_____________________________________________________________________________________________ WP (Crl.) No.375 of 2007 Page 1 of 36 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 23.09.2009 % Date of decision: 15.10.2009 + WP (CRL.) No.375 of 2007 OM PRAKASH SHRIVASTAVA @ BABLOO SHRIVASTAVA …PETITIONER Through: Mr. K.T.S. Tulsi, Sr. Advocate with Mr. Raj Kamal, Advocate. Versus STATE OF NCT OF DELHI & ORS. ...RESPONDENTS Through: Ms. Mukta Gupta, Standing Counsel for the Government of NCT of Delhi / Respondent Nos. 1 & 2. Mr. Chinmoy Khaladkar with Mr. Priank Adhiyan, Advocates for the State of Maharashtra / Respondent No. 3. CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON’BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes SANJAY KISHAN KAUL, J. 1. The petitioner against whom thirty-three (33) FIRs were registered for various serious offences during the period 1983-1995 was extradited from Singapore to India on 30.8.1995. The extradition was based on four (4) FIRs out of the said thirty-three (33) FIRs and in the subsequent _____________________________________________________________________________________________ WP (Crl.) No.375 of 2007 Page 2 of 36 period during 1995 to 1999 six (6) more FIRs were registered against the petitioner. On 2.1.2002 the Maharashtra Control of Organised Crime Act (MCOCA), 1999 (hereinafter referred to as the said Act) was extended to the National Capital Territory of Delhi vide GSR6(E). Two (2) more FIRs were registered against the petitioner being FIR Nos.33/03 and 125/03 though according to the petitioner they arise out of the same incident. On 29.12.2006, FIR No.104/06 was registered at P.S. Lodhi Road under Section 3 of the said Act against the petitioner and another accused. 2. The petitioner filed a writ petition, being WP (Crl.) No.84/2007 under Article 226 of the Constitution of India read with Section 482 of the Cr.P.C. seeking quashing of FIR No.104/2006 on the ground that the registration of the said FIR was in derogation of the mandate contained in Article 20 (1) of the Constitution of India which prohibits application of ex post facto criminal laws. The proceedings recorded in the said criminal writ petition on 22.1.2007 show that files of WP (Crl.) Nos.45/2006, 159-160/2006 & 161-162/2006 titled as Jagmohan @ Mohar Singh Vs. Commissioner of Police and Others decided on 1.12.2006 were called. It is the case of the petitioner that there were certain observations made in the decision of Jagmohan & Mohar Singh case (supra) which had an effect on the writ petition filed by the petitioner and thus the counsel for the petitioner withdrew WP (Crl.) No.84/2007 with liberty to file _____________________________________________________________________________________________ WP (Crl.) No.375 of 2007 Page 3 of 36 a fresh petition seeking to challenge the constitutional validity of the said Act as applicable to Delhi being violative of Article 20 of the Constitution of India. It is thereafter that the present writ petition has been filed in March 2007 making the following prayers: “…. A. strike down Section 3 of the Maharashtra Control of Organised Crime Act, 1999 (as applicable to NCT of Delhi), as ultra vires being violative of Article 20 (1) of the Constitution of India; B. Quash the impugned FIR No.104/06, dated 29.12.2006 registered at P.S. Special Cell under Section 3 of the Maharashtra Control of Organised Crime Act, 1999 (as extended to the NCT of Delhi) and proceedings emanating therefrom; ….” 3. The pleadings were completed in the writ petition and since the question raised in the writ petition was regarding interpretation of Section 3 of the said Act, learned counsel for the State of Maharashtra also requested that he should be heard and thus the State of Maharashtra was impleaded as the third respondent in terms of the order dated 13.7.2009. The synopsis filed by the counsel for the petitioner sought to raise various issues but during the course of hearing learned senior counsel for the petitioner, on instructions, confined the submissions only to one issue, which is as under: “Whether the act/offence committed prior to the coming into force of MCOCA can be taken into account for prosecution under Section 3(1) of the said Act?” 4. The MCOCA was enacted as an Act to make special provisions for prevention and control of and for coping with criminal activity by organized crime syndicate or gang, and _____________________________________________________________________________________________ WP (Crl.) No.375 of 2007 Page 4 of 36 for matters connected therewith or incidental thereto. The objects and reasons of the Act insofar as the State of Maharashtra is concerned have discussed the fact that organized crime has come up as a serious threat to our society irrespective of national boundaries. Such activity is fueled by illegal wealth generation by contract killings, extortion, smuggling in contrabands, illegal trade in narcotics, kidnapping for ransom, collection of protection money and money laundering, etc. The organized crime syndicates make a common cause with terrorist gangs and foster narco terrorism which extend beyond the national boundaries. The State felt that it had also become necessary to have law for interception of wire and oral communications used in furtherance of these criminal activities so as to prevent their commission and the existing legal framework was found rather inadequate to curb or control organized crime. It was for this purpose that the special law was enacted. The said Act was extended to the National Capital Territory of Delhi by GSR6(E) in exercise of powers conferred by Section 2 of the Union Territories (Laws) Act, 1950 by the Central Government with certain modifications. It is necessary to refer to some of the provisions which are germane for the present controversy. 