Jaisingh S/o Asharfilal Yadav & Others v. State Of Maharashtra, Through Pso, Kanhan & Another

ORAL JUDGMENT

R.M.S. Khandeparkar, J.

Heard the learned Advocate for the petitioners and the learned Additional Government Advocate for the respondents. Perused the records.

2.The petitioners by the present Petition seek to challenge the constitutionality of the provisions of law contained in the Maharashtra Control of Organised Crime Act, 1999 (hereinafter called as "the said Act") allegedly declaring the acts committed prior to its enforcement to be the offences under the said Act as being violative of Article 20(1) of the Constitution of India and, therefore, seek to quash the proceedings against the petitioners initiated under the said Act allegedly on the basis of the acts committed by the petitioners prior to enforcement of the said Act.

3.Though the Petition was filed on various grounds and even more grounds were added by way of amendment on two occasions, the challenge in the course of arguments was restricted to the ground of unconstitutionality of the expression "within the preceding period of ten years" in section 2(d) of the said Act contending that the same to be in contravention of the provisions of law contained in Article 20(1) of the Constitution as on account of the said expression the Competent Authority under the said Act is empowered to consider the acts committed prior to the enforcement of the said Act as the offences under the said Act.

4.It is the contention of the learned Advocate for the petitioners that only those offences which can be said to have been committed after 24th February, 1999 can be taken into consideration for the purpose of the proceedings under the as the said Act came into force from the said date and any act prior to the said date cannot be held to be an offence under the said Act in view of the clear provision in that regard in Article 20(1) of the Constitution: Reliance is sought to be placed in the decisions in Rao Shiv Bahadur Singh and another v. State of Vindhya Pradesh AIR 1953 SC 394 [LQ/SC/1953/67] ; Soni Deuradbhai Babubhai v. State of Gujarat and others (1991) 4 SCC 298 [LQ/SC/1991/425] : AIR 1991 SC 2173 [LQ/SC/1991/425] ; J.K. (Bombay) Ltd. v. Bharti Matha Mishra (Mrs.) and others, (2001) 2 SCC 700 [LQ/SC/2001/179] : AIR 2001 SC 649 [LQ/SC/2001/179] ; State of Maharashtra v. Kaliar Koil Subramaniam Ramaswamy, (1977) 3 SCC 525 [LQ/SC/1977/246] : AIR 1977 SC 2091 [LQ/SC/1977/246] and K. Subramaniam and others v. State Through Inspector of Police 1988 (3) Crimes 633.

5.The notice of this Petition was issued and records reveal that it was duly received by the office of the Advocate General. In the course of argument, however, it was informed to the Court that the Additional Government Advocate would represent the Advocate General. However, it pains to note that apart from informing the Court that the challenge to the said Act has already been rejected by the Division Bench at Bombay in Criminal Writ Petition No.27/03 by judgment delivered in March, 2003 and apart from reading few of the paragraphs from the reply filed on behalf of the respondents, no arguments were advanced in reply to the relevant contentions on behalf of the petitioners. The contents of the paragraphs from the affidavit-in-reply which were read over by the said Additional Government Advocate were also in no way connected with the arguments advanced on behalf of the petitioners. Inspite of knowing well that the petition contains various challenges to the said Act and on the ground of being unconstitutional, though in the course of arguments challenge was restricted to only one ground as stated above, and knowing well the object of the said Act, the apathy and subdued attitude on the part of the respondents in rendering the necessary assistance to the Court is unfortunate and uncanny. It is also to be noted that the decision of the Division Bench in Criminal Writ Petition No.27/03 is totally on a different point and is of no help to either of the parties in the present Petition.

