before the Apex Court insofar as it held Sections 13 to 16 of MCOC Act as unconstitutional.

103.

The Apex Court in judgment reported at 2008 AIR SCW 6431

upheld the judgment of the Bombay High Court deleting the words “or under any other Act....” from sub-section (5) of Section 21.

The

questions raised before the Supreme Court were concerned basically with

constitutionality

of

interception

of

conversation

or

¦§ communication, which was the subject-matter of Sections 13 to 16 of the Act. The Apex Court reversed this Court only to the extent this Court held the provisions ultra vires.

104.

There was no cross appeal by Bharat Shah challenging the

order of the High Court upholding constitutional validity of the provisions of Section 2(d), (e) and (f) and Sections 3 and 4 of MCOC Act. Therefore, the Supreme Court had, not gone into that question. The Court, however, observed that there was no vagueness as the definitions defined with clarity what was meant by continuing unlawful activity, organised crime and also organised crime syndicate. The Court specifically concluded that after examining the judgment of the High Court in depth on the issue of constitutional validity of Sections 2(d), (e), (f) and Sections 3 and 4 of MCOC Act, that the Court was in accord with the finding arrived at by the High Court that the aforesaid provisions cannot be said to be ultra vires of the Constitution and that the Supreme Court did not find any reason to take a different view than what is taken by the High Court while upholding the validity of the aforesaid provisions.

¨© 105.

Since in the present case, the question raised is about the

definition of “organised crime”, in view of these observations of the Supreme Court, it may be permissible to conclude that the findings of this Court in Bharat Shah's case in this regard which have been quoted earlier would have to be followed.

106.

This Court had specifically held that had punishment been

provided for continuing unlawful activity, the submission that while punishing, it treats unequals as equals may carry weight. The Court upheld the validity of the provision defining “continuing unlawful activity” only because the Act did not provide any punishment for that activity.

In para 27 it was made clear that the limited purpose of

continuing unlawful activity was to see antecedents of the person and not the convict.

107.

It was contended that the observations in Bharat Shah's case

by this Court have to be read in context of the fact that Section 2 is a definition clause which just defines the offence and, therefore, could not have prescribed punishment, which Section 3 prescribes. It is truly said that Section 2 merely defines, not only the offence of “organised crime” but also other terms used in the Act. What is material is the

ª« definition of offence of “organised crime” and not the definitions of other terms included in Section 2. Had the term “continuing unlawful activity” been synonymous with “organised crime”, it would not have been necessary for the Legislature to include two definitions. It would have been sufficient to provide for only one definition of continuing unlawful activity and make that activity punishable. The definitions in clauses (d) and (e) clearly show that one of the components of organised crime is continuing unlawful activity and, therefore, organised crime is something more than mere continuing unlawful activity.

108.

Thus the fact of more than one chargesheet having been filed

in competent Court in preceding period of ten years and such Court having taken cognizance of such offence, is merely one of the ingredients of the offence of organised crime. Therefore, it cannot be contended that the offence of organised crime is completed by collection of previous criminal activities.

109.

In Jaisingh Ashrfilal Yadav & Ors. v. State of Maharashtra &

Anr, reported at 2003 ALL MR (Cri) 1506, to which the learned A.P.P. drew my attention, a Division Bench of this Court was considering the

¬­ constitutionality of the provisions of MCOC Act. The Court observed in paragraph 9 as under : “9. The analysis of the definition of the organised crime, therefore, would reveal that continuing unlawful activity is one of its ingredients. ... In other words, lodging of two charge-sheets in relation to the acts which are already declared under the law then in force as offences of the nature specified under Section 2(d) during the preceding period of ten years is one of the requisites for the offence of organised crime under the said Act.” (Emphasis supplied) 110.

The Court then considered the challenge based on Article

20(1) of the Constitution of India. In paragraph 19 the Court observed as under : “19. There is lot of difference between the act or activity itself being termed or called as an offence under a statute and such act or activity being taken into consideration as one of the requisites for taking action under the statute. The former situation has to satisfy the mandate of Article 20(1) of the Constitution, however, in case of latter situation, it stands on totally different footing. Undoubtedly, for the purpose of organised crime there has to be a continuing unlawful activity. There cannot be continuing unlawful activity unless at least two charge-sheets are to be found to have been lodged in relation to the offence punishable with three years' imprisonment during the period of ten years. Undisputedly, the period of ten years may relate to the period prior to 24-2-1999 or thereafter. In other words, it provides that the activities which were offences under the law in force at the relevant time and in respect of which two charge-sheets have been filed and the Court has taken cognizance thereof, during the

® ¯ period of preceding ten years, then it will be considered as continuing unlawful activity on 24-2-1999 or thereafter. It nowhere by itself declares any activity to be an offence under the said Act prior to 24.02.1999. It also does not converts any activity done prior to 24.02.1999 to be an offence under the said Act. It merely considers two charge-sheets in relation to the acts which were already declared as offences under the law in force to be one of the requisites for the purpose of identifying continuing unlawful activity and/ or for the purpose of an action under the said Act. This by itself cannot be said to be in any manner violative of the mandate of Article 20(1) considering the law laid down by the Apex Court in Rao Shiv Bahadur Singh's case as well as in Sajjan Singh's case.” (Emphasis supplied) This too would show that for establishing offence of organised crime something more than mere continuing unlawful activity is necessary.

111.

Though it is not necessary to press in aid judgments in the

context of other enactments, the learned counsel relied on judgment of the Apex Court in Kalpanath Rai v. State, reported at III(1998) Current Criminal Reports 37 (SC), where the Supreme Court was considering similarly worded provision of Section 3(4) of Terrorists and Disruptive Activities (Prevention ) Act (equivalent to Section 3(4) of MCOCA), in light of meaning assigned to 'Terrorist Act”. In Section 3(1) of the TADA (equivalent to definition of organised crime in Section 2(e) read with

°± punishment Section 3(1) of MCOCA).

The Supreme Court held in

paragraph 35 of the judgment as under : “35. There are two postulates in Sub-section (5). First is that the accused should have been a member of “a terrorists gang” or “terrorists organisation” after 23.5.1993. Second is that the said gang or organisation should have involved in terrorist acts subsequent to 23.5.1993. Unless both postulates exist together Section 3(5) cannot be used against any person.” The learned counsel submitted that unless existence of organised crime syndicate after MCOC Act came into force is established, there would be no question of holding appellants guilty of offence of organised crime. Therefore, merely showing participation in continuing unlawful activity would not be sufficient.

112.

