MCOCA-Division Bench Order 26mar09

IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH, NAGPUR.
CRI. APPEAL NO.308 OF 2002

WITH
CRI.APPEAL NO.317 OF 2002
WITH
WITH
CRI. APPEAL NO.323 OF 2002
WITH
WITH
WITH
CRI.APPEAL NO.374 OF 2002.
CRI.APPEAL NO.308/2002.
Madan S/o. Ramkisan Gangwani,

aged about 35 years, R/o. Itwari Bhaji Mandi,
Nagpur (Dead).
Shamsundar S/o. Ramkisan Gangwani.
.... APPELLANT.
// VERSUS //
The State of Maharashtra

through A.C.P. Crime Branch,
NAGPUR.
.... RESPONDENT.
---------------------------------------------------------------------------------------------
Shri R.M.Daga, Advocate for the Appellant.
Mrs. Bharti Dangre & Shri S.S.Doifode, A.P.P. for Respondent/State.
---------------------------------------------------------------------------------------------

WITH
Milind S/o. Wamanrao Kharwade,

aged about 26 years, Occu.: Business,
(Presently lodged in Central Prison,
Nagpur) R/o. Itwari Garud Khamb,
Police Station, Nagpur. (Now in Jail)
.... APPELLANT.
// VERSUS //
State of Maharashtra through

A.C.P. Crime Branch, Nagpur.
.... RESPONDENT.
---------------------------------------------------------------------------------------------
Shri J.M.Gandhi, Advocate for the Appellant.
---------------------------------------------------------------------------------------------
WITH
Bablya @ Hemant Narayan Mohite,

Aged 30 yrs., R/o. Rukmini Nagar,
Nagpur.
.... APPELLANT.
// VERSUS //
State of Maharashtra through

A.C.P., Crime Branch, Nagpur.
.... RESPONDENT.
---------------------------------------------------------------------------------------------
Shri Sachin Zoting, Advocate for the Appellant.
Mrs. Bharti Dangre Addl.P.P. &
Shri S.S.Doifode, A.P.P. for Respondent/State.
---------------------------------------------------------------------------------------------

WITH
Ashok S/o. Inderlal Botnis,

aged about 39 years, R/o. Mahal, Nagpur.
.... APPELLANT.
// VERSUS //
Through A.C.P. Crime Branch, Nagpur.
.... RESPONDENT.
----------------------------------------------------------------------------------------------------
Shri R.S.Renu, Advocate for the Appellant.
Mrs. Bharti Dangre & Shri S.S.Doifode, Addl.P.P. for Respondent/State.
----------------------------------------------------------------------------------------------------
WITH
Santosh S/o. Shashikant Ambekar,

aged about 31 years, Occu.: Nil,
R/o. Itwari High School,
Nagpur.
.... APPELLANT.
// VERSUS //

Through A.C.P. Crime Branch,
Nagpur.
.... RESPONDENT.
WITH
1. Shashikant S/o. Damodar Ambekar,

aged about 68 years, Occu.: Business,
2. Sushma W/o. Shashikant Ambekar,

aged 58 years, Occu.: Business.
3. Vandana W/o. Rajkumar Verma,

Aged 35 years, Occu.: Household.

All R/o. Shanti Road, Itwari,

Nagpur.
4. Mahesh S/o. Mansingh Solanki,

Aged 35 years, R/o. Juna Sakkardara,
Nagpur.
5. Ashok S/o. Vishwanath Mathale,

Aged about 43 years, R/o. Mahal,
Nagpur.
.... APPELLANTS.
(Accused Nos.10 to 12, 5 & 6.)
// VERSUS //

Through A.C.P. Crime Branch,
Nagpur.
.... RESPONDENT.
---------------------------------------------------------------------------------------------
Shri R.K.Tiwari, Advocate for the Appellant.
Mrs. Bharti Dangre Addl.P.P. &
Shri S.S.Doifode, A.P.P. for Respondent/State.
---------------------------------------------------------------------------------------------
WITH
Habib Abdul Rashid S/o. Abdul Rashid Rathod,

Aged : 25 years, R/o. Itwari Bhajimandi,
Post : Lakadganj, Nagpur.
.... APPELLANT.
// VERSUS //
through A.C.P. Crime Branch,
Nagpur.
.... RESPONDENT.
---------------------------------------------------------------------------------------------------
Shri A.M.Rizwy, Advocate for the Appellant.
----------------------------------------------------------------------------------------------------

CORAM: A.H. JOSHI &

R.C.CHAVAN, JJ.
Date of Reserving Judgment : 23.03.2009.

Date of Pronouncing Judgment: 26.03.2009.
JUDGMENT : ( Per : R.C.Chavan, J)
1. This bunch of appeals arise out of judgment dated
17.05.2002, by the learned Judge, Special Court under the Maharashtra
Control of Organised Crime Act, 1999 (hereinafter referred to as
“MCOCA” for the sake of brevity) in Special Criminal Case No.1 of 2000.
2. Facts, which led to prosecution and conviction of appellants
have been elaborated by the learned Judge, Special Court under MCOC
Act in her painstakingly written judgment. They may be briefly stated as
under :
In Itwari area, which is commercial hub of Nagpur having
large number of jewellers and goldsmiths, a gang led by appellant
Santosh Ambekar (in Criminal Appeal No.324 of 2002) was operating.
This gang indulged in extortion, forcing transfer of properties and other

criminal acts whereby they amassed huge wealth. Appellant Santosh
was working with builder Anil Ninawe, who was originally a goldsmith.
Ninawe had engaged a commission agent by name Ashok Botnis
(appellant in Criminal Appeal No.323 of 2002) for deals in property.
Santosh and Ashok Botnis, who knew of Anil Ninawe's deals, started
recovering money meant for Anil Ninawe without latter's knowledge.
This led to clashes between Santosh and Anil.
3. On 9-4-1999 after 5.30 p.m., Anil had received a telephonic
warning to save himself. After about 8.05 p.m., 15-16 persons armed
with deadly weapons assaulted Anil Ninawe while he was about to
board his car for returning home. Anil's brother Subhash attempted to
ward off assailants by pelting stones but fled when assailants attacked
him. Anil was lying in a pool of blood. He was taken to Mayo Hospital
but was pronounced dead. An offence was registered against appellant
Santosh and others at Police Station Lakadganj, which has been
separately investigated into, and in which separate chargesheet was
filed.
In the said Sessions Case No.161 of 2000, appellants Santosh,
Babloo and Prakash were acquitted by Court of Sessions on 5-8-2005.

4. PI Prakash Mahajan submitted a proposal on 20-8-1999 for
permission under Section 23(i)(a) of MCOC Act for registering
information against appellant Santosh under MCOC Act. On 26-9-1999,
necessary permission was granted by the Commissioner of Police,
Nagpur. ACP Kotwali Division was entrusted with investigation.
Accordingly, PI Mahajan registered Crime No.299 of 1999 for offences
punishable under Sections 3 and 4 of MCOC Act and Sections 386, 387,
120-B and 109 of the Penal Code on 26-9-1999 and made over
investigation to ACP Shri Siram.
5. Appellant Santosh was absconding. A search was launched
and a proclamation too was issued. Since Santosh failed to appear, his
properties were attached. Permission to tap telephone connections of
relatives of Santosh was obtained and on the basis of information
received from the intercepts, appellant Santosh was arrested at Mumbai
Airport on 23-7-2000. The intercepts also provided clues about
involvement of other accused.
6. Upon transfer of ACP Siram, investigation was entrusted to
ACP Solanki and after him to ACP Rude. In course of investigation,
other gang members were arrested, interrogated and at their instance

properties were seized. Inventories of properties amassed were also
drawn up. Criminal record of gang members was collected and on
finding that there was enough evidence of involvement of the accused
persons in offences punishable under Sections 3 and 4 of MCOC Act
along with other offences, permission was sought under Section 23(2) of
MCOC Act to file chargesheet. Upon receipt of such permission,
chargesheet was filed in the Special Court against the following accused
persons (hereinafter referred to by their numbers in Trial Court).:
Sr. Name of Accused Appeal No. Remarks

No.
Son of Accused Nos. 1
& 11, brother of
Santosh Shashikant Ambekar 324/2002
1 Accused No.12.
2 Bablu @ Hemant Narayan Mohite 318/2002 -
3 Prakash Namdeo Dhande No Appeal No appeal
Habib Abdul Rashid S/o. Abdul 374/2002 -
4 Rashid Rathod
5 Mahesh Mansingh Solanki 325/2002 -
6 Ashok Vishwanath Matole 325/2002 -
7 Milind Wamanrao Kharwade 317/2002 -
8 Ashok Inderlal Botnis 323/2002 -
Died after conviction.
Appeal allowed to be
prosecuted by brother
Shamsunder S/o.
9 Madan Ramkisan Gangwani 308/2002 Ramkisan Gangwani.

Sr. Name of Accused Appeal No. Remarks

No.
Father of Accused
No.1, Husband of
Shashikant Damodar Ambekar 325/2002
10 Accused No.11.
Mother of Accused
No.1, wife of Accused
Sushma Shashikant Ambekar 325/2002
11 No.10.
325/2002 Sister of Accused
No.1, Daughter of
Vandana Rajkumar Verma
12 Accused Nos. 10 & 11.
Dhananjay @ Dhannu Haribhai - Acquitted by Trial
13 Dusane. Court.
7. After hearing the prosecution and the accused, the learned
Judge, Special Court under MCOC Act charged the accused persons for
offences punishable under Sections 3(1)(i)(ii), 3(2), 3(3), 3(4), 3(5)
and 4 of MCOC Act and Sections 384, 386, 387 and 120-B of the Penal
Code.
8. The accused pleaded not guilty and, therefore, they were put
on trial. The prosecution examined in all 81 witnesses. After
considering their evidence in the light of defence of denial, the learned
Judge, Special Court convicted the appellants of various offences and
sentenced them as indicated below :

Sr. Convicted for Accused Sentence

No. offence Nos.
punishable
under Sections
A 3(1)(i) MCOCA 1 to 3 Convicted and sentenced to imprisonment
read with 120 B for life and fine of Rs.One Lac each or in
IPC. default imprisonment for 3 years.
B 3(1)(ii) MCOCA 1 to 7 Rigorous Imprisonment for ten years and
read with 120 B fine of Rs.Five Lacs each or in default
IPC. imprisonment for 3 years.
3(1)(ii) MCOCA 10 & 11 Rigorous Imprisonment for seven years
read with 120 B and fine of Rs.Five Lacs each or in default
C 3(2) MCOCA 1 to 9 Rigorous Imprisonment for ten years and
3(2) MCOCA 10 to 12 Rigorous Imprisonment for seven years
D 3(4) MCOCA 1 to 9 Rigorous Imprisonment for ten years and
3(4) MCOCA 10 to 12 Rigorous Imprisonment for seven years
E 3(5) MCOCA 1, 4 & 7 Rigorous Imprisonment for ten years and
read with 120 B fine of Rs.Two Lacs each or in default
3(5) MCOCA 8&9 Rigorous Imprisonment for ten years and
read with 120 B fine of Rs.Two Lacs each or in default
3(5) MCOCA 10 & 11 Rigorous Imprisonment for seven years
read with 120 B and fine of Rs.Two Lacs each or in default
F 4 MCOCA read 1, 8 & 9 Rigorous Imprisonment for ten years and
with 120 B IPC. fine of Rs.One Lac each or in default
imprisonment for 2 years.

