Continuing illegal activities reflected in more than one chargesheet a must to establish organised crime: Supreme Court

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2291 OF 2022 (arising out of SLP (CRIMINAL) NO. 6101 OF 2021)

THE STATE OF GUJARAT …..APPELLANT

VERSUS

SANDIP OMPRAKASH GUPTA …..RESPONDENT

J U D G M E N T

J. B. PARDIWALA, J.

1. Leave granted.

2. This appeal is at the instance of the State of Gujarat and is directed against the order passed by the High Court of Gujarat dated 06.05.2021, in R/Criminal Miscellaneous Application No. 3819 of 2021 by which the High Court ordered release of the respondent accused herein on bail in connection with the First Information Report being C.R. No. 11210015200100 of 2020 registered with the D.C.B. Police Station, Surat City, District Surat for the offences punishable under Sections 3(1)(i) and (ii), 3(2) and 3(4) resply of the Gujarat Control of Terrorism and Organised Crime Act, 2015 (for short, ‘the 2015 Act’). 1

3. The question that falls for our consideration is: whether the requirement of ‘continuing unlawful activity’, as defined under Section 2(1)(c) of the 2015 Act, necessarily requires a separate FIR to have been registered against any purported member of a gang after the promulgation of the 2015 Act i.e., after 01.12.2019? To put it in other words: whether an FIR under the 2015 Act (Special enactment) is maintainable in law or can be registered if there is no FIR registered against the accused after the promulgation of the 2015 Act for any offence under the IPC or any other statute?

4. The aforesaid question arises especially in view of the fact that the last offence registered against the respondent-accused is of 2019 and the chargesheet in regard to the said FIR was filed on 21.01.2019 i.e., indisputably prior to the promulgation of the 2015 Act. Furthermore, there is no FIR registered against the respondent-accused after the 2015 Act came into force w.e.f. 01.12.2019.

FACTUAL MATRIX

5. On 27.11.2020 an FIR came to be registered against the respondent accused herein and thirteen other co-accused for the offence punishable under Sections 3(1)(i) and (ii), 3(2) and 3(4) resply of the 2015 Act. The respondent accused came to be arrested on the very same day and date of registration of the FIR i.e., 27.11.2020. The respondent-accused applied for bail before the Sessions Court at Surat by filing the Criminal Miscellaneous Application No. 6483 of 2020. The Sessions Court at Surat rejected the bail application vide order dated 21.01.2021.

6. The respondent-accused thereafter, preferred bail application before the High Court by way of the Miscellaneous Criminal Application No. 3819 of 2021. 2 The High Court allowed the bail application and ordered release of the respondent-accused on bail subject to certain terms and conditions.

7. The High Court granted bail to the respondent-accused, essentially relying on the dictum as laid by this Court in the case of State of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane reported in (2015) 14 SCC 272. The High Court took notice of the fact that the 2015 Act came into force w.e.f. 01.12.2019 in the State of Gujarat and no FIR had been registered against the respondent-accused for any substantive offence after 01.12.2019.

8. In such circumstances referred to above, the High Court took the view relying on the decision of this Court in the case of Shiva alias Shivaji Ramaji Sonawane (supra) that the five FIRs, which were registered in the past for different offences under the Indian Penal Code (IPC) cannot be construed as a ‘continuing unlawful activity’ of the respondent-accused so as to prosecute him under the provisions of the 2015 Act.

