THE STATE OF GUJARAT versus SANDIP OMPRAKASH GUPTA on 15 December 2022

[2022] 17 S.C.R. 765

THE STATE OF GUJARAT

v.

SANDIP OMPRAKASH GUPTA

(Criminal Appeal No. 2291 of 2022)

DECEMBER 15, 2022

[S. ABDUL NAZEER AND J. B. PARDIWALA, JJ.]

Gujarat Control of Terrorism and Organised Crime Act, 2015:s.2(1)(c) – Whether an FIR under the 2015 Act is maintainable inlaw or can be registered if there is no FIR registered against theaccused after the promulgation of the 2015 Act for any offenceunder the IPC or any other statute – Held: The term, ‘organisedcrime’ indicates that there has to be an activity prohibited by lawfor the time being in force which is a cognizable offence punishablewith imprisonment of three years or more, undertaken as singly orjointly as a member of organised crime syndicate or on behalf ofsuch syndicate, in respect of which activity more than onechargesheets have been filed before a competent court within thepreceding period of ten years and the Court has taken cognizanceof such offence – There would have to be some act or omissionwhich amounts to organised crime after the 2015 Act came intoforce i.e., 01.12.2019 in respect of which, the accused is sought tobe tried for the first time in the special court – For the purpose oforganised crime, there has to be a continuing unlawful activity –There cannot be continuing unlawful activity unless at least twochargesheets are found to have been lodged in relation to theoffence punishable with three years’ imprisonment during the periodof ten years – It nowhere by itself declares any activity to be anoffence under the said 2015 Act prior to 01.12.2019 – It also doesnot convert any activity done prior to 01.12.2019 to be an offenceunder the said 2015 Act – It merely considers two chargesheets inrelation to the acts which were already declared as offences underthe law in force to be one of the requisites for the purpose ofidentifying continuing unlawful activity and/or for the purpose ofan action under the said 2015 Act – If the person continues withthe unlawful activities and is arrested, after the promulgation of thesaid Act, then, such person can be tried for the offence under thesaid Act – If a person ceases to indulge in any unlawful act after

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Athe said Act, then, he is absolved of the prosecution under the saidAct – If he continues with the unlawful activity, it cannot be saidthat the State has to wait till, he commits two acts of which cognizanceis taken by the Court after coming into force – Organised Crime.

Disposing of the appeal, the CourtBHELD: 1. A close analysis of the term, ‘organised crime’would indicate that there has to be an activity prohibited by lawfor the time being in force which is a cognizable offence punishablewith imprisonment of three years or more, undertaken as singlyor jointly as a member of organised crime syndicate or on behalfCof such syndicate, in respect of which activity more than onechargesheets have been filed before a competent court withinthe preceding period of ten years and the Court has takencognizance of such offence. [Para 24][782-D-E]

2. The considerations which normally weigh with the CourtDin granting bail in non-bailable offences are: (1) the nature andseriousness of the offences; (2) the character of the evidence;(3) circumstances which are peculiar to the accused; (4) areasonable possibility of the presence of the accused not beingsecured at the trial; (5) reasonable apprehension of witnessesbeing tampered with; (6) the larger interest of the public or theEState and other similar factors which may be relevant in the factsand circumstances of the case. However, if the provisions of the2015 Act are invoked in a given case, then, in addition to theaforementioned broad principles, the limitations imposed in theprovisions contained in sub-section (4) of Section 20 of the 2015FAct should not be lost sight of while dealing with application forgrant of bail. [Paras 26 and 27][782-H; 783-A-C]

3. It is plain from a bare reading of the non-obstante clausein the sub-section that the power to grant bail by the High Courtor Court of Sessions is not only subject to the limitations imposedGby Section 439 of the Code but is also subject to the limitationsplaced by Section 20(4) of the 2015 Act. Apart from the grant ofopportunity to the Public Prosecutor, the other twin conditionsare: the satisfaction of the court that there are reasonable groundsfor believing that the accused is not guilty of the alleged offence H

and that he is not likely to commit any offence while on bail. Theconditions are cumulative and not alternative. The satisfactioncontemplated regarding the accused being not guilty has to bebased on reasonable grounds. The expression ‘reasonablegrounds’ means something more than prima facie grounds. Itcontemplates substantial probable causes for believing that theaccused is not guilty of the alleged offence. The reasonable beliefcontemplated in the provisions requires existence of such factsand circumstances as are sufficient in themselves to justifysatisfaction that the accused is not guilty of the alleged offence.Thus, recording of findings under the said provision is a sine quanon for granting bail under the 2015 Act. [Para 28][783-F-H; 784-A-B]

4. The same would be in tune with the dictum as laid inShiva alias Shivaji Ramaji Sonawane that there would have to besome act or omission which amounts to organised crime afterthe 2015 Act came into force i.e., 01.12.2019 in respect of which,the accused is sought to be tried for the first time in the specialcourt. This Court is in agreement with the view taken by theHigh Court of Judicature at Bombay in the case of Jaisingh thatneither the definition of the term ‘organised crime’ nor of theterm ‘continuing unlawful activity’ nor any other provision thereindeclares any activity performed prior to the enactment of theMCOCA to be an offence under the 1999 Act nor the provisionrelating to punishment relates to any offence prior to the date ofenforcement of the 1999 Act, i.e., 24.02.1999. However, byreferring to the expression ‘preceding period of ten years’ inSection 2(1)(d), which is a definition clause of the term ‘continuingunlawful activity’ inference is sought to be drawn that in fact, ittakes into its ambit the acts done prior to the enforcement of the1999 Act as being an offence under the 1999 Act. The sameanalogy will apply to the 2015 Act. [Paras 48 and 49][798-H; 799-A-C]

5. Shiva alias Shivaji Ramaji Sonawane dealt with thesituation, where a person commits no unlawful activity after theinvocation of the MCOCA. In such circumstances, the personcannot be arrested under the said Act on account of the offencescommitted by him before coming into force of the said Act, even AB

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Aif, he is found guilty of the same. However, if the person continueswith the unlawful activities and is arrested, after the promulgationof the said Act, then, such person can be tried for the offenceunder the said Act. If a person ceases to indulge in any unlawfulact after the said Act, then, he is absolved of the prosecutionunder the said Act. But, if he continues with the unlawful activity,Bit cannot be said that the State has to wait till, he commits twoacts of which cognizance is taken by the Court after coming intoforce. The same principle would apply, even in the case of the2015 Act. [Para 51][801-A-D]

State of Maharashtra v. Shiva alias Shivaji RamajiCSonawane (2015) 14 SCC272.: [2015] 9 SCR 211;Prafulla Uddhav Shende v. State of Maharashtra 2008SCC OnLine Bom 1848 : (2009) 2 AIR Bom R 1;Jaisingh Ashrfilal Yadav and Others v. State ofMaharashtra and Another 2003 All MR (Cri) 1506;DBharat Shantilal Shah v. State of Maharashtra 2003All MR (Cri) 1061; State of Maharashtra v. BharatShanti Lal Shah and Others (2008) 13 SCC 5 : [2008]12 SCR 1083; Altaf Ismail Sheikh v. State ofMaharashtra 2005 SCC OnLine Bom 420 : 2005 CriLJ 3584 : (2006) 1 CCR 391; State of MaharashtraEand Others v. Lalit Somdatta Nagpal and Another (2007)4 SCC 171 : [2007] 2 SCR 473; Tolaram Relumal andAnother v. State of Bombay AIR 1954 SC 496 : [1955]SCR 158 – relied on.

Ranjitsing Brahmajeetsing Sharma v. State ofFMaharashtra and Another (2005) 5 SCC 294 : [2005]3 SCR 345; State of Jharkhand and Others v. AmbayCements and Another (2005) 1 SCC 368 : [2004] 6Suppl. SCR 125 – referred to.

Case Law Reference

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.2291 of 2022.

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From the Judgment and Order dated 06.05.2021 of the High Courtof Gujarat at Ahmedabad in R/Criminal Misc. Application No. 3819 of2021.

Tushar Mehta, SG, Kanu Agarwal, Ms. Deepanwita Priyanka,Advs. for the Appellant.

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Mohit D. Ram, Kishan H. Dahiya, Ms. Monisha Handa, RajulShrivastav, Anubhav Sharma, Advs. for the Respondent.