6.The Preamble of the said Act states that it was expected to make special provisions for prevention and control of and for coping with criminal activity by organised crime syndicate or gang and for the matters connected therewith and incidental thereto. The statement of objects and reasons reveal that the organised crime has for quite some years now come up as a very serious threat towards society and there is reason to believe that organised criminal gangs are operating in the State and thus there is immediate need to curb their activities, however, the existing legal frame works i.e. the penal and procedural laws and adjudicatory system are found to be rather inadequate to curb or control the menace of organised crime and the Government, therefore, decided to enact a special law with stringent and deterrent provisions to control the menace of the organised crime and that is how the said Act has been brought into force with effect from 24th February, 1999 in the State of Maharashtra.

7.Section 3 of the said Act deals with the aspect of punishment for organised crime. The term "organised crime" has been defined in Section 2(e) 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. Apparently, any continuing unlawful activity in the manner specified in the said Section would be an organised crime. The expression "continuing unlawful activity" has been defined in section 2(d) to mean 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 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. The above definitions reveal that any activity prohibited by law in force and of cognizable nature are to be the necessary requisites for classifying the activity to be continuing unlawful activity. The term "organised crime syndicate" in terms of section 2(f) 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.

8.The above definitions reveal that in order to accuse a person or the persons to have committed an offence of organised crime, he or they must be shown to have been involved firstly in any continuing unlawful activity: secondly, being a member of or acting on behalf of organised crime syndicate; thirdly, by way of unlawful means, including use of violence or threat of violence or intimidation or coercion and, fourthly, with the object of gaining benefit either pecuniary or undue economic or other advantage for himself or other person, and fifthly promoting insurgency. As far as "continuing unlawful activity" is concerned, it has to be an activity prohibited and punishable by law in force with imprisonment of three years or more and of cognizable nature as well as it should be as a member of or on behalf of the organised crime syndicate and further that at least two chargesheets must have been filed in respect of such offences within the period of preceding ten years and the Court should have taken cognizance of such offences. A group of two or more persons indulging in the activities of organised crime either singly or collectively is called as an organised crime syndicate in terms of Section 2(f) as seen above.

9.The analysis of the definition of the organised crime therefore, would reveal that continuing unlawful activity is one of its ingredients whereas in order to make an activity to be continuing unlawful one, it should disclose filing of minimum two charge-sheets in relation to the activity prohibited by law in force and of the nature specified in Section 2(d) during the period of preceding ten years. In other words, lodging of two charge-sheets in relation to the acts which are already declared under the law then in force as offences of the nature specified under section 2(d) during the preceding period of ten years is one of the requisites for the offence of organised crime under the said Act.

10.The challenge of the petitioner revolves around the phrase "the preceding period of ten years" in the definition clause 2(d) of the term "continuing unlawful activity". The learned Advocate for the petitioner also fairly submitted that the petitioners do not dispute the legislative competence to bring the statute on the subject and would be satisfied if the said expression is read down as being applicable with effect from 24.2.1999, the date on which the said Act came into force. In other words, the petitioners do not seriously dispute the constitutional validity of the said provision of law but want us to restrict the commencement of the period of ten years specified in Section 2(d) from 24.2.1999 and not prior to the said date.

11.So far as the challenge to the constitutionality of the provisions of law in the said Act is concerned, the constitutional mandate against convictions and sentences under ex-post facto laws is very clear from Article 20(1) of the Constitution of India which reads thus :

"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 commission of the offence."

The Apex Court time and again while interpreting the said Article has ruled that the said Article prohibits all convictions or subjections to penalty after the Constitution in respect of ex-post facto laws whether the same was post constitutional or pre-constitutional law. This is the law laid down in Rao Shiv Bahadur Singhs case as well as in Soni Devrajbhais case. In Soni Devrajbhais case it was ruled by the Apex Court that the offence punishable under Section 304-B known as "dowry death" was a new offence created with effect from 19.11.1986 by insertion of the provision in the Indian Penal Code providing for more stringent offence than under Section 498- A and that it was a substantive provision creating a new offence and not merely a provision effecting a change in procedure for trial of a pre-existing substantive offence and, therefore, the order of the Magistrate as well as that of the High Court refusing the protection to the husband under Article 20(1) of the Constitution in relation to the prosecution under Section 304B for the death of his wife on 13.8.1986 was not justified and, therefore, was interfered with. Therein the Apex Court had clearly ruled that considering the historical background the offence of dowry death punishable under Section 304-B of the Indian Penal Code was a new offence inserted in Indian Penal Code with effect from 19.11.1986 when Act 43 of 1986 came into force.

