REPORTED * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL. APPEAL NO.28/2007 and Crl. M.A. Nos.336 and 338/2007 DATE OF DECISION: January 29, 2008 KAMALJEET SINGH (IN JUDICIAL CUSTODY) ..... Appellant Through: Mr. Aman Lekhi, Sr. Advocate with Mr. Madhukar Pandey, Mr. Jaspreet S. Rai, Mr. Rajan K. Chourasia, Mr. Rakesh Kumar and Mr. Rohit Nagpal, Advocates versus STATE ..... Respondent Through: Ms. Mukta Gupta, Standing Counsel for the State CORAM: HON'BLE MS. JUSTICE REVA KHETRAPAL 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? JUDGMENT : REVA KHETRAPAL, J. 1. By this appeal filed under Section 12 of the Maharashtra Control of Organised Crimes Act, 1999 (for short the MCOCA), the appellant seeks to assail the order on charge dated 12 th October, 2006 and the charge dated 3-11-2006 whereby the learned Special Judge, MCOCA, New Delhi has charged the appellant under Sections 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 (for short the ITP Act), Sections 3(1) (ii), 3(4), 3(5) and Section 4 of the MCOCA and Section 420 read with Section 120-B of the IPC in FIR No.96/2005, Police Station Chanakya Puri. Crl. A. No.28/2007 Page 1 of 36 2. The brief facts as they emerge from the record are that on 19 th April, 2005, SI Sajjan Singh, on receipt of information that the appellant Kamaljeet Singh and his associate Pappi supply girls for prostitution in Five Star Hotels and carry on their business through mobile No.9810645454, passed on the said information to ACP Kumar Gyanesh, who directed SI Sajjan Singh to strike a deal on the above mobile number. SI Sajjan Singh accordingly struck a deal on Phone No.26109027 from the ARC Office Crime Branch and upon talking to the person receiving the call identified himself as Pappi, and agreed to provide a girl for sexual purposes for two hours which would cost Rs.20,000/-. He was asked to call again on the same telephone number after two minutes, and on his doing so, SI Sajjan Singh was told that he should meet him outside the main gate of Taj Palace Hotel at 4.00 p.m., and asked to pay Rs.5,000/- in advance for the chosen girl. 3. On the above information, a raiding party was organised with the decoy customer, and currency notes in the sum of Rs.5,000/- in the denomination of Rs.500/- each, signed by the A.C.P., were handed over to the decoy customer Charan Singh, who was briefed to enter into a deal and to give a fixed signal once the deal was struck. SI Sajjan Singh was made a shadow witness to watch the transaction. At about 4.15 p.m., a white Maruti car bearing No.DL 3CG 0609 stopped at the main gate of the Hotel, and two girls and a man got down from the car and started conversing with the decoy customer–Charan Singh. On the latter giving the required signal, the raiding party rushed to the car and overpowered Arvinder Pal Singh @ Pappi and the two girls with him, whose names were subsequently revealed as Pooja @ Bijli and Sonali. Crl. A. No.28/2007 Page 2 of 36 4. The decoy customer, Charan Singh told SI Sajjan Singh that Arvinder Pal Singh @ Pappi while presenting both the girls had told him that, to have sex with them Rs.20,000/- each would be charged and Rs.5,000/- had to be paid in advance. Meanwhile, Pooja while winking her left eye and stretching herself made gestures presenting herself for sex and the other girl Sonali also displayed vulgar gestures. Arvinder Pal Singh demanded the advance money and Charan Singh handed over the said ten currency notes in the denomination of Rs.500/- each, which Arvinder Pal Singh kept in his shirt pocket. 5. SI Sajjan Singh, who was a shadow witness corroborated the above facts. Thereafter, on search of Arvinder Pal Singh by SI Ashok Kumar, he was found in possession of the same ten numbered currency notes in the denomination of Rs.500/- each, signed by the IO. The said currency note were kept in a white polythene, sealed with the seal of SSY, and taken into possession. All the accused persons were apprehended and arrested under Section 4/5/8 ITP Act. 6. In the course of investigation, accused Arvinder Pal Singh alias Pappi made a disclosure statement that he was carrying on a prostitution racket at the behest of the appellant Kamaljeet Singh, who is a known pimp, and that out of the proceeds of the said business, the major share of 50% was that of Kamaljeet Singh, whereas the remaining amount was equally shared between him (Arvinder Pal Singh) and the chosen girl. During interrogation, accused Pooja @ Bijli and Sonali Parveen also disclosed that the appellant was indulging in the dubious trade of prostitution in five star hotels, guest houses and posh colony flats. They further disclosed that the said business was being Crl. A. No.28/2007 Page 3 of 36 transacted from various cities such as Mumbai, Calcutta, Bangalore, etc. and that Arvinder Pal Singh was acting as the conduit for the appellant. It was also disclosed that Kamaljeet Singh had a wide network and was assisted by Maya Keshwani @ Varsha, Mrinal Kumar, M.K. Menon, William, Tejinder Singh Walia etc., who were the active associates of Kamaljit Singh. He also disclosed that the appellant Kamaljit mainly used to contact college girls and models who offered their services to his clients and used to charge exorbitantly. This business was mainly coordinated through mobile phones of Kamaljit Singh and his associates. Later on, a raiding team was constituted and raid was conducted at H. No.102, Jal Vaiyu Vihar, where appellant Kamaljit Singh was arrested. 