9. We must look into the relevant observations of the High Court, made in its impugned order as under: “6. In order to curb and control organized crime and terrorist activities in the State of Gujarat the Legislature has promulgated “the Gujarat Control of Terrorism and Organized Crime Act, 2015” vide Notification. The Act has come into force from 01.12.2019. Sections 2(c) and (f) which define “continuing unlawful activity” and “organized crime syndicate” read as under: (c) “continuing unlawful activity” means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment for a term 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 filed before a 3 competent court within the preceding period of ten years and that court has taken cognizance of such offence; (f) “organised crime syndicate” means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulging in activities of organised crime; The combined reading of the aforesaid provisions suggest that there has to be a continuing unlawful activity carried out by an organized crime syndicate, for which more than one charge sheets have been filed before a competent court within the preceding period of ten years, and that the court has taken cognizance of such offence. 7. The Supreme Court in the case of Shivaji Ramaji Sonawale (supra) while considering the parimaterial provisions of section 2(d) of the Maharashtra Control of Organised Crime Act, 1999 to that of section 2(c) of the Gujarat Act, which defines “continuing unlawful activity” has held thus: “9. The significant feature of the two cases is that for Crimes No.37 of 2001 and 38 of 2001 the respondents were separately tried and acquitted on 18th January, 2008 in the case of Shiva and on 28th February, 2006 in the case of Mehmood Khan Pathan. In the said charge sheets, the respondents were accused of committing offences only under the IPC and the Arms Act. For the offences punishable under MCOCA separate and independent charge sheets were filed against the accused persons in which they were convicted by the Trial Court which conviction was reversed by the High Court as noticed earlier. It was in the above backdrop that the High Court held that once the respondents had been acquitted for the offence punishable under the IPC and Arms Act in Crimes No.37 and 38 of 2001 and once the Trial Court had recorded an acquittal even for the offence punishable under Section 4 read with Section 25 of the Arms Act in MCOCA Crimes No.1 and 2 of 2002 all that remained incriminating was the filing of charge sheets against the respondents in the past and taking of cognizance by the competent court over a period of ten years prior to the enforcement of the MCOCA. The filing of charge sheets or taking of the cognizance in the same did not, declared the High Court, 4 by itself constitute an offence punishable under Section 3 of the MCOCA. That is because the involvement of respondents in previous offences was just about one requirement but by no means the only requirement which the prosecution has to satisfy to secure a conviction under MCOCA. What was equally, if not, more important was the commission of an offence by the respondents that would constitute “continuing unlawful activity”. So long as that requirement failed, as was the position in the instant case, there was no question of convicting the respondents under Section 3 of the MCOCA. That reasoning does not, in our opinion, suffer from any infirmity.

10. The very fact that more than one charge sheets had been filed against the respondents alleging offences punishable with more than three years imprisonment is not enough. As rightly pointed out by the High Court commission of offences prior to the enactment of MCOCA does not by itself constitute an offence under MCOCA. Registration of cases, filing of charge sheets and taking of cognizance by the competent court in relation to the offence alleged to have been committed by the respondents in the past is but one of the requirements for invocation of Section 3 of the MCOCA. Continuation of unlawful activities is the second and equally important requirement that ought to be satisfied. It is only if an organised crime is committed by the accused after the promulgation of MCOCA that he may, seen in the light of the previous charge sheets and the cognizance taken by the competent court, be said to have committed an offence under Section 3 of the Act.

