AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2075 OF 2009 Vijay Anant Vashirde, residing at Room No.8/9, Laxmi Building, 366/68, Maulana Azad Road, Girgaon, Mumbai – 400 004, at present in judicial custody and lodged at Mumbai Central Prison, Mumbai. ) ) ) ) ) ) ) ... Petitioner Vs. The State of Maharashtra, (at the instance of Assistant Commissioner of Police, D-1 (South), Mumbai vide D.C.B., C.I.D., C.R. No.42 of 2009 (V.P. Road Police Station C.R. No.55 of 2009). ) ) ) ) ) ) ) ... Respondents Mr. S.R. Chitnis, senior counsel with Mr. S.R. Pasbola and Mr. Rahul Arote for the petitioner. Mr. V.R. Dhond, special counsel with Ms. U.V. Kejariwal, A.P.P. for the State. CORAM: SMT. RANJANA DESAI & MRS. MRIDULA BHATKAR, JJ. DATE ON WHICH THE ORDER IS RESERVED : 10TH MARCH, 2010. AJN 2 DATE ON WHICH THE ORDER IS PRONOUNCED: 7TH MAY, 2010. JUDGMENT :- (Smt. Ranjana Desai, J.) 1. The petitioner is an accused in MCOC Special Case No.6 of 2009. In this petition filed under Article 226 of the Constitution of India, the petitioner has prayed, inter alia, that directions be issued to the State of Maharashtra to establish a Review Committee on the lines of directions given by the Supreme Court in Kartar Singh v. State of Punjab, 1994 SCC (Cri.) 899 and as incorporated in POTA (Amendment) Act, 2003 (since repealed), so as to screen the abuse and misuse of the provisions of the Maharashtra Control of Organized Crime Act, 1999 (“for short, “MCOCA”), that all pending cases and newly registered cases be referred to a Review Committee and that it may be declared that the provisions of MCOCA are not attracted to the petitioner's case. 2. It is necessary to state certain facts for better appreciation of the rival submissions. The Terrorist & AJN 3 Disruptive Activities (Prevention) Act, 1987 (for short, “TADA”) was enacted to make special provisions for the prevention of, and for coping with, terrorist and disruptive activities. In Kartar Singh, constitutional validity of TADA was challenged. Section 15 of TADA which made confession made by a person before a police officer not lower in rank than a Superintendent of Police admissible in evidence came under heavy attack. The Supreme Court agreed that it would be dangerous to make a statement given to a police officer admissible. The Supreme Court held that having regard to the legal competence of the legislature to make the law prescribing a different mode of proof, the meaningful purpose and object of the legislation, the gravity of terrorism unleashed by the terrorists endangering the sovereignty and integrity of the country and the normal life of the citizens, section 15 cannot be said to be suffering from the vice of unconstitutionality. However, the Supreme Court laid down guidelines so as to ensure that confession obtained in the pre-indictment interrogation is not tainted AJN 4 with any vice, but is in strict conformity with well- recognized and accepted aesthetic principles and fundamental fairness. The Supreme Court directed the Central Government to take note of the guidelines and incorporate them by appropriate amendments in TADA. In order to ensure higher level of scrutiny and applicability of TADA, the Supreme Court expressed that there must be Review Committee constituted by the Central Government. It is necessary to quote paragraph 265 of the judgment. “265. In order to ensure higher level of scrutiny and applicability of TADA Act, there must be a screening Committee or a Review Committee constituted by the Central Government consisting of the Home Secretary, Law Secretary and other secretaries concerned of the various Departments to review all the TADA cases instituted by the Central Government as well as to have a quarterly administrative review, reviewing the States' action in the application of the TADA provisions in the respective States, and the incidental questions arising in relation thereto. Similarly, there must be a Screening or Review Committee at the State level AJN 5 constituted by the respective States consisting of the Chief Secretary, Home Secretary, Law Secretary, Director General of Police (Law and Order) and other officials as the respective Government may think it fit, to review the action of the enforcing authorities under the Act and screen the cases registered under the provisions of the Act and decide the further course of action in every matter and so on.” 3. In Shaheen Welfare Association v. Union of India & Ors. (1996) 2 SCC 616, in a public interest litigation, certain directions were sought in respect of under-trial prisoners charged with offences under TADA. The Supreme Court, not being entirely satisfied with the functioning of the Review Committee expressed that a more independent and objective scrutiny of the cases by a Committee headed by a retired Judge is obviously necessary. We shall advert to this case a little later. 