5. Section 2 of the said Act is the Definitions Section and as to what constitutes “continuing unlawful activity” is defined under sub-clause (d) while “organized crime” is defined under sub-clause (e) which read as under: _____________________________________________________________________________________________ WP (Crl.) No.375 of 2007 Page 5 of 36 “(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 field before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence; (e) "organised crime" means any continuing unlawful activity by an individual, singly or jointly, either as a member of an 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 the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any person or promoting insurgency;” 6. The punishment for organized crime is provided for in Section 3 of the said Act, which reads as under: “3. Punishment for organised crime- (1) Whoever commits an offence of organised crime shall, (i) if such offence has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees one lac; (ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs. (2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organised crime or any act preparatory to organised crime, shall be punishable with imprisonment for a term which shall be not less than five years but which may extend to imprisonment for life, and shall also be liable to a fine, subject to a minimum of rupees five lacs. (3) Whoever harbours or conceals or attempts to harbour or conceal, any member of an organised crime syndicate; shall be punishable, With imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a, fine, subject to a minimum fine of rupees five lacs. _____________________________________________________________________________________________ WP (Crl.) No.375 of 2007 Page 6 of 36 (4) Any person who is a member of an organised crime syndicate shall be punishable with imprisonment for a term which shall not be less, than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs. (5) Whoever holds any property derived of obtained from commission of an organised crime or which has been acquired through the organised crime syndicate funds shall be punishable with a term which, shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum fine of rupees two lacs.” 7. Learned senior counsel for the petitioner drew our attention to the provisions of Article 20 (1) of the Constitution of India which reads as under: “20. (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.” 8. Learned counsel, thus, contended that the acts which are alleged to constitute an offence under different provisions of The Indian Penal Code, 1860 (hereinafter referred to as the IPC) prior to the said Act being applicable to Delhi could not be taken into account for prosecuting the petitioner under Section 3 of the said Act which provides for punishment for “organized crime”. Learned counsel contended as to what constitutes “organized crime” is defined under Section 2 (1) (e) of the said Act and the consequences are made penal for the first time under Section 3 of the said Act. Thus, such “organized crime” has been made a new offence under the provisions of the said Act and the natural sequittor is that only acts done after the _____________________________________________________________________________________________ WP (Crl.) No.375 of 2007 Page 7 of 36 enactment has come into force would be relevant for determining whether the offence of such “organized crime” has been committed which should be punished in accordance with Section 3 of the said Act. 9. Learned senior counsel for the petitioner elucidated his argument by explaining that an act to constitute “organized crime” within the meaning of Section 2 (1) (e) of the said Act must have various ingredients: i. Continuing unlawful activity; ii. Singly or jointly, either as a member of an organized crime syndicate or on behalf of such syndicate; iii. Use of violence or threat of violence or intimidation or coercion or other unlawful means; iv. Objective of gaining pecuniary benefits or gaining undue economic or other advantage for himself or any other person or promoting insurgency. 10. As to what is meant by the expression “continuing unlawful activity” in the definition of “organized crime” it was submitted that the statute defines the same in Clause (d) of Section 2 (1) of the said Act. In terms of this definition the activity prohibited by law should be a cognizable offence punishable with imprisonment of three (3) years or more and in respect of which more than one charge-sheet has been filed before a competent court within “the preceding period of ten (10) years” of which the court has taken cognizance. It was submitted that the period of ten (10) _____________________________________________________________________________________________ WP (Crl.) No.375 of 2007 Page 8 of 36 years specified is the permissible outer limit and since there has to be more than one (1) charge-sheet, the said charge-sheet should be for an act after the Act has been made applicable. 