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TMI Blog2007 (2) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... on, it is necessary to briefly set out the facts involved in these Special Leave Petitions. 2. On 6th June, 2004 the Deputy Commissioner of Police (Enforcement), Crime Branch, Mumbai alongwith other officers, including the District Supply Officer, Kolhapur, Nayab Tehsildar, Taluka Karveer, Distt. Kolhapur, raided Vijayanand Petrol Pump, Kolhapur and seized two iron tanks of 12,000 and 6,000 litres capacity, greenish lubricating oil in 200 litres barrel, 45 kilos of white chemical powder in 5 gunny bags and ten motor tankers containing petroleum products and two empty tankers, worth Rs. 77,14,195/-, and arrested 9 persons in connection therewith. On the statement made by Ranjit Pandurang Desai, Nayab Tehsildar, Karveer Taluka, a case was registered at Karveer Police Station, Kolhapur, being C.R. No. 39/2004, under Sections 3 and 7 of the Essential Commodities Act, 1955 and under Section 3 of the Petroleum Storage and Distribution Act, 2000 against 11 accused persons. Out of the 11 accused persons 10 were arrested and produced before the Chief Judicial Magistrate, Kolhapur, and remanded to judicial custody on 7th May, 2004. On 20th May 2004, on the orders of the Director General of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill 17th February, 2005, when one of the other accused, Anil Nagpal, filed Writ Petition No. 146 of 2005. By judgment dated 11th March, 2005, Bombay High Court allowed the writ petitions filed by Lalit Nagpal and Anil Nagpal upon holding that having regard to the provisions of the Essential Commodities Act, 1955 and the Essential Commodities (Special Provisions) Act, 1981, the provisions of MCOCA would have no application to the cases against the petitioners. The State of Maharashtra has filed S.L.P.(Crl.) Nos. 3320-21 of 2005 against the said judgment of the Bombay High Court. 6. Though, for reasons which are different from those given while allowing the writ petitions filed by Lalit Nagpal and Anil Nagpal, the Bombay Court in a separate judgment issued rule and granted interim relief in Criminal Writ Petition No. 2183 of 2005 filed by Lalit Nagpal & Ors. seeking to quash CR II-B of 2005 registered with Rasayani P.S., Raigad, and also for quashing the investigation proceedings under MCOCA. The State has filed SLP(Crl) No. 1101 of 2006 against the interim order passed by the Bombay High Court in Criminal Writ Petition No. 2183 of 2005. 7. Special Leave Petition (Criminal) 4581 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that Court has taken cognizance of such offence; 10. He also drew our attention to the definition of "organized crime" and "organized crime syndicate" which is defined in Section 2(1)(e) and (f) of the above Act as under: 2(1)(e) "organized crime" means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organized 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; 2(1)(f) "organized 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 organized crime ; 11. Mr. Lalit pointed out that the expression "continuing unlawful activity" implied activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, continuously undertaken and in respect whereof more than one charge sheets have been filed before a competent Court within the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months;] 15. Mr. Lalit submitted that under Section 10A of the above Act every offence punishable under the Essential Commodities Act would be cognizable. Mr. Lalit urged that in order to more effectively deal with persons indulging in hoarding and black-marketing of and profiteering in essential commodities, the Central Government enacted the Essential Commodities (Special Provisions) Act, 1981, which came into force on 1stSeptember, 1982, in all the States and Union Territories, except in the Union Territories of the Andaman and Nicobar Islands, Arunachal Pradesh, Dadra and Nagar Haveli, Lakshadweep and Mizoram. Mr. Lalit submitted that by virtue of Section 1(3) and as indicated in the preamble to the Act, the same was to be valid for a period of 15 years from the date of commencement of the Act except in respect of things done or omitted to be done before such cesser of operation of the Act and Section 6 of the General Clauses Act 1897 would apply upon such cesser of operation of the Act. In other words, the Act which came into force on 1st September, 1982 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the context of Section 468 of the Code of Criminal Procedure. In the said matter, the contention which had been raised on behalf of the appellant was that although Section 7(1)(a)(ii) of the 1955 Act provided for maximum imprisonment of seven years, by virtue of the provisions of Section 12AA (1) (f) of the 1981 Act, the maximum punishment which could be imposed for an offence under the said Act is only two years. On such reasoning, it was contended that the limit fixed by Parliament by the 1981 Act would have the effect of altering the extent of punishment for the offence under Section 7 of the 1955 Act to imprisonment for a period of two years. 