The Judgment of the Court was delivered by D

J. B. PARDIWALA, J.

1. Leave granted.

2. This appeal is at the instance of the State of Gujarat and isdirected against the order passed by the High Court of Gujarat dated06.05.2021, in R/Criminal Miscellaneous Application No. 3819 of 2021by which the High Court ordered release of the respondent accusedherein on bail in connection with the First Information Report being C.R.No. 11210015200100 of 2020 registered with the D.C.B. Police Station,Surat City, District Surat for the offences punishable under Sections3(1)(i) and (ii), 3(2) and 3(4) resply of the Gujarat Control of Terrorismand Organised Crime Act, 2015 (for short, ‘the 2015 Act’).

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3. The question that falls for our consideration is: whether therequirement of ‘continuing unlawful activity’, as defined under Section2(1)(c) of the 2015 Act, necessarily requires a separate FIR to havebeen registered against any purported member of a gang after thepromulgation of the 2015 Act i.e., after 01.12.2019? To put it in otherwords: whether an FIR under the 2015 Act (Special enactment) ismaintainable in law or can be registered if there is no FIR registeredagainst the accused after the promulgation of the 2015 Act for anyoffence under the IPC or any other statute?

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A4. The aforesaid question arises especially in view of the fact thatthe last offence registered against the respondent-accused is of 2019and the chargesheet in regard to the said FIR was filed on 21.01.2019i.e., indisputably prior to the promulgation of the 2015 Act. Furthermore,there is no FIR registered against the respondent-accused after the 2015Act came into force w.e.f. 01.12.2019.B

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FACTUAL MATRIX

5. On 27.11.2020 an FIR came to be registered against therespondent accused herein and thirteen other co-accused for the offencepunishable under Sections 3(1)(i) and (ii), 3(2) and 3(4) resply of theC2015 Act. The respondent-accused came to be arrested on the verysame day and date of registration of the FIR i.e., 27.11.2020. Therespondent-accused applied for bail before the Sessions Court at Suratby filing the Criminal Miscellaneous Application No. 6483 of 2020. TheSessions Court at Surat rejected the bail application vide order dated21.01.2021.D

6. The respondent-accused thereafter, preferred bail applicationbefore the High Court by way of the Miscellaneous Criminal ApplicationNo. 3819 of 2021. The High Court allowed the bail application and orderedrelease of the respondent-accused on bail subject to certain terms andconditions.E

7. The High Court granted bail to the respondent-accused,essentially relying on the dictum as laid by this Court in the case of Stateof Maharashtra v. Shiva alias Shivaji Ramaji Sonawane reported in(2015) 14 SCC 272. The High Court took notice of the fact that the 2015Act came into force w.e.f. 01.12.2019 in the State of Gujarat and noFFIR had been registered against the respondent-accused for anysubstantive offence after 01.12.2019.

8. In such circumstances referred to above, the High Court tookthe view relying on the decision of this Court in the case of Shiva aliasShivaji Ramaji Sonawane (supra) that the five FIRs, which wereGregistered in the past for different offences under the Indian Penal Code(IPC) cannot be construed as a ‘continuing unlawful activity’ of therespondent-accused so as to prosecute him under the provisions of the2015 Act.

9. We must look into the relevant observations of the High Court,Hmade in its impugned order as under:

“6. In order to curb and control organized crime and terroristactivities in the State of Gujarat the Legislature haspromulgated “the Gujarat Control of Terrorism and OrganizedCrime Act, 2015” vide Notification. The Act has come intoforce from 01.12.2019. Sections 2(c)and (f) which define“continuing unlawful activity” and “organized crimesyndicate” read as under:

(c) “continuing unlawful activity” means an activityprohibited by law for the time being in force, which is acognizable offence punishable with imprisonment for a termof three years or more, undertaken either singly or jointly,as a member of an organised crime syndicate or on behalfof such syndicate in respect of which more than onecharge--sheets have been filed before a competent courtwithin the preceding period of ten years and that courthas taken cognizance of such offence; (f) “organised crime syndicate” means a group of two or morepersons who, acting either singly or col-lectively, as asyndicate or gang indulging in activities of organised crime; The combined reading of the aforesaid provisions suggest thatthere has to be a continuing unlawful activity carried out byan organized crime syndicate, for which more than one chargesheets have been filed before a competent court within thepreceding period of ten years, and that the court has takencognizance of such offence.

7. The Supreme Court in the case of Shivaji Ramaji Sonawale(supra) while considering the parimaterial provisions ofsection 2(d) of the Maharashtra Control of Organised CrimeAct, 1999 to that of section 2(c) of the Gujarat Act, whichdefines “continuing unlawful activity” has held thus:

“9. The significant feature of the two cases is that forCrimes No.37 of 2001 and 38 of 2001 the respondentswere separately tried and acquitted on 18th January, 2008in the case of Shiva and on 28th February, 2006 in thecase of Mehmood Khan Pathan. In the said charge sheets,the respondents were accused of committing offences onlyunder the IPC and the Arms Act. For the offences A

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punishable under MCOCA separate and independentcharge sheets were filed against the accused persons inwhich they were convicted by the Trial Court whichconviction was reversed by the High Court as noticedearlier. It was in the above backdrop that the High Courtheld that once the respondents had been acquitted for theoffence punishable under the IPCand Arms Act in CrimesNo.37 and 38 of 2001 and once the Trial Court hadrecorded an acquittal even for the offence punishableunder Section 4 read with Section 25of the Arms Act inMCOCA Crimes No.1 and 2 of 2002 all that remainedincriminating was the filing of charge sheets against therespondents in the past and taking of cognizance by thecompetent court over a period of ten years prior to theenforcement of the MCOCA. The filing of charge sheets ortaking of the cognizance in the same did not, declared theHigh Court, by itself constitute an offence punishableunder Section 3 of the MCOCA. That is because theinvolvement of respondents in previous offences was justabout one requirement but by no means the only requirementwhich the prosecution has to satisfy to secure a convictionunder MCOCA. What was equally, if not, more importantwas the commission of an offence by the respondents thatwould constitute “continuing unlawful activity”. So longas that requirement failed, as was the position in the instantcase, there was no question of convicting the respondentsunder Section 3 of the MCOCA. That reasoning does not,in our opinion, suffer from any infirmity.

10. The very fact that more than one charge sheets hadbeen filed against the respondents alleging offencespunishable with more than three years imprisonment is notenough. As rightly pointed out by the High Courtcommission of offences prior to the enactment of MCOCAdoes not by itself constitute an offence under MCOCA.Registration of cases, filing of charge sheets and takingof cognizance by the competent court in relation to theoffence alleged to have been committed by the respondentsin the past is but one of the requirements for invocation ofSection 3 of the MCOCA. Continuation of unlawful activities is the second and equally important requirementthat ought to be satisfied. It is only if an organised crime iscommitted by the accused after the promulgation ofMCOCA that he may, seen in the light of the previous chargesheets and the cognizance taken by the competent court,be said to have committed an offence under Section 3ofthe Act.

11. In the case at hand, the offences which the respondentsare alleged to have committed after the promulgation ofMCOCA were not proved against them. The acquittal ofthe respondents in Crimes No. 37 and 38 of 2001 signifiedthat they were not involved in the commission of theoffences with which they were charged. Not only that therespondents were acquitted of the charge under the ArmsAct even in Crimes Case No.1 and 2 of 2002. No appealagainst that acquittal had been filed by the State. Thisimplied that the prosecution had failed to prove the secondingredient required for completion of an offence underMCOCA. The High Court was, therefore, right in holdingthat Section 3 of the MCOCA could not be invoked onlyon the basis of the previous charge sheets for Section3 would come into play only if the respondents were provedto have committed an offence for gain or any pecuniarybenefit or undue economic or other advantage after thepromulgation of MCOCA. Such being the case, the HighCourt was, in our opinion, justified in allowing the appealand setting aside the order passed by the Trial Court.”