7. During investigation, it was revealed that appellant Kamaljit Singh was involved in prostitution racket since 1985-86 and had amassed huge property both movable and immovable out of this trade. So far accused Arvinder Pal Singh is concerned, during the investigation two mobile phones 9810224004 and 9810645454 were seized from his possession, which were registered for billing in the name of Kamaljit Singh and the third phone 9871047373 seized from Kamaljit Singh was in the name of Raj Kumar Rana and during call analysis it was found that 911 calls were made from mobile No.9810224004 to 9871047373 during 1/1/05 to 20/4/05 and 13 calls were between the mobile No.9810645454 and 9871047373. As many as 475 incoming outgoing calls were traced out from Mobile No.9891939197 in the name of Arvinder Pal Singh to 9810224004 during the aforesaid period. 858 calls were exchanged between the mobile of Arvinder Pal Singh and Kamaljit Singh. One other Crl. A. No.28/2007 Page 4 of 36 mobile telephone No.9871375297 activated on 25/3/05 was found to be in the name of Arvinder Pal Singh but at the address of appellant Kamaljit Singh i.e. M 65 GK Part II, New Delhi. In view of the facts and circumstances of the case and the conduct of the accused persons provisions of Section 3/4 MCOCA were invoked against the accused persons. 8. During investigation the accused Neeraj Chopra @ Dev Chopra was found to be an active associate of Kamaljit Singh, who was arrested under Section 21 NDPS Act by the NCB on 2/9/05 and was found to be involved in as many as four cases since 16/1/96 till the date of his arrest, the details of which are given in the charge sheet. Out of four cases, three cases are pending under ITP Act and one case under Section 376/34 IPC. Later on, accused Neeraj Chopra was arrested in the present case on the disclosure statement of his co-accused Arvinder Pal Singh. In terms of the provisions of Section 18 MCOCA his confessional statement was recorded by the DCP/N and the CP, the designated officer. He disclosed that in the year 1993 he was introduced to appellant Kamaljit Singh at Mumbai by one Vijay Solanki, who was stated to be working for Kamaljit Singh. Vijay Solanki had employed Neeraj Chopra as his driver and he used to collect payments from Five Star Hotel from various clients but was never told about the business. After about 7-8 months he left Mumbai and came back Delhi. He was advised by Vijay Solanki to contact Kamaljit Singh at M-65, GK Part II, New Delhi, for his balance salary. When he met Kamaljit Singh at his residence, he was employed by him as his driver. Thereafter on the instructions of Kamaljit Singh, he used to collect air tickets from airports and also used to transport young and glamorous girls and Crl. A. No.28/2007 Page 5 of 36 dropped them in lobby of various Five Star Hotels, where Arvinder Pal Singh, Varsha Keshwani and SJ Menon used to receive them. Gradually he came to know that Kamaljit Singh and his associates were running a prostitution racket spread over several cities. 9. The pendency of a dozen criminal cases spanning more than a decade against the appellant under the ITP Act having been disclosed in the course of investigation, the investigating agency sought and obtained sanction for prosecuting the appellant under the provisions of Sections 4, 5 and 8 ITP Act, Section 3 of the MCOCA and Sections 420/120-B IPC, which was granted by the order of the Addl. CP/Crime dated 11.10.2005. On 14 th October, 2005, the appellant Kamaljeet Singh and five others were charge-sheeted for offences punishable under Sections 4/5/8 ITP Act, Sections 420/120-B IPC and Sections 3 and 4 of the MCOCA. The charge-sheet unravelled the long association of accused Arvinder Pal Singh and his co-accused with the kingpin, Kamaljeet Singh, for more than a decade. 10. From the investigation and an in-depth analysis of the call details, as noticed in the charge-sheet, it emerged that the appellant was operating from his residence M-65, Greater Kailash-II, New Delhi. The call details further revealed that the appellant was in constant touch with the girls coming from outside the city, who were made to stay in five star hotels, mainly in the Ashoka Hotel, Chanakya Puri, New Delhi. Another fact which emerged during the course of investigation was the meticulous modus operandi of the appellant in booking air tickets from M/s. Southened Travels, reflecting the organised manner in which the prostitution racket was being run. The seizure of the bills Crl. A. No.28/2007 Page 6 of 36 and the copies of the ledger accounts also revealed the manner in which cash deposits were made at the Standard Chartered Bank or the ICICI Bank, Greater Kailash Branches, and credited to the account of the concerned model/coordinator. The relevant portion of the charge-sheet regarding the modus operandi adopted by the appellant reads as under: “ The whole modus operandi