It is not clear as to how, after not only noticing, but also

quoting from para 27 of the judgment of Division Bench in Bharat shah's case, that limited purpose of previous charge sheets is to see antecedents and not to convict, the learned Single Judge in Dinesh Bhondwe's case [2007 (2) Mh.L.J. (Cri) 718] held that cognizance of previous two charge sheets was enough. Possibly this aspect was not raised and so not dealt with or lost sight of. It ought to have been noticed that the word “continuing” in the phrase “continuing unlawful activity” used in

² ² Sections 2(d) and (e) is not without significance.

If the word

“continuing” were to be omitted from the two clauses, the interpretation sought to be put forth was possible, since in that case more than one charge sheets in the past would be “unlawful activity” as defined in clause 2(d) and the same component would go in clause 2(e). Since the legislature must be held to have used every word carefully and since redundancies cannot be imagined, full effect would have to be given to all the words used while defining the offence.

If the interpretation

sought to be put forth by the prosecution were to be accepted the word “continuing” would become superfluous.

113.

If for the sake of argument, as held in Dinesh Bhondwe's case

two charge sheets in the past are held to be sufficient, than those two charge sheets would have to be in respect of offences committed after MCOCA came into force with the objective of gaining pecuniary or other benefit by use of violence etc.; which may have been the case in Dinesh Bhondwe. In other words, if it is taken that offence of organised crime is constituted by proof of continuing unlawful activity, such activity would have to be shown to have been committed by use of violence, etc. and with the objective of gaining pecuniary or other advantage, after MCOC Act came into force. This will also comply with the requirement of

³´ “within 10 years”, since MCOC Act came into force on 24-2-1999. Such is not the present case. Therefore, first, it may not be permissible to hold that previous charge sheets, in themselves, are enough to constitute offence of organised crime, and secondly, in the present case there are no such more than one charge sheets, filed after MCOC Act came into force.

114.

The learned Additional Public Prosecutor eruditely analysed

the definitions contained in clauses (d) and (e) and (f) of Section 2 of the Act. She submitted, and rightly in my view, that by using the word “means”, while defining the three expressions the Legislature has chosen to define the terms exhaustively, as contrasted with definitions which may use the words “includes” or “means and includes”. Therefore, her contention that in spite of such exhaustive definition, it would be necessary to interpret the terms expansively with reference to long title or preamble or statement of objects cannot be accepted. Only in case of ambiguity would recourse to such aids in interpretation be justified and in my view though the definitions are intertwined there is no ambiguity. Therefore the words used would have to be strictly interpreted in light of observations in the case of Lalit Nagpal.

µ ¶ 115.

If the provisions of the Act are read in entirety, in the light of

foregoing discussion, they will show that offence of “organised crime” is constituted by atleast one instance of continuation, apart from continuing unlawful activity evidenced by more than one chargesheets in preceding ten years : This is so because :

(a) If “organised crime” was synonymous with “continuing unlawful activity”, two separate definitions were not necessary. (b) The definitions themselves show that ingredients of use of violence in such activity with the objective of gaining pecuniary benefit are not included in definition of “continuing unlawful activity”, but find place only in definition of “organised crime”. (c) What is made punishable under Section 3 is “organised crime” and not “continuing unlawful activity”. (d) If “organised crime” were to refer to only more than one chargesheet filed, the classification of crime in Section 3(1)(i) and 3(1)(ii) on the basis of consequence of resulting in death or otherwise would have been phrased differently, namely, by providing that “if any one of such offence has resulted in the death”, since continuing

·¸ unlawful activity requires more than one offence. Reference to “such offence” in Section 3(1) implies a specific act or omission. (e) If the offence of organised crime itself is comprised of previous offences in respect of which chargesheets have been filed, or in other words such chargesheets are a component of the offence of organised crime, all such offences referred to in such chargesheets could be tried at one trial, and the rider in Section 7 about triability of the accused under the Code at the same trial would be redundant. (f) Entire Section 18 of the Act would become redundant if “continuing unlawful activity” evidenced by proof of filing of two chargesheets is equal to organised crime, since question of recording confessions would not arise. Certified copies of chargesheets, with certified copy of order thereon by the Court taking cognizance, would be admissible without formal proof and if this itself was enough to constitute offence, no other evidence would be required to be tendered. (g) For the same reason, there may be no need to examine any witnesses and consequently Section 19 would be redundant.

¹Tº (h) If proof of filing two chargesheets is enough to establish offence of organised crime, there may be no occasion to carry out any investigation, other than collecting copies of charge sheets. Consequently, it would be unnecessary for high ranking police officers to wield the power to allow recording information or to sanction prosecution after such chargsheets are collected.

116.

The legal principles that emerge from the foregoing

discussion are : (i)

As held by the Supreme Court in State of Maharashtra and others v. Lalit Somdatta Nagpal and another, reported at (2007) 4 SCC 171, the provisions of MCOC Act have to be strictly interpreted.

(ii)

Since the definition clauses, Sections 2(d), (e) and (f), use the word “means”, the definitions are exhaustive.

(iii)

The definition are unambiguous and words used are not susceptible to two interpretations.

(iv)

As observed by the Apex Court in Ranjitsingh Brahmajeetsing Sharma v. State of Maharashtra and another, reported at 2005 Cri.L.J. 2533, the words “other unlawful means” have to be read ejusdem generis, the phrases “by use of violence” etc.

»W¼ (v)

Similarly, the words “other advantage” has to be read ejusdem generis “pecuniary benefits” as held by a Division Bench of this Court in Sherbahadur Akram Khan and others v. State of Maharashtra, reported at 2007(1) Bom.C.R. (Cri) 26.

(vi)

As held by a Division Bench of this Court in Bharat Shantilal Shah v. State of Maharashtra, reported at 2003 ALL MR (Cri) 1061, and Jaisingh Ashrfilal Yadav and others v. State of Maharashtra and another, reported at 2003 ALL MR (Cri) 1506, continuing unlawful activity evidenced by more than one chargesheets is one of the ingredients of the offence of organised crime and the purpose thereof is to see antecedents and not to convict, without proof of other facts which constitute the ingredients of Section 2(e) and Section 3, which respectively define commission of offence of organised crime and prescribe punishment.

(vii) Approval for recording information under Section 23 of MCOC Act would not restrict the scope of investigation

and

would

not

exclude

filing

of

chargesheet in respect of incidents or involvement of persons disclosed in course of investigation. (viii) There would have to be some act or omission which amounts to organised crime after the Act came into

½ ¾ force, in respect of which the accused is sought to be tried for the first time, in the Special Court (i.e. has not been or is not being tried elsewhere).

117.

Applying these principles to the charge sheet and evidence

tendered disclose that offences allegedly uncovered in course of investigation after information was recorded do not qualify to be organised crime. It is also not shown that there are more than one chargsesheets filed after MCOCA came into force indicating involvement of appellants in offence aimed at pecuniary or like gain by means of violence or the like if analogy of Dinesh Bhondwe's case were to be applied. The only chargesheet in relation to such an offence is one at Sr.No.33 in the chart.