8. By analyzing the expression “continuing unlawful activity”,the Apex Court has held that the filing of more than one chargesheets for the offences punishable with more than three yearsimprisonment is not enough, but it must be satisfied that thecontinuation of unlawful activities is the second and equallyimportant requirement that ought to be satisfied. It is only ifan organised crime is committed by the accused after thepromulgation of the Act that has to be considered in the lightof the previous charge sheets. Thus, the contention raised bythe learned Advocate with regard to the prospective effect ofthe Act is not palatable in view of the aforesaid observations AB

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made by the Apex Court, but at the same time it is noticed inthe present case, that the expression “continuing unlawfulactivity” is not satisfied in view of the offences which areconsidered by the authority. In the instant case, for invokingthe provisions of the Act against the applicant, the state hasrelied on 5 offences and one experiment order registeredagainst the applicant. The details are as under:

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9. The Act came into force on 01.12.2019. The last offenceEwhich is registered against the applicant is of 2019 registeredvide F.I.R. No.29/2019, (Item.1), for which the charge--sheetis filed on 21.01.2019 which is prior to the promulgation ofthe Act. The offence at serial no.6 being F.I.R. No.14/209under sections 364(A), 387, 120(B), 114 of the IPC has beenFquashed by this Court vide order dated 03.12.2019 passedin Criminal Misc. Application No.21872 of 2019 and hence,the same could not have been considered by the authoritywhile registering the F.I.R. on 27.11.2020. The applicant hasnot committed any offence after the promulgation of the Act.At serial no.6, the state has referred to the extension orderGdated 03.03.2019 also which is against the provisionsof section 2(c) of the Act. The Supreme Court has held that itis only if an organized crime is committed by the accused afterthe promulgation of the Act that has to be considered in thelight of the previous charge sheets. Thus, the state hasHmisdirected itself with regard to the registration of offences H

against the applicant, hence the applicant cannot be allowedto be further incarcerated in jail.

10. Having perused the materials placed on record and takinginto consideration the facts of the case, nature of allegations,gravity of offences, role attributed to the accused, withoutdiscussing the evidence in detail, at this stage, this Court isinclined to grant regular bail to the applicant. It is clarifiedthat this Court has not expressed any opinion with regard tothe applicant not being a member or a member of the crimesyndicate.”

10. Being dissatisfied with the aforesaid impugned order passedby the High Court releasing the respondent-accused on bail, the State ofGujarat is here before this Court with the present appeal.

SUBMISSIONS ON BEHALF OF THE APPELLANT STATE

11. Mr. Tushar Mehta, the Solicitor General vehemently submittedthat the dictum as laid by this Court in Shiva alias Shivaji RamajiSonawane (supra) requires a relook, as the said dictum frustrates thevery object of enacting the 2015 Act. Mr. Mehta would submit that thefive FIRs referred to above, registered against the respondent-accusedprior to the 2015 Act coming into force, were sufficient to bring the casewithin the ambit of ‘continuing unlawful activity’ as defined under the2015 Act. He would submit that the term ‘organised crime’ as definedunder Section 2(1)(e) of the 2015 Act uses the term ‘continuing unlawfulactivity’. A bare perusal of the definition of the term ‘continuing unlawfulactivity’ would indicate that it does not refer to any ‘continuing unlawfulactivity’ to be committed only after the promulgation of the 2015 Act.Mr. Mehta would argue that the said term means activities prohibited bylaw in respect of which more than one chargesheets has been filedbefore a competent court within the preceding period of ten years. Thephrase ‘within the preceding period of ten years’ by itself indicates thatthe ‘continuing unlawful activity’ may be such activity, which could besaid to have been committed prior to the enactment of the 2015 Act.

12. Mr. Mehta submitted that one distinguishing feature of thedecision of this Court in the case of Shiva alias Shivaji RamajiSonawane (supra) is that in the said case, the accused persons wereacquitted and the same signified that they were not involved in thecommission of the offence with which they were charged. It is in such A

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Afactual background that this Court in Shiva alias Shivaji RamajiSonawane (supra) could be said to have observed that it is only if anorganised crime is committed by the accused after the promulgation ofMaharashtra Control of Organised Crime Act, 1999 (for short, ‘theMCOCA’) that he may, seen in the light of the previous chargesheetsand the cognizance taken by the competent court, be said to haveBcommitted an offence under Section 3 of the MCOCA.

13. In the last, Mr. Mehta submitted that if the dictum as laid inShiva alias Shivaji Ramaji Sonawane (supra) is affirmed, the objectof the 2015 Act i.e., prevention and control of terrorist acts and forcoping with criminal activities by organised crime syndicates, will surelyCget hampered.

14. In the aforesaid contest, the submission of Mr. Mehta is thatif, the dictum as laid in Shiva alias Shivaji Ramaji Sonawane (supra)is to be treated as the final word so far as the law is concerned, then thefirst case under the 2015 Act can be registered, only after two cases ofDthe nature described in the 2015 Act, had been registered against theperson or against an organised syndicate after 01.12.2019. As thedefinition indicates, for making a crime punishable under the provisionsof the 2015 Act, there has to be more than one case registered or inother words, it is the third case which can be registered for an offenceEunder Sections 3 and 4 resply of the 2015 Act. Such an interpretationwould be in direct conflict with the very purpose of the 2015 Act. If suchan interpretation is accepted then the State will have to wait and helplesslywatch the organised crime taking place till it is the third time a person ora syndicate is found involved in the offence after the 2015 Act came intooperation w.e.f. 01.12.2019 in the State of Gujarat. According to Mr.FMehta, the ‘continuing unlawful activity’ could have taken place tenyears prior to the registration of the new case. In such circumstances,the intention of the Legislature could not have been other than givingimmediate effect to the 2015 Act by taking note of all the offences orchargesheets registered within ten years prior to the commencement ofGthe 2015 Act.

15. In such circumstances referred to above, the learned SolicitorGeneral prays that the ratio of the decision of this Court in the case ofShiva alias Shivaji Ramaji Sonawane (supra) may either be explainedaccordingly, keeping in mind the object of the 2015 Actor the issue mayHbe referred to a larger Bench.

SUBMISSIONS ON BEHALF OF THE RESPONDENT-ACCUSED

16. On the other hand, this appeal has been vehemently opposedby the learned counsel appearing for the respondent-accused. Thelearned counsel would submit that no error not to speak of any error oflaw could be said to have been committed by the High Court whilepassing the impugned order. He would submit that the decision of thisCourt in the case of Shiva alias Shivaji Ramaji Sonawane (supra) isbinding on the High Court and the High Court has rightly applied thedictum, as laid therein for the purpose of releasing the respondent-accused on bail.

17. The learned counsel would submit that if the interpretation putforward by the learned Solicitor General is accepted then the same wouldbe in breach of Article 20(1) of the Constitution which provides that noperson shall be convicted of an offence except for one which is in violationof any law in force at the time of commission of the act charged as anoffence nor be subjected to a penalty greater than that which mighthave been inflicted under the law in force at the time of commission ofthe offence.

18. The learned counsel further submitted that the scheme of the2015 Act makes it abundantly clear that it is only if an accused commitsan organised crime after the promulgation of the 2015 Act, then theaccused can be prosecuted under the provisions of the 2015 Act withthe aid of the charge sheets that might have been filed in last ten precedingyears.

19. The learned counsel would submit that unless there is asubstantive offence, mere past chargesheets would not constitute theoffence of organised crime. He would argue that there is no merit in thecontention canvassed on behalf of the appellant-State that offence oforganised crime itself comprises of chargesheets filed in the past ofwhich cognizance is taken. He would argue that if such a contentionwere to be accepted, it would amount to giving a free hand to the policeto send anybody to a long term of imprisonment, merely by filingchargesheets in respect of more than one offence.

20. In such circumstances referred to above, the learned counselappearing for the respondent-accused prays that there being no merit inthe present appeal, the same may be dismissed.

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AANALYSIS

21. Having heard the learned counsel appearing for the partiesand having gone through the materials on record, the only questionthat falls for our consideration is whether the decision rendered by acoordinate Bench of this Court in the case of Shiva alias ShivajiBRamaji Sonawane (supra) requires a relook and the issue be referredto a larger Bench.

AN OVERVIEW OF THE GUJARAT CONTROL OFTERRORISM AND ORGANISED CRIME ACT, 2015

22. The Gujarat Control of Terrorism Act, 2015, as its long titleCindicates, is ‘an Act to make special provisions for the prevention andcontrol of terrorist acts and for coping with criminal activities by organisedcrime syndicates and for the matters connected therewith or incidentalthere to’. The statement of objects and reasons contains the reasons,which constitute the foundation for the legislature to step in:

DFirst, organised crime which is in existence for some yearsposes a serious threat to society; Secondly, organised crime is not confined by nationalboundaries; EThirdly, organised crime is fuelled by illegal wealth generatedby contract killing, extortion, smuggling and contraband, illegal tradein narcotics, kidnapping for ransom, collection of protection moneyand money laundering, and other activities;

Fourthly, the illegal wealth and black money generated byForganised crime pose adverse effects on the economy;Fifthly, organised crime syndicates make common cause withterrorists fostering narcoterrorism which extends beyond nationalboundaries; Sixthly, the existing legal framework in terms of penal andGprocedural laws and the adjudicatory system were found inadequateto curb and control organised crime; and Seventhly, the special law was enacted with ‘stringent anddeterrent provisions’ including in certain circumstances, the powerto intercept wire, electronic or oral communication.

