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TMI Blog2009 (10) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... h according to the petitioner they arise out of the same incident. On 29.12.2006, FIR No. 104/06 was registered at P.S. Lodhi Road under Section 3 of the said Act against the petitioner and another accused. 2. The petitioner filed a writ petition, being WP (Crl.) No. 84/2007 under Article 226 of the Constitution of India read with Section 482 of the Cr.P.C. seeking quashing of FIR No. 104/2006 on the ground that the registration of the said FIR was in derogation of the mandate contained in Article 20(1) of the Constitution of India which prohibits application of ex post facto criminal laws. The proceedings recorded in the said criminal writ petition on 22.1.2007 show that files of WP (Crl.) Nos. 45/2006, 159-160/2006 & 161-162/2006 titled as Jagmohan @ Mohar Singh v. Commissioner of Police and Ors. decided on 1.12.2006 were called. It is the case of the petitioner that there were certain observations made in the decision of Jagmohan & Mohar Singh case (supra) which had an effect on the writ petition filed by the petitioner and thus the counsel for the petitioner withdrew WP (Crl.) No. 84/2007 with liberty to file a fresh petition seeking to challenge the constitutional validity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the existing legal framework was found rather inadequate to curb or control organized crime. It was for this purpose that the special law was enacted. The said Act was extended to the National Capital Territory of Delhi by GSR 6 (E) in exercise of powers conferred by Section 2 of the Union Territories (Laws) Act, 1950 by the Central Government with certain modifications. It is necessary to refer to some of the provisions which are germane for the present controversy. 5. Section 2 of the said Act is the Definitions Section and as to what constitutes "continuing unlawful activity" is defined under Sub-clause (d) while "organized crime" is defined under Sub-clause (e) which read as under: (d) "continuing unlawful activity" means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such, syndicate in respect of which more than one charge-sheets have been field before a competent Court within the preceding period of ten years and that Court has taken cognizance of such of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to a minimum fine of rupees two lacs. 7. Learned senior counsel for the petitioner drew our attention to the provisions of Article 20(1) of the Constitution of India which reads as under: 20.(1) 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 the commission of the offence. 8. Learned Counsel, thus, contended that the acts which are alleged to constitute an offence under different provisions of The Indian Penal Code, 1860 (hereinafter referred to as the IPC) prior to the said Act being applicable to Delhi could not be taken into account for prosecuting the petitioner under Section 3 of the said Act which provides for punishment for "organized crime". Learned Counsel contended as to what constitutes "organized crime" is defined under Section 2(1)(e) of the said Act and the consequences are made penal for the first time under Section 3 of the said Act. Thus, such "organized crime" has been made a new offence under the provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e taken into account for the purposes of determining whether the accused is indulging in continued unlawful activity. It is this aspect which was disputed by learned senior counsel for the petitioner and that is what gave rise to the framing of the question which required adjudication referred to aforesaid. 12. Learned senior counsel emphasized that Article 20(1) of the Constitution of India has been held to be much wider in terms than the principles incorporated in the American Constitution which merely prohibits an ex post facto law. The submission advanced was that what is prohibited under the Indian Constitution is subjecting a citizen to penalty to ex post facto laws and extends to conviction on sentence and fullest effect has been given to this Article by the Supreme Court. In support of his contention learned Counsel referred to the Judgment of the Supreme Court in Rao Shiv Bahadur Singh and Anr. v. The State of Vindhya Pradesh (1953) 4 SCR 1188. The two questions examined by the Supreme Court related to: "(1) the proper construction of Article 20 of the Constitution; and (2) whether the various acts in respect of which the appellants were convicted constituted offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lidate such convictions. 