:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 906 OF 2005 CRIMINAL WRIT PETITION NO. 906 OF 2005 CRIMINAL WRIT PETITION NO. 906 OF 2005 Appa @ Prakash Haribhau Londhe ] age 52 years, residing at Urali] Kanchan, Sindavane Road, Taluka ] Haveli, Dist : Pune ( at present] Yerwada Prison) ]..Petitioner versus 1. State of Maharashtra ] (copy to be served on the ] Public Prosecutor, High Court ] Bombay) ] 2. Superintendent of Police ] Pune (Rural), Dist : Pune ]..Respondents AND AND AND CRIMINAL WRIT PETITION NO. 1644 OF 2005 CRIMINAL WRIT PETITION NO. 1644 OF 2005 CRIMINAL WRIT PETITION NO. 1644 OF 2005 Uttam Ramchandra Hole ] aged about 53, Occ: Business ] residing at Hadapsar, ] Pune 411 028 ] presently detained as an under ] trial prisoner lodged in ] Yerawada Central Prison, Pune ] and now stands admitted to the ]..Petitioner Hospital in Mumbai ](Ori. Accused) versus 1. The State of Maharashtra ] (copy to be served on Public ] Prosecutor, High Court, Bombay ] 2. Deputy Superintendent of ] Police, Haveli Division, Pune ] (Rural) ]..Respondents :2: Mr. P. M. Pradhan for the Petitioners. Mr. S. R. Borulkar, P.P. and Mr. D. S. Mhaispurkar, APP for the Respondents - State. CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, & S. A. BOBDE,JJ. S. A. BOBDE,JJ. S. A. BOBDE,JJ. DATE : 24TH JULY, 2006 DATE : 24TH JULY, 2006 DATE : 24TH JULY, 2006 ORAL JUDGMENT (Per. D. G. Deshpande, J.) : ORAL JUDGMENT (Per. D. G. Deshpande, J.) : ORAL JUDGMENT (Per. D. G. Deshpande, J.) : 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 Maharashtra Control of Organized Crime Act, 1999 (for short "MCOC Act"). The main grievance of the petitioners is that on the date when MCOC 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 MCOC Act, to them. :3: 3. Mr. Pradhan drew our attention to certain provisions of MCOC Act, viz. Section 2 (d), (e) (f). The same reads as under: "(d) "continuing unlawful activity" means an "(d) "continuing unlawful activity" means an "(d) "continuing unlawful activity" means an activity prohibited by law for the time activity prohibited by law for the time activity prohibited by law for the time being in force, which is a cognizable being in force, which is a cognizable being in force, which is a cognizable offence punishable with imprisonment of offence punishable with imprisonment of offence punishable with imprisonment of three years or more, undertaken either three years or more, undertaken either three years or more, undertaken either singly or jointly, as a member of an singly or jointly, as a member of an singly or jointly, as a member of an organised crime syndicate or on behalf of organised crime syndicate or on behalf of organised crime syndicate or on behalf of such syndicate in respect of which more than such syndicate in respect of which more than such syndicate in respect of which more than one charge-sheets have been filed before a one charge-sheets have been filed before a one charge-sheets have been filed before a competent Court within the preceding period competent Court within the preceding period competent Court within the preceding period of ten years and that Court has taken of ten years and that Court has taken of ten years and that Court has taken cognizance of such offence; cognizance of such offence; cognizance of such offence; (e) "organized crime" means any continuing (e) "organized crime" means any continuing (e) "organized crime" means any continuing unlawful activity by an individual, singly unlawful activity by an individual, singly unlawful activity by an individual, singly or jointly, either as a member of an or jointly, either as a member of an or jointly, either as a member of an organized crime syndicate or on behalf of organized crime syndicate or on behalf of organized crime syndicate or on behalf of such syndicate, by use of violence or threat such syndicate, by use of violence or threat such syndicate, by use of violence or threat of violence or intimidation or coercion, or of violence or intimidation or coercion, or of violence or intimidation or coercion, or other unlawful means, with the objective of other unlawful means, with the objective of other unlawful means, with the objective of gaining pecuniary benefits, or gaining gaining pecuniary benefits, or gaining gaining pecuniary benefits, or gaining undue economic or other advantage for undue economic or other advantage for undue economic or other advantage for himself or any other person or promoting himself or any other person or promoting himself or any other person or promoting insurgency; insurgency; insurgency; (f) "organised crime syndicate" means a (f) "organised crime syndicate" means a (f) "organised crime syndicate" means a group of two or more persons who, acting group of two or more persons who, acting group of two or more persons who, acting either singly of collectively, as a either singly of collectively, as a either singly of collectively, as a syndicate or gang indulge in activities of syndicate or gang indulge in activities of syndicate or gang indulge in activities of organised crime; organised crime; organised crime; Then, also to the provisions of Section 3 regarding punishment under Chapter II of the said Act. :4: 4. Mr. Pradhan 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 primafacie 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 MCOC Act to the petitioners, was totally wrong. 