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In understanding the ambit of the enactment, emphasis must begiven to three definitions:

a.Organised crime (Section 2(1)(e));[1]

b.Organised crime syndicate (Section 2(1)(f));[2] and B

c.Continuing unlawful activity (Section 2(1)(c).[3]

The expression ‘organised crime’ is defined with reference to acontinuing unlawful activity. The definition is exhaustive since it isprefaced by the word ‘means’. The ingredients of an organised crimeare:

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a.The existence of a continuing unlawful activity; b.Engagement in the above activity by an individual;

c.The individual may be acting singly or jointly either as amember of an organised crime syndicate or on behalf ofDsuch a syndicate; d.The use of violence or its threat or intimidation or coercionor other unlawful means; and e.The object being to gain pecuniary benefits or undueeconomic or other advantage either for the personEundertaking the activity or any other person or for promotinginsurgency.

1 Section 2(1)(e) - “organised crime” means any continuing unlawful activity and terroristact including extortion, land grabbing, contract killing, economic offences, cyber crimeshaving severe consequences, running large scale gambling rackets, women trafficking,racket for prostitution or ransom by an individual, singly or jointly, either as a memberof an organised crime syndicate or on behalf of such syndicate, by use of violence orthreat of violence or intimidation or coercion, or other unlawful means.

2 Section 2(1)(f) - “organised crime syndicate” means a group of two or more personswho, acting either singly or collectively, as a syndicate or gang indulging in activities oforganised crime.

3 Section 2(1)(c) - “continuing unlawful activity” means an activity prohibited by lawfor the time being in force, which is a cognizable offence punishable with imprisonmentfor a term of three years or more, undertaken either singly or jointly, as a member of anorganised crime syndicate or on behalf of such syndicate in respect of which more thanone charge-sheets have been filed before a competent court within the preceding periodof ten years and that court has taken cognizance of such offence; F

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AThe above definition of organised crime, as its elements indicate,incorporates two other concepts namely, a continuing unlawful activityand an organised crime syndicate. Hence, it becomes necessary tounderstand the ambit of both those expressions. The ingredients of acontinuing unlawful activity are:

Ba.The activity must be prohibited by law for the time being inforce; b.The activity must be a cognizable act punishable withimprisonment of three years or more;

c.The activity may be undertaken either singly or jointly as aCmember of an organised crime syndicate or on behalf ofsuch a syndicate; d.More than one charge-sheet should have been filed in respectof the activity before a competent court within the precedingperiod of ten years; and D

e.The court should have taken cognizance of the offence.

The elements of the definition of ‘organised crime syndicate’ are:

a.A group of two or more persons;

b.Who act singly or collectively, as a syndicate or gang; andc.Indulge in activities of organised crime.

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Section 2(1)(c) while defining ‘continuing unlawful activity’ andSection 2(1)(e) while defining ‘organised crime’, both contain theexpression ‘as a member of an organised crime syndicate or on behalfFof such syndicate’. While defining an organised crime syndicate, Section2(1)(f) refers to ‘activities of organised crime’.

Section 3 provides for the punishment for organised crime.[4] Sub-section (1) of Section 3 covers ‘whoever commits an offence of organisedcrime’. Sub-section (2) covers whoever conspires or attempts to commit G

4 Section 3 - (1) Whoever commits an offence of terrorist act or organised crime shall,—(i) if such offence has resulted in the death of any person, be punishable with death orimprisonment for life and shall also be liable to fine which shall not be less than rupeesten lakhs;

(ii) in any other case, be punishable with imprisonment for a term which shall notbe less than five years but which may extend to imprisonment for life and shall also beHliable to fine which shall not be less than rupees five lakhs.

or advocates, abets or knowingly facilitates the commission of anorganised crime or any act preparatory to organised crime. Sub-section(3) covers whoever harbours or conceals or attempts to harbour orconceal any member of an organised crime syndicate. Sub- section (4)covers any person who is a member of an organised crime syndicate.Sub-section (5) covers whoever holds any property derived or obtainedfrom the commission of an organised crime or which has been acquiredthrough the funds of an organised crime syndicate. Section 4 punishesthe possession of unaccountable wealth on behalf of a member of anorganised crime syndicate.

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23. For charging a person of organised crime or being a memberof organised crime syndicate, it would be necessary to prove that thepersons concerned have indulged in :

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(i) an activity,

(ii) which is prohibited by law,

(iii) which is a cognizable offence punishable with imprisonmentDfor three years or more,

(iv) undertaken either singly or jointly,

(v) as a member of organised crime syndicate i.e. acting as asyndicate or a gang, or on behalf of such syndicate, E

(2) Whoever conspires or attempts to commit or advocates, abets or knowinglyfacilitates the commission of any terrorist act or an organised crime or any actpreparatory to any terrorist act or organised crime, shall be punishable with imprisonmentfor a term which shall not be less than five years but which may extend to imprisonmentfor life and shall also be liable to fine, which shall not be less than rupees five lakhs.

(3) Whoever intentionally harbours or conceals or attempts to harbour or concealany person who has committed an offence of any terrorist act or any member of anorganised crime syndicate shall be punishable with imprisonment for a term which shallnot be less than five years but which may extend to imprisonment for life and shall alsobe liable to fine which shall not be less than rupees five lakhs.

(4) Any person who is a member of an organised crime syndicate shall be punishablewith imprisonment for a term which shall not be less than five years but which mayextend to imprisonment for life and shall also be liable to fine which shall not be lessthan rupees five lakhs.

(5) Whoever holds any property derived, or obtained from commission of terroristact or an organised crime or which has been acquired through the organised crimesyndicate funds shall be punishable with imprisonment for a term which shall not beless than three years but which may extend to imprisonment for life and shall also beliable to fine which shall not be less than rupees two lakhs.

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A(vi)(a) in respect of similar activities (in the past) more thanone charge-sheets have been filed in competent court withinthe preceding period of ten years, (b) and the court has taken cognizance of such offence.

(vii) the activity is undertaken by :B

(a) violence, or

(b) threat of violence, or intimidation or

(c) coercion or

(d) other unlawful means

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(viii) (a) with the object of gaining pecuniary benefits or gainingundue or other advantage or himself or any other person,or (b) with the object of promoting insurgency.

D24. A close analysis of the term, ‘organised crime’ would indicatethat there has to be an activity prohibited by law for the time being inforce which is a cognizable offence punishable with imprisonment ofthree years or more, undertaken as singly or jointly as a member oforganised crime syndicate or on behalf of such syndicate, in respect ofwhich activity more than one chargesheets have been filed before aEcompetent court within the preceding period of ten years and the Courthas taken cognizance of such offence.

PRINCIPLES GOVERNING GRANT OF BAIL IN CASESOF THE 2015 ACT25. Although, Mr. Mehta with all fairness submitted that theFdiscretion exercised by the High Court in favour of the respondent-accused in so far as releasing the accused on bail is concerned, thesame may not be disturbed in the facts and circumstances of the case.Yet as this appeal arises from an order of bail granted by the High Courtwherein the provisions of the 2015 Act are made applicable, we deem itGfit to reiterate the principles of grant of bail.

26. The considerations which normally weigh with the Court ingranting bail in non-bailable offences are:

(1) the nature and seriousness of the offences;

(2) the character of the evidence;H

(3) circumstances which are peculiar to the accused;A

(4) a reasonable possibility of the presence of the accused notbeing secured at the trial;

(5) reasonable apprehension of witnesses being tampered with;

(6) the larger interest of the public or the State and other similarfactors which may be relevant in the facts and circumstancesof the case.

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27. However, if the provisions of the 2015 Act are invoked in agiven case, then, in addition to the aforementioned broad principles, thelimitations imposed in the provisions contained in sub-section (4) ofSection 20 of the 2015 Act should not be lost sight of while dealing withapplication for grant of bail. The relevant provision reads as under:

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“20.(4) Notwithstanding anything contained in the Code,no person accused of an offence punishable under this Actshall, if in custody, be released on bail or on his own bond,unless –

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(a) the Public Prosecutor has been given an opportunity tooppose the application of such release; and (b) where the Public Prosecutor opposes the application, theSpecial Court is satisfied that there are reasonable groundsfor believing that accused is not guilty of committing suchoffence and that he is not likely to commit any offence whileon bail.”