The present chargesheet does not disclose

commission of another such offence after the offence dated 18.09.1999 (one at Sr.No.33). Therefore, conviction of any of the appellants for offence punishable under Section 3(1)(i) or 3(1)(ii) of MCOCA cannot be upheld.

118.

Once complicity of appellants in offence of organised crime is

not proved, since appellants have not been previously adjudged to be members of organised crime syndicate, evaluation of evidence about

¿[À harbouring appellant Santosh, or appellants being members of organised crime syndicate, or amassing wealth from activities of such syndicate would be only an academic exercise. Even so, it may be necessary to carry it out.

119.

In order to prove charge “thirdly” the prosecution examined

P.W.49 PSI Sadanand Inamdar, P.W. 61 Dharmu Jadhav, P.W. 63 PSI Rajendra Vibhandik who were instructed by P.W. 74 DCP Manglaji Siram to search for appellant Santosh Ambekar and reported that they could not find Santosh Ambekar in Nagpur.

120.

P.W. 49 PSI Sadanand Inamdar stated that on 13.10.1999

ACP Siram of Kotwali Division asked him to search for accused Santosh Ambekar.

He searched for Santosh Ambekar

but could not find

appellant Santosh Ambekar. He made necessary entries in the station diary, which are proved at Exhs. 383 to 500,.

He has also proved

acknowledgment of service of letters on Sushma and Shashikant Ambekar vide Exhs. 504 and 505.

121.

P.W. 49 PSI Inamdar also stated that on 18th September,

1999 Crime No.289/1999 was registered in Police Station, Tahsil under

ÁÂ Section 399 of the Penal Code and Section 25 of the Arms Act in respect of which he filed chargesheet, a copy whereof is at Exh.506. It led to Sessions Trial No.225/2001. There is no reason to disbelieve the word of this witness that he did search for Santosh but could not find him, though suggestion was given to him that Santosh was freely moving in the ward itself.

122.

P.W. 61 API Dharmu Jadhav stated that on 11.12.1999 ACP

directed him to search absconding

accused Santosh Ambekar.

Accordingly he searched Santosh Ambekar but could not find him and necessary entries were made in the station diary vide Exhs. 606 and 607. He also made similar searches on 12th and 13th December, 1999 and in respect of which he made entries at Exh.608 to Exh.611.

123.

P.W. 63 P.S.I. Rajendra Vibhandik stated that he searched for

accused Santosh from 04.10.1999 to 05.11.1999 as per directions of ACP and could not find him. He made necessary entries in the station diary vide Exh.617 to 645.

Chart in respect of these entries is at

Exh.616. P.W. 79 P.I. Mahajan too proved several extracts of station diary in respect of search of accused Santosh by himself, P.S.I. Vibhandik and PSI Inamdar.

Ã*Ä 124.

There would be no reason for these witnesses, to falsely state

that Santosh Ambekar was missing. It may be seen that P.W. 74 DCP Mangalaji Siram had also stated that a proclamation was issued in the name of Santosh and was affixed to the door of the house of Santosh Ambekar vide Exh.365. It was suggested to the witness that he had merely made a farce to show that Santosh Ambekar was missing when he was actually present in Nagpur.

125.

The learned Additional Public Prosecutor Mrs. Dangre

submitted that there was no question of creating a farce to show that Santosh Ambekar was not present. Since if Santosh was indeed present and police knew of it, the police would not have failed to arrest him. She submitted that in that case there would have been no occasion for the police to undertake an exercise to have telephones intercepted in order to trace movements of appellant Santosh.

126.

P.W. 78 ACP Chavhan was Police Inspector at the relevant

time and stated that at the direction of ACP Rude, who was the Investigating Officer, he took search of house of Santosh on 28.07.2000 in presence of panchas vide panchnama Exh.534 and seized documents which are at Exh.534(1) to 534(9). He stated that as directed by ACP

ÅÆ Rude he had taken accused Santosh and PSI Kad to Mumbai on 12.08.2000 to hotel Hira in Girgaon Mumbai which was shown by the accused and seized relevant record from the Hotel Manager. He also claimed to have been taken by accused Santosh to Hotel Sharda, Chira Bazar, Mumbai and states that he seized relevant record from the Manager of the Hotel, vide Exh.713 to 716 and 670 and 671. He stated that he submitted report vide Exh.718.

127.

P.W. 66 Rajbahadur Angadrai, Manager at Sharda Hotel,

Chira Bazar, Mumbai. P.W. 77 Premkumar Sharma is Manager of Hotel Hira at Girgaon, Mumbai where accused Santosh alleged to have stayed by registering himself in false names.

It may be seen that P.W. 66

Rajbahadur Angadrai admitted that he had not identified appellant Santosh Ambekar when police brought appellant Santosh to his hotel, and only upon perusal of the record he identified the appellant Santosh. P.W. 77 Premkumar Sharma also admitted that he has stated before the police that he was not knowing the person who was brought by the police, but only after checking registers of the hotels he identified the person as one who has stayed in his hotel at different alias.

This casts

a serious doubt on the story that Santosh stayed in the hotels under some different names. Had Santosh indeed stayed in these two hotels

Ç Ç under different names and had the witnesses i.e. P.W. 66 and P.W. 77 had an opportunity to know Santosh as the same person, the moment he was produced by the police, the witnesses would have stated that he was the customer who had stayed at their hotels under the names given in the register. As far as evidence of P.W. 66 Rajbahadur Angadrai is concerned, he admitted that the room was booked in the name of Prashant Pawar accompanied by another person. Merely because name of Prashant Pawar was mentioned in the register it could not be inferred that appellant Santosh gave his name as Prashant Pawar as he could as well have stayed in the hotel as companion of said Prashant Pawar. In that case, there is no question of his having concealed his identity. Therefore, evidence of these two witnesses is not of clinching character to show that Santosh Ambekar stayed in the hotels under some different names. Even if the evidence of P.W. 66 Rajbahadur Angadrai and P.W. 77 Premkumar Mishra, Managers of Hotels at Mumbai is accepted at its face value namely that appellant Santosh had stayed at their hotels under different names as per record produced at Exhs. 670, 671, 713 to 716, still it does not show as to how other accused persons can be said to have helped Santosh in concealing himself or had haboured him.

È#É É 128.

P.W. 26 Manisha was serving on a telephone booth of one

Sanjay Charde (P.W.28), having telephone Nos. 772685, 772511 having conference phone facility. P.W. 28 Sanjay, however, does not say that these telephones had conference call facility. Telephone No. 768246, which according to P.W. 28 had this facility is not mentioned by P.W. 26 Manisha.