11. This contention, however, cannot be upheld. On a careful consideration of the respective articles, one is struck by the marked difference in language used in the Indian and American Constitutions. Sections 9(3) and 10 of Article 1 of the American Constitution merely say that "No ex post facto law shall be passed" and "No State shall pass ex post facto law." But in Article 20 of the Indian Constitution the language used is in much wider terms, and what is prohibited is the conviction of a person or his subjection to a penalty under ex post facto laws. The prohibition under the article is not confined to the passing or the validity of the law, but extends to the conviction or the sentence and is based on its character as an ex post facto law. The fullest effect must therefore be given to the actual words used in the article. Nor does such a construction of Article 20 result in giving retrospective operation to the fundamental right thereby recognised. All that it amounts to is that the future operation of the fundamental right declared in Article 20 may also in certain cases result from acts and situations which had their commencemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugust, 1948," a date long prior to the date of commission of the offences. It was accordingly suggested that since such a law at the time when it was passed was a valid law and since this law had the effect of bringing this Ordinance into force from 9th August, 1949, it cannot be said that the convictions are not in respect of "a law in force" at the time when the offences were committed. This, however, would be to import a somewhat technical meaning into the phrase "law in force" as used in Article 20. "Law in force" referred to therein must be taken to relate not to a law "deemed" to be in force and thus brought into force but the law actually in operation at the time or what may be called the then existing law. Otherwise, it is clear that the whole purpose of Article 20 would be completely defeated in its application even to ex post facto laws passed after the Constitution. Every such ex post facto law can be made retrospective, as it must be, if it is to regulate acts committed before the actual passing of the Act, and it can well be urged that by such retrospective operation it becomes the law in force at the time of the commencemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Section to the offence in question would clearly deny the protection afforded by Article 20(1) of the Constitution of India. 16. Learned Counsel submitted that the bedrock of his case are the observations of the Supreme Court in the aforesaid two judgements but proceeded to also refer to the Judgment in Union of India v. Yumnam Anand M. @ Bocha @ Kora @ Suraj and Anr. (2007) 10 SCC 190, more specifically paras 5 & 6. We, however, find that the said case is one of preventive detention where observations have been made in paras 5 & 6 as to how a representation against the preventive detention is to be considered and the sanctity of the protection granted under Article 21 of the Constitution of India of personal liberty. In the facts of the present case the said observations appear to us to have no relevance. Not only that learned Counsel also referred to some other judgements to contend that the enormity and gravity of the offence cannot justify the action of the State if it is not supported by law. In V.C. Mohan v. Union of India and Ors. (2002) 3 SCC 451 while dealing with the issue of preventive detention being admittedly an invasion of personal liberty it was observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng prescribed by a statute may be described as an offence, though no criminal sanction is imposed but merely a pecuniary sanction recoverable as a civil debt. The expression "offence" as defined in Section 3(38) of the General Clauses Act means an act or omission made punishable by any law for the time being in force. "Punishable" as noticed by this Court in Sube Singh v. State of Haryana is ordinarily defined as deserving of, or capable or liable to punishment. According to Concise Oxford English Dictionary, "punish" means, "inflict a penalty on as retribution for an offence, inflict a penalty on someone for (an offence)". In New Shorter Oxford English Dictionary (Vol. 2, 3rd Edn., reprint 1993), the meaning of punishment is given as, "infliction of a penalty in retribution for an offence; penalty imposed to ensure application and enforcement of a law". Going by Black's Law Dictionary (8th Edn.) it is: A sanction--such as a fine, penalty, confinement, or loss of property, right, or privilege--assessed against a person who has violated the law. According to Jowitts Dictionary of English Law, Vol. 2, (2nd Edn. by John Burke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the definition of continuing unlawful activity is, thus, vague as it did not state with any certainty as to who and when shall be said to have engaged in continuing unlawful activity was negated relying on the observations of the Supreme Court in Amritsar Municipality v. State of Punjab AIR 1969 SC 1100 where it was observed as under: But the rule that an Act of a competent legislature may be "struck down" by the Courts on the ground of vagueness is alien to our Constitutional system. The Legislature of the State of Punjab was competent to enact legislation in respect of "fairs" vide entry 28 of List II of the Seventh Schedule to the Constitution. A law may be declared invalid by the superior Courts in India if the Legislature has no power to enact the law or that the law violates any of the fundamental rights guaranteed in Part III of the Constitution or is inconsistent with any Constitutional provision, but not on the ground that it is vague. 