12.In Kaliar Koils case, a public servant was prosecuted and punished under Section 5(1)(e) of the Prevention of Corruption Act, 1947 for disproportionate assets recovered from him as a result of search conducted before the enforcement of Amendment Act, 40 of 1964 by virtue of which the said provision of law, namely, clause (e) in sub-section (1) of section 5 was inserted. In those circumstances, it was held by the Apex Court that the Legislature thought it proper to insert a new clause (e) in sub-section (1) of section 5 as one more category of offence of criminal misconduct but it cannot be gainsaid that the new offence under newly inserted clause (e) became an offence on or before 18.12.1964 by virtue of Section 6 of the Amendment Act, 40 of 1964 and, therefore, applying the mandate of Article 20(1) of the Constitution, it was held that :

"So when there was no law in force at the time when the accused was found in possession of disproportionate assets by the search which was made on May 17, 1964, under which his possession could be said to constitute an offence. he was entitled to the protection of clause (1) of Article 20 and it was not permissible for the Trial Court to convict him of an offence under clause (e) of sub-section (1) of section 5 as no such clause was in existence at the relevant time."

13.The decision in J.K. (Bombay) Ltd. v. Bharti Matha Mishras case is on totally different issue and pertains to the object behind Article 21 of the Constitution of India. It has been help therein that the paramount object of Article 21 is to prevent the encroachment of right of a person with respect to his life and liberty, save in accordance with the procedure established by law and in conformity with the provisions thereof. Personal liberty envisaged under this Article means freedom from physical restraint of a person by incarceration or otherwise. It was also held that in criminal cases the law which entails conviction and sentence, liberal construction with the aid of assumption, presumption and implications cannot be resorted to for the purpose of roping in the criminal prosecution, such persons who are otherwise not intended to be prosecuted or dealt with by the criminal Court. It was also held that the penal law cannot be interpreted in a manner to cover within its ambit such persons who are left out by the Legislature

14.In K. Subramaniam Ramaswamys case, it was held by the Madras High Court that when section 498-A of the Indian Penal Code was not on the statute book at the time when the alleged offence was said to have been committed, the prosecution under Section 498-A of the I.P.C. was liable to be quashed and accordingly, it was quashed.

15.In all these three cases referred to above, the prosecution and/or conviction was in relation to the acts which were not offence within the meaning of the respective statutes at the time those acts were performed or committed and, therefore, applying the mandate of Article 20(1) of the Constitution, the prosecution and the conviction was held to be bad in law. As far as Rao Shiv Bahadur Singhs case is concerned, the Apex Court while holding that Article 20 prohibits the conviction of a person or his subjection to penalty under ex-post facto laws, took note of the decision in The Queen v. St. Mary Whitechapel (1848) 116 E. R. 811, to the effect 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."

and ruled that :

"....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.48 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."

The said ruling was given after observing that :

"It cannot, therefore, be doubted that the phrase "law in force" as used in Art. 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."

At the same time, it was also held therein that :

"...what is prohibited under Art. 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."

16.It cannot be, therefore, disputed that the law is well-settled that what is prohibited under Article 20 is conviction and sentence under ex-post facto laws and not the trial thereof. In other words, the protection under Article 20(1) can be claimed only if the acts done prior to enforcement of the statute and declared as offences under such statute and the person is accordingly sought to be charged under such statute. But at the same time it is also necessary to take note of the decision in The Queen v. St. Mary Whitechapel referred by the Apex Court in Rao Shiv Bahadur Singhs case, as well as yet another decision of the Apex Court in Sajjan Singh v. State of Punjab AIR 1964 SC 464 [LQ/SC/1963/203] , before arriving at any final decision in the matter.