11. In the case at hand, the offences which the respondents are alleged to have committed after the promulgation of MCOCA were not proved against them. The acquittal of the respondents in Crimes No. 37 and 38 of 2001 signified that they were not involved in the commission of the offences with which they were charged. Not only that the respondents were acquitted of the charge under the Arms Act even in Crimes Case No.1 and 2 of 2002. No appeal against that acquittal had been filed by the State. This implied that the prosecution had failed to prove the second ingredient required for completion of an offence under MCOCA. The High Court was, therefore, right in holding that Section 3 of the MCOCA could not be invoked only on the basis 5 of the previous charge sheets for Section 3 would come into play only if the respondents were proved to have committed an offence for gain or any pecuniary benefit or undue economic or other advantage after the promulgation of MCOCA. Such being the case, the High Court was, in our opinion, justified in allowing the appeal and setting aside the order passed by the Trial Court.” 8. By analyzing the expression “continuing unlawful activity”, the Apex Court has held that the filing of more than one charge sheets for the offences punishable with more than three years imprisonment is not enough, but it must be satisfied that the continuation of unlawful activities is the second and equally important requirement that ought to be satisfied. It is only if an organised crime is committed by the accused after the promulgation of the Act that has to be considered in the light of the previous charge sheets. Thus, the contention raised by the learned Advocate with regard to the prospective effect of the Act is not palatable in view of the aforesaid observations made by the Apex Court, but at the same time it is noticed in the present case, that the expression “continuing unlawful activity” is not satisfied in view of the offences which are considered by the authority. In the instant case, for invoking the provisions of the Act against the applicant, the state has relied on 5 offences and one experiment order registered against the applicant. The details are as under: Sr. No. F.I.R. / Police station Offence under I.P.C. Charge sheet no. 1 29/2019, Dahej 407, 411, 465, 467, 468, 471, 120(b) 1128/2019 dated 21.09.2019 2 285/2018, Sachin 506(2), 114 43491/18 dated 29/08/2018 3 26/2016, Sachin 326, 323, 114 36060/2016 dated 27/06/2016 4 22/2019, Sachin 506(2), 114 6778/2019 dated 12.12.2019 5 382, Sachin 323, 504, 506(2) 64157/2018 dated 25.12.18 6 6 Order No. 03/2019 dated 03.03.2019 of Asst. Police Commissioner 9. The Act came into force on 01.12.2019. The last offence which is registered against the applicant is of 2019 registered vide F.I.R. No.29/2019, (Item.1), for which the charge- sheet is filed on 21.01.2019 which is prior to the promulgation of the Act. The offence at serial no.6 being F.I.R. No.14/209 under sections 364(A), 387, 120(B), 114 of the IPC has been quashed by this Court vide order dated 03.12.2019 passed in Criminal Misc. Application No.21872 of 2019 and hence, the same could not have been considered by the authority while registering the F.I.R. on 27.11.2020. The applicant has not committed any offence after the promulgation of the Act. At serial no.6, the state has referred to the extension order dated 03.03.2019 also which is against the provisions of section 2(c) of the Act. The Supreme Court has held that it is only if an organized crime is committed by the accused after the promulgation of the Act that has to be considered in the light of the previous charge sheets. Thus, the state has misdirected itself with regard to the registration of offences against the applicant, hence the applicant cannot be allowed to be further incarcerated in jail. 10. Having perused the materials placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, this Court is inclined to grant regular bail to the applicant. It is clarified that this Court has not expressed any opinion with regard to the applicant not being a member or a member of the crime syndicate.” 10. Being dissatisfied with the aforesaid impugned order passed by the High Court releasing the respondent-accused on bail, the State of Gujarat is here before this Court with the present appeal.

SUBMISSIONS ON BEHALF OF THE APPELLANT STATE

11. Mr. Tushar Mehta, the Solicitor General vehemently submitted that the dictum as laid by this Court in Shiva alias Shivaji Ramaji Sonawane (supra) requires a relook, as the said dictum frustrates the very object of enacting the 2015 Act. Mr. Mehta would submit that the five FIRs referred to above, registered against the respondent-accused prior to the 2015 Act coming into force, were sufficient to bring the case within the ambit of ‘continuing unlawful activity’ as defined under the 2015 Act. He would submit that the term ‘organised crime’ as defined under Section 2(1)(e) of the 2015 Act uses the term ‘continuing unlawful activity’. A bare perusal of the definition of the term ‘continuing unlawful activity’ would indicate that it does not refer to any ‘continuing unlawful activity’ to be committed only after the promulgation of the 2015 Act. Mr. Mehta would argue that the said term means activities prohibited by law in respect of which more than one chargesheets has been filed before a competent court within the preceding period of ten years. The phrase ‘within the preceding period of ten years’ by itself indicates that the ‘continuing unlawful activity’ may be such activity, which could be said to have been committed prior to the enactment of the 2015 Act.

12. Mr. Mehta submitted that one distinguishing feature of the decision of this Court in the case of Shiva alias Shivaji Ramaji Sonawane (supra) is that in the said case, the accused persons were acquitted and the same signified that they were not involved in the commission of the offence with which they were charged. It is in such factual background that this Court in Shiva alias Shivaji Ramaji Sonawane (supra) could be said to have observed that it is only if an organised crime is committed by the accused after the promulgation of Maharashtra Control of Organised Crime Act, 1999 (for short, ‘the MCOCA’) that he may, seen in the light of the previous chargesheets and the cognizance 8 taken by the competent court, be said to have committed an offence under Section 3 of the MCOCA.