and evidences that has emerged against all the accused during investigation may be analyzed and appreciated in light of following: • Several phone connections in the name of Kamaljit Singh and his associates. • Abnormally high calls between Kamaljit Singh and his associates and amongst themselves without any explainable business or personal relationship. • Mindboggling phone bills for short durations. • High number of calls made to five star hotels without any related business with them. • Documentary evidence from Bank and hotels corroborating the disclosures of Kamaljit Singh and Arvinder Pal Singh. • Confessional statement made by co-accused Neeraj Chopra before DCP and Chief Judicial Magistrate. • High number of air tickets (Mostly PTA) booked by Kamaljit Singh and his associates. • The criminal history of Kamaljit Singh with more than a dozen cases to his name spanning for more than a decade along with his associates speaks for itself the organised manner in which he was running the show. • Last but not the least that all subsequent evidences collected were totally either based on details found in SMS of Arvinder Pal Singh or documents collected during search in presence of accused. Moreover, all the analysis has been for a short duration of time selected randomly which if seen in totality will take huge proportions.” 11. As noticed above, the charge-sheet of the case was filed in the Special Court, MCOCA and charges framed against the appellant under Sections 4 and 5 ITP Act, Sections 3(1)(ii), 3(4), 3(5) and Section 4 of the MCOCA and Section 420/120-B IPC by the impugned order dated 03.11.2006 leading to the filing of the present appeal impugning the charges framed. Crl. A. No.28/2007 Page 7 of 36 12. Detailed arguments have been addressed by Mr. Aman Lekhi, the learned senior counsel on behalf of the appellant and Ms. Mukta Gupta, the learned Standing Counsel for the State. 13. Before considering the submissions of the appellant and the counter submissions made on behalf of the respondent/State, it is deemed expedient to refer to the Statement of Objects and Reasons of the Act, which appear to have a direct bearing on the matter in issue and read as under: “Statement of Objects and Reasons.– Organised crime has for quite some years now come up as a very serious threat to our society. It knows no national boundaries and is fueled by illegal wealth generated by contract killings, extortion, smuggling in contrabands, illegal trade in narcotics, kidnapping for ransom, collection of protection money and money laundering, etc. The illegal wealth and black money generated by the organised crime is very huge and has serious adverse effect on our economy. It is seen that the organised criminal syndicates make a common cause with terrorist gangs and foster narco terrorism which extend beyond the national boundaries. There is reason to believe that organised criminal gangs are operating in the State and thus, there is immediate need to curb their activities. It is also noticed that the organised criminals make extensive use of wire and oral communications in their criminal activities. The interception of such communications to obtain evidence of the commission of crimes or to prevent their commission is an indispensable aid to law enforcement and the administration of justice. 2. The existing legal frame work i.e. the penal and procedural laws and the adjudicatory system are found to be rather inadequate to curb or control the menace of organised crime. Government has, therefore, decided to enact a special law with stringent and deterrent provisions including in certain circumstances power to intercept wire, electronic or oral communication to control the menace of the organised crime. 3. ...................................................................................” 14. Section 2(d), (e) and (f) of the Act define the terms “continuing unlawful activity”, “organised crime” and “organised crime syndicate” as Crl. A. No.28/2007 Page 8 of 36 under: “2. Definitions. - (1) In this Act, unless the context otherwise requires, - (a) ........................ (b).......................... ( c )......................... (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 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; (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 other person or promoting insurgency; (f) “organised crime syndicate” means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime;” 15. Section 3 of the MCOCA which deals with punishment for organised crime is as follows: “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, Crl. A. No.28/2007 Page 9 of 36 subject to a minimum fine 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. (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 or 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.” 