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28. It is plain from a bare reading of the non-obstante clause inthe sub-section that the power to grant bail by the High Court or Courtof Sessions is not only subject to the limitations imposed by Section 439 ofthe Code but is also subject to the limitations placed by Section 20(4) ofthe 2015 Act. Apart from the grant of opportunity to the Public Prosecutor,the other twin conditions are: the satisfaction of the court that there arereasonable grounds for believing that the accused is not guilty of thealleged offence and that he is not likely to commit any offence while onbail. The conditions are cumulative and not alternative. The satisfactioncontemplated regarding the accused being not guilty has to be based onreasonable grounds. The expression ‘reasonable grounds’ meanssomething more than prima facie grounds. It contemplates substantialprobable causes for believing that the accused is not guilty of the alleged F

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Aoffence. The reasonable belief contemplated in the provisions requiresexistence of such facts and circumstances as are sufficient in themselvesto justify satisfaction that the accused is not guilty of the alleged offence.Thus, recording of findings under the said provision is a sine qua non forgranting bail under the 2015 Act.

B29. The Court should bear in mind the principles enunciated in thecase of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtraand Another reported in (2005) 5 SCC 294. We quote paras 43, 44 and46 resply:

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“43. Section 21(4) of MCOCA does not make any distinctionbetween an offence which entails punishment of lifeimprisonment and an imprisonment for a year or two. It doesnot provide that even in case a person remains behind thebars for a period exceeding three years, although hisDinvolvement may be in terms of Section 24 of the Act, thecourt is prohibited to enlarge him on bail. Each case, therefore,must be considered on its own facts. The question as to whetherhe is involved in the commission of organised crime orabetment thereof must be judged objectively. …..

44. The wording of Section 21(4), in our opinion, does notElead to the conclusion that the court must arrive at a positivefinding that the applicant for bail has not committed an offenceunder the Act. If such a construction is placed, the courtintending to grant bail must arrive at a finding that theapplicant has not committed such an offence. In such anFevent, it will be impossible for the prosecution to obtain ajudgment of conviction of the applicant. Such cannot be theintention of the legislature. Section 21(4) of MCOCA,therefore, must be construed reasonably. It must be soconstrued that the court is able to maintain a delicate balancebetween a judgment of acquittal and conviction and an orderGgranting bail much before commencement of trial. Similarly,the court will be required to record a finding as to thepossibility of his committing a crime after grant of bail.However, such an offence in future must be an offence underthe Act and not any other offence. Since it is difficult to predictHthe future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to theantecedents of the accused, his propensities and the natureand manner in which he is alleged to have committed theoffence.

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46. The duty of the court at this stage is not to weigh theevidence meticulously but to arrive at a finding on the basisof broad probabilities. However, while dealing with a specialstatute like MCOCA having regard to the provisions containedin sub-section (4) of Section 21 of the Act, the court mayhave to probe into the matter deeper so as to enable it toarrive at a finding that the materials collected against theaccused during the investigation may not justify a judgmentof conviction. The findings recorded by the court whilegranting or refusing bail undoubtedly would be tentative innature, which may not have any bearing on the merit of thecase and the trial court would, thus, be free to decide thecase on the basis of evidence adduced at the trial, without inany manner being prejudiced thereby.”

DECISION OF THIS COURT IN THE CASE OF STATEOF MAHARASHTRA V. SHIVA ALIAS SHIVAJI RAMAJISONAWANE

30. We may now proceed to look into the decision of this Courtrendered in the case of Shiva alias Shivaji Ramaji Sonawane (supra).But before we undertake this exercise, we must look into the judgmentof the High Court of Judicature at Bombay in Prafulla Uddhav Shendev. State of Maharashtra, 2008 SCC OnLine Bom 1848 : (2009) 2 AIRBom R 1, which came to be challenged by the State of Maharashtrabefore this Court & titled Shiva alias Shivaji Ramaji Sonawane (supra).

31. The High Court in Prafulla (supra) decided a batch of criminalappeals filed by individual convicts. The accused persons therein wereconvicted for the offences punishable under Section 3(4) of the MCOCA.Shiva alias Shivaji Ramaji Sonawane was also one of the appellantsin the batch of appeals before the High Court.

32. The High Court after referring to the various provisions of theMCOCA looked into its own decision delivered by a Division Bench inthe case of Jaisingh Ashrfilal Yadav and Others v. State of A

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AMaharashtra and Another reported at 2003 All MR (Cri) 1506. Wequote paras 42 and 43 resply of the decision of the High Court in Prafulla(supra):

“42. In Jaisingh Ashrfilal Yadav v. State of Maharashtra,reported at 2003 All MR (Cri) 1506, to which the learnedBA.P.P. drew my attention, a Division Bench of this Court wasconsidering the constitutionality of the provisions of MCOCAct. The Court observed in paragraph 9 as under:

“9. The analysis of the definition of the organised crime,therefore, would reveal that continuing unlawful activityis one of its ingredients whereas in order to make an activityto be continuing unlawful one, it should disclose filing ofminimum two charge-sheets in relation to the activityprohibited by law in force and of the nature specified inSection 2(d) during the period of preceding ten years. Inother words, lodging of two charge-sheets in relation tothe acts which are already declared under the law then inforce as offences of the nature specified under Section2(d) during the preceding period of ten years is one of therequisitesfor the offence of organised crime under the saidAct.” (Emphasis supplied)

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43. The Court then considered the challenge based on Article20(1) of the Constitution of India. In paragraph 19 the Courtobserved as under:

“19. There is lot of difference between the act or activityitself being termed or called as an offence under a statuteand such act or activity being taken into consideration asone of the requisites for taking action under the statute.The former situation has to satisfy the mandate of Article20(1) of the Constitution, however, in case of latter situation,it stands on totally different footing. Undoubtedly, for thepurpose of organised crime there has to be a continuingunlawful activity. There cannot be continuing unlawfulactivity unless at least two charge-sheets are to be foundto have been lodged in relation to the offence punishablewith three years’ imprisonment during the period of tenyears. Undisputedly, the period of ten years may relate to F

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the period prior to 24-2-1999 or thereafter. In other words,it provides that the activities which were offences underthe law in force at the relevant time and in respect of whichtwo charge-sheets have been filed and the Court has takencognizance thereof, during the period of preceding tenyears, then it will be considered as continuing unlawfulactivity on 24-2-1999 or thereafter. It nowhere by itselfdeclares any activity to be an offence under the said Actprior to 24-2-1999. It also does not convert any activitydone prior to 24-2-1999 to be an offence under the saidAct. It merely considers two charge-sheets in relation tothe acts which were already declared as offences underthe law in force to be one of the requisites for the purposeofidentifying continuing unlawful activity and/or for thepurpose of an action under the said Act. This by itselfcannot be said to be in any manner violative of the mandateof Article 20(1) considering the law laid down by the ApexCourt in Rao Shiv Bahadur Singh’s case as well asin Sajjan Singh’s case.”

33. The High Court, thereafter in para 44 of Prafulla (supra)referred to its decision, rendered by a Division Bench in Bharat ShantilalShah v. State of Maharashtra reported at 2003 All MR (Cri) 1061. InBharat Shantilal Shah (supra), the challenge was to the constitutionalvalidity of MCOCA. We quote paras 44, 45 and 46 resply:

“44. In Bharat Shantilal Shah v. State of Maharashtra,reported at 2003 All MR (Cri) 1061 the challenge to theconstitutional validity of MCOC Act, was considered byanother Division Bench. Definition of continuing unlawfulactivity in Section 2(1)(d) was sought to be attacked byadvancing the following arguments:

“19. Dealing with the next definitions in Section 2(1)(d)of ‘continuing unlawful activity’ it was submitted that itsuffers from violation of Article 14 as it treats unequals asequals. It makes an activity continuing unlawful activity ifmore than one charges of cognizable offence punishablewith imprisonment of three years or more are filed incompetent Court, if does not touch an activity as continuingunlawful activity if undertaken by a person who is known AB

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Ato be a criminal but more than one charge sheets have notbeen filed against him. A person charged ten times of anoffence though acquitted on every occasion may yet beroped in as a person engaged in continuing unlawfulactivity. Whereas a person who is convicted for an offencefor three years punishment cannot be touched by thisBdefinition if he is not charged with more than two of suchoffences. The definition therefore treats as equal personswho are hopelessly unequal that is to say a person who isa known criminal but charge-sheeted and convicted notmore than once and another who has been falsely chargedCwith 10 fabricated charges and acquitted of all the 10charges with a finding that the charges were fabricatedyet merely because cognizance has been taken of thatcharge are treated as person engaged in continuousunlawful activity. The definition therefore arbitrary andliable to be struck down as violative of Article 14. TheDarguments appear to be attractive at the first blush, butdeeper scrutiny reveals the hollowness of the argument.”