Sr. Convicted for Accused Sentence

No. offence Nos.
punishable
under Sections
4 MCOCA read 4, 10 & Rigorous Imprisonment for seven years
with 120 B IPC. 11 and fine of Rs.One Lac each or in default
imprisonment for 2 years.
G 3(i)(ii) MCOCA, Rigorous Imprisonment for ten years and
384 IPC read fine of Rs.Five Lacs each or in default
with 120 B IPC. 1 imprisonment for 3 years.
3(i)(ii) MCOCA, 2 to 9 Rigorous Imprisonment for seven years
384 IPC read and fine of Rs.Five Lacs each or in default
with 120 B IPC. imprisonment for 2 years.
3(i)(ii) MCOCA, 10 & 11 Rigorous Imprisonment for seven years
384 IPC read and fine of Rs.Five Lacs each or in default
with 120 B IPC. imprisonment for 3 years.
H 3(i)(ii) MCOCA, 1, 2, 10 Rigorous Imprisonment for seven years
384, 387 IPC & 11 and fine of Rs.Five Lacs each or in default
read with 120 B imprisonment for 3 years.
IPC.
3(i)(ii) MCOCA, Rigorous Imprisonment for seven years
384, 387 IPC and fine of Rs.Five Lacs each or in default
IPC. 3 to 8
3(i)(ii) MCOCA, Rigorous Imprisonment for seven years
384, 387 IPC and fine of Rs.Five Lacs each or in default
IPC. 10 to 12
9. She acquitted accused No.13 of all the offences for which he
was charged. All the accused were acquitted of offence punishable
under Section 386 read with Section 120-B of the Penal Code. Accused
Nos.1 to 9 were acquitted of offence punishable under Section 3(3) of
MCOC Act read with Section 120-B of the Penal Code. Accused Nos.2, 3,

5, 6 and 12 were acquitted of offences punishable under Section 3(5)
and 4 of MCOC Act. Accused Nos.5, 6 and 8 to 12 were acquitted of
offences punishable under Section 3(1)(i) of MCOC Act read with
Section 120-B of the Penal Code. Accused No.12 was acquitted of
offences punishable under Section 3(1)(ii) of MCOC Act read with
Section 120-B and Sections 384 and 386 read with Section 120-B of the
Penal Code.
10. Aggrieved by their convictions, appellants have preferred
these appeals. We have heard the learned counsel for appellants as also
the learned Additional Public Prosecutor for State and with their help
have gone through the record.
11. As far as offences punishable under Sections 3(1)(i) and
3(1)(ii) of MCOCA, the learned counsel for appellants contended that
the learned trial judge had held those offences as proved by ignoring the
ingredients of organised crime. According to them :
(i) Evidence in respect of previous charge sheets filed

before MCOCA came into force would, at worst,
provide background, but would not help in holding
appellants guilty of an offence which was not on
statute book when those offences were registered;

(ii) Previous charge sheets unrelated to offences for

pecuniary or other gain were not relevant;
(iii) Previous charge sheets unrelated to offences committed

by use of force were likewise not relevant;
(iv) oral evidence of witnesses in relation to incidents

covered by charge sheets already filed and trials
separately held was irrelevant and inadmissible;
(v) oral evidence in respect of incidents which were not

referred to in the FIR under MCOCA was irrelevant and
inadmissible ;
(vi) Evidence in respect of previous charge sheets may at

worst prove involvement in continuing unlawful
activity, but not organised crime;
Therefore, they contended that there was really no evidence
to prove complicity of appellants. The learned Additional Public
Prosecutor contested this submission and contended that there was
enough evidence to prove the charges.
12. Before going to evaluation of evidence in light of above
points, it may be useful to mention that out of 81 witnesses, confidential

witness Nos. 1 to 8 who were examined as P.W. 1 to 7 and 10 have
refused to support the prosecution leading to failure to prove the charge
“Sixthly”. They are all businessmen in Sarafa Area of Itwari Nagpur.
Likewise, P.W. 12 Sanjay Khule has also refused to support the
prosecution leading to failure to prove the charge “Ninethly”. P.W. 45
Rajesh Gadekar who was supposed to be panch witness at Exh.366
turned hostile. P.W. 50 Arvind Jaiswal who was supposed to state that
appellant Santosh Ambekar took away TV set and VCR, turned hostile
and refused to support the prosecution. P.W. 54 Mohd. Sabir Mohd.
Issar who was supposed to be panch at seizure vide Exh.527, turned
hostile. Significance of evidence of P.W. No.35 Rahat Irshad is not at all
clear. He only states that Habib Rathod took a room on rent, paid rent
to him and nothing is due from Habib Rathod. Though, even evidence
of hostile witnesses can be considered, the evidence of these witnesses is
unhelpful to support cases of prosecution as well as defence.
13. P.W. 13 Girish Ingale has tendered evidence about his
daughter's kidnapping about 9 to 10 years ago by Santosh Ambekar and
others in respect of which offence a trial had taken place in the Court of
Sessions at Khamgaon bearing Criminal Case No.17/1992 in which
appellant Santosh Ambekar was convicted. There is no dispute about

this. This was long before MCOCA was enacted. Though technically
this could be taken as an instance where chargesheet in respect of an
offence punishable with imprisonment for more than 3 years was filed
and congnizance taken within the preceding ten years it seems to be an
isolated incident unconnected with any crime syndicate.
14. In order to prove charge “firstly” i.e. offences punishable
under Sections 3(1)(i) & 3(1)(ii) of MCOCA read with Section 120B of
IPC, among others, the prosecution examined P.W. 56 P.S.I. Govind
Tamhankar who stated that, as directed by ACP Rude, he collected
certified copies of 15 chargehseets Exh.572 to 585 from various courts
and Record Section of District Court, Nagpur and handed them over to
ACP Rude. P.W. 65 P.I. Hirachand Umbarkar stated that ACP Rude had
asked him to furnish information about MPDA proceedings against the
accused Santosh vide letter at Exh.649. Similar request was made about
accused Bablu Mohite and Mahesh Solanki. He stated that he furnished
necessary documents vide letter Exh.650 and the documents are at
Exh.651 to 665. Though documents in respect of other crimes referred
to in the charge could not be located, from the charge, as well as copies
of chargsheets filed on record, chargesheeting of the appellants is
indicated in the following offences :

CHART SHOWING INVOLVEMENT OF ACCUSED
IN SPECIAL CRI.CASE NO.1/2000.
Sr. Name of Section Cri. Date of Which Result Remarks

Police Case incident accused
No.
Station/ No. was
Crime No. involved
1 2 3 4 5 6 8 9
Kotwali 395, 324, 266/88 A-2
323 IPC
1 170/88
Kotwali 406, 420, 32 58/90 A-1 Acquitted
2 126/89 IPC 08/04/89
Kotwali 343, 427, 34 69/90 A-2
3 60(667)/90 IPC
Kotwali 294, 506 IPC 329/90 A-2
4 166/90
Kotwali 294, 506-B 160/91 A-2
5 271/90 IPC
6 Nandura, 363, 376 17/92 A-1 Acquitted
Distt. IPC, r/w
Buldana 4/25 Arms
153/91 Act.
06/04/88
Lakadganj 147, 148, 108/92 A-1, A-4 Not Known PW 17
149, 323 IPC Ravindra
697/91
7 08/12/91 Paraspure
Dhantoli 342, 395, 357/91 20-7-91 A-2
114 IPC
8 235/91
Kotwali 134, 148, 277/91 20-7-91 A-2, A-5 Not Known
149, 143,
343/91
506 IPC & 4
9 Explosive Act
Sakkardara 135 B.P. Act. A-2
10 266/91
Dhantoli 395, 342 A-2
11 235/91 IPC


No.
Station/ No. was
Crime No. involved
Mouda 147,148,149, 267/92 A-2, A-5 Acquitted
302,324 IPC
12 181/91
Ramtek 364, 365, A-2, A-5
368 r/w 34
13 203/91
Lakadganj 294, 506-B 210/93 14-9-92 A-1 Not Known
IPC
14 750/92
Lakadganj 147, 148, 148/05 A-1, A-4, Pending PW 22
149, 307 IPC A-7 Jayant
277/94
15 09/05/94 Wankar
Lakadganj 332, 354 r/w 196/94 21-2-94 A-1 Not Known
34 IPC
16 130/94
Kotwali 324 IPC 308/94 A-2
17 163/94
Sakkardara 324, 326, 34 A-2
Arms IPC
18 418/95
Imamwada 185 M.V. Act 180/95 A-5 Acquitted
19 (99)
Sakkardara 392, 435 34 113/96 - A-5 Acquitted
IPC 15.01.96
20 35/96 19.4.99
Kotwali 324, 34 IPC 304/96 A-2
21 226/96
Kotwali 392, 34 IPC 45/97 26.11.96 A-2, A-5
22 471/96
Sakkardara 324,34 IPC 248/96 A-5 Pending
23 360/96
Sakkardara 394, 448, 267/97 A-3 A-5 Acquitted
427 r/w 34 25-2-99
197/97
24 IPC 06/04/97
Kotwali 452, 448, 137/98 A-2
294, 506 IPC
25 336/97
Sakkardara 4/25 Arms A-2
Act
26 28/97
Sakkardara 265, 342, A-2
136, 506 IPC
27 416/97


No.
Station/ No. was
Crime No. involved
Tahsil 392, 34 IPC A-2
28 226/1997
Kotwali 135 B.P. Act 50/97 A-5
29 24/97
Imamwada 142 B.P. Act 179/97 A-5
30 7/97
Lakadganj 392, 506-II, 109/00 23-9-98 A-1 Pending
34 IPC
31 387/99
Lakadganj 302, 34 IPC, 377/99 A-1, A-2, Acquitted PW 18
4/25 Arms A-3 on 5-8-05 Subhash
116/99
Act, 135 B.P. Ninawe
32 Act 09/04/99
Tahsil 399 IPC, 285/01 18-9-09 A-1, A-3, Acquitted
4/25 Arms A-5, A-6. on 5-3-05
290/99
Act, 135 B.P.
33 Act
Kotwali 307, 34 IPC 117/00 18-10-99
34 375/99
Tahsil 294, 506, 79/99 24.04.99 A-4 PW 11
323 IPC Rajesh
3054/99
35 Saxena
Deolapar 302, 201 r/w A-1, A-2, Discharged Cognizance
34 A-4 under not taken
15/00
Section
169 of
36 Cr.P.C.
15. This chart will show that :
(i) Accused Nos. 8 to 12 are not involved in any criminal

activity prior to the recording of information in respect
of present crime of MCOCA. Accused No.7 was
involved only in crime at Sr.No.15 in the chart i.e.
Crime No.277/1994 of Police Station, Lakadganj.