13. In the last, Mr. Mehta submitted that if the dictum as laid in Shiva alias Shivaji Ramaji Sonawane (supra) is affirmed, the object of the 2015 Act i.e., prevention and control of terrorist acts and for coping with criminal activities by organised crime syndicates, will surely get hampered.

14. In the aforesaid contest, the submission of Mr. Mehta is that if, the dictum as laid in Shiva alias Shivaji Ramaji Sonawane (supra) is to be treated as the final word so far as the law is concerned, then the first case under the 2015 Act can be registered, only after two cases of the nature described in the 2015 Act, had been registered against the person or against an organised syndicate after 01.12.2019. As the definition indicates, for making a crime punishable under the provisions of the 2015 Act, there has to be more than one case registered or in other words, it is the third case which can be registered for an offence under Sections 3 and 4 resply of the 2015 Act. Such an interpretation would be in direct conflict with the very purpose of the 2015 Act. If such an interpretation is accepted then the State will have to wait and helplessly watch the organised crime taking place till it is the third time a person or a syndicate is found involved in the offence after the 2015 Act came into operation w.e.f. 01.12.2019 in the State of Gujarat. According to Mr. Mehta, the ‘continuing unlawful activity’ could have taken place ten years prior to the registration of the new case. In such circumstances, the intention of the Legislature could not have been other than giving immediate effect to the 2015 Act by taking note of all the offences or chargesheets registered within ten years prior to the commencement of the 2015 Act.

15. In such circumstances referred to above, the learned Solicitor General prays that the ratio of the decision of this Court in the case of Shiva alias Shivaji Ramaji Sonawane (supra) may either be explained accordingly, keeping in mind the object of the 2015 Act or the issue may be referred to a larger Bench.

SUBMISSIONS ON BEHALF OF THE RESPONDENT-ACCUSED

16. On the other hand, this appeal has been vehemently opposed by the learned counsel appearing for the respondent-accused. The learned counsel would submit that no error not to speak of any error of law could be said to have been committed by the High Court while passing the impugned order. He would submit that the decision of this Court in the case of Shiva alias Shivaji Ramaji Sonawane (supra) is binding on the High Court and the High Court has rightly applied the dictum, as laid therein for the purpose of releasing the respondent/accused on bail.

17. The learned counsel would submit that if the interpretation put forward by the learned Solicitor General is accepted then the same would be in breach of Article 20(1) of the Constitution which provides that no person shall be convicted of an offence except for one which is in violation of any law in force at the time of 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.

18. The learned counsel further submitted that the scheme of the 2015 Act makes it abundantly clear that it is only if an accused commits an organised crime after the promulgation of the 2015 Act, then the accused can be prosecuted under the provisions of the 2015 Act with the aid of the charge sheets that might have been filed in last ten preceding years.

19. The learned counsel would submit that unless there is a substantive offence, mere past chargesheets would not constitute the offence of organised crime. He would argue that there is no merit in the contention canvassed on behalf of the appellant-State that offence of organised crime itself comprises of chargesheets filed in the past of which cognizance is taken. He would argue that if such a contention were to be accepted, it would amount to giving a free hand to the police to send anybody to a long term of imprisonment, merely by filing chargesheets in respect of more than one offence.

20. In such circumstances referred to above, the learned counsel appearing for the respondent-accused prays that there being no merit in the present appeal, the same may be dismissed. ANALYSIS

21. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the decision rendered by a coordinate Bench of this Court in the case of Shiva alias Shivaji Ramaji Sonawane (supra) requires a relook and the issue be referred to a larger Bench.