19. The aforesaid contention was turned down by this Court upon holding that when the maximum punishment prescribed under Section 7(1)(a)(ii) was seven years, merely because the proviso to Section 12 AA (1) (f) limits the jurisdiction of the Special Court to award sentence up to two years, it would not make the offence itself punishable with only two years' imprisonment. It was observed that one has to look at the punishing provision to know the extent of the sentence prescribed and not at the limit fixed for a particular court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on any continuing unlawful activity as envisaged under Section 2(d)(e) and (f) of MCOCA. 23. Reference was also made to the approval granted by the Special Inspector General of Police, Kolhapur Range, granting permission under Section 23(1)(a) of MCOCA for applying Section 3(1)(2)(4) of MCOCA to Karveer Police Station C.R. No. 39 of 2004 under Sections 3 and 7 of the 1955 Act. Mr. Nariman submitted that the said approval reveals complete non-application of mind inasmuch as except for Karveer Police Station C.R. No. 39/04, no other case alleged to be pending against the respondents had even been referred to in the said order so as to make out a case of "continuing unlawful activity" which by its very connotation contemplates more than one offence spread over a period of 10 years. Apart from the above, it was also submitted that reference had been made under the order of approval to Section 3 of the Petroleum Storage and Distribution Act which enactment does not exist. It was submitted that it is obvious that the sanctioning authority had not applied its mind in granting approval under Section 23(1)(a) of MCOCA and mechanically granted such permission. Mr. Nariman submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the MCOCA. Section 21(4) also lays down that no person accused of an offence punishable under the Act shall, if in custody, be released on bail, on his own bond unless the conditions indicated are fulfilled. Mr. Nariman submitted that in view of the stringent provisions of MCOCA, its provisions were required to be strictly interpreted as was observed by this Court in Ranjitsing Brahmjeetsing Sharma v. State of Maharashtra and Anr. 2005CriLJ2533 , commonly known as Telgi case. 26. Referring to the list of cases on the basis whereof sanction had been granted, Mr. Nariman submitted that the cases related mainly to offences under the Indian Penal Code which would immediately reveal that there was no live link between the old and new cases to constitute continuing unlawful activity. He also added that "organized crime" as defined in Section 2(e) of MCOCA contemplated continuing unlawful activity 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 the perpetrator of the crime or any other person promoting insurgency. He urged that none of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that not only had no ground been made out for interference with the order of the High Court, but observations are required to be made by this Court regarding the manner and the circumstances in which the provisions of Acts having drastic consequences such as MCOCA should be applied. 29. Mr. Mukul Rohtagi, learned senior counsel, who appeared for some of the other respondents, adopted the submissions made by Mr. Nariman and Mr. Salve. He submitted that the alleged offences, on the basis of which approval had been granted to apply the provisions of MCOCA to the petitioners' cases, did not satisfy the conditions relating to commission of and/or involvement in continuing unlawful activity which forms the very basis of an offence under MCOCA. He also submitted that approval having been given on the basis of a non-existent enactment, such approval stood vitiated on such account. 30. Replying to the submissions made on behalf of the respondents in the first three petitions, who were also the petitioners in the fourth and fifth petitions, Mr. Lalit submitted that the conflict in ratio in Falguni Datta's case (supra) and in Durgesh Chandra Shah v. Vimal Chandra Shah 1996CriLJ1137 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for bail on medical grounds was still pending before the High Court. 