(ii) Crimes at Sr.Nos. 1 to 31 were committed prior to date

when MCOCA came into force.
(iii) Out of the remaining crimes, in crime at Sr.Nos. 32 &

33, the accused have been acquitted after the judgment
under challenge was delivered.
(iv) In crimes at Sr.Nos. 3 to 7, 9, 10, 12, 14 to 19, 21, 23,

25, 26, 29, 30, 32, 34, 35, 36 appellants are not
arraigned for gaining or attempting to gain any
pecuniary benefits, or undue economic / other
advantage, or for promoting insurgency.
(v) only crime allegedly committed after MCOCA came

into force with the object of gaining pecuniary/ other
advantage by use of force is crime of Sr.No.33, being
Crime No.290/99 at P.S. Tahsil for offence of preparing
to commit a dacoity, punishable under Section 399 of
the Indian Penal Code and Section 4/25 of the Arms
Act for which accused were acquitted on 05.03.2005 in
Criminal Case No.285/2001.
16. The learned counsel for the appellants relied on a judgment
of the Supreme Court in S.K. Sinha, Chief Enforcement Officer v. Videocon
International Ltd. and others, reported at (2008) 2 SCC 492, on the

!#"
question as to what amounts to taking cognizance of offences under
FERA 1972 within two years of coming into force of FEMA on 1-6-2000.
The Chief Metropolitan Magistrate had by his order dated 24-5-2002
(i.e. within two years from 1-6-2000) taken cognizance. Summons
which was made returnable on 7-2-2003 was actually issued
on 3-2-2003.
17. The Court took a review of several judgments on the point.
In paras 36 and 37, the Court distinguished between issuing process
and taking cognizance and held that issuing process was a sequel to
taking cognizance. It is not clear as to how this judgment would help
appellants. In respect of past chargesheets, except Sr.No.36, Crime
No.15/2000 of Police Station, Deolapar, it is not shown that cognizance
was not taken or processes were not issued. On the other hand, some of
those cases seem to have culminated in acquittals or convictions. Crime
No.15 of 2000 of Police Station Deolapar, would, however, have to be
excluded.
18. Coming next to the question of relevance of evidence about
charge sheets filed before MCOCA was enacted it may be seen from
judgment in Appa @ Prakash Haribhau Londhe v. State of Maharashtra

$&%
and Anr., reported at 2006 ALL MR (Cri.) 2804, that their significance
is limited. The Court observed as under in paragraph 10 of the
judgment :
“10. For the purpose of organised crime there has to be a

continuing unlawful activity and 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. If no illegal activities as
contemplated by MCOC Act are committed after 1999,
then the past activities prior to 1999 may not be of any
help for registering any FIR only on the basis of those past
activities as has been observed by the Division Bench
(R.M.S. Khandeparkar and P.V. Kakade, JJ.) of this court
in Writ Petition No.689 of 2005 and other petitions, but
if two or more illegal activities are committed after 1999,
then the past activities can be taken into consideration in
order to show the continuity. We are therefore not in
agreement with the submissions made by Mr. Pradhan
that on the date of registration of FIR against the
petitioners they had not committed any act, as
contemplated.”
There can be no quarrel with these findings.
19. On the question of significance of “pecuniary gain”, the
learned counsel relied on the judgment in Sherbahadur Akram Khan &
ors. Vs. State of Maharashtra, reported at 2007(1) Bom.C.R.(Cri.) 26 =
2006 ALL MR 2895. A Division Bench of this Court was considering the
appeals filed by the accused challenging orders rejecting their

''
applications for discharge for the offence punishable under MCOC Act.
The Court considered statement of objects and reasons, definition and
other provisions of the Act and observed as under :
“10. ..... An activity would be termed as a continuing

unlawful activity if more than one charge-sheet has been
filed before the competent Court against the members of
the gang either individually or jointly within the
preceding ten years. However, it must be established
that such an offence or unlawful activity is undertaken
by a person with the objective of gaining pecuniary
benefits or gaining undue economic or other advantage
for himself or any other person or for promoting
insurgency. Such unlawful activity could include the use
of violence or threat of violence or intimidation or
coercion.
11. Taking into consideration the details of the

various charge-sheets which have been filed by the
prosecution and admitted by the learned A.P.P., it is
obvious that some of the accused have been charged for
offences which can, by no stretch of imagination, be
considered to give the accused any pecuniary or undue
economic or other advantage, either for the accused
himself or for any other person. Offences punishable
under sections 323, 324, 325 and 326 read with 34 are
not such as would provide any pecuniary benefit or
undue economic gain to the accused. Some of these
offences have resulted from a quarrel at a public water
tap. Fist blows have been allegedly used by the accused
in most of the cases whereas in one or two instances the
accused has allegedly used a chopper or an iron rod to
assault the victim. ...
12. Apart from this, as aforesaid, the unlawful

activity is not relatable to any pecuniary advantage or
economic gain for the accused. The words in section
(*)
2(e) “with the objective of gaining pecuniary benefits or

gaining undue economic or other advantage” will have
to be given some effective meaning. Applying the
principle of ejusdem generis the words “other advantage”
would have to be interpreted in the same manner as the
previous terms “pecuniary benefits” or “undue economic
advantage”. A quarrel at a water tap which resulted in
violence cannot be an offence which falls within this
definition. Assaults on some persons also cannot be
considered as offences which have been undertaken for
pecuniary gain or undue economic advantage......”
20. In view of this, it cannot be disputed that unless the crime
was aimed at pecuniary or other like advantage, it would be of no avail
for proving offence of oganised crime.
21. The learned Additional Public Prosecutor referred to the long
title of the Act, which reads as under :
“An Act to make Special Provisions for

Prevention and Control of Organized Crime and for
coping with, Criminal Activity by Organized Crime
Syndicate or Gang, and for matters connected therewith
or incidental thereto.”
She also took us through painstakingly collected resources
from the internet on the definition of organised crime in various
jurisdictions abroad. She submitted that these resources would
highlight the concern of civilized society world over to combat organised
crime. In this light, she argued that various terms in MCOC Act would
+#,
need a broader interpretation which would advance the object of the Act
as indicated in the long title. She submitted that this unusual law had to
be enacted to overcome the threat from organised crime to the very
existence of civilized society. In view of this, according to her, the
definition of organised crime, contained in Section 2(e) of the Act ought
to be considered only as an internal or intrinsic aid to interpretation and
not as limiting or restricting the meaning of organised crime.
22. As rightly countered by her learned adversaries, clinches and
platitudes have no place while judging conduct of a person which is
alleged to be a serious crime attracting heavy punishment. They
submitted that merely because long title of the Act also mentions that
the Act was passed to prevent and control organised crime, it would not
be open to first presume that a person is involved in organised crime
because police say so and then deprive him of his liberty. They
submitted that the manner in which the provisions of this stringent law
has to be interpreted is no longer res integra and the Apex Court in Lalit
Somdatta Nagpal v. K.K. Pathak, reported at 2005 ALL MR (Cri) 2164=
(2007) 4 SCC 171, has categorically held that the provisions need to be
constructed strictly. Thus read, in view of judgment Sherbahadur Akram
Khan, crimes at Sr.Nos. 3 to 7, 9, 10, 12, 14 to 19, 21, 23, 25, 26, 29,
-/.
30, 32, 34, 35 and 36 would be unhelpful in establishing offence of
organised crime. As already pointed out in view of judgment in Appa
Londhe, crimes at Sr.Nos. 1 to 31, having been committed prior to
coming into force of MCOCA can only provide a background and cannot
in themselves constitute organised crime; leaving only crime at Sr.No.33
in the chart as relevant for the present purpose. Even so, independently
of this, we would be examining contentions advanced by the State in
respect of the crime chart.
23. In Raipur Development Authority Vs. Anupam Sahkari Sanstha,
reported at (2000) 4 SCC 357 on which the learned Additional Public
Prosecutor relied, the Supreme Court was interpreting the provisions of
the M.P. Town and Country Development Act, 1973. It considered the
mischief rule in Heydon's case and observed in para 16 as under :
“16. Whenever there are two possible

interpretations, the one which subserves to the
intent of the legislature is to be accepted. The
object of the aforesaid Act is for planned
development and thus the interpretation, which
upholds any such scheme should be followed.
Heydon's principle is now well recognised in
interpreting any enactment. It lays down that
courts must see (a) what was the law before
making of the Act; (b) what was the mischief or
defect for which the law did not provide; (c) what
is the remedy that the Act has provided; (d) what is
the reason of the remedy. It states that courts must
0&1
adopt that construction which suppresses the

mischief and advances the remedy. This has been
approved by this Court in a number of decisions.
One of them is K.P. Varghese v. ITO.”
24. In Indian Handicrafts Emporium and others v. Union of India
and others, reported at (2003) 7 SCC 589, the Court was considering
interpretation of the provisions under the Wild Life (Protection) Act,
1972 and in that context, observed in paras 98, 99 and 105 as under :
“98. It is now well settled that for the

purpose of interpretation of a statute the entire
statute is to be read in its entirety. The purport
and object of the Act must be given its full effect.
99. Furthermore, in a case of this nature,
principles of purposive construction must come into
play.
105. The words which are used in declaring

the meaning of other words may also need
interpretation and the legislature may use a word
in the same statute in several different senses. In
that view of the matter, it would not be correct to
contend that the expression as defined in the
interpretation clause would necessarily carry the
same meaning throughout the statute.”
25. In State of Maharashtra v. Marwanjee F. Desai and others,
reported at (2002) 2 SCC 318, in the context of interpretation of the
provisions of the Bombay Government Premises (Eviction) Act, 1955, in
para 11, the Court held as under:

23
“11. ... The statute shall have to be

considered in its entirety and picking up of one
word from one particular provision and thereby
analysing it in a manner contrary to the statement
of objects and reasons is neither permissible nor
warranted. ... Statement of objects and reasons is
undoubtedly an aid to construction but that by
itself cannot be termed to be and by itself cannot be
interpreted. It is a useful guide but the
interpretations and the intent shall have to be
gathered from the entirety of the statute and when
the language of the sections providing an appeal to
a forum is clear and categorical no external aid is
permissible in interpretation of the same.”
26. The learned APP rightly submitted that it would be necessary
to interpret the provisions concerned after reading the statute as a whole
in a manner which would fulfill the purpose for which the statute is
enacted. The Statement of Objects and Reasons for which Maharashtra
Control of Organised Crime Act is enacted reads as under :
Organised crime has for quite some years now come

up as a very serious threat to our society. It knows
no national boundaries and is fueled by illegal
wealth generated by contract killings, extortion,
smuggling in contrabands, illegal trade in
narcotics, kidnappings for ransom, collection of
protection money and money laundering, etc. the
illegal wealth and black money generated by the
organised crime is very huge and has serious
adverse effect on our economy. It is seen that the
organised criminal syndicates make a common
cause with terrorist gangs and foster narco
terrorism which extend beyond the national
boundaries. There is a reason to believe that
4&5
organised criminal gangs are operating in the State

and thus, there is immediate need to curb their
activities.
It is also noticed that the organized
criminals make extensive use of wire and oral
communications in their criminal activities. The
interception of such communications to obtain
evidence of the commission of crimes or to prevent
their commission is an indispensable aid to law
enforcement and the administration of justice.
2. The existing legal frame i.e. the penal

and procedural laws and the adjudicatory system
are found to be rather inadequate to curb or
control the menace of organised crime.
Government has, therefore, decided to enact a
special law with stringent and deterrent provisions
including in certain circumstances power to
intercept wire, electronic or oral communication to
control the menace of the organised crime.”
27. The Act then defines various terms used in Section 2 of the
Act. The definitions of “continuing unlawful activity”, “organised crime”
and “organised crime syndicate” contained in Section 2(d), (e) and (f),
which are relevant may be reproduced as under :
“Sec.2(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, under-taken
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;
6#7
(e) : “organised crime” means 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;
(f) : “organised crime syndicate” means a group of

two or more persons who, acting either singly or
collectively, as a syndicate or gang indulge in
activities of organised crime.” (Emphasis supplied).
28. Other clauses define terms 'abet', 'Code', 'Competent
Authority' and 'Special Court'.
29. Section 3 of the Act provides for punishment for “organised
crime” in the following words :
“3. Punishment for organised crime –
(1)Whoever commits an offence of 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
a fine, subject to a minimum fine of rupees one
lac;
(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
8:9
imprisonment for life and shall also be liable to

a fine, subject to a minimum fine of rupees five
lacs.
(2) 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, shall be punishable with imprisonment
for a term which shall be not less than five years but
which may extend to imprisonment for life and shall
also be liable to a fine, subject to a minimum fine of
rupees five lacs.
(3) Whoever harbours or conceals or attempts to

harbour or conceal, 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 a fine, subject to a minimum fine of rupees five
lacs.
(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 a fine, subject to a minimum fine of rupees five
lacs.
(5) Whoever holds any property derived or obtained

from commission of an organised crime or which has
been acquired through the organised crime syndicate
funds shall be punishable with 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,
subject to a minimum fine of rupees two lacs.”
(Emphasis supplied)
;=<
30. Section 4 prescribes punishment for possessing
unaccountable wealth. Sections 5 to 12 provide for constitution of
Special Courts, their jurisdiction and powers, public prosecutor,
procedure, appeals, etc.
31. Section 13 provides for appointing a competent authority for
authorizing interception, etc. under Section 14. Section 15 prescribes
that such authorisation shall be reviewed by a Committee constituted
under clause (2). Section 16 enacts safeguards to prevent abuse by
prescribing punishment for such abuse. Section 17 contains special
rules of evidence. Section 18 makes certain confessions admissible.
Section 19 ensures protection of witnesses. Section 20 provides for
forfeiture and attachment of property. Section 21, modifies provisions
in the Code relating to grant of bail and custody for the purpose of
investigation of offences under MCOCA. Section 22 mandates that the
Court shall presume that the accused had committed such offence if
material is proved to have been seized from possession of accused and
there is a reason to believe that such material was used in commission
of such offence, etc. As to cognizance and investigation, Section 23
provides as under :
>@?
“23. Cognizance of, and investigation into, an

offence.-- (1) Notwithstanding anything contained
in the Code,--
(a) no information about the commission of an

offence of organised crime under this Act, shall be
recorded by a police officer without the prior
approval of the police officer not below the rank of
the Deputy Inspector General of Police;
(b) no investigation of an offence under the

provisions of this Act shall be carried out by a
police officer below the rank of the Deputy
Superintendent of police.
(2) No Special Court shall take cognizance of

any offence under this Act without the previous
sanction of the police officer not below the rank of
Additional Director General of Police.”
32. Section 24 provides for punishment to public servant failing
to discharge their duties. Section 25 gives overriding effect to provisions
of the Act. Section 26 protects actions taken in good faith. Section 27
requires the State Government to place before the Legislature an annual
report about interception. Sections 28 and 29 give power to make rules
and Section 30 is repeal and savings clause.
33. After this survey of all the provisions of MCOCA, it may be
useful to have one more look at the relevant definitions in Section 2 of
the Act. The learned APP relied on the judgments in Ranjitsing

AA
Brahmajeetsing Sharma v. State of Maharashtra and another, rendered
by a learned Single Judge of this Court and reported at 2004 ALL MR
(Cri) 2899, and one reported at 2005 Cri.L.J. 2533, rendered by the
Supreme Court in the context of grant of bail, where the definitions had
been considered.
34. In Ranjitsingh's case the learned Single Judge observed that
the definitions, though intertwined in a cyclic order, are clear and
unambiguous. Even the Apex Court in Bharat Shah's case (2008 AIR
SCW 6431) observed that the definitions were not vague and they
defined the terms with clarity. It would, therefore, follow that each
ingredient in the definitions, or the alternative thereof provided by the
definitions themselves, would have to be proved. Viewed thus, 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
B:C
syndicate or a gang, or on behalf of such syndicate.
(vi) (a) in respect of similar activities (in the past) more than
one charge sheets 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.
35. In Ranjitsingh the Courts had considered what amounts to
other unlawful means in Section 2(1)(e) of MCOC Act. The learned
Single Judge of this Court had held in paras 28, 29 and 30 as under :
“28. It is thus clear that the general words

must ordinarily bear their natural and larger
meaning and need not be confined to ejusdem generis
to things previously enumerated unless the language
of the statute spells out an intention to that
effect. ...”
DE
“29. The specific enumeration in section

2(1)(e) are “use of violence, threat of violence,
intimidation, coercion” and the general words “other
unlawful means”. There is no difficulty in
understanding what is meant by “violence”, “use of
violence” or “threat of violence”. But on the basis of
this enumeration, it is clear that they are contiguous
to the class to which they all belong. All these
enumerations are in relation to bringing about
pecuniary benefits or undue advantages by actual or
threatened pressures being applied to
individuals. ...”
“30. Having regard to the definitions of words

“coercion” in the Contract Act and “intimidation” in
IPC, when we take close look at the language of
section 2(1)(e), one finds that the general words viz.
“other unlawful means” were intended to receive
their wide meaning and were not to be construed in
a limited sense with the aid of ejusdem generis rule,
more particularly when we read those words in the
light of the Statement of Objects and Reasons of
MCOCA. ... It is thus clear that the expression “other
unlawful means” as occur in section 2(1)(e) of
MCOCA, which defines “organised crime” must be
given their natural wide meaning to cover each and
every kind of unlawful activity referred to in the
Statement of Objects and are not to be construed in a
limited sense with the aid of “ejusdem generis” rule
so as to defeat the object of the Act.”
36. While considering the same aspect, the Apex Court held that
the words “unlawful means” cannot be so widely construed as to include
“any unlawful means”. The Court observed in paras 31, 32 and 33 of the
judgment as under :
F=G
“31. Interpretation clauses contained in

Sections 2(d), 2(e) and 2(f) are inter-related. An
'organised crime syndicate' refers to an 'organised
crime' which in turn refers to 'continuing unlawful
activity'. As at present advised, it may not be
necessary for us to consider as to whether the words
“or other lawful means” contained in Section 2(e)
should be read “ejusdem generis”/”noscitur-a-socils”
with the words (i) violence, (ii) threat of violence,
(iii) intimidation or (iv) coercion. We may,
however, notice that the word 'violence' has been
used only in Sections 146 and 153A of the Indian
Penal Code. The word 'intimidation' alone has not
been used therein but only Section 506 occurring in
Chapter XXII thereof refers to 'criminal intimidation'.
The word 'coercion' finds place only in the Contract
Act. If the words 'unlawful means' is to be widely
construed as including any or other unlawful means,
having regard to the provisions contained in Sections
400, 401 and 413 of the IPC relating to commission
of offences of cheating or criminal breach of trust,
the provisions of the said Act can be applied, which
prima facie, does not appear to have been intended
by the Parliament.”
“32. The Statement of Objects and Reasons

clearly state as to why the said Act had to be
enacted. Thus, it will be safe to presume that the
expression 'any unlawful means' must refer to any
such act which has a direct nexus with the
commission of a crime which MCOCA seeks to
prevent or control. In other words, an offence falling
within the definition of organised crime and
committed by an organised crime syndicate is the
offence contemplated by the Statement of Objects
and Reasons. There are offences and offences under
the Indian Penal Code and other penal statutes
providing for punishment of three years or more and
in relation to such offences more than one charge-
sheet may be filed. As we have indicated
H#I
hereinbefore, only because a person cheats or

commits a criminal breach of trust, more than once,
the same by itself may not be sufficient to attract the
provisions of MCOCA.”
“33. Furthermore, mens rea is a necessary

ingredient for commission of a crime under MCOCA.
(Emphasis supplied)
Thus the Court had reversed the findings of the Bombay High
Court.
37. According to the learned Additional Public Prosecutor, the
observations of the Court in para 31 above, cannot be taken to mean
that ejusdem generis rule can be applied for interpreting the expression
“other unlawful means”. She pointed out that the Apex Court had
specifically observed that it was not necessary for the Court at that point
of time to decide whether the words “other unlawful means” should be
read ejusdem generis. We are afraid that this caveat in para 31 cannot
permit us to ignore observations that follow in paras 31 and 32. Even if
the Apex Court is taken to have not decided the question, the Court did
consider arguments advanced and did make observations which would,
in any case, bind this Court as dicta of the Apex Court.