16. Mr. Aman Lekhi on behalf of the appellant has mounted an assault on the order framing charge principally on the ground that the alleged offences under Sections 4 and 5 of the ITP Act read with Section 420/120-B IPC were not intended by the legislature to be covered within the ambit of the MCOCA, 1999 as extended to Delhi. According to Mr. Lekhi, the ingredients of Section 3 of the MCOCA are not made out, inasmuch as the appellant has never been a member of any “organised syndicate” within the meaning of Section 2(f) of the MCOCA nor has indulged in any “continuing unlawful activity”, as envisaged by Section 2(e) of the MCOCA. According to him, it is the case of the prosecution that the appellant and his associates were involved in an “apparently soft crime” and as such the alleged offences by the appellant did not involve the “use of violence on threat of violence or intimidation or coercion” nor is there any allegation to this effect in the charge-sheet filed by the prosecution. Crl. A. No.28/2007 Page 10 of 36 17. The further contention of Mr. Aman Lekhi is that in view of the Statement of Objects and Reasons of MCOCA, the words “other unlawful means” contained in Section 2(e) be read as ejusdem generis/noscitur a sociis with the words: (i) violence, (ii) threat of violence, (iii) intimidation or (iv) coercion. It is submitted that none of the offences alleged to have been committed by the appellant are alleged to involve the use of (i) violence, (ii) threat of violence, (iii) intimidation or (iv) coercion and hence the provisions of Sections 3 and 4 of MCOCA are not applicable to the present case. 18. In order to fortify his contention that the words “other unlawful activity” necessarily involve “the use of violence, threat of violence, intimidation or coercion”, Mr.Lekhi relied upon the well-established principle of statutory interpretation that: “To ascertain the meaning of a clause in a statute the court must look at the whole statute, at what precedes and at what succeeds and not merely at the clause itself.” (Principles of Statutory Interpretation by G.P. Singh, 9th Edn. 2004 417, page 32). Reliance was also placed by him upon the observations made in Canada Sugar Refining Co. Vs. R, (1898) AC 735 p. 742 wherein Lord Davey said: “ Every clause of statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject matter”. 19. Reference was also made by Mr.Lekhi to the judgment of the Supreme Court in Dr. Devender M. Surti Vs. The State of Gujarat AIR 1969 SC 63 wherein the following observations were made by the Supreme Court at page 66 of the Report: “5.....................It is true that Section 2(4) of the Act has used Crl. A. No.28/2007 Page 11 of 36 words of very wide import and grammatically it may include even a Consulting room where a doctor examines his patients with the help of a solitary nurse or attendant. But, in our opinion, in the matter of construing the language of Section 2(4) of the Act we must adopt the principle of noscitur a sociis. This rule means that, when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense. The words take as it were their colour from each other that is, the more general is restricted to a sense analogous to a less general. “Associated words take their meaning from one another under the doctrine of noscitur a sociis the philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it; such doctrine is broader than the maxim Ejusdem Generis..................................” 20. Next, strong reliance was placed by Mr.Lekhi on a recent three-Judge judgment of the Supreme Court in Ranjitsing Brahmajeet Sing Sharma Vs. State of Maharashtra 2005 (5) SCC 294, wherein it was observed as follows: (SCC, page 312) “23. Interpretation clauses contained in Sections 2(d), 2(e) and 2(f) are interrelated. An “organised crime syndicate” refers to an “organised crime” which in turn refers to “continuing unlawful activity”. As at present advised, it may not be necessary for us to consider as to whether the words “or other unlawful means” contained in Section 2(e) should be read “ejusdem generis”/”noscitur a sociis” with the words (i) violence, (ii) threat of violence, (iii) intimidation, or (iv) coercion. We may, however, notice that the word “violence” has been used only in Sections 146 and 153-A of the Indian Penal Code. The word “intimidation” alone has not been used therein but only Section 506 occurring in Chapter XXII thereof refers to “criminal intimidation”. The word “coercion” finds place only in the Contract Act. If the words “unlawful means” are to be widely construed as including any or other unlawful means, having regard to the provisions contained in Sections 400, 401 and 413 IPC relating to commission of offences of cheating or criminal breach of trust, the provisions of the said Act can be applied, which prima facie, does not appear to have been intended by Parliament. 24. The Statement of Objects and Reasons clearly states as to why the said Act had to be enacted. Thus, it will be safe to presume that the expression “any unlawful means” must refer Crl. A. No.28/2007 Page 12 of 36 to any such act which has a direct nexus with the commission of a crime which MCOCA seeks to prevent or control. In other words, an offence falling within the definition of organised crime and committed by an organised crime syndicate is the offence contemplated by the Statement of Objects and Reasons. There are offences and offences under the Indian Penal Code and other penal statutes providing for punishment of three years or more and in relation to