19. The Division Bench, thus, rejected the argument based on the definition of continued criminal activity being vague. Similarly, the challenge to the said provision being violative of Article 14 of the Constitution o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstance of conviction or acquittal that followed the charge are not material. The limited purpose is to see antecedents of the person. Not to convict. In P. Rathinam v. Union of India 1994 CriLJ 1605 the Supreme Court repelled a some what similar challenge to the validity of Section 309 of the IPC as follows: 18. In so far as treating of different attempts to commit suicide by the same measure punishment is concerned, the same also cannot be regarded as violative of Article 14, inasmuch as the nature, gravity and extent of attempt may be taken care of by tailoring the sentence appropriately. It is worth pointing out that Section 309 has only provided the maximum sentence which is up to one year. It provides for imposition of fine only as a punishment . 28. Section 2(1)(d) defines what the continuing unlawful activity is and the enactment is intended to prevent and control organized crime. Organized crime is something which is continued unlawful activity and that continuing unlawful activity is repeatedly indulging or facing charge of indulgence in crimes punishable with three years or more. The definition therefore thus defines with clarity what is meant by continuing unlawful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as provided by Section 20. 37. There is another reason for so reading it. Perusal of the complete enactment will disclose that it is only prospective and not retrospective in any place. Therefore the words "at any time" must be read prospectively to mean at any time after coming into force of this Act. So read there will be no error or vagueness or infirmity in Section 4. We therefore hold that it be read as stated above and so read we hold that it is constitutionally valid. 22. The Division Bench, thus, read down the provisions to imply that the words "at any time" must be read prospectively keeping in view the Article 20 of the Constitution of India. 23. The matter thereafter went to the Supreme Court in State of Maharashtra v. Bharat Shanti Lal Shah and Ors. (2008) 13 SCC 5. The constitutional validity of Section 3 of the said Act was upheld along with that of Section 2(1)(d), (e) & (f) of the said Act. It was found that there was no vagueness nor did it suffer from vice of class legislation and was not violative of Article 14 of the Constitution of India. The fact that Section 4 of the said Act was also sought to be challenged as being violative of Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 977) 4 SCC 415 the fact that the challenge to Section 10 of the Industrial Disputes Act, 1947 being violative of Article 14 of the Constitution of India had been repelled earlier was held to be sufficient and the Supreme Court categorically stated that it was not permissible to raise the question again by submitting that a new ground could be made to raise objection affecting its constitutionality. The learned Counsel for the State of Maharashtra also referred to the observations of the Full Bench of the Gujarat High Court in Sarjubhaiya Mathur bhaiya Kahar v. Deputy Commissioner of Police and Anr. 1984 Cri.L.J. 1474 to the effect that once a matter has been considered by the Supreme Court on earlier occasions as a result of which consideration sections have been held to be valid, a new ground of challenge even on the basis of approach made in later decisions of the Supreme Court may not be available before this Court to the petitioner. 26. A reference was also made to the Division Bench Judgment of the Bombay High Court in Jaisingh v. State of Maharashtra 2003 BomCR (Cri) 1606 where the petitioner sought to challenge the constitutional validity of the provision of law contained i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Act has to come into force from 24-2-1999, it is apparent that it has to relate to the period even prior to 24-2-1999. 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be taken in this connection of a suggestion made by the learned Counsel that in effect Sub-section 3 of Section 5 creates a new offence in the discharge of official duty, different from what is defined in the four clauses of Section 5(1). It is said that the act of being in possession of pecuniary resources or property disproportionate to known sources of income, if it cannot be satisfactorily accounted for, is said by this Sub-section to constitute the offence of criminal misconduct in addition to those other acts mentioned in Clauses a, b, c and d of Section 5(1) which constitute the offence of criminal mis-conduct. On the basis of this contention the further argument is built that if the pecuniary resources or property acquired before the date of the Act is taken into consideration under Sub-section 3 what is in fact being done is that a person is being convicted for the acquisition of pecuniary resources or property, though it was not in violation of a law in force at the time of the commission of such act of acquisition. If this