According to Manisha,

Sanjay had permitted Sushma

Ambekar (mother) and Neha Ambekar (sister of Santosh) to avail conference phone facility. She used to mention in the call register “M” for mother and “S” for sister.

129.

P.W. 28 Sanjay Charde corroborated P.W. 26 Manisha about

availment of conference call facility by mother and sister of Santosh from his booth. In view of contradictions in the evidence of the two witnesses as to the telephone numbers on which conference calls were allegedly made, their evidence may not be of much use.

130.

P.W. 80 Sudhir Mehta stated that he was serving as Executive

of BPL Mobile Connection and received letter from Shri Rude on 24.07.2000 vide Exh.737 asking for information in respect of the mobile phone No.9821084989 for the period from February, 2000 to July, 2000. He stated that he gave a reply which is at Exh.738. The reply

È#ÉÈ was signed by Sharayu Prabhu on behalf of General Manager. By that reply they had proved information about the calls which were available with them. He proved the information given at Exh.739(1) to 739(35).

131.

P.W. 59 Shri Baidyanath Mishra was Commissioner of Police,

Nagpur from May, 2000 to December, 2000. He stated that he made a request to Additional Chief Secretary, Home for tapping of four telephone numbers vide Exh.137. The competent authority accorded permission / sanction to tap the telephone vide Exh.136.

He had

assigned the job to D.C.P. Kulwantkumar. He stated that subsequently they sought permission to tap only one telephone vide Exh.358 and received permission vide Exh.359. He identified the note sheets which bear his, Additional Chief Secretary's and Kulwant Kumar's signatures at Exh.599.

He proved order about disconnection of interception at

Exh.356.

He also proved correspondence in respect of transfer of

appellant Bablu Mohite vide Exh.552, 594, 596, 597 and 599.

The

cross-examination shows that the officer had written letters for interception on the basis of this discussion with the Investigating Officer and perusal of the case diary.

Ê#ËTÌ 132.

P.W. 27, retired A.C.P. Vijay Kayande states about steps taken

in having telephone Nos. 762882, 772059, 767222 and 731706 to be intercepted by carrying letter of Commissioner of Police to the Additional Chief Secretary. He proved office copy of note sheet with the signature of Additional Chief Secretary, Home at Exh.135 and the order issued at Exh.136. His cross-examination does not disclose any reason to warrant disbelief.

133.

P.W. 69 Shri M.R. Patil was Additional Chief Secretary,

Home, who had authorised intercept of telephone numbers at the request of police vide note sheets at Exh.358 and 599 as also 356 & 359.

134.

P.W. 62 Mrs. Namrata Tiwari was working as Area Manager,

Telephones and stated having received order in respect of interception of four telephones namely, 762882, 772059, 767222 and 731706 vide Exh.126, which she was supposed to implement. Accordingly she stated that she diverted four telephone lines by providing one connection in Itwari Exchange in separate room where there was no public rush. The Police Officers used to attend Itwari Exchange for the purpose of interception from 20.06.2000 to 12.07.2000.

From 14.07.2000

interception in respect of one telephone No.731706 was again started by

Í#ÎWÏ providing same facility which continued up to 13.08.2000. She stated that she had kept the telephone numbers under observation and had provided printouts of particulars of the outgoing calls like time and duration to the police machinery. The printout in respect of Telephone No. 731706 was proved by her at Exh.613. She explained the entires in the printout.

135.

P.W. 41 Gopal Padole, Sub-Divisional Engineer (Legal) of

Nagpur Telephones stated that he received a letter dated 13.06.2000 from the Additional Chief Secretary, Home for intercepting Telephone Nos. 762882, 772059, 767222 and 731706. He proved copy of letter at Exh.136, along with covering letters of Commissioner of Police at Exh.353 and 354. He stated that accordingly intercept facilities were provided to the police in the concerned Telephone Exchange for the period up to 12.07.2000. On 11.07.2000 he received another letter from Home Department to disconnect the intercepts for telephone Nos.762882, 772059, 767222 and proved copies of letters at Exh.355 and 356.

He stated that instructions for continuing interception of

telephone No.731706 was received from Home Department, and he identified the letter of Home Department at Exh.359 to be one which permitted this interception. He admitted in his cross-examination that

Ð#Ñ Ò he was not the person to provide technical facilities and also did not know the policemen who had been to his exchange for operating the intercepts.

136.

P.W. 64 Pundlik Dhongale was also working in Itwari

Telephone Exchange and stated about providing facility of intercept to police officers from Gadhave and Dorwe. He stated that he was the person who provided printouts of the telephone vide Exh.613 to the police.

137.

P.W. 68 DCP Shri Kulwant Kumar stated about note sheets

and correspondence about interception of telephones. He stated that he had deputed PSIs Dorwe and Gadwe for intercepting the telephones. He admitted in cross-examination that there was no written communication between him and the Investigating Officer ACP Rude, and that communication was oral.

He denied that he had not taken care to

ascertain that there was no need for interception.

138.

P.W. 76 PSI Dattatraya Gadwe stated that he intercepted

telephone numbers along with his colleague PSI Dorwe. According to him, telephone No.731706 was in the name of Vandana Verma, 762882

Ó#Ô[Õ was in the name of Ramnikbhai Parekh, 772059 was in the name of Milind Kharwade and 767222 was in the name of Sanjay Khule. He stated about formalities and arrangements made by the authorities in the Telephone Exchange and then stated about actual interception by him and PSI Dorwe in shifts of 12 hours each, continuously from 26.06.2000 to 12.07.2000.

He stated that he used to listen to the

conversation which was simultaneously tape recorded. As soon as conversation is over, he used to reverse the tape, hear conversation again and make a rough note of that conversation in writing. If there was any important piece of information it used to be passed on to the higher authorities by him.

On the basis of rough notes he used to

prepare a fair draft or script of day to day conversation. He proved report of notes of his observation at Exh.707.

139.

P.W.76 PSI Gadwe stated that from conversation dated

26.06.2000 he gathered that Santosh had informed his mother of mobile telephone number 9821129098 on which he could be contacted. The conversation showed that Santosh used to contact his parents, sister and wife and inform them of his whereabouts from various telephone numbers.

Santosh used to talk to his family members on Vandana

Verma's telephone number 731706.

This number was intercepted

Ö#×Ø further up to 13.08.2000 and in respect of these intercepts he had submitted reports at Exh.708 and 709.

From the telephonic

conversation he came to know that wife, mother and son of Santosh were to proceed to Delhi by plane and that Santosh was to leave Bombay and go to Delhi to join them. This talk was going on from 18.07.2000 and it was decided to implement the decision on 28th July, 2000. Telephonic conversation dated 23.07.2000 between Santosh and his sister Vandana revealed that Santosh told his sister that he saw an official of Crime Branch, Nagpur at Delhi and therefore, he was leaving Delhi. He directed his sister Vandana to inform his other sister Archana at Delhi about this. Accordingly, Vandana informed Archana on her Delhi telephone Nos. 5571097 that Santosh was to leave Delhi.