11. The task of the learned senior counsel for the petitioner, as submitted by him had become easier and confined to a narrow compass in view of the counter affidavit filed on behalf of the Union of India as verified on 15.9.2009. In para 12 of the affidavit, the Union of India submitted that no offence committed prior to 2.1.2002 had been made an offence under MCOCA and those offences would continue to be tried under the relevant provisions of the IPC. However, further the plea advanced on behalf of the Union of India in that paragraph is that certain offences committed in the last ten (10) years in which charge-sheet has been filed and a court of competent jurisdiction has taken cognizance would be taken into account for the purposes of determining whether the accused is indulging in continued unlawful activity. It is this aspect which was disputed by learned senior counsel for the petitioner and that is what gave rise to the framing of the question which required adjudication referred to aforesaid. 12. Learned senior counsel emphasized that Article 20 (1) of the Constitution of India has been held to be much wider in terms than the principles incorporated in the American Constitution which merely prohibits an ex post facto law. The submission advanced was that what is prohibited under _____________________________________________________________________________________________ WP (Crl.) No.375 of 2007 Page 9 of 36 the Indian Constitution is subjecting a citizen to penalty to ex post facto laws and extends to conviction on sentence and fullest effect has been given to this Article by the Supreme Court. In support of his contention learned counsel referred to the judgement of the Supreme Court in Rao Shiv Bahadur Singh & Anr. Vs. The State of Vindhya Pradesh (1953) 4 SCR 1188. The two questions examined by the Supreme Court related to: “(1) the proper construction of Article 20 of the Constitution; and (2) whether the various acts in respect of which the appellants were convicted constituted offences in this area only from the date when the Ordinance was passed or were already so prior thereto”. The Supreme Court after referring to Article 20 (1) of the Constitution of India observed as under: “10. This article in its broad import has been enacted to prohibit convictions and sentences under ex post facto laws. The principle underlying such prohibition has been very elaborately discussed and pointed out in the very learned judgment of Justice Willes in the well known case of Phillips v. Eyre [(1870) 6 Q.B.D. 1, at 23 and 25.] and also by the Supreme Court of U.S.A. in Calder v. Bull [3 Dallas 386; 1 Law. Edition 648 at 649.]. In the English case it is explained that ex post facto laws are laws which voided and punished what had been lawful when done. There can be no doubt as to the paramount importance of the principle that such ex post facto laws, which retrospectively create offences and punish them are bad as being highly inequitable and unjust. In the English system of jurisprudence repugnance of such laws to universal notions of fairness and justice is treated as a ground not for invalidating the law itself but as compelling a beneficent construction thereof where the language of the statute by any means permits it. In the American system, however, such ex post facto laws are themselves rendered invalid by virtue of article 1, sections 9 and 10 of its Constitution. It is contended by the learned Attorney-General that article 20 of the Constitution was meant to bring about nothing more than the invalidity of such ex post facto laws in the post-Constitution period but that the validity of the per- Constitution laws in this behalf was not intended to be _____________________________________________________________________________________________ WP (Crl.) No.375 of 2007 Page 10 of 36 affected in any way. The case in Keshavan Madhavan Menon v. The State of Bombay 1951 S.C.R. 228. has been relied on to show that the fundamental rights guaranteed under the Constitution have no retrospective operation, and that the invalidity of laws brought about by article 13(1) of the Constitution relates only to the future operation of the pre- Constitution laws which are in violation of the fundamental rights. On this footing it was argued that even on the assumption of the convictions in this case being in respect of new offences created by Ordinance No. XLVIII of 1949 after the commission of the offences charges, the fundamental right guaranteed under article 20 is not attracted thereto so as to invalidate such convictions. 11. This contention, however, cannot be upheld. On a careful consideration of the respective articles, one is struck by the marked difference in language used in the Indian and American Constitutions. Sections 9(3) and 10 of article 1 of the American Constitution merely say that "No ex post facto law shall be passed ..." and "No State shall pass ex post facto law ..." But in article 20 of the Indian Constitution the language used is in much wider terms, and what is prohibited is the conviction of a person or his subjection to a penalty under ex post facto laws. The prohibition under the article is not confined to the passing or the validity of the law, but extends to the conviction or the sentence and is based on its character as an ex post facto law. The fullest effect must therefore be given to the actual words used in the article. Nor does such a construction of article 20 result in giving retrospective operation to the fundamental right thereby recognised. All that it amounts to is that the future operation of the fundamental right declared in article 20 may also in certain cases result from acts and situations which had their commencement in the pre-Constitution period. In The Queen v. St. Mary Whitechapel [116 E.R. 811 at 814.] Lord Denman C.J. pointed out that a statute which in its direct operation is prospective cannot properly