4. In 1995, TADA lapsed. The Prevention of Terrorism Ordinance, 2001 was promulgated on 24/10/2001. It was followed by the Prevention of Terrorism (Second) AJN 6 Ordinance promulgated on 30/12/2001. In 2002, the Prevention of Terrorism Act, 2002 (for short, “POTA”) was enacted replacing Prevention of Terrorism (Second) Ordinance, 2001. Section 60 of POTA provided for a Review Committee. Sub-sections (4) to (6) were added to Section 60 of POTA by Prevention of Terrorism (Amendment) Ordinance, 2003. The said ordinance was further amended by the Prevention of Terrorism (Amendment) Act, 2003 which inserted sub-sections (4) to (6) as also further sub-section (7) in Section 60. The amended Section 60 reads thus: “60. Review Committees. - (1) The Central Government and each State Government shall, whenever necessary, constitute one or more Review Committee for the purposes of this Act. (2) Every such Committee shall consist of a Chairperson and such other members not exceeding three and possessing such qualifications as may be prescribed. (3) A Chairperson of the Committee shall be a person who is, or has been, a Judge of a High Court, who shall be appointed by the Central AJN 7 Government, or as the case may be, the State Government, so however, that the concurrence of the Chief Justice of the High Court shall be obtained in the case of a sitting Judge: Provided that in the case of a Union Territory, the appointment of a person who is a Judge of the High Court of a State shall be made as a Chairperson with the concurrence of the Chief Justice of the High Court concerned”. (4) Without prejudice to the other provisions of this Act, any Review Committee constituted under sub- section (1) shall, on an application by any aggrieved person, review whether there is a prima facie case for proceeding against the accused under this Act and issue directions accordingly. (5) Any direction issued under sub-section (4), - (i) by the Review Committee constituted by the Central Government, shall be binding on the Central Government, the State Government and the police officer investigating the offence; and (ii) by the Review Committee constituted by the State Government, shall be binding on the State Government and the police officer investigating the offence. AJN 8 (6) Where the reviews under sub- section (4) relating to the same offence under this Act, have been made by a Review Committee constituted by the Central Government and a Review Committee constituted by the State Government, under sub-section (1), any direction issued by the Review Committee constituted by the Central Government shall prevail. (7) Where any Review Committee constituted under sub-section (1) is of opinion, that there is no prima facie case for proceeding against the accused and issues directions under sub-section (4), then, the proceedings pending against the accused shall be deemed to have been withdrawn form the date of such direction.” 5. In view of adverse report about misuse of POTA, Parliament repealed it by the Prevention of Terrorism (Repeal) Ordinance, 2004 on 21/9/2004 and replaced it by the Prevention of Terrorism (Repeal) Act, 2004 (for short, “the Repealing Act”). Section 3 of the Repealing Act made it clear that notwithstanding the repeal of Section 60 of the principal Act, the Review Committee constituted by the Central Government under Sub-Section (1) of that Section shall review all cases registered under the AJN 9 principal Act and such review shall be completed within a period of one year from the commencement of the Repealing Act. Section 5 stated that the Central Government may constitute more Review Committees as it may consider necessary, for completing the review within the period specified in sub-Section (3). 6. It is in short the case of the petitioner, as presented to us by Mr. Chitnis, learned senior counsel, that the provisions of MCOCA are drastic and perhaps more stricter than TADA. There are several cases of misuse of MCOCA and, therefore, the provisions of the Review Committee as incorporated in POTA and retained by the Repealing Act pursuant to the Supreme Court's directions in Kartar Singh be incorporated in MCOCA. 