AN OVERVIEW OF THE GUJARAT CONTROL OF TERRORISM AND ORGANISED CRIME ACT, 2015  

22. The Gujarat Control of Terrorism Act, 2015, as its long title indicates, is ‘an Act to make special provisions for the prevention and control of terrorist acts and for coping with criminal activities by organised crime syndicates and for the matters connected therewith or incidental there to’. The statement of objects and reasons contains the reasons, which constitute the foundation for the legislature to step in: First, organised crime which is in existence for some years poses a serious threat to society; Secondly, organised crime is not confined by national boundaries; Thirdly, organised crime is fuelled by illegal wealth generated by contract killing, extortion, smuggling and contraband, illegal trade in narcotics, kidnapping for ransom, collection of protection money and money laundering, and other activities; Fourthly, the illegal wealth and black money generated by organised crime pose adverse effects on the economy; Fifthly, organised crime syndicates make common cause with terrorists fostering narcoterrorism which extends beyond national boundaries; Sixthly, the existing legal framework in terms of penal and procedural laws and the adjudicatory system were found inadequate to curb and control organised crime; and Seventhly, the special law was enacted with ‘stringent and deterrent provisions’ including in certain circumstances, the power to intercept wire, electronic or oral communication. 12 In understanding the ambit of the enactment, emphasis must be given to three definitions: a. Organised crime (Section 2(1)(e));1 b. Organised crime syndicate (Section 2(1)(f));2 and c. Continuing unlawful activity (Section 2(1)(c).3 The expression ‘organised crime’ is defined with reference to a continuing unlawful activity. The definition is exhaustive since it is prefaced by the word ‘means’. The ingredients of an organised crime are: a. The existence of a continuing unlawful activity; b. Engagement in the above activity by an individual; c. The individual may be acting singly or jointly either as a member of an organised crime syndicate or on behalf of such a syndicate; d. The use of violence or its threat or intimidation or coercion or other unlawful means; and e. The object being to gain pecuniary benefits or undue economic or other advantage either for the person undertaking the activity or any other person or for promoting insurgency. 1 Section 2(1)(e) - “organised crime” means any continuing unlawful activity and terrorist act including extortion, land grabbing, contract killing, economic offences, cyber crimes having severe consequences, running large scale gambling rackets, women trafficking, racket for prostitution or ransom 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. 2 Section 2(1)(f) - “organised crime syndicate” means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulging in activities of organised crime. 3 Section 2(1)(c) - “continuing unlawful activity” means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment for a term 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 filed before a competent court within the preceding period of ten years and that court has taken cognizance of such offence; 13 The above definition of organised crime, as its elements indicate, incorporates two other concepts namely, a continuing unlawful activity and an organised crime syndicate. Hence, it becomes necessary to understand the ambit of both those expressions. The ingredients of a continuing unlawful activity are: a. The activity must be prohibited by law for the time being in force; b. The activity must be a cognizable act punishable with imprisonment of three years or more; c. The activity may be undertaken either singly or jointly as a member of an organised crime syndicate or on behalf of such a syndicate; d. More than one charge-sheet should have been filed in respect of the activity before a competent court within the preceding period of ten years; and e. The court should have taken cognizance of the offence. The elements of the definition of ‘organised crime syndicate’ are: a. A group of two or more persons; b. Who act singly or collectively, as a syndicate or gang; and c. Indulge in activities of organised crime. Section 2(1)(c) while defining ‘continuing unlawful activity’ and Section 2(1) (e) while defining ‘organised crime’, both contain the expression ‘as a member of an organised crime syndicate or on behalf of such syndicate’. While defining an organised crime syndicate, Section 2(1)(f) refers to ‘activities of organised crime’. 14 Section 3 provides for the punishment for organised crime.4 Sub-section (1) of Section 3 covers ‘whoever commits an offence of organised crime’. Subsection (2) covers 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. Sub-section (3) covers whoever harbours or conceals or attempts to harbour or conceal any member of an organised crime syndicate. Sub- section (4) covers any person who is a member of an organised crime syndicate. Sub-section (5) covers whoever holds any property derived or obtained from the commission of an organised crime or which has been acquired through the funds of an organised crime syndicate. Section 4 punishes the possession of unaccountable wealth on behalf of a member of an organised crime syndicate. 4 Section 3 - (1) Whoever commits an offence of terrorist act or 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 fine which shall not be less than rupees ten lakhs; (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 fine which shall not be less than rupees five lakhs. (2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of any terrorist act or an organised crime or any act preparatory to any terrorist act or organised crime, 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 fine, which shall not be less than rupees five lakhs. (3) Whoever intentionally harbours or conceals or attempts to harbour or conceal any person who has committed an offence of any terrorist act or 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 fine which shall not be less than rupees five lakhs. (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 fine which shall not be less than rupees five lakhs. (5) Whoever holds any property derived, or obtained from commission of terrorist act or an organised crime or which has been acquired through the organised crime syndicate funds shall be punishable with imprisonment for 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 which shall not be less than rupees two lakhs.