argument were correct a conviction of a person under the presumption raised under the Section 5(3) in respect of pecuniary resources or property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expression be read down as being applicable with effect from the date when the Act came into force. The Division Bench observed as under: 16. So far as the objection to taking into account the cases in which an acquittal has taken place in view of bar of Article 20 of the Constitution of India is concerned one has to keep in mind that the accused/petitioner is not being asked to stand trial for those cases. Those cases are cited only to say that he has been accused in the past. 17. In fact the very definition shows that before a case under MCOCA is registered there should be previous charge-sheets and cognizance taken thereon. In case, petitioners interpretation of Article 20 being applicable is accepted, entire definition of the offence would be hit by Article 20 and, therefore, should be struck down. Although, the petitioner's counsel is categorical that he is not challenging the constitutionality of the Act but he wants to protect his client under Article 20. The Bombay High Court dealt with the question of virus of the Act in the light of the fundamental rights of the citizens and in that connection also came to examine whether the result of the previous prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re acquittals have followed witnesses turning hostile or the non-availability of witnesses. Understandably, petitioners cannot be permitted to take advantage of these acquittals, especially which have followed witnesses turning hostile or evidence being obliterated. 20. The petitioner's counsel claim that only the offences registered after the promulgation of MCOCA in Delhi can be taken into consideration for booking a person under MCOCA. He has cited authorities to show that the penal law applicable to an offence is the one that was in force at the time of commission of the offence. According to him since the earlier alleged offences were committed before coming into force of MCOCA in Delhi, those cannot be taken into account for invoking MCOCA. Again as stated earlier, the petitioner is not being prosecuted for whatever he did in the past. He is being prosecuted for continuing with the unlawful activity. Certainly if a person commits no unlawful activity and is not arrested in any case after the invocation of MCOCA, he cannot be arrested under this Act on account of the offence committed by him before coming into operation of MCOCA even if he had been found guilty in them. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t learned Counsel for the petitioner contends that the aforesaid observations are obiter in nature. 32. On giving our thoughtful consideration to the pleas of the learned Counsels for the parties it is obvious to us that insofar as the challenge to the provisions of Section 3 of the said Act are concerned, the Judgment of the Division Bench of the Bombay High Court in Bharat Shantilal Shah, Shamim Mirza Arif Beg & Sanjay Patil case (supra) clearly negated the same on the aspect of Article 20(1) of the Constitution of India being violated. The Division Bench of the Bombay High Court in Jai Singh case (supra) has specifically dealt with Sections 2(1)(d), (e) & (f) and Section 3 of the said Act as also the mandate of Article 20(1) of the Constitution of India. The detailed discussion in this behalf is abundantly clear and explicit. A Division Bench of this Court also in Jagmohan @ Mohar Singh case (supra) has, once again, dealt with this aspect of the challenge and come to the conclusion that there was nothing unconstitutional about these provisions as the accused was not being asked to stand trial for cases prior to the said Act coming into force. We see no reason to differ from thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sheets which have been filed against the petitioner earlier would be taken cognizance of and tried in accordance with law prevalent at the relevant stage of time. These charge sheets would not be tried under the said Act. However, in the facts of the present case there are two FIRs filed in the year 2003 and one in 2006. There are, thus, undisputedly more than one charge sheet filed after the said Act come into force. The stand of the Union of India is also consistent with the aforesaid to the extent that charge sheets filed before 2.1.2002 would be proceeded with under the relevant provisions of the IPC and not MCOCA. Section 2(1)(d) & (e) read with Section 3 of the said Act are stated to take into account the charge sheets filed by the police on which cognizance have been taken by the competent court in the preceding ten years but the earlier charge sheets were not to be tried under MCOCA. The stand of the Union of India is, however, and rightly so, that one cannot lose sight of the object with which the said Act is being brought into force, which is to control organized crime which transcends borders. Persons located in different countries continue to indulge in criminal activi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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