45. Dealing with the objections to this definition the Courtobserved in paragraph 25 of the judgment as under:

E“25. Then we would consider the submission of Shri Manoharthat the definition of continuing unlawful activity violates themandate of Article 14 and is therefore liable to be struck down.According to the learned counsel unequals are being treatedas equals. Persons charged only once are not brought withinthe purview of the Act but a person, with several chargesFframed and cognizance taken by competent Court who lateron are acquitted are covered by the definition. According tohim therefore a person is acquitted, of, ten charges cannot betreated as equal to a person who charged and convicted ofonly one offence. In our opinion, there is no violation of ArticleG14 by this definition. If we read the definition again, whathas been defined as continuing unlawful activity is a memberof organized crime syndicate in respect of which any activityprohibited by law and done repeatedly i.e. more than oncefor which charge-sheet has been filed in the Court ofcompetent jurisdiction in the past ten years. The purpose of H

definition is to define what continuing unlawful activity isand it is for the purposes of defining what is continuedunlawful activity that those charges are to be taken intoconsideration. Mere taking into consideration of such chargescannot result in discrimination of the kind alleged by ShriManohar. The activity must be continuingunlawful activityand to define it with clarity it is provided that any person whoin the past was charge-sheeted for more than one charge ofsuch activity or crime the cognizance of which has been takenand imprisonment for which is more than three years shouldbe taken into account. The fact of the person having been-chargesheeted in such cognizable offences in the past makesthe unlawful activity continuing unlawful activity.This Sectiononly defines what the activity is. It does not itself provide forany punishment for that activity. Had punishment beenprovided the submission that it threats while punishingunequals as equals may carry weightage. That being not thecase in the challenge to Section 2(1)(d) of the Act we see novagueness or violation of Article 14 by the definition. We findthat the provision treats all those covered by it in a like mannerand does not suffer from the vice of class legislation.”

(emphasis supplied)

46. In paragraph 27 the Court then went on to observe asunder:

“27. We also do not find substance in the challenge that theequality clause in the Constitution is violated because thedefinition ropes in anyone charged more than once,irrespective of whether the charge resulted in an acquittal orconviction. The circumstances that followed the charge arenot material. The provision only defines what is continuedunlawful activities and refers to whether a person has beencharged over a period of ten years for the purpose of seeingwhether the person is charged for the first time or has beencharged often. The circumstance of conviction or acquittalthat followed the charge are not material. The limited purposeis to see antecedents of the person. Not to convict.””

(emphasis supplied)

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A34. Thus, Prafulla (supra) looked into paras 19, 25 and 27 resplyof Bharat Shantilal Shah (supra). It may not be out of place to Statethat the High Court of Judicature at Bombay in Bharat Shantilal Shah(supra) held that Sections 3 and 4 resply of the MCOCA inherentlycontemplated mensrea. The High Court held that the provisions ofMCOCA except those contained in Sections 13 to 16 resply to be validBand struck down the provisions of Sections 13 to 16 resply as beyond thelegislative competence of the State Legislature. The High Court ofJudicature at Bombay also held that the words in sub-section (5) of theSection 21 of the MCOCA ‘or under any other Act on the date of theoffence in question’ were violative of Article 14 of the Constitution and,Ctherefore, were to be deleted.

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35. The judgment of the High Court of Judicature at Bombay inthe case of Bharat Shantilal Shah (supra) was challenged by the Stateof Maharashtra before this Court in so far as it held Sections 13 to 16resply of the MCOCA as unconstitutional. A Bench of three Judges ofDthis Court in State of Maharashtra v. Bharat Shanti Lal Shah andOthers reported in (2008) 13 SCC 5 upheld the judgment of the HighCourt of Judicature at Bombay deleting the words ‘or under any other….’ from sub-section (5) of the Section 21. The questions raised beforethis Court were concerned essentially with the constitutionality ofinterception of conversation or communication, which was subject matterEof Sections 13 to 16 resply of the MCOCA. This Court reversed thejudgment only to the extent the High Court held the provisions ultravires.

36. There was no cross appeal filed by Bharat Shah challengingthe order of the High Court upholding the constitutional validity of theprovisions of Sections 2(1)(d), (e) and (f) and Sections 3 and 4 respectivelyFof the MCOCA. Therefore, this Court had no occasion to go into thatquestion. This Court, however, observed that there was no vaguenessas the definitions defined with clarity what was meant by continuingunlawful activity, organised crime and also organised crime syndicate.This Court specifically concluded that after examining the judgment ofthe High Court of Judicature at Bombay on the issue of the constitutionalGvalidity of Sections 2(1)(d), (e) and (f) and Sections 3 and 4 respectivelyof the MCOCA, that the court was in accord with the finding arrived atby the High Court that the aforesaid provisions cannot be said to beultravires of the Constitution and this Court did not find any reason totake a different view than the one taken by the High Court of JudicatureHat Bombay while upholding the validity of the aforesaid provisions.

37. The High Court of Judicature at Bombay had specifically heldas affirmed by a three-Judge Bench decision of this Court that hadpunishment been provided for continuing unlawful activity, the submissionthat while punishing, it treats unequals as equals may carry weightage.The High Court, as affirmed by this Court, upheld the validity of theprovision defining ‘continuing unlawful activity’ only because the Actdid not provide any punishment for that activity. In para 27 of BharatShantilal Shah (supra), the High Court made it explicitly clear that thelimited purpose of continuing unlawful activity was to see the antecedentsof the person and not to convict. Section 2 defines, not only the offenceof ‘organised crime’ but also the other terms used in the MCOCA. Whatis material is the definition of offence of ‘organised crime’ and not thedefinitions of other terms included in Section 2. Had the term ‘continuingunlawful activity’ been synonymous with ‘organised crime’, it would nothave been necessary for the Legislature to include or provide for twodefinitions. It would have been sufficient to provide for only one definitionof continuing unlawful activity and make that activity punishable. Thedefinitions in clauses (d) and (e) resply of sub-section (1) clearly indicatethat one of the components of organised crime is continuing unlawfulactivity and, therefore, organised crime is something more than merecontinuing unlawful activity.

38. The High Court thereafter proceeded to observe in paras 47to 53 resply as under:

“47. The Court then rejected the objections to theconstitutional validity of the definition. It is thus clear thatapart from previous charge-sheets there has to be acontinuation, an activity to which MCOCA is applied.

48. This fortifies the conclusion that mere proof of filingcharge-sheets in the past is not enough. It is only one or therequisites for constituting offence of organised crime. If onlythe past charge-sheets were to be enough to constituteoffence of organised crime, it could have offended therequirement of Article 20(1) of the Constitution and possiblyArticle 20(2) as well, (and in any case Section 300 of the CrPC). Had these judgments of the Supreme Court and DivisionBenches of this Court been cited before the learned singleJudge deciding Amarnath v. State, (2006 All MR (Cri) 407 :((2006) 6 AIR Bom R 120), the learned single Judge, without AB

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doubt, would not have held that the matter was simply oneof an arithmetical equation. The said judgment cannot bereconciled with the judgments or Division Benchesin Jaisingh v. State, (2003 All MR (Cri) 1506 and BharatShah v. State, 2003 All MR (Cri) 1061, which I am bound tofollow.

49. It is not necessary to go into the implications of theexpression “prosecuted and punished” used in Article 20(2)of the Constitution. Section 300 of the Cr PC itself clearlybars a fresh trial for the same offence. Section 21 of MCOCAwhich prescribes modified applications of the Code to offencesunder MCOCA does not make provisions of Section 300 ofthe Cr PC inapplicable. Therefore, since the previous criminalhistory of the applicants denotes that they had been or arebeing separately charged/tried for those offences beforecompetent Courts, there is no question of such offencesconstituting offence of organised crime.

