MGN IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL WRIT PETITION NO.858 OF 2008 Sachin Sakharam Yadawade ) Age 27 years, Occ.Agriculturist ) R/o.Rashmi Apartment, 3rd Floor ) Near Ammu Apartment, Mhasoba ) Maidan, Kalyan (W), Dist.Thane. )..PETITIONER Versus The State of Maharashtra ) at the instance of ACP Kalyan ) vide CR No.209/2006 of Manpada ) Police Station. )..RESPONDENT Mr. Niteen Pradhan with Ms. Shubhada Khot and Ms. A. Kuttikrishnan for the Petitioner. Mrs. S.D. Shinde, APP for Respondent. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & A.A.KUMBHAKONI,JJ. A.A.KUMBHAKONI,JJ. A.A.KUMBHAKONI,JJ. DATED: 7th October, 2008 DATED: 7th October, 2008 DATED: 7th October, 2008 ORAL JUDGMENT (PER F.I.REBELLO, J.): . Rule. Heard forthwith. 2. By the present petition the petitioner challenges the order dated 7th January, 2008 passed by the learned Additional Sessions Judge, Thane, rejecting Misc. Application No.162 of 2007 in MCOC Special Case No.3 of 2007 in C.R. No.209/06 registered at Manpada Police Station praying for discharge. The petitioner is further challenging the sanction order dated 31st October, 2006 of the Additional Commissioner of Police, Crimes, Thane City granting approval to investigate the above said C.R. No.209/06 registered at Manpada Police Station under Section 307 read with Section 34 of the Indian Penal Code and under Section 3, 25 (1)(A) and 27 of (-2-) Indian Arms Act and for prosecuting the persons therein under the provisions of Section 3 of the Maharashtra Control of Organised Crime Act (M.C.O.C. Act) as illegal, null and void. The petitioner herein has been cited as Accused No.5 in the said C.R. No.209 of 2006. 3. On behalf of the respondent State reply has been filed by Dattatraya Eknath Barkade. It is his submission that there are cases the preceding 10 years pending against the present petitioner where charge sheets are filed and the sentence that can be imposed is of more than 3 years. There are altogether about 8 cases. it is also set out that the petitioner is a member of Organised Crime Syndicate of which Vikas Gajanan Mhatre is the leader. The present petitioner, it is submitted, has committed continuing unlawful activities through Organised Crime Syndicate of Vikas Mhatre and indulged in activities of organised crime for the pecuniary benefits. During the course of investigation it has been revealed that the present petitioner and four other accused who are the members of the Organised Crime Syndicate s led by Vikas Mhatre are habitual offenders and they commit organised crimes which includes shooting, harbouring of accused, providing information, disposing of the weapons used in the crime, etc., for the benefit of (-3-) the syndicate as well as for their personal economic benefit. Under these circumstances a proposal for application of MCOC Act was submitted and the sanction was granted by the Additional Commissioner of Police, Thane. In respect of C.R. No.209/06 it is set out that the recovery was made of a weapon, at the instance of accused and the print outs of mobile phone calls show, that on the day of incident and thereafter the accused was in contact with the co-accused. The statement of witnesses have been recorded under Section 164 of Cr.P.C. The statement of witness Navnath Sutar shows that the present petitioner was in regular contact with the main leader of the organised crime syndicate i.e. Corporator Vikas Mhatre and the said leader used to give him Rs.20,000/- to Rs.30,000/- every now and then. There is a reference to the statement of another witness and to earlier complaints filed. In these circumstances it is set out that the petition should be dismissed. 4. Under Section 23 of the MCOC no Special Court shall take cognisance of any offence under the Act without the previous sanction of the police officer not below the rank of additional director General of Police. Under sub-section (1) of Section 23 notwithstanding anything contained in the Code of Criminal Procedure 1973, no information about the (-4-) commission of an offence of organized crime under this Act, shall be recorded by a police officer without the prior approval of the police officer not below the rank of the Deputy Inspector General of Police and no investigation of an offence under the provisions of this Act shall be carried out by a police officer below the rank of the Deputy Superintendent of Police. . It is not the case of the petitioner that provisions of Section 23(1)(a) and (b) were not satisfied. The first submission has been that the Additional Director