5. Mr. Pradhan further contended that MCOC 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, MCOC Act cannot be made applicable to him. Mr. Pradhan 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 :5: illegal activities and become a law abiding citizen. Mr. Pradhan drew our attention in this regard to certain authorities. One of them was a judgment of Division Bench of this Court (R.M.S. Khandeparkar Division Bench of this Court (R.M.S. Khandeparkar Division Bench of this Court (R.M.S. Khandeparkar and P. V. Kakade, JJ) in group of Criminal Writ and P. V. Kakade, JJ) in group of Criminal Writ and P. V. Kakade, JJ) in group of Criminal Writ Petitions from Criminal Writ Petition Nos. 689 of Petitions from Criminal Writ Petition Nos. 689 of Petitions from Criminal Writ Petition Nos. 689 of 2005 and others. 2005 and others. 2005 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 "Therefore, "commission of cognizable "Therefore, "commission of cognizable offence" is the essence of FIR. Moment offence" is the essence of FIR. Moment offence" is the essence of FIR. Moment commission of cognizable offence is commission of cognizable offence is commission of cognizable offence is recorded, the police are bound to recorded, the police are bound to recorded, the police are bound to investigate in view of the provisions of law investigate in view of the provisions of law investigate in view of the provisions of law comprised under Section 157 read with comprised under Section 157 read with comprised under Section 157 read with Section 154 of the Code. The law on this Section 154 of the Code. The law on this Section 154 of the Code. The law on this point is well settled by the decision of the point is well settled by the decision of the point is well settled by the decision of the Apex Court in Bhajan Lal’s case. There can Apex Court in Bhajan Lal’s case. There can Apex Court in Bhajan Lal’s case. There can be no investigation without FIR and there be no investigation without FIR and there be no investigation without FIR and there can be no FIR without cognizable offence can be no FIR without cognizable offence can be no FIR without cognizable offence being disclosed." being disclosed." being disclosed." Similarly, there can be no Similarly, there can be no Similarly, there can be no FIR under the MCOC Act unless there being FIR under the MCOC Act unless there being FIR under the MCOC Act unless there being commission of offence under the MCOC Act is commission of offence under the MCOC Act is commission of offence under the MCOC Act is disclosed". disclosed". disclosed". Then in paragraph 38, the Division Bench has :6: observed: "The fall out of the above discussion is "The fall out of the above discussion is "The fall out of the above discussion is that it is to be held that in the absence of that it is to be held that in the absence of that it is to be held that in the absence of material about commission of the offence material about commission of the offence material about commission of the offence under the MCOC Act by the petitioners on or under the MCOC Act by the petitioners on or under the MCOC Act by the petitioners on or after 24th February, 1999, the authority after 24th February, 1999, the authority after 24th February, 1999, the authority could not have granted the approval for could not have granted the approval for could not have granted the approval for recording FIR under the MCOC Act, nor there recording FIR under the MCOC Act, nor there recording FIR under the MCOC Act, nor there could have recorded the FIR under the MCOC could have recorded the FIR under the MCOC could have recorded the FIR under the MCOC Act for the alleged activities, unless the Act for the alleged activities, unless the Act for the alleged activities, unless the activities were done on or after 24th activities were done on or after 24th activities were done on or after 24th February, 1999." February, 1999." February, 1999." The Division Bench, partly allowed the petitions and the approval granted under Section 23(1)(a) of the MCOC Act for recording of FIR in relation to the said mal practices at the September 1998 examination, i.e. before the MCOC Act came into force, and the FIR No. 6 of 2005 so far as it relates to the offences under the MCOC Act is concerned, were quashed and set aside. 6. Mr. Pradhan also relied upon another judgment of this Court reported in [2003(3) Mh.L.J. [2003(3) Mh.L.J. [2003(3) Mh.L.J. 866 Jaisingh s/o. Asharfilal Yadav and others vs. 866 Jaisingh s/o. Asharfilal Yadav and others vs. 866 Jaisingh s/o. Asharfilal Yadav and others vs. State of Maharashtra and Another. State of Maharashtra and Another. State of Maharashtra and Another. In this matter petitioner had challenged constitutionality of the provisions of law contained in MCOC Act, that is, declaring the acts prior to its enforcement of the offences under the Act as being violative of Article :7: 20(1) of the Constitution of India. Since constitutional validity was in question, Advocate General was noticed and heard. The challenge of the petitioners revolve around the phrase "preceding "preceding "preceding period of ten years" period of ten years" period of ten years" in the definition clause 2 (d) of the term "continuing unlawful activity" "continuing unlawful activity" "continuing unlawful activity". 