J=K
38. Therefore, as observed by the Apex Court, offences like
cheating or criminal breach of trust which have an element of passivity,
but not feeling of being rendered helpless, cannot come within the
sweep of activities covered in the expression “by used of violence ....
etc.” This helplessness on account of various factors enumerated in the
said clause is the crux of offence of organised crime. The learned
Additional Public Prosecutor submitted that the word “coercion” used in
the clause is not to be read as cognate of term “violence or threat of
violence” but as understood in the Law of Contract as cognate of
coercion, undue influence and fraud. Violence implies use of greater
degree of force as defined in Sections 349 and 350 of the Penal Code.
“Intimidation” referred to in the clause need not be criminal
intimidation as defined in Section 503 of the Penal Code. These
expressions have to be understood as indicating use of physical or
mental force to make the victim succumb to do something which will
result in pecuniary or other advantage to the accused or others at his
behest.
39. The learned counsel for appellants submitted that this would
also eliminate recourse to crime at Sr.No.33 in the chart, since it is an
offence of being caught while preparing to commit a dacoity, since an

L:M
actual offence was not committed. They also point out that in respect of
this offence appellants concerned have been acquitted by the competent
Court on 05.08.2005.
40. The learned Additional Public Prosecutor rightly submitted
that conviction or acquittal are not relevant and for this purpose relied
on observations in judgments in Bharat Shah's case [2003 ALL MR (Cri)
1061 (para 27) and 2008 AIR SCW 6431] on which even the learned
counsel for appellants had placed reliance.
41. Since conviction or acquittal in a case previously filed are
irrelevant, it would be unnecessary to look into evidence in respect of
such crimes tendered in the present trial. The learned counsel for
appellants has sought to assail admissibility of such evidence on the twin
grounds of double jeopardy and possibility of two courts coming to
contradictory findings in respect of same incident. It may be seen that
though constitutionality of MCOCA on the ground of retrospective
criminalisation and violations of articles 14 and 21 was challenged, the
question of double jeopardy was not judicially decided.

NO
42. The learned counsel for the appellants further submitted that
treating continuing unlawful activity as synonymous with organised
crime by convicting a person merely on the basis of cognizance taken in
more than one chargesheet would violate the mandate of Articles 21
and 14 as also Article 20(2) of the Constitution and for this purpose
cited the following authorities :
43. In S. Krishnan and others v. The State of Madras and another,
reported at AIR 1951 SC 301, the Court was considering the provisions
of Article 22 of the Constitution and Preventive Detention
(Amendment) Act, 1951. The learned counsel for the appellants have
referred to the observations of the minority judgment of Justice Vivian
Bose in para 43 of the judgment. Though contained in minority
judgment, there should be no dispute about the principle enunciated
therein, namely, that it is the duty of the Courts to ensure that the right
and the guarantee (in Article 22) are not rendered illusory and
meaningless and wherever there is a scope for difference of opinion on
a matter of interpretation, the interpretation, which favours the subject,
must always be used and the doubts, if any, must be resolved in favour
of the subject.
PQ
44. In Smt. Maneka Gandhi v. Union of India and another,
reported at AIR 1978 SC 597, the celebrated decision on procedural
due process, the Court had considered inter-relationship between
Articles 14, 19 and 21 and observed that the law must be taken to be
well settled that Article 21 does not exclude Article 19 and that even if
there is a law prescribing a procedure for depriving a person of personal
liberty and there is consequently no infringement of the fundamental
right conferred by Article 21, such law in so far as it abridges or takes
away any fundamental right would have to meet the challenge of
articles 14 and 19. Referring to the judgment of the Supreme Court in
R.C. Cooper v. Union of India, reported at AIR 1970 SC 564, the Court
reiterated the need to satisfy the requirements of other fundamental
rights such as Article 19 even if law of preventive detention passes the
test of Article 22.
45. In Bachan Singh v. State of Punjab, reported at AIR 1982 SC
1325, which reported a minority view of Bhagwati, J., on which the
learned counsel for the appellants placed reliance, it was observed in
para 10, “the rule of law permeates the entire fabric of the Constitution
and indeed forms one of its basic features. ... 'Law' in the context of rule of
law does not mean any law enacted by the legislative authority, howsoever
RTS
arbitrary or despotic it may be. ... What is a necessary element of rule of
law is that the law must not be arbitrary or irrational and it must satisfy
the test of reason and the democratic form of polity seeks to ensure this
element by making the framers of the law accountable to the people”. (The
majority view is to be found at AIR 1981 SC 898).
46. In Olga Tellis and others v. Bombay Municipal Corporation
and others, reported at AIR 1986 SC 180, on which the learned counsel
for the appellants placed reliance, the Court was considering the right of
pavement dwellers and in this context held that the procedure
prescribed by any law for deprivation of right conferred by Article 21
must be fair, just and reasonable. In para 40, the Court held that the
substance of the law cannot be divorced from the procedure which it
prescribed, for, how reasonable the law is, depends upon how fair is the
procedure prescribed by it.
47. It is not necessary to dwelve at length on the submissions
made in relation to violation of Articles 21 and 14 of the Constitution.
These aspects were duly considered in Bharat Shah's case by a Division
Bench of this Court which read the provisions in order to ensure that
they do not offence the constitutional guarantees by holding that

UWV
continuing unlawful activity is relevant only to see the antecedents of
the person and not to convict. This part of the judgment of this Court is
left undisturbed by the Apex Court. Observations of another Division
Bench while considering challenge based on Article 20(1) of the
Constitution in Jaisingh Ashrfilal Yadav [2003 ALL MR (Cri) 1506] are
equally apposite.
48. In State of Tamil Nadu and others v. S. Nalini and others,
reported at 1999 Cri.L.J. 3124, on which the learned counsel for the
appellants placed reliance, the Court was considering the provisions of
TADA Act in the context of assassination of Rajiv Gandhi. The Court
considered the scope of protection provided by Article 20(2) of the
Constitution and Section 300 of the Code of Criminal Procedure. It may
be useful to reproduce the observations in paras 238 to 242 of the
judgment.
“238. The period of the aforesaid activities, as

involved in that case, covered between 1987 and end of
1991. Section 300(1) of the Code of Criminal Procedure
contains the ban against a second trial of the same offence
against the same person. Sub-section (1) reads thus :
“A person who has once been tried by a Court

of competent jurisdiction for an offence and convicted or
acquitted of such offence shall, while such conviction or
acquittal remains in force, not be liable to be tried again
for the same offence, nor on the same facts for any other
XX
offence for which a different charge from the one made

against him might have been made under sub-section (1)
of Section 221, or for which he might have been convicted
under sub-section (2), thereof.”
“239. The well-known maxim 'nemo debet bis vexari

pro eadem cause” (no person should be twice vexed for the
same offence) embodies the well established Common Law
rule that no one should be put to peril twice for the same
offence. The principle which is sought to be incorporated
into Section 300 of the procedure Code is that no man
should be vexed with more than one trial for offences
arising out of identical acts committed by him. When an
offence has already been the subject of judicial
adjudication, whether it ended in acquittal or conviction,
it is negation of criminal justice to allow repetition of the
adjudication in a separate trial on the same set of facts.”
“240. Though Article 20(2) of the Constitution of

India embodies a protection against second trial after a
conviction of the same offence, the ambit of the sub-article
is narrower than the protection afforded by Section 300
of the Procedure Code. It is held by this Court in Manipur
Administration v. Thokehom Bira Singh, (1965(2) Cri LJ
120) : AIR 1965 SC 87 that “if there is no punishment for
the offence as a result of the prosecution, Article 20(2)
has no application”. While the sub-article embodies the
principle of autrefois convict Section 300 of the Procedure
Code combines both autrefois convict and autrefois
acquit.”
“241. Section 300 has further widened the protective

wings by debarring a second trial against the same
accused on the same facts even for a different offence if a
different charge against him for such offence could have
been made under Section 221(1) of the Code, or he could
have been convicted for such other offence under Section
221(2) of the Code. In this context it is useful to extract
Section 221 of the Procedure Code.
Y[Z
“221. Where it is doubtful what

offence has been committed.--
(1) If a single act or series of acts is of such

a nature that it is doubtful which of several offences the
facts which can be proved will constitute, the accused
may be charged with having committed all or any of
such offences, and any number of such charges may be
tried at once; or he may be charged in the alternative
with having committed some one of the said offences.
(2) If in such a case the accused is

charged with one offence, and it appears in evidence that
he committed a different offence for which he might have
been charged under the provisions of sub-section (1), he
may be convicted of the offence which he is shown to
have committed, although he was not charged with it.”
“242. As the contours of the prohibition are so

widely enlarged it cannot be contended that the second
trial can escape therefrom on the mere premise that some
more allegations were not made in the first trial. We
have absolutely no doubt that the offences which we have
indicated above were fully covered by the trial in CC 7 of
1992, and therefore the prosecution is debarred in this
case from proceeding against A-16 and A-17 for the
aforesaid offences. Consequently the conviction and
sentence passed by the Designated Court as per the
impugned judgment for offences under Sections 3(3),
3(4) and 5 of TADA and also Section 5 of the Explosive
Substances Act as well as Section 3(1) of the Arms Act on
A-16 and A-17 are hereby set aside.”
49. It may be seen from the observations in this judgment that
wider protection provided by Section 300 of the Code of Criminal
Procedure could be invoked by the accused to avoid such double
jeopardy. While MCOC Act provides for modified application of certain