50. In Appa @ Prakash Haribhau Londhe v. State ofMaharashtra, reported at 2006 All MR (Cri) 2804 : ((2006)6 AIR Bom R 401), a Division Bench of this Court wasconsidering the challenge to the applicability of MCOC Act.The Court observed as under in paragraph 10 of the judgment:

“10. For the purpose of organised crime there has to be acontinuing unlawful activity and there cannot be continuingunlawful activity unless at least two charge-sheets are tobe found to have been lodged in relation to the offencepunishable with three years’ imprisonment during the periodof ten years. If no illegal activity as contemplated by MCOCAct are committed after 1999, then the past activities priorto 1999 may not be of any help for registering any FIRonly on the basis of those past activities as has beenobserved by the Division Bench (R.M.S. Khandeparkarand P.V. Kakade, JJ.) of this Court in Writ Petition No.689 of 2005 and other petitions, but if two or more illegalactivities are committed after 1999, then the past activitiescan be taken into consideration in order to show thecontinuity. We are therefore not in agreement with thesubmissions made by Mr. Pradhan that on the date of registration of FIR against the petitioners they had notcommitted any act, as contemplated.”

51. While offences committed prior to 24-2-1999 cannotamount to “organised crime”, since this offence was not onstatute book then, even post-24-2-1999 crimes could be triedas “organised crime” only if information in respect of thesecrimes is permitted to be registered as organised crime andsanction is accorded for prosecution for such crime underSection 23 of MCOCA. Such are not the facts in the presentcases. There is no substantive crime which is allowed to beregistered under MCOCA. Offences in Crime Nos. 37/01 and38/01. for which approval was sought are not subject-matterof these trials. When Crime Nos. 3007/2001 and 3008/2001were registered, upon receiving approval, there was no crimereported. Seizure of weapons is subsequent to registration ofthese crimes, for which the concerned accused persons havebeen acquitted. Consequently without there being asubstantive offence indicating continuity, there would be nocontinuation of the unlawful activity and as a corollary no“continuing unlawful activity”.

52. A look at provisions of the punishment. Section 3 of theMCOCA would fortify this conclusion. Clauses (i) and (ii) ofsub-section (1) would show that “if such offence has re-suitedin death of any person”, the offence of organised crime wouldattract death sentence or life imprisonment with a fine of Rs.one lakh. Now, if only old charge-sheets should be held asenough, a person acquitted of a murder charge in the pastwould be liable to be sent for a life term, in spite of acquittal,simply because a charge-sheet had been filed in the past.Had this been contemplated, the learned Judge, Special Court,would have charged Accused No. 1/I Shiva of offencepunishable under Section 3(1)(i) of MCOCA and not onepunishable under Section 3(1)(ii) of the MCOCA, since Shivahad been charged once of murder (Sr. No. 9 in the chart) andacquitted. Same would hold good about the other gangsters.Advocate Tiwari, the learned counsel for Mehmood and othersrelying on judgment of the Supreme Court in DilipSingh v. State of Punjab, reported at (1997) 3 Current AB

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ACriminal Journal 223, that charge-sheets cannot be made thebasis of guilt or innocence of an accused. Therefore, it isclear that the offences referred to in various charge-sheetsare not “such oftence(s)” and consequently an offence,punishable under Section 3 of the MCOCA has to be differentfrom those for which such accused had been charge-sheetedBin the past. Past criminal activity only aggravates thecontinued activity amounting to an offence and attractsprovisions of MCOCA.

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53. In view of this, since the appellants are not shown to haveindulged in any crime which can be said to be continuationCof past criminal activity provisions of Section 3(1) of theMCOCA are not attracted. It cannot be said that theappellants have committed the offence of organised crime.”

39. It may not be out of place to state at this stage that in Prafulla(supra), the High Court also referred to and relied upon its own decisionDin the case of Altaf Ismail Sheikh v. State of Maharashtra, 2005 SCCOnLine Bom 420 : 2005 Cri LJ 3584 : (2006) 1 CCR 391, more particularly para 24 therein, which reads thus:

“24. The Section 23 of the MCOC Act which opens with non-obstante clause and further clothed with negative wordsEclearly discloses the mandate of the legislature that thecognizance of the offences under the MCOC Act should notbe in routine course, but only upon the facts disclosing theapplicability thereof and satisfaction of the officer of the highrank, the minimum being of the rank of Deputy InspectorFGeneral of Police, in that regard. In fact, the officer of suchhigh rank is required to decide about the approval even forrecording of FIR in relation to any offence under the MCOCAct. This obviously discloses that the approving authority hasto apply its mind about the applicability of the provisions ofthe MCOC Act to the facts disclosed in a matter before allowingGthe recording of FIR and for that purpose, he must be, primafacie, satisfied about the commission of offence of organisedcrime under the MCOC Act by the person or persons againstwhom the FIR is to be recorded. Obviously, for prima faciesatisfaction regarding the commission of the offence ofHorganised crime or of participation therein in whatever manner, the approving authority must have some materials before itdisclosing the activities of the person or the persons to be ofthe nature of offence under the MCOC Act and havingcommitted such activities on or after 24th February, 1999. Inother words, the activities of a person to be termed as theoffence under the MCOC Act, the same should inevitablydisclose to have been committed on or after 24th February,1999. If the activity of the person is relating to the periodprior to 24th February, 1999, obviously, it cannot be said tobe an offence under MCOC Act, even though the activity maybe an offence under the provisions of some other statute inforce at the relevant time…..”

40. Thus, the High Court took the view relying on its various otherdecisions that if no illegal activities as contemplated by MCOCA areshown to have been committed after 1999, then the past activities, priorto 1999 may not be of any help for registering any FIR only on the basisof such past activities. Further, if two or more illegal activities arecommitted after 1999, then the past activities can be taken intoconsideration in order to show the continuity.

41. The State of Maharashtra being dissatisfied with the aforesaidjudgment of the High Court of Judicature at Bombay challenged thesame before this Court. It is the said challenge which culminated in thedecision titled as Shiva alias Shivaji Ramaji Sonawane (surpa).

42. We now proceed to look into the relevant observations madeby this Court as contained in paras 9, 10 and 11 resply:

“9. It was in the above backdrop that the High Court heldthat once the respondents had been acquitted for the offencespunishable under IPC and the Arms Act in Crimes Nos. 37and 38 of 2001 and once the trial court had recorded anacquittal even for the offence punishable under Section 4read with Section 25 of the Arms Act in MCOCA Crimes Nos. 1and 2 of 2002, all that remained incriminating was the filingof charge-sheets against the respondents in the past andtaking of cognizance by the competent court over a period often years prior to the enforcement of MCOCA. The filing of-chargesheets or taking of the cognizance in the same did AB

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Anot, declared the High Court, by itself constitute an offencepunishable under Section 3 of MCOCA. That is because theinvolvement of the respondents in previous offences was justabout one requirement but by no means the only requirementwhich the prosecution has to satisfy to secure a convictionunder MCOCA. What was equally, if not, more important wasBthe commission of an offence by the respondents that wouldconstitute “continuing unlawful activity”. So long as thatrequirement failed, as was the position in the instant case,there was no question of convicting the respondents underSection 3 of MCOCA.That reasoning does not, in our opinion,Csuffer from any infirmity.

10. The very fact that more than one charge-sheets had beenfiled against the respondents alleging offences punishablewith more than three years’ imprisonment is not enough. Asrightly pointed out by the High Court commission of offencesDprior to the enactment of MCOCA does not by itself constitutean offence under MCOCA. Registration of cases, filing of-chargesheets and taking of cognizance by the competentcourt in relation to the offence alleged to have been committedby the respondents in the past is but one of the requirementsfor invocation of Section 3 of MCOCA. Continuation ofEunlawful activities is the second and equally importantrequirement that ought to be satisfied. It is only if an organisedcrime is committed by the accused after the promulgationof MCOCA that he may, seen in the light of the previous charge-sheets and the cognizance taken by the competent court, beFsaid to have committed an offence under Section 3 of the Act.

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11. In the case at hand, the offences which the respondentsare alleged to have committed after the promulgationof MCOCA were not proved against them. The acquittal of therespondents in Crimes Nos. 37 and 38 of 2001 signified thatthey were not involved in the commission of the offences withwhich they were charged. Not only that the respondents wereacquitted of the charge under the Arms Act even in CrimeCases Nos. 1 and 2 of 2002. No appeal against that acquittalhad been filed by the State. This implied that the prosecutionhad failed to prove the second ingredient required for G

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completion of an offence under MCOCA. The High Court was,therefore, right in holding that Section 3 of MCOCA could notbe invoked only on the basis of the previous charge-sheetsfor Section 3 would come into play only if the respondentswere proved to have committed an offence for gain or anypecuniary benefit or undue economic or other advantage afterthe promulgation of MCOCA.Such being the case, the HighCourt was, in our opinion, justified in allowing the appealand setting aside the order passed by the trial court.”