7. Our attention was also drawn, in particular, by Mr. Pradhan 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 "18. Referring to the statute under "18. Referring to the statute under consideration in the case in hand, neither consideration in the case in hand, neither consideration in the case in hand, neither the definition of the term "organised crime" the definition of the term "organised crime" the definition of the term "organised crime" nor the term "continuing unlawful activity" nor the term "continuing unlawful activity" nor the term "continuing unlawful activity" nor any other provision therein declares any nor any other provision therein declares any nor any other provision therein declares any activity performed prior to 24-2-1999 to be activity performed prior to 24-2-1999 to be activity performed prior to 24-2-1999 to be an offence under the said Act nor the an offence under the said Act nor the an offence under the said Act nor the punishment provision relates to any offence punishment provision relates to any offence punishment provision relates to any offence prior to the date of enforcement of the said prior to the date of enforcement of the said prior to the date of enforcement of the said Act. Yet by referring to the expression Act. Yet by referring to the expression Act. Yet by referring to the expression ’preceding period of ten years’ in section ’preceding period of ten years’ in section ’preceding period of ten years’ in section 2(d) which is a definition clause of the 2(d) which is a definition clause of the 2(d) which is a definition clause of the term "continuing unlawful activity" term "continuing unlawful activity" term "continuing unlawful activity" inference is sought to be drawn that in fact inference is sought to be drawn that in fact inference is sought to be drawn that in fact it takes into its ambit the acts done prior it takes into its ambit the acts done prior it takes into its ambit the acts done prior to the enforcement of the said Act as being to the enforcement of the said Act as being to the enforcement of the said Act as being offences under the said Act. offences under the said Act. offences under the said Act. 19. There is lot of difference between the 19. There is lot of difference between the 19. There is lot of difference between the act or activity itself being termed or act or activity itself being termed or act or activity itself being termed or called as an offence under a statute and called as an offence under a statute and called as an offence under a statute and such act or activity being taken into such act or activity being taken into such act or activity being taken into consideration as one of the requisites for consideration as one of the requisites for consideration as one of the requisites for taking action under the statute. The former taking action under the statute. The former taking action under the statute. The former situation has to satisfy the mandate of situation has to satisfy the mandate of situation has to satisfy the mandate of Article 20(1) of the Constitution; however, Article 20(1) of the Constitution; however, Article 20(1) of the Constitution; however, :8: in case of latter situation, it stands on in case of latter situation, it stands on in case of latter situation, it stands on totally different footing. Undoubtedly, for totally different footing. Undoubtedly, for totally different footing. Undoubtedly, for the purpose of organised crime there has to the purpose of organised crime there has to the purpose of organised crime there has to be a continuing unlawful activity. There be a continuing unlawful activity. There be a continuing unlawful activity. There cannot be continuing unlawful activity cannot be continuing unlawful activity cannot be continuing unlawful activity unless at least two charge-sheets are to be unless at least two charge-sheets are to be unless at least two charge-sheets are to be found to have been lodged in relation to the found to have been lodged in relation to the found to have been lodged in relation to the offence punishable with three years’ offence punishable with three years’ offence punishable with three years’ imprisonment during the period of ten years. imprisonment during the period of ten years. imprisonment during the period of ten years. Undisputedly, the period of ten years may Undisputedly, the period of ten years may Undisputedly, the period of ten years may relate to the period prior to 24-2-1999 or relate to the period prior to 24-2-1999 or relate to the period prior to 24-2-1999 or thereafter. In other words, it provides thereafter. In other words, it provides thereafter. In other words, it provides that the activities which were offences that the activities which were offences that the activities which were offences under the law in force at the relevant time under the law in force at the relevant time under the law in force at the relevant time and in respect of which two charge-sheets and in respect of which two charge-sheets and in respect of which two charge-sheets have been filed and the Court has taken have been filed and the Court has taken have been filed and the Court has taken cognizance thereof, during the period of cognizance thereof, during the period of cognizance thereof, during the period of preceding ten years, then it will be preceding