17.As already seen above, the Apex Court in Shiv Bahadurs case has referred to the ruling in The Queen v. St. Mary Whitechapels case wherein it was ruled that merely because a part of the requisites for the action under the statute is drawn from a time antecedent to its enforcement, such statute which is otherwise prospective in nature, cannot be said to be retrospective in nature. Similarly, in Sajjan Singhs case it was ruled by the Apex Court that :

"A statute cannot be said to be retrospective because a part of the requisites for its actions is drawn from a time antecedent to its passing."

Dealing with the provisions of law contained in Section 5(3) of the Prevention of Corruption Act, 1947, the Apex Court in Sajjan Singhs case has held that :

"Looking at the words of the section and giving them their plain and natural meaning it is impossible to say that pecuniary resources and property acquired before the date on which the Prevention of Corruption Act came into force should not be taken into account even if in possession of the accused or any other person on his behalf. To accept the contention that such pecuniary resources or property should not be taken into consideration one has to read into the section the additional words "if acquired after the date of this Act" after the word "property". For this there is no justification."

The sub-section (3) of Section 5 of the Prevention of Corruption Act, 1947 in relation to which the above ruling was given by the Apex Court in Sajjan Singhs case provided that in any trial of an offence punishable under sub-section (2), the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the Court shall presume. unless the contrary is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction, therefore, shall not be invalid by reason only that it is based solely on such presumption. It would also be appropriate to take note of further observations by the Apex Court in Sajjan Singhs case in relation to the said provision which read thus :

"It may also be mentioned that if pecuniary resources or property acquired before the date of commencement of the were to be left out of account in applying sub-section (3) of section 5 it would be proper and reasonable to limit the receipt of income against which the proportion is to be considered also to the period after the. On the face of it this would lead to a curious and anomalous position by no means satisfactory or helpful to the accused himself. For the income received during the years previous to the commencement of the may have helped in the acquisition of property after the commencement of the. From whatever point we look at the matter it seems to us clear that the pecuniary resources and property in possession of the accused person or any other person on his behalf have to be taken into consideration for the purpose of sub-section (3) of Section 5; whether these were acquired before or after the came into force."

It is, therefore, clear that merely because a part of requisites for action under a statute is drawn from the time antecedent to its enforcement, such statute does not become a retrospective one.

18.Referring to the statute under consideration in the case in hand, neither the definition of the term "organised crime" nor of the term "continuing unlawful activity" nor any other provision therein declares any activity performed prior to 24.2.1999 to be an offence under the said Act nor the punishment provision relates to any offence prior to the date of enforcement of the said Act. Yet by referring to the expression preceding period of ten years in Section 2(d) which is a definition clause of the term "continuing unlawful activity" inference is sought to be drawn that in fact it takes into its ambit the acts done prior to the enforcement of the said Act as being offences under the said Act.

19.There is lot of difference between the act or activity itself being termed or called as an offence under a statute and such act or activity being taken into consideration as one of the requisites for taking action under the statute. The former situation has to satisfy the mandate of Article 20(1) of the Constitution: however, in case of latter situation, it stands on totally different footing. Undoubtedly, for the purpose of organised crime there has to be a continuing unlawful activity. There cannot be continuing unlawful activity unless at least two charge-sheets are to be found to have been lodged in relation to the offence punishable with three.years imprisonment during the period of ten years. Undisputedly, the period of ten years may relate to the period prior to 24.2.1999 or thereafter. In other words, it provides that the activities which were offences under the law in force at the relevant time and in respect of which two charge-sheets have been filed and the Court has taken cognizance thereof, during the period of preceding ten years, then it will be considered as continuing unlawful activity on 24.2.1999 or thereafter. It nowhere by itself declares any activity to be an offence under the said Act prior to 24.2.1999. It also does not convert any activity done prior to 24.2.1999 to be an offence under the said Act. It merely considers two charge-sheets in relation to the acts which were already declared as offences under the law in force to be one of the requisites for the purpose of identifying continuing unlawful activity and/ or for the purpose of an action under the said Act. This by itself cannot be said to be in any manner violative of the mandate of Article 20(1) considering the law laid down by the Apex Court in Rao Shiv Bahadur Singhs case as well as in Sajjan Singhs case.