43. Thus, in Shiva alias Shivaji Ramaji Sonawane (surpa), thisCourt took the view that there are two essential ingredients to constitutean offence under MCOCA. First, the registration of cases, filing ofchargesheets and taking of cognizance by the competent court in relationto the offences alleged to have been committed by the accused in thepast and secondly, continuation of unlawful activities. In other words, itis only if an organised crime is committed by the accused after thepromulgation of the MCOCA that he may, on the basis of the previouschargesheets and the cognizance taken by the competent court, be saidto have committed an offence under Section 3 of the MCOCA.

44. Indisputably, in Shiva alias Shivaji Ramaji Sonawane (surpa),the accused persons stood acquitted in connection with two of the crimesand considering the same, this Court took the view that the accusedpersons could not be said to have committed the alleged crime after thepromulgation of MCOCA, as the allegations could not be proved againstthem. However, this Court, in no uncertain terms, has observed thatwhat is important is the commission of an offence by the accused thatwould constitute ‘continuing unlawful activity’ and the unlawful activitiescould be said to have continued only if the accused are found to haveindulged in an organised crime after the promulgation of the MCOCA.

45. The learned counsel appearing for the respondent-accusedis right in his submission that having regard to the stringent provisionsof the 2015 Act, its provisions should be very strictly interpreted andthe authorities concerned would be obliged in law to strictly observethe said provisions. There need not be any debate on the fact that theprovisions of the 2015 Act have been enacted to deal with organisedcriminal activity in relation to offence, which are likely to create terrorand endanger and unsettle the economy of the country for which A

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Astringent measures have been adopted. The provisions of the 2015 Actseek to deprive a citizen of his right to freedom at the very initial stageof the investigation, making it extremely difficult for him to obtain bail.Other provisions relating to the admission of evidence and electronicmedia have also been provided for. In such a situation, it has to beensured whether the investigation from its very inception has beenBconducted strictly in accordance with the provisions of the 2015 Act.(See: State of Maharashtra and Others v. Lalit Somdatta Nagpaland Another reported in (2007) 4 SCC 171)

46. It is a sound rule of construction that the substantive law shouldbe construed strictly so as to give effect and protection to the substantiveCrights unless the statute otherwise intends. Strict construction is onewhich limits the application of the statute by the words used. Accordingto Sutherland, ‘strict construction refuses to extend the import of wordsused in a statute so as to embrace cases or acts which the words do notclearly describe’.D

47. The rule as stated by Mahajan C.J. in Tolaram Relumal andAnother v. State of Bombay reported in AIR 1954 SC 496, is that “iftwo possible and reasonable constructions can be put upon a penalprovision, the court must lean towards that construction whichexempts the subject from penalty rather than the one which imposesEa penalty. It is not competent to the court to stretch the meaning ofan expression used by the legislature in order to carry out theintention of the legislature….” In State of Jharkhand and Others v.Ambay Cements and Another reported in (2005) 1 SCC 368, this Courtheld that it is a settled rule of interpretation that where a statute is penalin character, it must be strictly construed and followed. The basic rule ofFstrict construction of a penal statute is that a person cannot be penalisedwithout a clear letter of the law. Presumptions or assumptions have norole in the interpretation of penal statutes. They are to be construedstrictly in accordance with the provisions of law. Nothing can be implied.In such cases, the courts are not so much concerned with what mightGpossibly have been intended. Instead, they are concerned with what hasactually been said.

48. We are of the view and the same would be in tune with thedictum as laid in Shiva alias Shivaji Ramaji Sonawane (supra) thatthere would have to be some act or omission which amounts to organisedHcrime after the 2015 Act came into force i.e., 01.12.2019 in respect of which, the accused is sought to be tried for the first time in the specialcourt.

49. We are in agreement with the view taken by the High Courtof Judicature at Bombay in the case of Jaisingh (supra) that neither thedefinition of the term ‘organised crime’ nor of the term ‘continuingunlawful activity’ nor any other provision therein declares any activityperformed prior to the enactment of the MCOCA to be an offence underthe 1999 Act nor the provision relating to punishment relates to anyoffence prior to the date of enforcement of the 1999 Act, i.e., 24.02.1999.However, by referring to the expression ‘preceding period of ten years’in Section 2(1)(d), which is a definition clause of the term ‘continuingunlawful activity’ inference is sought to be drawn that in fact, it takesinto its ambit the acts done prior to the enforcement of the 1999 Act asbeing an offence under the 1999 Act. The same analogy will apply to the2015 Act.

50. There is a vast difference between the act or activity, whichis being termed or called as an offence under a statute and such act oractivity being taken into consideration as one of the requisites for takingaction under the statute. For the purpose of organised crime, there hasto be a continuing unlawful activity. There cannot be continuing unlawfulactivity unless at least two chargesheets are found to have been lodgedin relation to the offence punishable with three years’ imprisonment duringthe period of ten years. Indisputably, the period of ten years may relateto the period prior to 01.12.2019 or thereafter. In other words, it providesthat the activities, which were offences under the law in force at therelevant time and in respect of which two chargesheets have been filedand the Court has taken cognizance thereof, during the period of precedingten years, then it will be considered as continuing unlawful activity on01.12.2019 or thereafter. It nowhere by itself declares any activity to bean offence under the said 2015 Act prior to 01.12.2019. It also does notconvert any activity done prior to 01.12.2019 to be an offence under thesaid 2015 Act. It merely considers two chargesheets in relation to theacts which were already declared as offences under the law in force tobe one of the requisites for the purpose of identifying continuing unlawfulactivity and/or for the purpose of an action under the said 2015 Act.

51. If the decision of the coordinate Bench of this Court in thecase of Shiva alias Shivaji Ramaji Sonawane (supra) is looked intoclosely along with other provisions of the Act, the same would indicate AB

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Athat the offence of ‘organised crime’ could be said to have beenconstituted by at least one instance of continuation, apart from continuingunlawful activity evidenced by more than one chargesheets in thepreceding ten years. We say so keeping in mind the following:

(a) If ‘organised crime’ was synonymous with ‘continuingBunlawful activity’, two separate definitions were notnecessary.

(b) The definitions themselves indicate that the ingredients ofuse of violence in such activity with the objective of gainingpecuniary benefit are not included in the definition ofC‘continuing unlawful activity’, but find place only in thedefinition of ‘organised crime’.

(c) What is made punishable under Section 3 is ‘organisedcrime’ and not ‘continuing unlawful activity’.

(d) If ‘organised crime’ were to refer to only more than oneDchargesheets filed, the classification of crime in Section3(1)(i) and 3(1)(ii) resply on the basis of consequence ofresulting in death or otherwise would have been phraseddifferently, namely, by providing that ‘if any one of suchoffence has resulted in the death’, since continuing unlawfulEactivity requires more than one offence. Reference to ‘suchoffence’ in Section 3(1) implies a specific act or omission.

(e) As held by this Court in State of Maharashtra v. BharatShanti Lal Shah (supra) continuing unlawful activityevidenced by more than one chargesheets is one of theFingredients of the offence of organised crime and the purposethereof is to see the antecedents and not to convict, withoutproof of other facts which constitute the ingredients ofSection 2(1)(e) and Section 3, which respectively definecommission of offence of organised crime and prescribepunishment.

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(f) There would have to be some act or omission whichamounts to organised crime after the Act came into force,in respect of which the accused is sought to be tried for thefirst time, in the Special Court (i.e. has not been or is notbeing tried elsewhere).

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(g) However, we need to clarify something important. ShivaAalias Shivaji Ramaji Sonawane (supra) dealt with thesituation, where a person commits no unlawful activity afterthe invocation of the MCOCA. In such circumstances, theperson cannot be arrested under the said Act on account ofthe offences committed by him before coming into force ofBthe said Act, even if, he is found guilty of the same. However,if the person continues with the unlawful activities and isarrested, after the promulgation of the said Act, then, suchperson can be tried for the offence under the said Act. If aperson ceases to indulge in any unlawful act after the saidAct, then, he is absolved of the prosecution under the saidCAct. But, if he continues with the unlawful activity, it cannotbe said that the State has to wait till, he commits two actsof which cognizance is taken by the Court after cominginto force. The same principle would apply, even in the caseof the 2015 Act, with which we are concerned.

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52. In the overall view of the matter, we are convinced that thedictum as laid by this Court in Shiva alias Shivaji Ramaji Sonawane(supra) does not require any relook. The dictum in Shiva alias ShivajiRamaji Sonawane (supra) is the correct exposition of law.

53. With the aforesaid clarification, the appeal stands disposed of.

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Devika Gujral(Assisted by : Shevali Monga, LCRA)

Appeal disposed of.

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