7. Counsel submitted that the Review Committee acts as a filter. TADA, POTA or MCOCA are draconian legislations. Though validity of MCOCA is upheld, its arbitrary, capricious and revengeful use must be AJN 10 prevented. It's misuse is evident from several orders of this court where this court has held that MCOCA was wrongly applied. Counsel has drawn our attention to following cases where according to him, MCOCA has been misused : (i) State of Maharashtra & Ors. v. Lalit Nagpal & Anr. (2007) 4 SCC 171, (ii) Madan s/o. Ramkisan Gangwani v. State of Maharashtra 2009 All M.R. (Cri.) 1447, (iii) Pradip Madgaonkar v. State of Maharashtra, 2007 (1) BCR (Cri.) 337, (iv) Moh. Rizwan Mohd. Isaq @ Laddowala v. State of Maharashtra, 2005 All M.R. (Cri.) 2959, (v) Sherbahadur A. Khan v. State of Maharashtra, 2007 All M.R. (Cri.), (vi) State of Maharashtra v. Bharat Baburao Gavhane 2006 All M.R. (Cri.) 2895 and (vii) unreported decisions of this court in Criminal Appeal No.1040 of 2006 and Criminal Appeal No.667 of 2009. AJN 11 8. Counsel laid stress on the guidelines issued by the Supreme Court in Kartar Singh to the police for the purpose of recording confessional statements under Sections 15 of TADA to secure fundamental fairness. Counsel pointed out that the Central Government was directed to incorporate them by appropriate amendments in TADA and in the rules. Counsel pointed out that the Supreme Court directed constitution of Review Committee of high officials to review the cases so as to ensure higher level of scrutiny and applicability of TADA. Drawing our attention to Shaheen Welfare Association, counsel submitted that in this case the Supreme Court referred to Kartar Singh and held that the need of Review Committee is borne out by the cases disclosed in the annexure to the affidavit where TADA ought not to have been applied. Counsel submitted that in this case, the Supreme Court went on to observe that a more independent and objective scrutiny of the cases by a committee headed by a retired Judge is necessary. Counsel submitted that this judgment was in the field AJN 12 when MCOCA was enacted and, therefore, the State should have taken note of it. Provision for Review Committee ought to have been incorporated in MCOCA. Counsel submitted that Section 18 of MCOCA makes certain confessions made to police officers admissible. It is similar to Section 15 of TADA. While enacting MCOCA, the legislature incorporated the important guidelines laid down in Kartar Singh for the purpose of recording confessional statements. The legislature should have therefore also made provision for a Review Committee as directed in Kartar Singh and which was followed while enacting the amended POTA. 9. Counsel submitted that the argument that there are sufficient safeguards in Section 23 of MCOCA namely prior approval of the police officer not below the rank of the Deputy Inspector General of Police before recording of information about the commission of an offence of organized crime and the condition that no court shall take cognizance of the offence under MCOCA without the AJN 13 previous sanction of the police officer below the rank of Additional Director General of Police, to prevent abuse of MCOCA must be rejected. Similar provision of approval and sanction was there in TADA also, yet the Supreme Court directed constitution of a Review Committee. Counsel submitted that in any case the so called safeguards have not been able to prevent abuse of MCOCA. 10. In this connection, counsel relied on Dwarka Nath v. Income-tax Officer, AIR 1966 SC 81 where the Supreme Court has observed that Article 226 is couched in comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found. Counsel also relied on Deepak Bajaj v. State of Maharashtra, AIR 2009 SC 628 where the Supreme Court has observed that under Article 32 and Article 226 of the Constitution, the Supreme Court and the High Court can issue writs in the nature of habeas corpus, mandamus, certiorari, etc. They can also issue orders and AJN 14 directions apart from issuing writs and their powers are not subject to traditional restrictions on the powers of the Supreme Court and the High Court. Reliance was also placed on the Supreme Court judgment in Public Union for Civil Liberties & Ors. v. Union of India (1997) 1 SCC 301. Counsel also relied on a judgment of a Division Bench of this court to which one of us (Smt. Ranjana Desai, J.) was a party in Govind @ Bhai Ganesh Tilve v. Vikram Kumar & Ors. 2009 All M.R. (Cri.) 2389 where this court has translated Election Commission of India's suggestions into guidelines. Counsel also relied on Vishakha & Ors. v. State of Rajasthan & Ors. (1997) 6 SCC 241, where, to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly at workplaces, the Supreme Court laid down guidelines and norms. Counsel also relied on Sheela Bave v. State of Maharashtra AIR 1983 SC 378, Som Mittal v. Government of Karnataka (2008) 3 SCC 753 and Securities & Exchange Board AJN 15 of India v. Libra Plantation Limited & Ors. 1998 (4 L.J. 421. Counsel submitted that, therefore, there are no fetters on the powers of this court preventing it from directing constitution of a Review Committee. Written submissions filed by Mr. Chitnis on legal points have been taken on record. 