\]
provisions of the Code of Criminal Procedure, significantly it neither
modifies Section 300 nor makes it inapplicable to trials under MCOC
Act.
50. There is indeed a fresh thinking amongst jurists about
continued utility of protection against double jeopardy in the present
times particularly in the context of possibilities of discovery of
unimpeachable scientific evidence after the trial ended in acquittal. It is
felt that in such cases trial ought to be re-opened. Attempt of the State
in the present case to have accused punished is, however, not based on
discovery of any new evidence but merely on the foundation of the fact
that previously a trial was held. This would hardly justify departure
from the principle enunciated in Section 300 of the Code of Criminal
Procedure, which in any case, cannot be violated in the absence of any
express provision.
51. The learned counsel for appellants submitted that evidence
of P.Ws. 11 Rajesh, 17 Ravindra, 18 Subhash and 22 Jayant could not be
received in this case, since it pertained to an offence which was
separately tried. They relied on judgment in Vijay Kisan Mate Vs. State
of Maharashtra, reported at 2007 ALL MR (Cri.) 3471, where the Court

^*_
was considering an appeal under Section 12 of the MCOC Act against an
order rejecting the application by the accused to defer cross-
examination. This came in the context of an application by the
prosecution to amend the charge so as to exclude charge of murder of
one Swapnil Shirke in respect of which a separate chargesheet has been
filed. Thereafter, the prosecution resiled from its own stand and sought
to tender evidence of murder in case of MCOC Act. The learned single
Judge held that in the said case under MCOC Act the actual proof of
crime need not be offered unless that crime was also being tried
together. The learned single Judge, therefore, held as corollary that the
act of the Special Judge allowing the eyewitness of a murder case to be
examined in MCOC Act trial, without there being a joint trial of both the
offences, will have to be quashed and that the said witness shall not be
further examined in MCOC Act case, and that the case should be tried as
if the said witness was never examined at MCOC Act trial.
52. For proving the offence of organised crime, it has to be
proved among other things that accused indulged in continuing
unlawful activity. For proving involvement in continuing unlawful
activity, it is not necessary to prove the past crime, but only the fact that
a chargesheet has been filed in respect of that crime that the crime bears
`a
punishment of three years or more and that the Court has taken
cognizance of the crime. Therefore, examining witnesses in proof of
past crime itself is unnecessary and also undesirable, because it is not
the requirement or ingredient of offence under MCOC Act. Therefore,
testimonies of PWs 11 Rajesh, 17 Ravindra, 18 Subhash and 22 Jayant
are irrelevant.
53. The learned Additional Public Prosecutor submitted that the
prosecution case does not rest only on past crimes of appellants. She
submitted that there is sufficient evidence unearthed during
investigation after information was recorded under MCOCA, about
appellants' involvement in incidents of organised crime after MCOCA
came into force in respect of which they have not been /are not being
separately tried. This evidence is about incidents deposed to by P.Ws. 8,
14, 15, 16, 19, 20, 33 and 42.
54. The learned counsel for the appellants submitted that
evidence in respect of incidents about which PWs 8, 14, 15, 16, 19, 20
and 42 depose cannot be received in this case for three reasons. First,
the information recorded under MCOC Act did not pertain to these
instances. Secondly, charges “Seventhly”, “Ninethly” and “Tenthly” in

bc
respect of these instances are vague and lastly, that they cannot be tried
together at one trial in view of the provisions of Section 221 of the Code
of Criminal Procedure.
55. The learned counsel for the appellants submitted that
approval for recording information required under Section 23 of MCOC
Act is not an empty formality. In Altaf Ismail Sheikh Vs. State of
Maharashtra, reported at 2005 ALL MR (Cri.) 2403 a Division Bench of
this Court was considering the question of approval for recording a
crime under MCOC Act i.e. was considering the challenge to F.I.R. In
relation to Section 23 of the Act, the Court observed in paragraph 24 of
the judgment as under :
“24. The Section 23 of the MCOC Act which opens with

non-obstante clause and further clothed with negative
words clearly discloses the mandate of the legislature
that the cognizance of the offences under the MCOC Act
should not be in routine course, but only upon the facts
disclosing the applicability thereof and satisfaction of the
officer of the high rank, the minimum being of the rank
of Deputy Inspector General of Police, in that regard. In
fact, the officer of such high rank is required to decide
about the approval even for recording of FIR in relation
to any offence under the MCOC Act. This obviously
discloses that the approving authority has to apply its
mind about the applicability of the provisions of the
MCOC Act to the facts disclosed in a matter before
allowing the recording of FIR and for the purpose, he
must be, prima-facie, satisfied about the commission of
dfe
offence of organized crime under the MCOC Act by the

person or persons against whom the FIR is to be
recorded. Obviously, for prima facie satisfaction
regarding the commission of the offence of organized
crime or of participation therein in whatever manner,
the approving authority must have some materials
before it disclosing the activities of the person or the
persons to be of the nature of offence under the MCOC
Act and having committed such activities on or after 24th
February, 1999. In other words, the activities of a
person to be termed as the offence under the MCOC Act,
the same should inevitably disclose to have been
committed on or after 24th February, 1999. If the
activity of the person is relation to the period prior to
24th February, 1999, obviously, it cannot be said to be
an offence under MCOC Act, even though the activity
may be an offence under the provisions of some other
statute in force at the relevant time. For the same
reason, when the approval is granted for recording of
FIR and the FIR is recorded, then such FIR should
apparently disclose the activities constituting offence
under the MCOC Act having been committed on or after
24th February, 1999. When the FIR does not disclose on
the face of it that the offence was committed on or after
24th February, 1999, obviously, the concerned authority
must be able to establish the said fact, at least, by
referring to the records which were available and placed
before the concerned authority before granting approval
and before recording FIR. It should not be understood
that the power vested in the authority under Section
23(1) of the MCOC Act can be exercised either as
automation or as autocrat. The power should be
exercised on application of mind to the facts of the case
and with necessary prudence and circumspection.”
56. The learned counsel, therefore, submitted that since
information is allowed to be recorded in respect of a specific offence,

gih
investigation in respect of other crimes and sanction for prosecution of
such other crimes would be impermissible and, therefore, this evidence
cannot be considered. The learned Additional Public Prosecutor
countered by submitting that FIR just marks commencement of
investigation and does not lay down parameters limiting investigation.
57. In John D'Souza v. Assistant Commissioner of Police, Mumbai
and others, reported at 2007(2) Mh.L.J. (Cri.) 313, on which the learned
Additional Public Prosecutor relied, a Division Bench of this Court was
considering the following questions :
“(i) Whether it is necessary that a separate

information under section 23(1)(a) of Maharashtra
Control of Organised Crime Act, 1999 (“for short,
“MCOCA”), should be recorded after the approval is
accorded under this section even in cases where the
crime had already been registered after recording the
FIR under section 154 of the Code for the offences
under the Indian Penal Code ?
(ii) Whether a police officer, other than the

officer mentioned in section 23(1)(a) of MCOCA,
has power to club two or more similar offences
together, having been committed by the very same
organised crime syndicate before the sanction under
section 23(2) is accorded, without seeking a fresh
approval in respect thereof and the police officer
mentioned in sub-section 23(1)(b) can proceed to
investigate them as a single offence ?
jlk
(iii) Whether the sanction accorded under

section 23(2) of MCOCA would be rendered invalid
on the ground that the prior approval under section
23(1)(a) was not obtained for recording an
information about an offence registered earlier
bearing DCB, CID No.87/2005, which is clubbed
with the offence bearing DCB, CID No.86/2005 for
which the approval had been granted ?
58. These questions arose in the background of the following
facts :
An offence punishable under Section 387 read with Section
34 of the Penal Code was registered vide Crime No.128 of 2005 at Dr.
D.B. Marg Police Station against Vikki Malhotra and Farid Ahmed for
threatening the informer to extort a sum of Rs.1 Crore. On the same
day, Crime No.195 of 2005 was also registered against the same person
in L.T. Marg Police Station. The investigation of both these offences was
transferred to DCB, CID and they were registered afresh as C.R. Nos.86
of 2005 and 87 of 2005 and the petitioner came to be arrested in
connection with these offences though his name did not figure in any of
the First Information Reports. Eventually, after completion of
investigation, sanction under Section 23(2) of MCOC Act was sought
and granted for prosecution of the petitioner as well as the co-accused.
The petitioners' application for bail was rejected and, therefore, the
m=n
petitioner filed writ petition seeking to quash the Special Case as against
him.
59. In this context, after considering the relevant provisions, the
Court observed in para 10 that there are two categories of cases wherein
the provisions of MCOC Act could be invoked. The first being the cases
where an offence has already been registered after recording FIR,
disclosing cognizable offence under ordinary law, and other being the
cases where a police officer even before registering an offence under
Indian Penal Code, straightway, seeks approval for registering an
offence under MCOC Act and records FIR.
60. In para 11, referring to a Full Bench judgment of this Court in
Ashok Gyanchandra Vohra & etc. v. State of Maharashtra and anr. etc.,
reported at 2006 Cri.L.J. 1270, the Court observed that the word
“information” in Section 23(1) of MCOC Act means First Information
Report contemplated by Section 154 of the Code of Criminal Procedure.
61. In para 13, the Court observed that in short, the non-obstante
clause employed in section 23 of MCOCA overrides the procedure
contemplated under the Code in respect of recording of FIR,

ofp
investigation, submitting a report under section 173 etc. However, it
does not put any impediment in assigning to the word “information” the
meaning assigned under section 154 of the Code.
62. The Court observed in para 17 that :
“It is thus clear, that recording of FIR and registration of

an offence, though appear to be independent acts, where
latter follows the former, FIR cannot be recorded without
it being registered as an offence or there cannot be
registration of an offence without recording FIR. In other
words, an “information” about the commission of a
cognizable offence, becomes FIR within the meaning of
section 154 of the Code or even section 23(1)(a) of
MCOCA, only if and when the offence is registered on the
basis thereof, otherwise it would, at the most, be a
statement under section 161 of the Code. These two acts,
in fact, are performed simultaneously. The word
“information” and the expression “shall be recorded”
employed in section 23(1)(a), thus, mean “registration of
an offence” in the case where the offence had already been
registered under ordinary law. ...”
63. The Court observed in para 24 that :
“A conjoint reading of all the three definitions clearly