He

claims to have informed PSI Kad that Santosh was to leave Delhi. On 24.07.2000 they learnt that Santosh was caught by PSI Kad at Mumbai Airport. 140.

There were further conversations between Vandana and

some others about arrest of Santosh, his police custody remands, etc. He stated that they had obtained computer printouts from the Telecoms Authorities about dialled numbers and handed them over to their superiors. He also suggested that he had tendered 11 cassettes to P.I. Chavhan on 14.08.2000.

Ù#Ú*Û

141.

P.W. 78 ACP Chavhan stated that he received 11 cassettes

from PSI Gadwe and Dorwe on 14.08.2000 along with computer printouts and he kept them in his personal custody and handed them over to ACP Rude on 01.09.2000 vide Exh.719. His cross-examination does not yield anything new.

142.

As a result of these intercepts police came to know about the

conversation between appellant Santosh and his family members, some of whom are appellant before this Court.

143.

The learned counsel for the appellants submitted that this

evidence is of no value since there is no evidence about identification of voice of appellant Santosh or his family members. The learned counsel further submitted that the fact that the tapes were not kept securely and were retained by ACP Chavhan for fifteen days without any rhyme or reason before they were handed over to ACP Rude on 01.09.2000 would also cast a doubt on the veracity of evidence of P.W. 16 Dattatraya Gadwe that the voices which he heard were those of Santosh Ambekar and his family members.

Ü#ÝÞ 144.

In Yusufali Esmail Nagree v. The State of Maharashtra,

reported at AIR 1968 SC 147, on which the learned counsel for the appellants placed reliance, the Court was considering the admissibility of tape-recorded conversation. In para 6 of the judgment, the Court held that if a statement is relevant, an accurate tape record of the statement is also relevant and admissible.

The time and place and

accuracy of the recording must be proved by a competent witness and the voices must be properly identified. The Court observed that one of the features of magnetic tape recording is the ability to erase and re-use the recording medium and because of this facility, the evidence must be received with caution and the Court must be satisfied beyond reasonable doubt that the record has not been tampered with.

145.

The learned counsel, therefore, submitted that this evidence

should have been rejected.

As rightly pointed out by the learned

Additional Public Prosecutor, this contention has to be rejected. It has to be seen that these intercepts have in fact led to the arrest of appellant Santosh at Mumbai.

146.

P.W. 73 PSI Kad stated that he was directed to go to Bombay

in search of accused Santosh and therefore, reached Bombay on

ß#à á 23.07.2000.

He obtained necessary entry pass for entry at Bombay

Airport vide Exh.687. He stated that at about 7.30 to 8.00 p.m. after a flight of Jet Airlines had landed, Santosh Ambekar was coming out. He and constable Ramnaresh caught Santosh, made him to sit at the office of Airport Security, informed his superior officer P.I. Chavhan, called panchas and recorded arrest panchnama after seizing cash of Rs.4,000/-, rings etc. vide Exh.685. He also proved at Exh.683 and 684 boarding pass and ticket which were found with Santosh Ambekar. He stated that P.I. Chavhan had thereafter come to Bombay and both of them brought accused Santosh Ambekar to Nagpur by Bombay-Nagpur flight on next day i.e. on 24.07.2000. He then took Santosh for medical examination vide station diary entry at Exh.688 and submitted memorandum vide Exh.689.

He denied that he and P.I. Chavhan

trapped Santosh without any authority. He denied that Santosh was arrested on 23.07.2000 at Panvel at the house of one Diwakar Wadkar (which suggestion would falsify the claim that Santosh Ambekar was in Nagpur itself). He admitted that the boarding pass and ticket mentioned the name Sharma S. and not Santosh Ambekar.

147.

P.W. 72 Swapnil Gaikwad is panch at the arrest of Santosh

Ambekar at Mumbai airport and seizure of articles from him vide

â&âã Exh.683, 684 and 685. There is no reason to disbelieve this witness.

148.

P.W. 39 Manju Kaur was working with NOVA Tours and

Travels and proved that on 20.07.2000 one Rajesh had booked three tickets for Mrs. S.S. Ambekar and N.S. Ambekar, Master Sanjeet for Nagpur-Delhi flight of the same day and stated that the fare was paid in cash of Rs.11,100/-. She stated that contact number given was 727558. She proved necessary extract and copies of tickets.

149.

Had the intercepts being incorrect or had the talk which PSI

Gadwe heard been in respect of someone else, there was no question of Santosh Ambekar being arrested at Mumbai Airport on the basis of information which became available through the intercepts. Therefore, it has to be held that appellant Santosh had kept himself away from the police. It has also to be held that movements of appellant Santosh were known to his family members, particularly Vandana Verma appellant No. 3 and Sushma Ambekar appellant No. 2, who did not inform the police of whereabouts of Santosh Ambekar.

150.

The learned counsel for the appellant submitted that the term

“harbour” has not been defined in MCOCA it has been defined under

ä&ä ä Section 52-A of the Penal Code, which reads thus : “52-A. “Harbour” - Except in Section 157, and in section 130 in the case in which the harbour is given by the wife or husband of the person harboured, the word “harbour” includes the supplying a person with shelter, food, drink, money, clothes, arms, ammunition or means of conveyance, or the assisting a person by any means, whether of the same kind as those enumerated in this section or not, to evade apprehension.” 151.

They submitted that appellant Vandana Verma and Sushma

Ambekar are not proved to have supplied Santosh Ambekar with any shelter, food, drink, money, clothes, arms, ammunition or means of conveyance, or assisted Santosh Ambekar by any means to evade apprehension. They pointed out that it was not that Vandana Verma and Sushma Ambekar allegedly informed Santosh of movements of police. On the other hand it is Santosh who was heard as telling his sister that he had noticed policeman of Crime Branch, Nagpur at Delhi. Therefore, according to the learned counsel, the evidence about intercepted telephonic conversation cannot led to the conclusion that appellant Santosh had been provided harbour by any of the appellants. The learned A.P.P. rightly pointed out that Section 3(3) of the MCOCA does not provide punishment only for harbouring but also for concealing the whereabouts of a person involved in organised crime. Therefore, according to her, since appellants Sushma Ambekar and Vandana Verma

å&åæ were shown to be in touch with Santosh Ambekar and therefore, knew his whereabouts, their failure to inform the authorities of whereabouts of Santosh would amount to concealment.

152.