23. For charging a person of organised crime or being a member of organised crime syndicate, it would be necessary to prove that the persons concerned have indulged in : (i) an activity, (ii) which is prohibited by law, (iii) which is a cognizable offence punishable with imprisonment for three years or more, (iv) undertaken either singly or jointly, (v) as a member of organised crime syndicate i.e. acting as a syndicate or a gang, or on behalf of such syndicate, (vi) (a) in respect of similar activities (in the past) more than one chargesheets have been filed in competent court within the preceding period of ten years, (b) and the court has taken cognizance of such offence. (vii) the activity is undertaken by : (a) violence, or (b) threat of violence, or intimidation or (c) coercion or (d) other unlawful means (viii) (a) with the object of gaining pecuniary benefits or gaining undue or other advantage or himself or any other person, or (b) with the object of promoting insurgency.

24. A close analysis of the term, ‘organised crime’ would indicate that there has to be 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 as singly or jointly as a member of organised crime syndicate or on behalf of such syndicate, in respect of which activity more than one chargesheets have been filed before a competent court within the preceding period of ten years and the Court has taken cognizance of such offence.

PRINCIPLES GOVERNING GRANT OF BAIL IN CASES OF THE 2015 ACT

41. The State of Maharashtra being dissatisfied with the aforesaid judgment of the High Court of Judicature at Bombay challenged the same before this Court. It is the said challenge which culminated in the decision titled as Shiva alias Shivaji Ramaji Sonawane (surpa).

42. We now proceed to look into the relevant observations made by this Court as contained in paras 9, 10 and 11 resply: “9. It was in the above backdrop that the High Court held that once the respondents had been acquitted for the offences punishable under IPC and the Arms Act in Crimes Nos. 37 and 38 of 2001 and once the trial court had recorded an acquittal even for the offence punishable under Section 4 read with Section 25 of the Arms Act in MCOCA Crimes Nos. 1 and 2 of 2002, all that remained incriminating was the filing of charge-sheets against the respondents in the past and taking of cognizance by the competent court over a period of ten years prior to the enforcement of MCOCA. The filing of charge-sheets or taking of the cognizance in the same did not, declared the High Court, by itself constitute an offence punishable under Section 3 of MCOCA. That is because the involvement of the respondents in previous offences was just about one requirement but by no means the only requirement which the prosecution has to satisfy to secure a conviction under MCOCA. What was equally, if not, more important was the commission of an offence by the respondents that would constitute “continuing unlawful activity”. So long as that requirement failed, as was the position in the instant case, there was 31 no question of convicting the respondents under Section 3 of MCOCA. That reasoning does not, in our opinion, suffer from any infirmity. 10. The very fact that more than one charge-sheets had been filed against the respondents alleging offences punishable with more than three years' imprisonment is not enough. As rightly pointed out by the High Court commission of offences prior to the enactment of MCOCA does not by itself constitute an offence under MCOCA. Registration of cases, filing of charge-sheets and taking of cognizance by the competent court in relation to the offence alleged to have been committed by the respondents in the past is but one of the requirements for invocation of Section 3 of MCOCA. Continuation of unlawful activities is the second and equally important requirement that ought to be satisfied. It is only if an organised crime is committed by the accused after the promulgation of MCOCA that he may, seen in the light of the previous charge-sheets and the cognizance taken by the competent court, be said to have committed an offence under Section 3 of the Act. 11. In the case at hand, the offences which the respondents are alleged to have committed after the promulgation of MCOCA were not proved against them. The acquittal of the respondents in Crimes Nos. 37 and 38 of 2001 signified that they were not involved in the commission of the offences with which they were charged. Not only that the respondents were acquitted of the charge under the Arms Act even in Crime Cases Nos. 1 and 2 of 2002. No appeal against that acquittal had been filed by the State. This implied that the prosecution had failed to prove the second ingredient required for completion of an offence under MCOCA. The High Court was, therefore, right in holding that Section 3 of MCOCA could not be invoked only on the basis of the previous charge-sheets for Section 3 would come into play only if the respondents were proved to have committed an offence for gain or any pecuniary benefit or undue economic or other advantage after the promulgation of MCOCA. Such being the case, the High Court was, in our opinion, justified in allowing the appeal and setting aside the order passed by the trial court.” (Emphasis supplied)