be called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing. The general principle therefore that the fundamental rights have no restrospective operation is not in any way affected by giving the fullest effect to the wording of article 20. This article must accordingly be taken to prohibit all convictions or subjections to penalty after the Constitution in respect of ex post facto laws whether the same was a post-Constitution law or a pre- Constitution law. That such is the intendment of the wording used in article 20(1) is confirmed by the similar wording used in articles 20(2) and 20(3). Under article 20(2), for instance, it cannot be reasonably urged that the prohibition of double jeopardy applies only when both the occasions therefore arise after the _____________________________________________________________________________________________ WP (Crl.) No.375 of 2007 Page 11 of 36 Constitution. Similarly, under article 20(3) it cannot be suggested that a person accused before the Constitution can be compelled to be a witness against himself, if after the Constitution the case is pending. 12. In this context it is necessary to notice that what is prohibited under article 20 is only conviction or sentence under an ex post facto law and not the trial thereof. Such trial under a procedure different from what obtained at the time of the commission of the offence or by a court different from that which had competence at the time cannot ipso facto be held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular court or by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved.” 13. The Supreme Court after discussing the scope and ambit of the Constitution of India on the second issue observed as under: “13. In this connection our attention has been drawn to the fact that the Vindhya Pradesh Ordinance XLVIII of 1949, though enacted on 11th September, 1949, i.e., after the alleged offences were committed, was in terms made retrospective by section 2 of the said Ordinance which says that the Act "shall be deemed to have been in force in Vindhya Pradesh from the 9th day of August, 1948," a date long prior to the date of commission of the offences. It was accordingly suggested that since such a law at the time when it was passed was a valid law and since this law had the effect of bringing this Ordinance into force from 9th August, 1949, it cannot be said that the convictions are not in respect of "a law in force" at the time when the offences were committed. This, however, would be to import a somewhat technical meaning into the phrase "law in force" as used in article 20. "Law in force" referred to therein must be taken to relate not to a law "deemed" to be in force and thus brought into force but the law actually in operation at the time or what may be called the then existing law. Otherwise, it is clear that the whole purpose of article 20 would be completely defeated in its application even to ex post facto laws passed after the Constitution. Every such ex post facto law can be made retrospective, as it must be, if it is to regulate acts committed before the actual passing of the Act, and it can well be urged that by such retrospective operation it becomes the law in force at the time of the commencement of the Act. It is obvious that such a construction which nullifies article 20 cannot possibly be adopted. It cannot therefore be _____________________________________________________________________________________________ WP (Crl.) No.375 of 2007 Page 12 of 36 doubted that the phrase "law in force" as used in article 20 must be understood in its natural sense as being the law in fact in existence and in operation at the time of the commission of the offence as distinct from the law "deemed" to have become operative by virtue of the power of legislature to pass retrospective laws. It follows that if the appellants are able to substantiate their contention that the acts charged as offences in this case have become such only by virtue of Ordinance No. XLVIII of 1949 which has admittedly been passed subsequent to the commission thereof, then they would be entitled to the benefit of article 20 of the Constitution and to have their convictions set aside. This leads to an examination of the relevant pre- existing law.” 14. Learned senior counsel for the petitioner, thus, drew a parallel to the case in hand to contend that since the acts charged had become offences for the first time under the said Act, the acts committed prior to the said Act coming into force could not give rise to the prosecution of the petitioner under the provisions of Section 3 of the said Act as the petitioner would be entitled to the benefit of Article 20 of the Constitution of India. 15. Learned senior counsel for the petitioner also referred to the judgement of the Supreme Court in Soni Devrajbhai Babubhai Vs. State of Gujarat & Ors. (1991) 4 SCC 298. The matter pertained to the prosecution under Section 304B of the IPC which had been inserted in the IPC w.e.f 19.11.1986. The petitioner’s daughter had been married to the second respondent on 5.12.1984 and she had died on 13.8.1986. Both these dates were prior to the date of coming into force of Section 304B of the IPC. The High Court took the view that the offence was committed prior to the insertion of Section 304B of the IPC on account of which the Section would have no application to the facts of the _____________________________________________________________________________________________ WP (Crl.) No.375 of 2007 Page 13 of 36 case as the offence of dowry death punishable under Section 304B of the