General of Police while granting sanction has not applied his mind for the Special Court to take cognisance. The translated copy of the order of sanction is dated 31st October, 2006. The sanction notes C.R. No.209 of 2006 under Section 307, 34 of I.P.C. read with Section 34 and other provisions as also Section 6 of the Maharashtra Organized Crime Control Act, 1999. It notes that on perusal of documents submitted it is revealed that the accused which includes the petitioner are the active members of the syndicate run by Vikas Gajanan Mhatre, the main accused. Perusal of the past record of the accused shows that they are active member of the syndicate of Vikas Mhatre and the documents reveal that they have committed all the aforesaid offences together (-5-) jointly for syndicate and for their own monetary benefit. It is based on this material that the sanctioning authority recorded its satisfaction and granted sanction to initiate action under the provisions of the MCOC Act, 1999. We are of the opinion that the requirement of Section 23(1) of the Act has been satisfied and considering the material on record it is not possible for this Court to take a view at this stage that there has been non-application of mind on the part of the sanctioning authority considering the documentary evidence which has been considered. In our opinion this contention must be rejected. 5. Next is the question as to whether the provisions of MCOC Act could be made applicable in so far as the present petitioner is concerned. For that purpose firstly prima facie there must be material to indicate that the petitioner considering Section 2(f) of the Act is a member of the Syndicate or gang indulged in activities of organised crime. Secondly the evidence must disclose continuous unlawful activity by an individual singly or jointly as a member of the organised crime syndicate or on behalf of such syndicate by use of violence or threat of violence or intimidation or coercion or other unlawful means, with objective or gaining pecuniary benefits, or gaining undue economic or (-6-) other advantage for himself or any other person. 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-sheet has been filed before a competent Court within the preceding period of ten years and that Court have taken cognizance of such offence. The prosecution has placed before us two cases (1) Vishnunagar Police Station C.R.No.I/109/06 and (2) of Manpada Police Station. Apart from that there are other cases as set out in the affidavit filed by the respondents. We have also on record the translated copy of the statement of Navnath G. Sutar which prima facie would indicate that the petitioner herein has been a member of the organised crime syndicate and indulges in activities of organised crime. The record, therefore, shows that the test of continuing unlawful activity is satisfied. Considering this statement as it now stands it is not possible for us to hold that such evidence even before it is tested before the Court must be rejected at the threshold. In our opinion the statement of the witnesses would bring the offence under the provisions of the MCOC Act, 1999. (-7-) 6. We make it clear that we have not referred in extenso to the statements as we have dismissed the objection based on the statements and documents as they stand. 7. The learned Counsel has sought to draw our attention to the judgment of the learned Single Judge of this Court in the case of State of State of State of Maharashtra vs. Bharat Baburao Gavhane & Ors., 2006 Maharashtra vs. Bharat Baburao Gavhane & Ors., 2006 Maharashtra vs. Bharat Baburao Gavhane & Ors., 2006 All M.R. (Cri.) 2895 All M.R. (Cri.) 2895 All M.R. (Cri.) 2895 and more specifically paragraph 46 to contend that there must be prima facie material before an order for sanction can be granted. Therefore, the Court held that merely stating that the person named therein and associates run an organised crime syndicate with a view to gaining pecuniary benefits and other advantages and supremacy over rival gang by violence, intimidation and other coercive means would not be sufficient. On facts, however,the learned Judge found there that the view of the learned trial Court in the matter of application of MCOC Act could not be interfered with at the belated stage. Consequently dismissed the petition. That is on the facts of that case. 8. In the light of the above Rule discharged. There shall be no order as to costs. (A.A.KUMBHAKONI, J.) (A.A.KUMBHAKONI, J.) (A.A.KUMBHAKONI, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.)