11. On merits of the case, Mr. Chitnis has submitted another set of submissions. We, however, find that these submissions revolve around validity of a sanction. It is stated that in the satisfaction recorded in the sanction, it is averred that the sanctioning authority was satisfied that there is sufficient evidence to prove continuous unlawful activities of the organized crime syndicate headed by accused Deepak Walekar and his associates and more than one charge-sheets have been filed against them within the last ten years. Relying on the judgment of this court in Madan Ramkisan Gangwani, it is stated that organized crime is constituted by at least one instance of continuation, apart from continuing unlawful activity AJN 16 evidenced by more than one charge-sheets in the preceding ten years. However, in this case, sanction is for prosecution of a continuous unlawful activity. It is submitted that what is punishable under Section 3 is `organized crime' and not `continuing unlawful activity'. Continuing unlawful activity as stated in Section 2(d) is an ingredient of Section 2(e) of MCOCA which defines `organized crime'. Continuing unlawful activity evidenced by more than one charge-sheets is one of the ingredients of the offence of organized crime. It is submitted that since sanction is not for taking cognizance of `organized crime' as defined in Section 2(e), the sanction must be set aside. 12. Relying on Rambhai Nathabhai Gadhvi v. State of Gujarat 1997 Cr. L.J. 4086 (S.C.), it is submitted that valid sanction is a sine qua non for the prosecution and if there is no valid sanction prosecution cannot be initiated. Reliance is also placed on Lalit Nagpal, Ranjitsingh Brahmajeetsingh Sharma v. State of AJN 17 Maharashtra, 2005 Cri.L.J. 2533 and Sherbhahadur Akram Khan v. State of Maharashtra 2007 (1) BCR (Cri.) 26. 13. Mr. Dhond, learned counsel who appears for the State has submitted written submissions which we have taken on record. Mr. Dhond submitted that the petitioner wants this court to direct the State to amend valid state legislation or to enact additional legislation which it cannot do. Mr. Dhond submitted that MCOCA contains several provisions and mechanism to prevent its misuse. Section 23 thereof has been described as a filter by the Supreme Court in Vinod Asrani v. State of Maharashtra (2007) 3 SCC 633 and by this court in Pradeep Madgaonkar v. State of Maharashtra 2007 (1) Bom.C.R. (Cri) 337. Comparing the provisions of TADA and MCOCA, counsel submitted that TADA was a more stringent law than MCOCA. 14. Counsel submitted that the decision not to include AJN 18 Review Committee is consciously taken. The majority of the members of the State Level Committee to review MCOCA did not favour the introduction of the Review Committee. However, all the three members were unanimous that there was no misuse of MCOCA. 15. Counsel submitted that the Supreme Court has upheld the constitutional validity of MCOCA. The legislative policy is in the exclusive domain of the State. The nature and extent of safeguards and/or protections which ought to be introduced in a statute is a matter of policy in which the court cannot interfere. In this connection, he relied on C.S.T. v. Mangal Sen Shyam Lal (1975) 4 SCC 35, State of West Bengal v. E.I.T.A. India Ltd. (2003) 5 SCC 239, Duncan Industries Ltd. v. Union of India (2006) 3 SCC 129, Karnataka Bank Ltd. v. State of A.P. & Ors. (2008) 2 SCC 254. He also relied on State of A.P. v. McDowell & Co. (1996) 3 SCC 709, Asif Hamid & Ors. v. State of J. & K. & Ors. 1989 Supp. (2) SCC AJN 19 364 and State of U.P. & Anr. v. Johri Mal (2004) 4 SCC 714 on the question whether courts can sit in judgment over legislative competence. 16. Counsel submitted that it is well settled that the Court cannot direct the State to legislate. In this connection, he relied on State of Himachal Pradesh v. A parent of a student (1985) 3 SCC 169, Narinder Chand Lt. Governor v. A.U.T.H.P. & Ors. 1971 (2) SCC 747, State of A.P. v. T. Gopalkrishnan Murthi (1976) 2 SCC 883, State of J. & K. v. A.R. Zakki 1992 (Supp.) (1) SCC 548, State of Karnataka v. State of A.P. & Ors. (2000) 9 SCC 572, Municipal Committee Patiala v. Model Town Resident's Association & Ors. (2007) 8 SCC 669 and Common Cause (A. Regd. Society) v. Union of India (2008) 5 SCC 511. 17. Counsel submitted that none of the cases on which reliance is placed by the petitioner help him. We shall AJN 20 advert to this argument when we approach this point. 