JUDGMENT [ENTITY], J.
Page 2619
1. Heard learned Counsel for the petitioners and learned P.P. and A.P.P. for the Respondents State.
2. The Petitioners have challenged by these petitions the applicability of the [ACT] (for short "[ACT]"). The main grievance of the petitioners is that on the date when [ACT] was applied they had not committed any offence and there was nothing before the Competent Authority to come to the conclusion that the petitioners were indulging in continuing unlawful activity, and, therefore, it was totally wrong and illegal to apply [ACT], to them.
3. Mr. [ENTITY] drew our attention to certain provisions of [ACT], viz. [SECTION]. The same reads as under:
(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, undertaken 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;
Page 2620
(e)organized crime" means any"organized crime" means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organized 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 of collectively, as a syndicate or gang indulge in activities of organised crime;
Then, also to the provisions of [SECTION] regarding punishment under [SECTION] of the said Act.
4. Mr. [ENTITY] laid emphasis on the three definitions of the words "continuing unlawful activity", "organised crime" and "organised crime syndicate". According to him there was nothing with the Authorities to come to the conclusion that the petitioners were indulging in continuing unlawful activity. Secondly, there was no prima facie evidence to show that they have undertaken either singly or jointly such activities. Further, there was no evidence that any charge sheet in respect of such offence was not filed against them, and, therefore, the order of applying [ACT] to the petitioners, was totally wrong.
5. Mr. [ENTITY] further contended that [ACT] came into force in 1999 and offences prior to 1999 cannot be and could not have been taken into consideration. According to him, they are stale offences and because a man has committed offence in past but when he has ceased to do any kind of any illegal activities, [ACT] cannot be made applicable to him. Mr. [ENTITY] contended that it past incidents are permitted to be made a subject of new offence, then there would not be opportunity for offender to improve or change the course of his illegal activities and become a law abiding citizen. Mr. [ENTITY] drew our attention in this regard to certain authorities. One of them was a judgment of Division Bench of this Court ([ENTITY] and [ENTITY], JJ) in group of Criminal Writ Petitions from [CASE NUMBER] and others. Question involved in that case appears to be "Whether a person can be subjected to criminal proceedings under a particular statute which defines the act committed by such persons to be offences punishable thereunder" that will depend upon the facts as to whether the said law has been in force or not at the time when the acts complained of are committed by concerned person. In the said judgment the Division Bench has held:
Therefore, "commission of cognizable offence" is the essence of FIR. Moment commission of cognizable offence is recorded, the police are bound to investigate in view of the provisions of law comprised under [SECTION] read with [SECTION] of the Code. The law on this point is well settled by the decision of the Apex Court in [ENTITY]'s case. There can be no investigation without FIR and there can be no FIR without cognizable offence being disclosed." Similarly, there can be no FIR under the [ACT] unless there being commission of offence under the [ACT] is disclosed.
Page 2621 Then in paragraph 38, the Division Bench has observed:
The fall out of the above discussion is that it is to be held that in the absence of material about commission of the offence under the [ACT] by the petitioners on or after 24th February, 1999, the authority could not have granted the approval for recording FIR under the [ACT], nor there could have recorded the FIR under the [ACT] for the alleged activities, unless the activities were done on or after 24th February, 1999.
The Division Bench, partly allowed the petitions and the approval granted under [SECTION] of the [ACT] for recording of FIR in relation to the said mal practices at the September 1998 examination, i.e. before the [ACT] came into force, and the FIR No. 6 of 2005 so far as it relates to the offences under the [ACT] is concerned, were quashed and set aside.
6. Mr. [ENTITY] also relied upon another judgment of this Court reported in [PRECEDENT] s/o. [PRECEDENT]. In this matter petitioner had challenged constitutionality of the provisions of law contained in [ACT], that is, declaring the acts prior to its enforcement of the offences under the Act as being violative of [SECTION] of the [ACT]. Since constitutional validity was in question, Advocate General was noticed and heard. The challenge of the petitioners revolve around the phrase "preceding period of ten years" in the definition Clause 2 (d) of the term "continuing unlawful activity".