demonstrate that seeking prior approval of the competent
police officer for recording information about the
commission of an offence of “organised crime” under
MCOCA is a condition precedent and it is mandatory in
nature. It does not provide for the prior approval in
relation to any single act of crime constituting an offence
but the approval is in relation to “organised crime and
continuing unlawful activity of organised crime
qq
syndicate”. Merely because a police officer approaching

the competent police officer seeking prior approval under
section 23(1)(a) making reference to a particular crime
does not mean that the prior approval pertains to only
that crime. In our opinion, an act of making reference to
only one crime is with a view to seek the approval for
registering the commission of an offence of “organised
crime” by a particular organised crime syndicate and in
respect of continuing unlawful activity under MCOCA and
to set the criminal law in motion and marks the
commencement of investigation. ...In our opinion, once
the approval is granted, until the stage of seeking sanction
reaches, there is no prohibition or fetter on the powers of
such investigating officer to club other offence/s
committed by the very same organised crime syndicate
and which, in the opinion of the investigating agency, is a
part of organised crime, namely, continuing unlawful
activity of the very same organised crime syndicate.”
The Court then dismissed the petition.
64. In Vinod G. Asrani v. State of Maharashtra, reported at
(2007) 3 SCC 633, on which too, the learned Additional Public
Prosecutor relied, the Supreme Court held that non-inclusion of
petitioner's name in the approval under Section 23(1)(a) of MCOC Act
was not fatal. In para 9, the Court observed as under :
“9. ... The scheme of the Code of Criminal

Procedure makes it clear that once the information of the
commission of an offence is received under Section 154 of
the Code of Criminal Procedure, the investigating
authorities take up the investigation and file charge-
sheet against whoever is found during the investigation
to have been involved in the commission of such offence.
ris
There is no hard-and-fast rule that the first information

report must always contain the names of all persons who
were involved in the commission of an offence. Very
often the names of the culprits are not even mentioned in
the FIR and they surface only at the stage of the
investigation. The scheme under Section 23 of MCOCA is
similar and Section 23(1)(a) provides a safeguard that
no investigation into an offence under MCOCA should be
commenced without the approval of the authorities
concerned. Once such approval is obtained, an
investigation is commenced. Those who are subsequently
found to be involved in the commission of the organised
crime can very well be proceeded against once sanction is
obtained against them under Section 23(2) of MCOCA.
65. In Anil Sadashiv Nanduskar v. State of Maharashtra, reported
at 2008(3) Mh.L.J. (Cri.) 650, the question was in respect of approval
granted under Section 23 of MCOC Act. In that approval, involvement
of petitioner in the offence of organised crime was not referred to. It
was urged on behalf of the State that order of approval and that of the
sanction are merely to initiate the proceedings. The observations of the
Court in para 24 may be usefully reproduced as under :
“24. The contention that the order of approval

or order of sanction should disclose consideration of
material qua each of the accused sought to be
prosecuted is devoid of substance. That is not the
import of section 23 of MCOC Act. Section 23(1)(a)
as well as section 23(2) with reference to approval
and sanction speaks of commission of offence and
cognizance of the offence. ... As already seen above
section 23(1)(a) of MCOC Act speaks of approval for
tvu
recording of information about commission of

offence of organized crime under MCOC Act, whereas
sanction is for initiating proceeding for the offence
under MCOC Act. The sanction order or the
approval order on the face of it need not speak of the
individual role of each of the accused. Being so,
contention that the order of approval or sanction
should reveal consideration of the overt acts or
otherwise of each of the accused while granting
approval or sanction is totally devoid of substance.
Of course, the involvement in organized crime of
each of the persons sought to be prosecuted should
necessarily be considered by the concerned authority
before the grant of approval or sanction, but need
not be specifically stated in the order and the
consideration thereof can be established in the course
of trial.”
66. In view of these clear judicial pronouncements, the objection
to inclusion of incidents in relation to PWs 8, 14, 15, 16, 19, 20 and 42
in the chargesheet, which was filed pursuant to sanction accorded, has
to be rejected. It would be necessary to examine the evidence of these
witnesses to find out if offence of organised crime is made out and
against which appellants. Contrary impressions, if any, in judgment,
dated 18th November, 2008, in Criminal Appeal No.664 of 2002 would
have to be held as not correct.
67. P.W. 8 Sangita is widow of Anil Ninawe who was allegedly
murdered by the gang of the appellants. She stated that she was
wix
running a beauty parlour and her husband was doing business of sale
and purchase of gold and silver. Before Anil's death he had started his
construction business and was a builder. One Ratnakar Armarkar
allegedly introduced to her husband appellant Santosh Ambekar, who
was gas cylinder delivery boy at that time. Anil started construction of
“Radhe” building in partnership with appellant Santosh Ambekar and
one Raju Khule. She stated that Santosh Ambekar used to receive
amounts from various people without informing her husband. The land
on which Radhe building was constructed was purchased in the names
of Sangita and appellant Santosh Ambekar. Appellant Ashok Botnis also
entered the business around that time and used to be sent by her
husband to obtain her signatures whenever necessary. Appellant
Santosh Ambekar had not contributed any capital for construction of
Radhe building. Appellant Santosh Ambekar also worked as commission
agent for her husband for sale of the properties. Ashok Botnis nurtured
clashes between Santosh Ambekar and her husband. Her husband's
faith in Ashok Botnis grew from the profit in construction of Radhe
building.
68. It is clear from Sangeeta's evidence that appellants Santosh
as well as Ashok were working with her husband and even she was a
yfz
partner/co-owner of a building along with appellant Santosh. Her
evidence does not indicate involvement of either Santosh or Ashok in
any crime till her husband was killed. Her evidence would give the
impression that appellants Ashok and Santosh were in fact hostile
towards each other and Ashok nurtured clashes between Santosh and
her husband. The learned counsel for the appellants submitted that this
destroys the very foundation of the case as it negates existence of an
organised crime syndicate.
69. The learned Additional Public Prosecutor contested this
conclusion. According to her, rivalry amongst minions in a gang does
not rule out existence of a gang. While this possibility cannot be
rejected outright, the evidence of PW 8 Sangeeta would rule out Ashok
and Santosh working together for achieving any particular object. It is
also pertinent to note that till Anil Ninawe was murdered, appellant
Ashok was not involved in any crime. He was not an accused in the
offence of murder of Anil Ninawe. Only crime in which he was shown
as an accused is Crime No.290 of 1999 of Police Station Tahsil under
Section 399 of Penal Code (preparation to commit dacoity) and
Sections 4 and 25 of the Arms Act in which he has been acquitted on 5-
3-2005 (See entry at Serial No.33 in the charge in para 13 above).

{|
Thus the possibility of Ashok having nothing to do with Santosh or the
alleged crime syndicate of Santosh cannot be ruled out.
70. P.W. 8 Sangeeta states that construction of “Gayatri Building”
was commenced in the name of Ashok Botnis. Santosh Ambekar came
to know of this and then her husband was killed on 09.04.1999. She
further stated that after the death of her husband Ashok Botnis took her
brother to the house of one Anil Dhawade and eventually, by persuading
Sangita that she will not be able to carry on her husband's business, the
property at Bhandara road was agreed to be sold to Dhawade for Rs.Ten
Lacs, though, only Rs. Seven lacs were paid. The documents were
created in the name of deceased accused Gangwani. She does not state
about use of any force, much less criminal force, intimidation, coercion
or undue influence in bringing about this transaction.
71. About 3-4 months after the death of her husband, appellant
Santosh allegedly demanded amount of Rs.Fifty Thousand from her but
she did not budge. Appellant Santosh and Ashok Botnis allegedly
pressurised her to sell her shop to one Chhotu Parsapure for
Rs.3,25,000/-. Since the sale deed, which was agreed to be executed
within two months, was not so executed, she questioned Santosh. The
}~
sale deed was eventually executed, when appellants Santosh and Ashok
were in jail. If this is taken as an instance of Sangeeta being pressurised
to sell property, it is not clear as to why she should question appellant
Santosh about delay in execution of sale deed, as also as to why she did
execute the sale deed when the pressure was off. This is thus not an
instance of being pressurised.
72. She stated that Chandu Nakhate and Sawarkar, through
Ashok Botnis, recovered proceeds of Gayatri Building and paid it to
Santosh instead of paying it to her. Except this bland statement, there is
no evidence of such a thing and no details as to what amounts were
recovered from whom.
73. PW 8 Sangita's claim that proceeds of sale from “Gayatri”
building were recovered by Chandu Nakhate and Sawarkar through
Ashok Botnis and that they paid the same to Santosh instead of paying
her does not inspire confidence, as rightly submitted by the learned
counsel for the appellants, for two reasons. First, she herself stated that
building itself was constructed in the name of Ashok Botnis, and so, if he
recovered sale proceeds, there would be nothing wrong. Secondly, in
the absence of evidence of Chandu Nakhate or Sawarkar, it cannot be

shown that money actually flowed to Santosh.
74. Sangeeta claimed that in April, 2000 appellant Ashok Botnis
demanded a sum of Rs.One Lac from her for match fixing and agreed to
return the same within two months. She stated that Ashok Botnis
compelled her to encash Kisan Vikas Patra at the instance of appellant
Santosh. She paid the amount. He failed to repay and agreed to repay
in instalment of Rs. Ten Thousand each, but repaid only four
instalments. She stated that this transaction was recorded on a stamp
paper. Ashok gave a cheque of Rs.One Lac which bounced. Had this
been a transaction of extortion, Ashok would not have executed a
stamped agreement, or issued a cheque, or repaid Rs.40,000/-.
75. Sangeeta and Panch P.W. 52 Ramakant proved seizure
panchnama at Exh.83 and the documents at Exh.83(1) to 83(15) seized
thereunder. These documents at Exh.83(1) to 83(15) do not prove any
ingredient of the offences charged. Evidence of Sangeeta does not prove
involvement of appellants Santosh Ambekar and Ashok Botnis in any
offence aimed at gaining pecuniary or other benefit by use of force,
coercion, undue influence or the like.