The learned counsel for the appellant submitted that this

conclusion cannot be drawn since even if it is presumed for a while that these appellants were in the know of whereabouts of Santosh Ambekar they were not under any duty to inform the police, since they did not know that Santosh was a person involved in any organised crime syndicate. They submitted that offence punishable under Section 3(3) of the MCOCA cannot be completed without proof of the element of mens rea, as held in Bharat Shah as well as Ranjitsingh's cases and since they lacked necessary knowledge, in the absence of ingredient of mens rea, this offence could not have been held as proved.

In any case,

whether the appellant Santosh can be held guilty of concealing himself, or whether the appellant Sushma Ambekar and Vandana Verma can be held to have concealed Santosh Ambekar or whether other appellants abetted by conspiracy into such concealment would depend on the fact whether the appellant Santosh is proved to be involved in organised crime, or is proved to be member of such organised crime syndicate to the knowledge of other accused persons. Since he is not proved to have

ç&çè been involved in organised crime or to have been a member of organised crime syndicate this evidence turns into a cipher.

153.

The charge “fifthly” pertains to appellants amassing property

from income of organised crime syndicate.

For this purpose the

prosecution tendered following evidence :

154.

P.W. 46 Narendra Kubde was a panch at the seizure of

mobile phone, cash, gold ornaments etc. on 25.07.2000 vide Exh.371. He also proved panchnama at Exh.171 and 231 which were admitted by the defence.

He identified all the articles seized vide panchnama

Exh.231, to be at Exh.232 to 234.

He also proved panchnama at

Exh.235 and documents seized thereunder at Exh.236 to 239.

On

10.08.2000, according to him, appellant Ashok Botnis stated that he would produce certain documents from his house. Memorandum was made vide Exh.372 and documents at Exh.373(1) to 373(15) were seized vide seizure memo vide Exh.373.

155.

P.W. 48 Janglu Bure and P.W. 71 Mohd. Khan were panch at

discovery and seizure of mobile phone from accused Habib Rathod on 24.09.2000 vide Exh.380 and Exh.381.

é&éê 156.

P.W. 23 Mrs. Padmavati Dabhade stated that she knew

appellant Santosh, Bandu, Shivankar, Habib Rathod, Ravindra Khule and Milind Kharwade. She sold a house in New Sarafa Bazar to Santosh and others by a registered sale deed for Rs.8,50,000/- in 1993. Consideration had been received by her son Ratnakar, who did all paper work. She claims to have received only Rs.One lac before the SubRegistrar. Her son Ratnakar was murdered (but this does not seem to have anything to do with appellants). She denied suggestion in cross that consideration was fixed at only Rs.1,50,000/- and denied recitals to this effect in sale deed Exh.120 dated 09.12.1993. She admitted that there is the recital that Rs.50,000/- was paid at home, as also that house was 70 years old.

This evidence is obviously of no use. For proving

that property was procured from organised crime, or was held on behalf of an organised crime syndicate, punishable under Sections 3(5) & 4 of MCOCA, such property should have been purchased only after offence of organised crime came to be created. Property purchased in 1993 when the offence was itself not known cannot attract penal provisions contained in Sections 3(5) and 4.

157.

Same holds good about evidence of P.W. 24 Ramchandra

who stated that he sold his house in Itwari in 1997.

He received

ë&ëì Rs.1,00,000/- initially and again Rs.1,00,000/- in November, 1997. Two sale deeds were separately executed in February, 1998 in the names of Santosh and his wife. He received Rs.1,70,000/- in cash and and two cheques of Rs.2,00,000/- each at the time of registration. Each sale deed was for Rs.3,35,000/-, but he had actually received Rs.8,00,000/-.

Sale deeds are at Exhs. 122 and 123.

In cross-

examination it was suggested but denied that in fact he had received only Rs.6,70, 000/- and not Rs.8,00,000/-.

158.

P.W. 37 Gurubachansingh stated that he was Manager at

Escort Finance Company.

In 1997 he financed purchase of Maruti

Esteem car by Santosh Ambekar by advancing a sum of Rs.2,50,000/and had issued a cheque for Rs.2,37,575/- after deducting first instalment. The vehicle was registered at Raipur and was got hypothecated with Escort Finance. He stated that a sum of Rs.91,750/was received from Santosh towards repayment. Last repayment having been received in 1998.

The amount due may be more than

Rs.4,00,000/-. He stated in cross-examination that the case in respect of this finance to Santosh Ambekar is pending before an Arbitrator in the Delhi High Court.

í&í î 159.

P.W. 38 Jasvindersingh stated that in 1995 he purchased a

Maruti Esteem car bearing Registration No.MP-23-L-3941 and left it with Nagpur Auto Deal on 01.08.1997 after receiving Rs.3,20,000/-. He stated that in August, 1997 he signed the transfer forms in which name of purchaser was mentioned as Santosh Ambekar. He proved the necessary documents of the car.

160.

P.W. 43 Sudhakar Pasare stated that he was dealing in

automobiles since 1988-89. In February, 1992 one Jagannath Atmaram Deshmukh sought to sell Maruti Van bearing No.MP-09-A-324.

One

Gautam Kochar expressed readiness to purchase the vehicle for Rs.90,000/-.

Gautam Kochar provided finance and the vehicle was

eventually sold to one Sushma Ambekar vide delivery note at Exh.363. He stated that transaction was between Deshmukh and Gautam Kochar and he was merely a commission agent. This purchase of a van in the year 1992 after seeking loan is utterly irrelevant for proving amassing wealth by organised crime.

161.

P.W. 67 retired A.S.I. Yashwant Choudhary stated that he

was incharge of station diary at Police Station, Tahsil on 10.10.1999. When as per directions of P.S.I. Inamdar he wrote letter Exh.673 to

ï&ïð R.T.O. Raipur and handed over report of R.T.O. Raipur endorsed on the same letter to the investigator. How this transaction about purchase of car in 1997 could fit in Section 315 or Section 4 of the MCOCA may be known only to the Investigating Officer.

162.

P.W. 70 P.I. Vinod Yeskade stated that by order dated

29.02.2000 he was directed by ACP Siram to seize house property of accused Santosh Ambekar's and a car bearing No.MP 23-L-3941 vide Exh.677. Accordingly, he seized the property vide Exh. 167 and 168 after making entries in the station diary vide Exh.553 and 554. He proved his compliance report at Exh.678.

163.