ten years, then it will be preceding ten years, then it will be considered as continuing unlawful activity considered as continuing unlawful activity considered as continuing unlawful activity on 24-2-1999 or thereafter. It nowhere by on 24-2-1999 or thereafter. It nowhere by on 24-2-1999 or thereafter. It nowhere by itself declares any activity to be an itself declares any activity to be an itself declares any activity to be an offence under the said Act prior to offence under the said Act prior to offence under the said Act prior to 24-2-1999. It also does not convert any 24-2-1999. It also does not convert any 24-2-1999. It also does not convert any activity done prior to 24-2-1999 to be an activity done prior to 24-2-1999 to be an activity done prior to 24-2-1999 to be an offence under the said Act. It merely offence under the said Act. It merely offence under the said Act. It merely considers two charge-sheets in relation to considers two charge-sheets in relation to considers two charge-sheets in relation to the acts which were already declared as the acts which were already declared as the acts which were already declared as offences under the law in force to be one of offences under the law in force to be one of offences under the law in force to be one of the requisites for the purpose of the requisites for the purpose of the requisites for the purpose of identifying continuing unlawful activity identifying continuing unlawful activity identifying continuing unlawful activity and/or for the purpose of an action under and/or for the purpose of an action under and/or for the purpose of an action under the said Act. This by itself cannot be said the said Act. This by itself cannot be said the said Act. This by itself cannot be said to be in any manner violative of the mandate to be in any manner violative of the mandate to be in any manner violative of the mandate of Article 20(1) considering the law laid of Article 20(1) considering the law laid of Article 20(1) considering the law laid down by the Apex Court in Rao Shiv Bahadur down by the Apex Court in Rao Shiv Bahadur down by the Apex Court in Rao Shiv Bahadur Singh’s case as well as in Sajjan Singh’s Singh’s case as well as in Sajjan Singh’s Singh’s case as well as in Sajjan Singh’s case. case. case. 20. As regards the second submission 20. As regards the second submission 20. As regards the second submission pertaining to the reading down of Section pertaining to the reading down of Section pertaining to the reading down of Section 2(d) in relation to the expression 2(d) in relation to the expression 2(d) in relation to the expression ’preceding period of ten years’ to be ’preceding period of ten years’ to be ’preceding period of ten years’ to be effective or to commence from 24-2-1999, if effective or to commence from 24-2-1999, if effective or to commence from 24-2-1999, if accepted virtually amounts to reading accepted virtually amounts to reading accepted virtually amounts to reading something in the said provision of law which something in the said provision of law which something in the said provision of law which is not intended by the Legislature, and is not intended by the Legislature, and is not intended by the Legislature, and thereby it would virtually amount to defeat thereby it would virtually amount to defeat thereby it would virtually amount to defeat the very purpose of the said Act itself, the very purpose of the said Act itself, the very purpose of the said Act itself, apart from the fact that it is settled law apart from the fact that it is settled law apart from the fact that it is settled law :9: that once the contention about that once the contention about that once the contention about unconstitutionality of the provision of law unconstitutionality of the provision of law unconstitutionality of the provision of law is rejected, question of reading down the is rejected, question of reading down the is rejected, question of reading down the same provision does not arise. The Apex same provision does not arise. The Apex same provision does not arise. The Apex Court in Electronics Corporation of India Court in Electronics Corporation of India Court in Electronics Corporation of India Ltd. and others vs. Secretary Revenue Ltd. and others vs. Secretary Revenue Ltd. and others vs. Secretary Revenue Department, Government of Andhra Pradesh and Department, Government of Andhra Pradesh and Department, Government of Andhra Pradesh and others reported in (1999) 4 SCC 458 has held others reported in (1999) 4 SCC 458 has held others reported in (1999) 4 SCC 458 has held that " the question of reading down comes in that " the question of reading down comes in that " the question of reading down comes in if it is found that the provisions are ultra if it is found that the provisions are ultra if it is found that the provisions are ultra vires as they stand. We have held that vires as they stand. We have held that vires as they stand. We have held that these provisions are not ultra vires because these provisions are not ultra vires because these provisions are not ultra vires because Article 285 does not apply when the property Article 285 does not apply when the property Article 285 does not apply when the property that is to be taxed is not of the Union of that is to be taxed is not of the Union of that is to be taxed is not