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TMI Blog2008 (9) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of the Constitution of India. 3. Respondent Nos. 2 and 3 were arrested under the provisions of the MCOCA and cases were registered against them. Being aggrieved by the aforesaid arrest and registration of cases both of them filed separate writ petitions being Criminal Writ Petition No. 1738/2002 and Criminal Writ Petition No. 110/2003 respectively in the Bombay High Court challenging the constitutional validity of the MCOCA, particularly the provisions of Section 2(d), (e) and (f) and that of Sections 3, 4 and 13 to 16 and Section 21(5) of the MCOCA. Respondent no. 1 also filed a writ petition of similar nature being Criminal Writ Petition No. 27/2003. The Bombay High Court heard the above mentioned writ petitions together and passed a common judgment and order on 05.03.2003 whereby it upheld the constitutional validity of Section 2(d), (e) and (f) and also the provisions of Sections 3 and 4 but struck down Sections 13 to 16 as unconstitutional as being beyond the legislative competence of the State Legislature. The High Court held that the Parliament alone has the power to make law in that regard as provided for under Entry 31 of List I of Seventh Schedule to the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of offence and for the reasons to be recorded in writing by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraphs, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order. 6. The Telegraph Act is an existing law (as defined in Article 366 (10) of the Constitution) with respect to the matters enumerated in Entry 31 of List I of the Seventh Schedule to the Constitution. Entry 31 empowers the Central Legislature to enact a law in respect of posts and telegraph, telephones, wireless, broadcasting and other like forms of communication. The Telegraph Act, which is an enactment passed before the commencement of the Constitution, deals with the aforesaid subjects enumerated in Entry 31 of List I. 7. The Maharashtra State Legislature enacted a State legislation under the name of Maharashtra Control of Organised C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tribution of any document or matter obtained from the organized crime syndicate and also rendering of any assistance whether financial or otherwise, to the organised crime syndicate. Clause (d) of sub-Section (1) defines the expression continuing unlawful activity to mean an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years of more, undertaken either singly or jointly, as a member of an organized 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. Clause (e) of sub-Section (1) defines the expression organised crime to mean 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. The term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e officer except as otherwise specifically provided, and makes any violation of the provision punishable. 11. There is a power of forfeiture and attachment of property of the person convicted under MCOCA under Section 20. Sub-section (1) of Section 21 of the MCOCA lays down that notwithstanding anything contained in the Code of Criminal Procedure, 1973 (for short the Code ) or in any other law, every offence punishable under MCOCA shall be deemed to be a cognizable offence within the meaning of clause (c) of Section 2 of the Code and cognizable case as defined in that clause would be construed accordingly. Sub-section (2) of Section 21 provides that Section 167 of the Code shall apply in relation to a case involving an offence punishable under the Act subject to certain modifications. Subsection (5) of Section 21 provides that notwithstanding anything contained in the Code, the accused would not be granted bail if it is noticed by the Court that he was on bail in an offence under the Act, or under any other Act, on the date of the offence in question. 12. Mr. Shekhar Nafade, learned senior counsel appearing for the appellant -State of Maharashtra drew our attention to the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r plans/designs to commit such offences, to prevent the commission of offences, and to detect and apprehend offenders (See Section 23 of Police Act, 1861 and Section 64 of Bombay Police Act, 1951). He also submitted that the grounds for interception of the communication under the State Law are different from the grounds covered by Section 5(2) of the Telegraph Act, inasmuch as the State law authorizes the interception as it is intended to prevent the commission of an organised crime or to collect the evidence of such an organised crime. He, therefore, contented that the constitutional validity cannot be questioned on the ground of want of legislative competence of the State Legislature to enact such a provision. 14. It was further submitted that Entries in List I, II and III must receive a broad and liberal construction. Reference to the doctrine of pith and substance was also made. 15. It was also contended that the findings recorded by the High Court with regard to the repugnancy of provisions of Sections 13 to 16 of the MCOCA have been arrived at by misconstruing the provisions of the Central Act as also the State Act. The learned counsel for appellant drew our attention to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by filing an appeal and since only a passing reference is made on the said issue in the short three page affidavit filed by the respondent No. 3, it is not necessary for us to examine the said issue as it was sought to be raised more specifically in the argument stage only. 19. Even otherwise when the said definitions as existing in Section 2 (d), (e) and (f) of the MCOCA are read and understood with the object and purpose of the Act which is to make special provisions for prevention and control of organised crime it is clear that they are worded to subserve and achieve the said object and purpose of the Act. There is no vagueness as the definitions defined with clarity what it meant by continuing unlawful activity, organised crime and also organised crime syndicate. As the provisions treat all those covered by it in a like manner and does not suffer from the vice of class legislation they cannot be said to be violative of Article 14 of the Constitution. With respect to Section 3 of MCOCA, even before the High Court the attack was in particular in respect of the provisions of Section 3 (3) and (5) on the ground that the requirement of mens rea is done away with, thus automatical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty shall also be liable for attachment and forfeiture, as provided by Section 20." 