20.As regards the second submission pertaining to the reading down of Section 2(d) in relation to the expression preceding period of ten years to be effective or to commence from 24.2.1999, if accepted virtually amounts to reading something in the said provision of law which is not intended by the Legislature, and thereby it would virtually amount to defeat the very purpose of the said Act itself, apart from the fact that it is settled law that once the contention about unconstitutionality of the provision of law is rejected, question of reading down the same provision does not arise. The Apex Court in Electronics Corporation of India Ltd. & others v. Secretary, Revenue Department, Government of Andhra Pradesh & others (1999) 4 SCC 458 [LQ/SC/1999/510] : AIR 1999 SC 1734 [LQ/SC/1999/510] , has held that "the question of reading down comes in if it is found that these provisions are ultra vires as they stand. We have held that these provisions are not ultra vires because Article 285 does not apply when the property that is to be taxed is not of the Union of India but of a distinct and separate legal entity." Similarly, in K.G. Ashok and others v. Kerala Public Service Commission and others, (200l) 5 SCC 419 [LQ/SC/2022/173 ;] ">5 SCC 419 [LQ/SC/2022/173 ;] [LQ/SC/2022/173 ;] ">5 SCC 419 [LQ/SC/2022/173 ;] ">5 SCC 419 [LQ/SC/2022/173 ;] [LQ/SC/2022/173 ;] [LQ/SC/2022/173 ;] : AIR 2001 SC 2010 [LQ/SC/2001/1206] wherein though the candidates had applied for selection in more than one district, they could appear only in one district in view of the fact that the test was conducted in all the districts on one day, it was sought to be contended that the rule restricting filing of application for one district incorporated in Note 2 of the notification should be read down in its application to the cases of the appellants in those appeals before the Apex Court, while rejecting the said contention, it was ruled that:

"the submission has been made only to be rejected as in the present case we have already held that the aforesaid restriction contained in Note 2 is not violative of Article 14 of the Constitution. Therefore, the question of reading down the same does not arise."

The very fact that the expression used in the Section 2(d) contains the word preceding knowing well that the has to come into force from 24.2.1999, it is apparent that it has to relate to the period even prior to 24.2.1990. Undoubtedly, had it been directly related to declaring any act as an offence under a present Act prior to the date of enforcement of the said Act, certainly it would have been in violation of the mandate of Article 20(1) of the Constitution. However, as already observed above, the period specified in Section 2(d) of the said Act relates to merely one of the requisites to consider whether the activity is a continuing unlawful activity or not for the purpose of taking action under the said Act and being so, applying the law laid down by the Apex Court in Rao Shiv Bahadurs case and Sajjan Singhs case, the same cannot be held to be in any manner violative of Article 20(1) of the Constitution.

21.In the result, therefore, there is neither any scope for declaring the provisions of law in the said Act to be violative of the Article 20(1) of the Constitution nor there is scope for reading down the provision in the manner indicated by the petitioners and, therefore, the challenge to the provisions of the said Act being in violation of the constitutional mandate fails.

22.The challenge to the prosecution being on the ground that the provisions of the said Act being in violation of the Constitution and the said challenge being rejected, no further relief is called for in the Petition and, therefore, the Petition fails and is hereby dismissed. Rule is discharged with no order as to costs.