18. Counsel submitted that what the Supreme Court did in Kartar Singh was in exercise of the extra-ordinary jurisdiction constitutionally conferred on that court under Article 142(1) of the Constitution. Powers of the High Court under Article 226 are not on par with the constitutional jurisdiction conferred on the Supreme Court under Article 142. In this connection, reliance was placed on State of H.P. & Ors. v. Mahendra Pal & Anr. 1995 Supp. (2) SCC 731, Johri Mal and State of Haryana v. Naresh Kumar Bali (1994) 4 SCC 448 . 19. Counsel submitted that directions issued under Article 142 are not law under Article 141. In this connection, he relied on J & K Public Service Commission & Ors. v. Dr. Narinder Mohan & Ors. (1994) 2 SCC 630. 20. Counsel submitted that in most cases cited by the AJN 21 appellant, MCOCA was erroneously applied because of lack of clarity amongst enforcement agencies on the interpretation and meaning to be placed on the words / expressions “organized crime”, “organized crime syndicate”, “with the object of gaining pecuniary benefits”. They do not cover cases of abuse of MCOCA. So far as Tilve is concerned, counsel submitted that that case has no application to the present case. In that case, the court passed an order invitum and, hence, it cannot be treated as a precedent. 21. On the merits of the case, it is submitted that application of MCOCA is perfectly justified. It is clearly evident from the material on record that the petitioner and the members of the Pandav Putra Gang indulge in organized crime for gaining pecuniary benefits. It is submitted that sanction is perfectly legal because there was enough material before the sanctioning authority to form its opinion and the sanction is issued after due application of mind and, therefore, Rambhai Gadhvi and AJN 22 Lalit Nagpal have no application to this case. It is submitted that Gangwani also has no application to this case. Mr. Dhond submitted that in the circumstances, the petition be dismissed. 22. In our opinion, the core issue in this case is whether we can grant prayer “b” of the petition. By that prayer, the petitioner is seeking a direction from this court to the State Government to establish / constitute a Review Committee so as to screen the abuse of MCOCA. Indirectly, the petitioner is asking this court to direct the legislature either to amend MCOCA or to enact a new law. Having perused the number of judgments to which our attention is drawn by Mr. Dhond, we are of the opinion that we cannot issue such a direction. It is not necessary to burden this judgment with all the judgments. We may refer to a few of them. 23. In the State of Himachal Pradesh v. A parent of a student, a guardian of a student had addressed a AJN 23 letter to the Chief Justice of the High Court complaining about ragging of his son. The High Court treated the letter as a writ petition and directed the State Government to constitute an anti-ragging committee and called for its report. The report suggested that the State Government should initiate a legislation in regard to ragging as early as possible. The High Court directed the State Government to file an affidavit setting out further action taken in the direction of the implementation of that recommendation. The Supreme Court disapproved of the High Court's approach and observed that the High Court was clearly in error in issuing the direction in question as it was indirect attempt to compel the State Government to initiate legislation against ragging which it was not entitled to do. It was not a matter within the sphere of the function and duties allocated to the judiciary under the Constitution. The Supreme Court further observed that the court can compel the executive to carry out its constitutional and legal obligations, but at the same time, it cannot assume the functions assigned to the executive AJN 24 and the legislature under the Constitution. It cannot even indirectly require the executive to introduce a particular legislation or the legislature to pass it or assume to itself a supervisory role over the law making activities of the executive and the legislature. 24. In M/s. Narinder Chand, the appellant was aggrieved by the fact that despite assurance given by the Deputy Commissioner, Simla, that no sales tax would be payable on Indian made foreign liquor, the Government levied and collected it from the appellant. It was urged that till reorganization of Punjab in 1956, Simla was a part of Punjab. As per Section 6(1) of the Punjab Sales Tax Act, 1948, tax was not payable on the sale of goods specified in Schedule “B”. Till 31/8/1966, Indian made foreign liquor was in Schedule “B”. But, on that date, the Government of