P.W. 51 Krushna Senad stated about execution of the sale

deed of his house property to appellant Shashikant Ambekar for a sum of Rs.3,00,000/- though price recorded in the sale deed was Rs.1,25,000/- only. He claimed to have received Rs.83,000/- by cheque and rest in cash. He stated that appellant Santosh was his neighbour and also that the house had been purchased by his father for a sum of Rs.1,350/- only. He admitted in cross-examination that he had received Rs.35,000/- at home, Rs.7,000/- at the time of execution of the sale deed, in cash and a cheque of Rs.83,000/-. However, he denied that he

ñ&ñ ò had received only that amount and stated that he had received the sum of Rs.3,00,000/-. This sale deed is dated 22nd September, 1997. Even if it is held as proved that Shashikant Ambekar had undervalued purchase of property in 1997, it cannot be attributed to illgotten wealth from organised crime without proving indulgence in such crime prior to purchase, first, even the crime chart and charge sheets relied on do not show involvement in crimes committed with use of force for pecuniary gain prior to 1997 and secondly, the offence itself was not on statute book at the relevant time.

164.

Same holds good about evidence of P.W. 58 Dilip Maske is

contractor who was allotted contract of construction of Santosh Towers, as also after a gap of 4-5 years, work of construction of the house of Santosh Ambekar on Nikalas Mandir Road. He stated that labour used to be paid by the owners of the building and he had received his fees of Rs.35,000/- to Rs.40,000/-. As far as residential house is concerned, he stated that he had received his fees of Rs.1,50,000/- but was yet to recover about Rs.35,000/- to Rs.40,000/- from Santosh Ambekar.

He

stated that the cost of construction of the house may be Rs.25,00,000/to Rs.30,00,000/-. Santosh Towers was constructed in the year 1993.

ó&óô 165.

P.W. 57 Architect Shekhar stated about preparing plans of a

building on Nikalas Mandir road for Santosh Ambekar at estimated cost of Rs.35,00,000/- on built up area of 3500 sq.ft. The estimate is at Exh.234. He also claims to have prepared a plan of partition at the building at the instance of appellant Ashok Botnis, which was sent to Botnis vide covering letter vide Exh.232.

He admitted in cross-

examination that the plan as well as elevation etc. are on paper and without actually seeing the construction it is not possible to make valuation.

However, he also stated in cross-examination that the

existing structure which is on the spot is worth Rs.35,00,000/-.

He

admitted that when he visited in April, 1999 the cost of construction was Rs.4,84,100/-.

166.

P.W. 29 Johnson Kadaloo, Income Tax Officer stated that he

was working as Income Tax Officer of Ward No.1(2) in the month of August, 2000.

Requisition was received from the police about

information in respect of the appellant Santosh Ambekar vide Exh.151. It was found that Santosh Ambekar, Neha Ambekar, Shashikant Ambekar, Sushma Ambekar and Renuka Khule were assessed in the said ward.

In the following assessment years income shown by Santosh

Ambekar was as under :

õ ö#÷ 1996-97

-

42,000

1997-98

-

43,500

1998-99

-

73,000

Source was shown to be commission and brokerage. Copies of returns furnished by him was proved by the witness at Exh.152 to 155.

167.

Mrs. Neha Ambekar has disclosed income of Rs.57,500/- for

the year 1998-99 from business of beauty parlour vide return at Exh.156. Shashikant Ambekar had shown income of Rs.41,500/- in 1996-97, Rs. 42,500/- in 1997-98 and Rs.62,750/- in 1998-99 vide returns at Exh.157 to 159. The source was labour charges of making silver ornaments. Mrs. Sushma Ambekar had submitted return for 199899 showing income of Rs.55,000/- vide Exh.160 from business of selling sewing household clothes. Smt. Renuka Khule had shown income of Rs.28,100/- for the asessment year 1993-94 from the business of goldsmithry and for the year 1994-95 Rs.30,500/- vide return at Exh.161.

168.

P.W. 30 Narendra Kane was working as Income Tax Officer

for new Ward No.1(1). He stated that a requisition was received from

ø ù&ø the police vide Exh.151, 152 in respect of returns of Ashok Botnis. For the financial year 1997-98 vide Exh.164 income of Rs.75,100/- was shown.

For the financial year 1998-99 income of Rs.91,990/- was

shown vide Exh.165 from the business, interest, commission etc. Along with return other documents were submitted which were proved at Exh.165(1) to 165(3).

169.

May be, the evidence of the two Income Tax Officers shows

that the persons concerned did not have enough income to invest in properties.

But this is unhelpful to conclude that properties were

purchased with ill gotten wealth. It may be that they had suppressed income. Unless involvement in offence of organised crime is proved, further, inferences are not permissible, and, mere allegation of involvement in organised crime or membership of such syndicate would not be enough.

170.

P.W. 31 Gulab Bhangad was serving as Sub-Registrar at

Raghuji Nagar-2, Nagpur since 10.08.2000. He received a letter from Crime Branch at Exh.174 seeking information in respect of two transactions. He submitted valuation vide Exh.175. The Crime Branch also sought certified copies of the documents which were provided as at

ø ù ù Exh.88 and 125. They were dated 28th July, 1999 and 06.10.1998. A copy of the sale deed dated 08.09.1999 registered on 18.10.1999 was also proved by him as at Exh.176. Copy of sale deed dated 08.09.1999 was proved by him as at Exh.177. He stated that evaluation in the document was correct as per ready reckoner.

171.

P.W. 32 Natthu Dhepe was also working as Sub-Registrar at

Nagpur from 09.08.2000. He stated that a letter has been received from Crime Branch at 09.10.2000 vide Exh.179.

As per requisition he

prepared true copies of the documents and valuation of the properties documents were registered vide Sr.No.732/93, 228/98, 712/97, 1316/97 and 91/95, copies whereof are at Exh.120, 122, 123, 181, 182 and 183. He also proved letter which was written by him to the Crime Branch at Exh.180. He stated that the valuation shown in the document was as per ready reckoner for the particular year.

172.

P.W. 44 Manoj Sharma is panch at the breaking seal of the

house and having property measured and received vide panchnama at Exh.365 and 366.

ú û*ü 173.

P.W. 34 Shri Vivek Salve was working as Executive Engineer,

P.W.D. He stated having received letter on 16.08.2000 from the Crime Branch vide Exh.251, in pursuance of which he directed the Sub Divisional Engineer to comply. Accordingly his subordinates Shewalkar and Doifode contacted police, got properties located and upon unsealing by police, took measurements, inspected the property and valued the properties as per P.W.D. Rules. He produced the circular of P.W.D. For valuation at Exh.254.

He stated that after receipt of report of his

subordinates he submitted information about valuation vide letter dated 30th September, 2000 at Exh.255.

174.

P.W. 47 Shri Vijay Doifode stated that after receiving

directions from the Executive Engineer he took measurements of five buildings and two buildings which were sealed and opened with the permission of the Court. He stated that he was accompanied by Shri Madhusudan Shewalkar, Sectional Engineer. The properties were : (1) Santosh Towers, Itwari House No.966, (2) House No.1086, (3) House No.307 at Bhandara Road, (4) House No.322, Kothi Road, (5) House No.1086 Itwari, (6) House No.484 near Itwari High School, (7) House No.1181/04, Itwari. He stated that for evaluating the buildings he has considered year of construction, nature of construction, nature of

ý þ#ÿ structure fixtures and the locality.