43. Thus, in Shiva alias Shivaji Ramaji Sonawane (surpa), this Court took the view that there are two essential ingredients to constitute an offence under MCOCA. First, the registration of cases, filing of chargesheets and taking of cognizance by the competent court in relation to the offences alleged to have been committed by the accused in the past and secondly, continuation of unlawful activities. In other words, it is only if an organised crime is committed by the accused after the promulgation of the MCOCA that he may, on the basis of the previous chargesheets and the cognizance taken by the competent court, be said to have committed an offence under Section 3 of the MCOCA.

44. Indisputably, in Shiva alias Shivaji Ramaji Sonawane (surpa), the accused persons stood acquitted in connection with two of the crimes and considering the same, this Court took the view that the accused persons could not be said to have committed the alleged crime after the promulgation of MCOCA, as the allegations could not be proved against them. However, this Court, in no uncertain terms, has observed that what is important is the commission of an offence by the accused that would constitute ‘continuing unlawful activity’ and the unlawful activities could be said to have continued only if the accused are found to have indulged in an organised crime after the promulgation of the MCOCA.

45. The learned counsel appearing for the respondent-accused is right in his submission that having regard to the stringent provisions of the 2015 Act, its provisions should be very strictly interpreted and the authorities concerned would be obliged in law to strictly observe the said provisions. There need not be any debate on the fact that the provisions of the 2015 Act have been enacted to deal with organised criminal activity in relation to offence, which are likely to create terror and endanger and unsettle the economy of the country for which stringent 33 measures have been adopted. The provisions of the 2015 Act 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 and electronic media have also been provided for. In such a situation, it has to be ensured whether the investigation from its very inception has been conducted strictly in accordance with the provisions of the 2015 Act. (See: State of Maharashtra and Others v. Lalit Somdatta Nagpal and Another reported in (2007) 4 SCC 171)

46. It is a sound rule of construction that the substantive law should be construed strictly so as to give effect and protection to the substantive rights unless the statute otherwise intends. Strict construction is one which limits the application of the statute by the words used. According to Sutherland, ‘strict construction refuses to extend the import of words used in a statute so as to embrace cases or acts which the words do not clearly describe’.

47. The rule as stated by Mahajan C.J. in Tolaram Relumal and Another v. State of Bombay reported in AIR 1954 SC 496, is that “if two possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes a penalty. It is not competent to the court to stretch the meaning of an expression used by the legislature in order to carry out the intention of the legislature….” In State of Jharkhand and Others v. Ambay Cements and Another reported in (2005) 1 SCC 368, this Court held that it is a settled rule of interpretation that where a statute is penal in character, it must be strictly construed and followed. The basic rule of strict construction of a penal statute is that a person cannot be penalised without a clear letter of the law. Presumptions or assumptions have no role in the interpretation of penal statutes. 34 They are to be construed strictly in accordance with the provisions of law. Nothing can be implied. In such cases, the courts are not so much concerned with what might possibly have been intended. Instead, they are concerned with what has actually been said.

48. We are of the view and the same would be in tune with the dictum as laid in Shiva alias Shivaji Ramaji Sonawane (supra) that there would have to be some act or omission which amounts to organised crime after the 2015 Act came into force i.e., 01.12.2019 in respect of which, the accused is sought to be tried for the first time in the special court.