20. After examining the impugned judgment in depth on the issue of constitutional validity of Section 2 (d), (e) and (f) and also Section 3 and 4 of MCOCA we are in accord with the findings arrived at by the High Court that the aforesaid provisions cannot be said to be ultra vires the Constitution and we do not find any reason to take a different view that what is taken by the High Court while upholding the validity of the aforesaid provisions. 21. In the light of the aforesaid, we are required to answer the issues which are specifically raised before us, relating to the constitutional validity of Sections 13 to 16 as also Section 21 (5) of MCOCA, on the ground of lack of legislative competence and also being violative of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. 22. Before we proceed to record our findings and conclusions in relation to the contentions raised before us it would be necessary to survey and notice some of the provisions of Constitution and well established doctrine and principle which are relevant for the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect in their widest amplitude. Similar were the observations of a five Judges Bench of this Court in G odfrey Phillips India Ltd. v. State of U.P., reported in (2005) 2 SCC 515, which are as follows: 49 Where there is the possibility of legislative overlap, courts have resolved the issue according to settled principles of construction of entries in the legislative lists. 50. The first of such settled principles is that legislative entries should be liberally interpreted, that none of the items in the list is to be read in a narrow or restricted sense and that each general word should be held to extend to ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it (United Provinces v. Atiqa Begam (1940) FCR 110, Western India Theatres Ltd. v. Cantonment Board 1959 Supp (2) SCR 63, SCR at p. 69 and Elel Hotels Investments Ltd. v. Union of India (1989) 3 SCC 698). 25. It is also a cardinal rule of interpretation that there shall always be a presumption of constitutionality in favour of a statue and while construing such statue every legally permissible effort should be made to keep the statue within the competence of State legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e enactment only when it is not possible to sustain it. The court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed. Indeed, any such defects of drafting should be ignored out as part of the attempt to sustain the validity/ constitutionality of the enactment. After all, an Act made by the legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and clearly established before an enactment is declared as void. The same approach holds good while ascertaining the intent and purpose of an enactment or its scope and application . The court must recognise the fundamental nature and importance of legislative process and accord due regard and deference to it, just as the legislature and the executive are expected to show due regard and deference to the judiciary. It cannot also be forgotten that our Constitution recognises and gives effect to the concept of equality between the three wings of the State and the concept of checks and balances inherent in such scheme. 28.One of the proven methods of examining the legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions overlapped, and the Privy Council had time and again to pass on the constitutionality of laws made by the Dominion and Provincial legislatures. It was in this situation that the Privy Council evolved the doctrine, that for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance. That is to say, if a statute is found in substance to relate to a topic within the competence of the legislature, it should be held to be intra vires, even though it might incidentally trench on topics not within its legislative competence. The extent of the encroachment on matters beyond its competence may be an element in determining whether the legislation is colourable, that is, whether in the guise of making a law on a matter within it competence, the legislature is, in truth, making a law on a subject beyond its competence. But where that is not the position, then the fact of encroachment does not affect the vires of the law even as regards the area of encroachment. Again a five Judges bench of this court while discussing the said doctrine in Kartar Singh v. State of Punjab (1994) 3 SCC 569 observed as under: 60. This doctrine of pith and su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other. Where the question for determination is whether a particular law relates to a particular subject mentioned in one list or the other, the courts look into the substance of the enactment. Thus, if the substance of the enactment falls within the Union List then the incidental encroachment by the enactment on the State List would not make it invalid. This principle came to be established by the Privy Council when it determined appeals from Canada or Australia involving the question of legislative competence of the federation or the States in those countries. This doctrine came to be established in India and derives its genesis from the approach adopted by the courts including the Privy Council in dealing with controversies arising in other federations. For applying the principle of pith and substance regard is to be had (i) to the enactment as a whole, (ii) to its main objects, and (iii) to the scope and effect of its provisions. For this see Southern Pharmaceuticals Chemicals v. State of Kerala (1981) 4 SCC 391, State of Rajasthan v. G. Chawla AIR 1959 SC 544, Thakur Amar Singhji v. State of Rajasthan AIR 1955 SC 504, Delhi Cloth and General Mills Co. Ltd. v. Union of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional Director General of Police within 48 hours of occurrence of interception. 