7. Our attention was also drawn, in particular, by Mr. [ENTITY] to paragraphs 18, 19 and 20 of the said judgment. Paragraphs 18, 19 and 20 of the said Judgments, reads as under:
18. Referring to the statute under consideration in the case in hand, neither the definition of the term "organised crime" nor the term "continuing unlawful activity" nor any other provision therein declares any activity performed prior to 24-2-1999 to be an offence under the said Act nor the punishment provision relates to any offence prior to the date of enforcement of the said Act. Yet by referring to the expression 'preceding period of ten years' in [SECTION] which is a definition clause of the term "continuing unlawful activity" inference is sought to be drawn that in fact it takes into its ambit the acts done prior to the enforcement of the said Act as being offences under the said Act.
19. There is lot of difference between the There is lot of difference between 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 [SECTION] of the [ACT]; 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, Page 2622 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 24-2-1999. It also does not convert any activity done prior to 24-2-1999 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 [SECTION] considering the law laid down by the Apex Court in [ENTITY]'s case as well as in [ENTITY] case.
20. As regards the second submission submission pertaining to the reading down of [SECTION] in relation to the expression 'preceding period of ten years' to be effective or to commence from 24-2-1999, if accepted virtually amounts to reading something in the said provision of law which is not intended by the Legislature, and thereby it would virtually amount to defeat the very purpose of the said Act itself, apart from the fact that it is settled law that once the contention about unconstitutionality of the provision of law is rejected, question of reading down the same provision does not arise. The Apex Court in [PRECEDENT]. has held that " the question of reading down comes in if it is found that the provisions are ultra vires as they stand. We have held that these provisions are not ultra vires because [SECTION] does not apply when the property that is to be taxed is not of the Union of India but of a distinct and separate legal entity." Similarly, in [PRECEDENT] , wherein though the candidates had applied for selection in more than one district, they could appear only in one district in view of the fact that the test was conducted in all the districts on one day, it was sought to be contended that the rule restricting filing of application for one district incorporated in [SECTION] of the notification should be read down in its application to the cases of the appellants in those appeals before the Apex Court, while rejecting the said contention, it was ruled that "the submission has been made only to be rejected as in the present case we have already held that the aforesaid restriction contained in [SECTION] is not violative of [SECTION] of the [ACT]. Therefore, the question of reading down the same does not arise." The very fact that the expression used in the [SECTION] contains the word 'preceding' Page 2623 knowing well that the Act has to come into force from 24-2-1999, it is apparent that it has to relate to the period even prior to 24-2-1999. Undoubtedly, had it been directly related to declaring any act as an offence under a present Act prior to the date of enforcement of the said Act, certainly it would have been in violation of the mandate of [SECTION] of the [ACT]. However, as already observed above, the period specified in [SECTION] of the said Act relates to merely one of the requisites to consider whether the activity is a continuing unlawful activity or not for the purpose of taking action under the said Act and being so, applying the law laid down by the Apex Court in [ENTITY]'s case and [ENTITY] case the same cannot be held to be in any manner violative of [SECTION] of the [ACT].
8. On the other hand, the learned P.P. showed to us the FIR that was registered against the petitioners and others. He also relied upon judgment of the Division Bench of this Court reported in [PRECEDENT]. In that case also challenge was to the constitutional validity of [ACT]. The learned APP drew our attention to paragraph 25 of the said judgment. Paragraph 25 reads as under:
25. Then we would consider the submission of Shri [ENTITY] that the definition of continuing unlawful activity violates the mandate of [SECTION] and is therefore liable to be struck down. According to the learned Counsel unequals are being treated as equals. Persons charged only once are not brought within the purview of the Act but a person with several charges framed and cognizance taken by competent court who later on are acquitted are covered by the definition. According to him therefore a person is acquitted of ten charges cannot be treated as equal to a person who is charged and convicted of only one offence. In our opinion, there is no violation of [SECTION] 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 [ENTITY]. 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] of the Act we see no vagueness or violation of [SECTION] 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.