He had admitted in his cross-

examination that he did not have any specific information about the ownership of the property by a particular person, as well as shares of various persons in the property. He admitted that the owners or share holders were not called at the time of valuation.

175.

P.W. 53 Shri Madhusudan Shewalkar is Sectional Engineer

who had accompanied P.W. 47 Vijay Doifode and his evidence is to the same effect. He proved valuation reports at Exh.532 (1) to 532(7). According to which House Nos.(1)

966 was worth Rs.646209, (2)

House No.317 was worth Rs.12,74,923/-, (3) House No.472 was worth Rs.60,46,000/-, (4) House No.486 was worth Rs.5,56,686, (5) House No.1086 was worth Rs.9,31,798/-, (6) House No.484 near Itwari High School was worth Rs.96,000/-and (7) Radhe Building, House No.1181 was worth Rs.20,90,698/-. He stated that the valuation was excluding the value of the land. The cross-examination does not disclose anything to disbelieve his evidence.

176.

P.W. 55 PSI Moreshwar Atram stated that on 09.09.2000

ACP Rude directed him to visit property Nos. 317 and 472, open seal of the properties and allow P.W.D. employees to make valuation vide


 letters Exh.539 and 540. He claims to have gone to the office of P.W.D., received letter Exh.540, unsealded house in presence of panchas, allowed P.W.D. Officials to take measurement, sealed property again and kept the keys and the seal in envelope Exh.541. He also proved panchnama at Exh.366. Similar procedure was followed in respect of property at Exh.317. The key and the seals were kept in envelope at Exh.365. He submitted his report vide Exh.542. He admitted in crossexamination that he made no attempts to ascertain shares of the accused in each property.

177.

P.W. 25 Kedar Dhale claimed to have sold his property for

Rs.12,00,000/- vide Exh.125 dated 05.10.1998 to Anil Ninave, Santosh and Ashok Botnis. He, however, stated in cross examination that he did not know Santosh and Ashok.

178.

P.W. 40 Kishore Meshram proved seizure of certain

documents from appellant Ashok Botnis vide Exh.527.

He also

identified the documents seized to be at Exh.527(4) to 527(28).

179.

P.W. 54 Mohd. Shabir stated that in Aguust, 2000 he was

called as panch in the office of Crime Branch, where, in his presence,

 vide Exh.527 a bag was seized containing 28 documents, which were marked as Exh.527(1) to 527(28).

He, however, denied that the

documents were actually seized from appellant Ashok Botnis in his presence and therefore, was declared hostile.

180.

Evidence of P.Ws. 31 Gulab, 32 Nathu, 44 Manoj, 34 Vivek,

47 Vijay, 53 Madhusudan, 55 PSI Atram, 25 Kedar, 40 Kishore and 54 Mohd. Shabir is of no use in the absence of proof of involvement of appellants in organized crime. Even according to P.W. 8 Sangeeta both appellant Santosh Ambekar and Ashok were her and her husband's partners in construction business. Relations soured, and disputes arose. Though the possibility that these appellants might have suppressed income, is not ruled out, unless nexus between the income and crime is established, (which has not been done), the properties cannot be held to have been obtained from income of organised crime.

181.

P.W. 81 ACP Rude had conducted investigation in this case

after he received an order to that effect vide Exh.755. He took over from ACP Solanki. He stated about interrogation of appellant Santosh, seizure of several documents, recording statements of witnesses and confidential witnesses, arresting accused persons etc. He stated that on

  10.08.2000 accused Ashok Botnis agreed to discover some documents about sale transactions from his house and therefore, after making memorandum vide Exh.372 in presence of panchas he recovered documents vide Exh.373. On 01.09.2000 he received documents and cassettes of telephone intercepts.

He secured certified copies of

chargehseets through his subordinates. through P.W.D. Authorities.

He got the property valued

On 29.01.2000 P.I. Chavhan produced

accused Habib Rathod. On the same day after obtaining remand he was interrogated. Memorandum of his willingness to produce documents from his house was recorded in presence of panchas vide Exh.380 and relevant documents were seized vide Exh.381.

Search of house of

accused Habib yielded keys etc. which were seized. After completion of investigation he filed chargesheet bearing No.247/2000 on 06.12.2000. The cross examination comprises of suggestions which have been mostly denied by the witness.

182. evidence.

The role of the Investigating Officer is only to collect His evidence only indicates the procedure followed in

investigation. His word does not provide any proof of commission of an offence.

 183.

To sum up the evidence tendered discloses that :

(i)

Acts or omissions uncovered in course of investigation and which were subject-matter of the trial were not shown to have been committed by use of violence, etc. with the objective of gaining pecuniary or other benefit.

(ii)

Acts for which various appellants had been separately chargesheeted on thirty one occasions in the past were mostly committed before MCOC Act came into force.

(iii)

As to cases after MCOC Act came into force – in one case chargesheet itself is not proved to have been filed; and four crimes did not pertain to gaining pecuniary or other benefit by use of violence etc., leaving only one crime of preparation to commit dacoity.

Even if

acquittal therein is ignored, it does not indicate plurality of unlawful activity and therefore, does not amount to organised crime.

 (iv)

Since involvement of any of the accused in organised crime is not established, questions of any of them being member of organised crime syndicate, or their conspiring and providing harbour to one of the appellants, or their holding property derived from organised

crime,

or

the

possession

of

wealth

disproportionate to their income amounting to an offence under Section 4 of the Act, do not arise.

(v)

In any case, most of properties are shown to have been purchased before MCOC Act was enacted.

184.

In view of this, the learned trial Judge was not justified in

holding appellants guilty for the offences for which she has convicted and sentenced them.

Their convictions and sentences cannot be

sustained.

185.

All the appeals are, therefore, allowed.

186.

Conviction of appellants for various offences and sentences

imposed upon them, as indicated in paragraph 8 of this judgment are set

 aside. They shall be set at liberty forthwith, if not wanted in any other case (except appellant Madan Ramkisan Gangwani, who died during pendency of the appeal and therefore, not in jail).

187.

Fine, if paid, shall be refunded to them. Any properties, if

attached, shall be released from attachment after a period of three months from this judgment.

188.

Accused No.3 Prakash Namdeo Dhande, who has also been

convicted and sentenced as indicated at the beginning of the judgment, has not preferred any appeal. However, the foregoing discussion would also govern his case.

189.

His conviction and the sentence imposed upon him are also

set aside. If in jail, he shall be set at liberty, if not wanted in any other case.

JUDGE RR..

JUDGE