35.The provisions of the MCOCA when read with the Statement of Objects and Reasons, which are already dealt with and referred to hereinbefore, would make it apparent and establish that the grounds for interception of the communication under MCOCA are distinct and different from the ground covered by Section 5(2) of the Telegraph Act. A comparative reading of the provisions of the Telegraph Act as also of the MCOCA would establish that both the Acts deal with the subjects and areas which cannot be said to be identical and common. 36.In paragraph 48 of the impugned judgment, the High Court has reproduced a comparative chart, which was filed before the High court by the respondents herein, to show that MCOCA had made inroads on the legislative power of the Parliament. Our attention was also drawn to the said chart and we find that the conclusion of the High Court that there is repugnancy in view of the statutory provisions contained therein do not appear to be sound. The High Court has recorded that under the Central Law the communication can be intercepted only if there was public emergency and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by S.R. Das, J. for ascertaining the conditions prevalent at that time which led to the introduction of the Bill and the extent and urgency of the evil which was sought to be remedied, in addition to testing the reasonableness of the restrictions imposed by the impugned provision. In his opinion, it was indeed very unfortunate that the Statement of Objects and Reasons was not placed before the High Court which would have assisted the High Court in arriving at the right conclusion as to the reasonableness of the restriction imposed. State of W.B. v. Union of India (1964) 1 SCR 371, SCR at pp. 431-32 approved the use of Statement of Objects and Reasons for the purpose of understanding the background and the antecedent state of affairs leading up to the legislation. 70. In Quareshi-I 1959 SCR 629 itself, which has been very strongly relied upon by the learned counsel for the respondents before us, Chief Justice S.R. Das has held: (SCR pp. 652 661) The pronouncements of this Court further establish, amongst other things, that there is always a presumption in favour of the constitutionality of an enactment and that the burden is upon him, who attacks it, to show that there ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation are found to be covered under any of the entries of the Concurrent List also, the constitutional validity will have to be upheld. Thus, Entry 1, 2 and 12 of the Concurrent List would and could also be brought into operation and aid can be taken from said entries also, for the Act deals with subject matters which are relatable as well to Entries 1, 2 and 12 of the Concurrent List. 39.We are of the considered opinion that source of power to legislate the aforesaid Act can be derived by the State from the aforesaid entries of the State List and the Concurrent List and while enacting the aforesaid State Act the assent of the President was also taken. Therefore, the Act cannot be said to be beyond the legislative competence of the State Legislature. The content of the said Act might have encroached upon the scope of Entry 31 of List I but the same is only an incidental encroachment. As the main purpose of the Act is within the parameter of Entry 1 and 2 of the State Legislature we find no reason to hold that the provisions of Sections 13 to 16 are constitutionally invalid because of legislative competence. 40.Another ground on which challenge was made was that Section 13 to 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding of the conversation. 43.The question posed above was considered again in detail by this Court in the case of People's Union (supra), wherein it was held as under: 17. We have, therefore, no hesitation in holding that right to privacy is a part of the right to life and personal liberty enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed except according to procedure established by law . 18. The right to privacy by itself has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one s home or office without interference can certainly be claimed as right to privacy . Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man s life. It is considered so important that more and more people are carrying mobile telephone instruments i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence once again after being released on bail but the same consideration cannot be extended to a person who commits an offence under some other Act, for commission of an offence under some other act would not be in any case in consonance with the object of the act which is enacted in order to prevent only organised crime. 48.We consider that a person who is on bail after being arrested for violation of law unconnected with MCOCA, should not be denied his right to seek bail if he is arrested under the MCOCA, for it cannot be said that he is a habitual offender. The provision of denying his right to seek bail, if he was arrested earlier and was on bail for commission of an offence under any other Act, suffers from the vice of unreasonable classification by placing in the same class, offences which may have nothing in common with those under MCOCA, for the purpose of denying consideration of bail. The aforesaid expression and restriction on the right of seeking bail is not even in consonance with the object sought to be achieved by the Act and, therefore, on the face of the provisions this is an excessive restriction. 49.The High Court found that the expression or under any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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