49. We are in agreement with the view taken by the High Court of Judicature at Bombay in the case of Jaisingh (supra) that 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 the enactment of the MCOCA to be an offence under the 1999 Act nor the provision relating to punishment relates to any offence prior to the date of enforcement of the 1999 Act, i.e., 24.02.1999. However, by referring to the expression ‘preceding period of ten years’ in Section 2(1)(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 1999 Act as being an offence under the 1999 Act. The same analogy will apply to the 2015 Act.

50. There is a vast difference between the act or activity, which is 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. For the purpose of organised crime, there has to be a continuing unlawful activity. There cannot be continuing unlawful activity unless at least two chargesheets are found to have been lodged in relation to the offence punishable with three years’ 35 imprisonment during the period of ten years. Indisputably, the period of ten years may relate to the period prior to 01.12.2019 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 chargesheets 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 01.12.2019 or thereafter. It nowhere by itself declares any activity to be an offence under the said 2015 Act prior to 01.12.2019. It also does not convert any activity done prior to 01.12.2019 to be an offence under the said 2015 Act. It merely considers two chargesheets 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 2015 Act.

51. If the decision of the coordinate Bench of this Court in the case of Shiva alias Shivaji Ramaji Sonawane (supra) is looked into closely along with other provisions of the Act, the same would indicate that the offence of ‘organised crime’ could be said to have been constituted by at least one instance of continuation, apart from continuing unlawful activity evidenced by more than one chargesheets in the preceding ten years. We say so keeping in mind the following: (a) If ‘organised crime’ was synonymous with ‘continuing unlawful activity’, two separate definitions were not necessary. (b) The definitions themselves indicate that the ingredients of use of violence in such activity with the objective of gaining pecuniary benefit are not included in the definition of ‘continuing unlawful activity’, but find place only in the definition of ‘organised crime’. 36 (c) What is made punishable under Section 3 is ‘organised crime’ and not ‘continuing unlawful activity’. (d) If ‘organised crime’ were to refer to only more than one chargesheets filed, the classification of crime in Section 3(1)(i) and 3(1)(ii) resply on the basis of consequence of resulting in death or otherwise would have been phrased differently, namely, by providing that ‘if any one of such offence has resulted in the death’, since continuing unlawful activity requires more than one offence. Reference to ‘such offence’ in Section 3(1) implies a specific act or omission. (e) As held by this Court in State of Maharashtra v. Bharat Shanti Lal Shah (supra) continuing unlawful activity evidenced by more than one chargesheets is one of the ingredients of the offence of organised crime and the purpose thereof is to see the antecedents and not to convict, without proof of other facts which constitute the ingredients of Section 2(1)(e) and Section 3, which respectively define commission of offence of organised crime and prescribe punishment. (f) There would have to be some act or omission which amounts to organised crime after the Act came into force, in respect of which the accused is sought to be tried for the first time, in the Special Court (i.e. has not been or is not being tried elsewhere). (g) However, we need to clarify something important. Shiva alias Shivaji Ramaji Sonawane (supra) dealt with the situation, where a person commits no unlawful activity after the invocation of the MCOCA. In such circumstances, the person cannot be arrested under the said Act on account of the offences committed by him before coming into force of the said Act, 37 even if, he is found guilty of the same. However, if the person continues with the unlawful activities and is arrested, after the promulgation of the said Act, then, such person can be tried for the offence under the said Act. If a person ceases to indulge in any unlawful act after the said Act, then, he is absolved of the prosecution under the said Act. But, if he continues with the unlawful activity, it cannot be said that the State has to wait till, he commits two acts of which cognizance is taken by the Court after coming into force. The same principle would apply, even in the case of the 2015 Act, with which we are concerned.

52. In the overall view of the matter, we are convinced that the dictum as laid by this Court in Shiva alias Shivaji Ramaji Sonawane (supra) does not require any relook. The dictum in Shiva alias Shivaji Ramaji Sonawane (supra) is the correct exposition of law.

53. With the aforesaid clarification, the appeal stands disposed of.

………………………….J. (S. Abdul Nazeer)

………………………….J. (J.B. Pardiwala)

New Delhi

Date: December 15, 2022. 38