Page 2624 Both the cases relied upon by Mr. [ENTITY], are of no help to him because of the peculiar facts of these cases.
9. Mr. [ENTITY], the learned P.P. had given to us a copy of the FIR under the provisions of [ACT]. In that FIR list of offences committed by the petitioners and others who are members of his gang have been given. So far as Petitioners are concerned, offences against them start from 1996. The offence at Sr. No. 5 is [CASE NUMBER], this is followed by [CASE NUMBER], followed by [CASE NUMBER]. It may be that for offences committed by the petitioners prior to 24.2.1999 i.e. when the [ACT] came into force, cannot be made the basis for FIR in the light of observations of the Division Bench of this Court ([ENTITY] and [ENTITY], JJ) in group of [CASE NUMBER] and other Writ Petitions, but when it is clear that after 24.2.1999 also the petitioners have committed offences (the actual date of commission of offence in [CASE NUMBER] is not given in FIR at least in the Schedule), then it cannot be said that no offences are committed after [ACT] came into force, and, if that is so, then there is a material to come to the conclusion that the petitioners were engaged in continuing unlawful activity; the offences committed by them were organised crime and there was organized crime syndicate. At any rate, the Petitioners in both the petitions were members of organised crime syndicate or organised crime, because being a member is itself made punishable under [SECTION] of [ACT]. As rightly held by this Court in the judgment reported in [PRECEDENT]. " Yet by referring to the expression 'preceding period of ten years' in [SECTION] which is a definition clause of the term "continuing unlawful activity" inference was sought to be drawn that in fact it takes into its ambit the acts done prior to the enforcement of the said Act as being offences under the said Act.
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 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. If no illegal activities as contemplated by [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 ([ENTITY] and [ENTITY], JJ) of this Court in [CASE NUMBER] 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. [ENTITY] that on the date of registration of FIR against the petitioners they had not committed any act, as contemplated.
11. Learned P.P drew our attention to the judgment of the Single Bench of this Court ([ENTITY], J) dated 3.11.2004 in [CASE NUMBER] [PRECEDENT]), and particularly to the following portion of paragraph 6:
6. However, what has been overlooked is that the offence under the [ACT] is not an independent offence, but going by the relevant provisions of the Act, it would necessarily follow that any activity, which Page 2625 is a continuing unlawful activity by an individual singly or jointly either as member of the organised crime syndicate or on behalf of such syndicate, which is a cognizable offence punishable with imprisonment of three years or more, in respect of which more than one charge sheet have been filed before the competent Court within the preceding 10 years and that Court has taken cognizance of such offence, such successive unlawful activity by itself becomes an organised crime. In other words, the singular unlawful activity would attract the provisions of ordinary law, but if it is continuing one, and, to wit, third offence of specified type which fulfils the requirement of provisions of the Act, it becomes an organised crime to be registered as an offence under the [ACT]. In such a situation, there are two options available to the police, either they can separately record information about the commission of an offence of organised crime under the Act after successive unlawful activity of the specified type are reported to have been committed, by or for and on behalf of organised crime syndicate; or invoke the provisions of the said enactment to the unlawful activity already reported, which is the successive in point of time.
It is to be noted here from the copy of the FIR given that [CASE NUMBER] is the C.R. under the [ACT]. In the FIR details of all the activities prior to 1999 and after 1999 have been given showing the continuous chains, link of events fulfilling the requirement of the organized crime or organised crime syndicate or continuing unlawful activities.
12. This is the only submission made by Mr. [ENTITY], and, for the aforesaid reasons, the same is required to be rejected. Therefore both the Petitions fail, both the petitions are dismissed along with pending applications therein. Rule discharged in both the Petitions.