34. Regarding the challenged thrown by Kapil Nagpal to the order dated 1stSeptember, 2006 passed by the High Court directing him to surrender before the Investigating Authority within two weeks failing which his petition for quashing the FIR registered with Rasayani Police Station would stand dismissed, Mr. Lalit submitted that no ground had been made out to interfere with the same. He submitted that since Kapil Nagpal had also absconded and steps had been taken under Section 82 of the Code of Civil Procedure against him, the High Court had quite rightly directed him to surrender before his application for quashing could be taken up for consideration. 35. From the submissions made on behalf of the State of Maharashtra, it appears that the main question for determination in the Special Leave Petitions filed by the State of Maharashtra relates to the applicability of MCOCA to offences under the Essential Commodities Act, 1955, having particular regard to the enactment of the Essential Commodities (Special Provisions) Act, 1981. 36. As noticed hereinbefore, the Essential Commodities (Special Provisions) Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s case (supra) wherein this Court held that merely because the proviso to Section 12 AA (1) (f) limits the jurisdiction of the Special Court to award sentence up to two years it would not make the offence itself punishable with only two years' imprisonment. The submissions advanced on behalf of the respondents on this count must, therefore, fail. 39. However, we are in agreement with the submission that having regard to the stringent provisions of MCOCA, its provisions will have to be very strictly interpreted and the concerned authorities would have to be bound down to the strict observance of the said provisions. There can be no doubt that the provisions of the MCOCA have been enacted to deal with organized criminal activity in relation to offences which are likely to create terror and to endanger and unsettle the economy of the country for which stringent measures have been adopted. The provisions of the MCOCA seek to deprive a citizen of his right to freedom at the very initial stage of the investigation, making it extremely difficult for him to obtain bail. Other provisions relating to the admission of evidence relating to the electronic media have also been provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, which in our opinion would not attract the provisions of the MCOCA. We, therefore, have no hesitation in holding that as far as Kapil Lalit Nagpal is concerned, the provisions of the MCOCA have been misapplied to him. 42. Since we have already held that the limitation of the power to impose punishment only for a maximum period of two years for an offence under the 1981 Act did not preclude the authorities from applying the provisions of the MCOCA for offences under Sections 3 & 7 of the 1955 Act as well as the 1981 Act, we are left with the question as to whether the same had been applied to the case of Lalit Nagpal and Anil Nagpal strictly in accordance with the provisions of the MCOCA 1999. Having regard to the stringent provisions of the MCOCA, Section 23(1)(a) provides a safeguard to the accused in that notwithstanding anything contained in the Code of Criminal Procedure, no investigation of an alleged offence of organized crime under the MCOCA, 1999 can be commenced without the prior approval of a police officer not below the rank of Deputy Inspector General of Police. An additional protection has been given under Sub-section (2) of Section 23 which prohibits any Speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned, the same has been filed against the order passed by the Bombay High Court rejecting the petitioner's prayer for grant of bail. As will be seen from the records, the petitioner had earlier applied for grant of anticipatory bail which was rejected by the Bombay High Court. In the Special Leave Petition filed against the said order of rejection, this Court also on 14th December, 2004 rejected the petitioner's prayer for grant of anticipatory bail. This Court however granted 15 days' time to the petitioner to surrender and to apply for regular bail. Despite the said order, the petitioner did not surrender till 1stJuly 2005, and thereafter applied for bail which was rejected on the ground that the petitioner had violated the order passed by this Court on 14th December, 2004 and had absconded for almost six months before surrendering. The order passed by this Bombay High Court rejecting the petitioner's prayer for bail was again challenged before this Court and the same was once again dismissed on 20th January, 2006 with the observation that such dismissal would not bar the petitioner to approach the trial court afresh. Thereafter, the petitioner moved a fresh ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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