76. P.W. 14 Rajesh Vasani states that he is a broker in grocery
articles and his telephone No. is 767369 and Mobile Phone No.is
9823081493. He stated about the businesses run by his family
members. He stated that he had received telephone call of accused
Santosh Ambekar demanding Rs.25,000/- in the month of June, about
1-1/2 years before his deposition which was recorded on 04.10.2001,
which he declined to pay. He stated that he had received telephone
calls 2-3 times. He claims that out of fear he sent his wife to Bombay.
77. P.W. 15 Bharat Vasani, brother of P.W.14 Rajesh also claimed
to have received telephone calls on his mobile No. 98230 45045 from
Santosh Ambekar demanding money. He stated that he declined to pay,
whereupon Santosh Ambekar was annoyed. Both these witnesses knew
Santosh Ambekar well.
78. P.W. 16 Tanaji More, who was also dealing in gold and silver,
stated that he knew Santosh Ambekar for the last fifteen years. He
stated that his friend Bandu Patne has a jewellery shop having telephone
No.762465 and also has a residential telephone No.770974. He claims
to have been told by Bandu Patne that he received telephone call from
Santosh Ambekar demanding money. Santosh Ambekar had told Bandu

on telephone that he would be going to Bandu's house. At that time this
witness was at the house of Bandu Patne. Santosh Ambekar allegedly
asked this witness to bring Bandu Patne out. One Diwakar
Chinchmalatpure and Ravi Peigwar intervened and settled the matter.
He stated that thereafter when he gone to attend a funeral, appellant
Santosh Ambekar quarreled with him.
79. P.W. 19 Prakash Patne is another jweller running business in
Itwari area. He claimed to have purchased a shop in Radhe building
from Anil and Anil's partner Santosh Ambekar. He claimed to have sold
the shop to one Umesh for Rs.1,50,000/-. He stated that Santosh
Ambekar's friend Santosh Mandalkar had demanded Rs.20,000/- from
him which he refused to pay. He claims to have received 2-3 calls from
Santosh in his shop demanding money which he refused to pay. He
stated about receiving telephone calls by accused Santosh at his house.
Santosh came to his house. He stated that P.W. 16 Tanaji was in his bed
room at that time. Santosh asked Tanaji about Bandu's whereabouts.
The matter was, however, amicably settled due to intervention of
Diwakar Chinchmalatpure and Ravi Paigwar.

80. PW 20 Rajkumar Gupta, stated that he was having a
jewellery shop in Itwari and knew appellant Santosh Ambekar, who was
doing the work of polishing ornaments. He claims to have received
telephone call from appellant Santosh in January, 2000 demanding
money, but he declined to pay.
81. PW 21 Suresh Rahate has a jewellery shop. His wife Kunda
was dealing in sarees. In a house purchased by his wife, from one
Sibabai, Abdul Rashid Rathod (who is no more), father of appellant
Habib Abdul Rashid, was residing as Sibabai's relation. Abdul had filed a
case against Kunda, claiming the property as theirs. After the suit was
filed heirs of Abdul Rashid vacated a portion of house on receiving Rs.2
lacs in 1999, on executing a stamped agreement, which he proved at
Exh.114 upon seizure vide Exh.113. Possession of remaining portion is
yet not received.
82. In respect of this evidence, the learned counsel for appellant
Habib Abdul Rashid submitted first, that no offence was ever reported,
and secondly, it was a civil dispute between landlord and tenant and
had no element of any extortion, even if the allegations are taken to be
true. Therefore, this evidence cannot be taken into consideration.

There is decidedly some merit in the contention that in this landlord-
tenant dispute of a personal nature there is no element of forcing
anyone to part with property and therefore, no criminality, though
receiving a premium for vacating tenanted premises may be unlawful
under the rent laws.
83. P.W. 42 Sanjay Agrawal stated the he was running a
Bichhayat Kendra. He had telephone Nos. 550880, 543494, 522379 and
mobile No. 98230 54729. He stated that in June, 2000 he received
telephone calls from Santosh Ambekar demanding Rs.1,00,000/- by way
of hand loan. He stated that every time Santosh made a call to him, he
assured Santosh that he would make arrangement for money. He
admitted in his cross-examination that he was not having any licence for
running Bichhayat Kendra or Catering Services. The mobile phone on
which he had received telephone call was received by him from one
Sibrat Kanungo in January, February, 1999.
84. The learned counsel for the appellants submitted that even if
evidence of PW 14 Rajesh Vasani, PW 15 Bharat Vasani, PW 20
Rajkumar Gupta and PW 42 Sanjay Agrawal is accepted for face value, it
only shows that these persons had received telephone calls on their

mobile phones from appellant Santosh Ambekar demanding money
which they declined to pay. The learned counsel submitted that there is
no evidence in the form of data from concerned telecom company to
corroborate the word of these two witnesses that calls originated from
Santosh Ambekar's telephone and landed on the lines of these witnesses.
Further, according to the learned counsel, not only was money not paid,
there is no evidence that any threats were given or force was used.
Therefore, this evidence is useless to conclude that any offence,
muchless that of organised crime was committed. The evidence of PW
76 PSI Gadve, who intercepted telephone lines also does not show any
threatening conversation with any of these witnesses.
85. The learned Additional Public Prosecutor submitted that the
fact that PW 14 Rajesh stated that out of fear he had sent his wife to
Mumbai, showed the fear that word of Santosh Ambekar instilled in the
minds of witnesses. We are afraid that this does not satisfy the
requirements for proving offence of organised crime.
86. The learned counsel for the appellants submitted that story
of PW 16 Tanaji and PW 19 Prakash Patne is not much different. They
too state about demand by Santosh, not only telephonically, but also in

person. But both do not state that either of them had to pay because of
threats or use of force. Such ambivalent evidence cannot help the
prosecution in booking offenders for a serious crime.
87. P.W. 9 Kalyanrao Himte stated that he had purchased a
house in the year 1974 for Rs.14,500/-. He wanted to sell the house for
marriage and education of his daughter. In 1998 one Prashant
Deshpande brought appellant Santosh at his house. Consideration was
settled at Rs.8,01,000/- after negotiations. Appellant Santosh paid him
Rs.Five Thousand as earnest and after some days another sum of
Rs.Fifty Thousand. Appellant Santosh demanded original sale deed and
also execution of agreement, which the witness refused, whereupon
Santosh threatened the witness. He stated that complaints were lodged
with the police by both the parties. He stated that people were not
ready to purchase his house because of fear of appellant Santosh.
According to him on 24.03.2000 accused No.10 Shashikant father of
the appellant Santosh came to him and demanded refund of Rs.Fifty
Five Thousand, whereupon the witness told that he would return the
amount on return of all original documents. He also stated that
Santosh called him and his wife at Santosh's house where 8-10
unknown persons were present. Santosh intimidated him to execute

agreement but on telephonic intervention by his maternal uncle he
budged. Presuming what this witness states to be true, incident about
exerting force to get an agreement is of the year 1998, i.e. before
MCOCA came into force. Incident dated 24.03.2000 does not show any
use of force or compulsion.
88. P.W. 33 Amarchand Mehta states that in 1990 he purchased
house property from Sanjay Kurve for Rs.2,10,000/- by registered sale
deed in 1998. He wanted to sell the property because he had to
undergo by-pass surgery and therefore, contacted Bhushan Jain who
works as broker, who settled the deal after negotiations for a sum of
Rs.8,21,000/-. Sushma Ambekar entered into an agreement with him
and paid a sum of Rs.11,000/-. In November, 1999 he received
Rs.3,10,000/- and an agreement was reduced into writing. He also
received a post dated cheque for Rs.5,00,000/-. This agreement was
executed through mediation of Advocate Paresh Thakkar. He stated that
he knew accused Santosh since he met him in connection with this
transaction 2-3 times. Sale deed was to be executed by 22.02.2000, but
is still not executed and the cheque is also dishonoured. He stated that
he had not taken any action since the purchaser was a lady and he was
not keeping well. He admitted in cross-examination that he does not

@
have any complaint in respect of this transaction since he believes that
he will receive his money. He states that he was aware that Sushma as
well as Santosh are behind the bars since about 1-1/2 years since he
deposed. Thus, there is nothing in his evidence to support prosecution
case. Thus, the evidence of all these witnesses does not lead anywhere.
89. To sum up, this evidence tendered does not show that
appellants were involved in any continuing unlawful activity by use of
violence or threat of violence with the objective of gaining any
pecuniary advantage, and charges “Seventhly”, “Ninethly” and
“Tenthly” could not have been held as proved.
90. This takes us to the question whether past charge sheets
alone would be enough to prove the offence of organised crime. In
cross-examination P.W.79 P.I. Mahajan admitted that there was no
incident of 20th September, 1999 when offence under MCOCA was
registered. He stated that there was an incident on 18.09.1999 for which
a crime was registered, investigation was commenced and chargesheet
was also filed in the Court. He admitted that from 1994 to 1999 there
was no crime registered against appellant Santosh. He denied that in
1999 a drive to falsely implicate Santosh was started and therefore,

crimes came to be registered. He admitted that there was no crime
registered against Ashok Botnis, Shashikant Ambekar and Sushma
Ambekar.
91. P.W. 75 Additional Commissioner of Police Prabhat Ranjan
stated that he had received report from ACP. Kotwali for grant of
permission to record information under Section 23 (1)(a) of the MCOCA
against Santosh Ambekar. He stated that he called the concerned
officers along with all the concerned documents. Meetings were held in
succeeding 2-3 days and thereafter since he was satisfied, he accorded
permission vide Exh.603 to record information under MCOCA agianst
accused Santosh Ambekar. He stated in cross examination that apart
from anonymous complaints, chargehseets showed that appellant
Santosh was involved in offences punishable with imprisonment for over
three years for gaining money, Therefore, he granted such permission.
92. It was strenuously contended on behalf of the appellants that
unless there is a substantive offence, mere past chargesheets would not
constitute the offence of organised crime. On the other hand, it was
contended on behalf of the State that offence of organised crime itself
comprises of chargesheets filed in the past of which cognizance is taken.

&
It was contended on behalf of the appellants that if such a contention
were to be accepted, it would amount to giving a handle to the police to
send anybody to a long term of imprisonment merely by filing
chargesheets in respect of more than one offence. It was pointed out
that when a police report in respect of an offence is filed in a criminal
court, it is not scrutinized, the way a private complaint is. Routinely
such chargesheets are registered as criminal cases and processes are
issued, and therefore, accepting mere chargesheets as the foundation for
offence of organised crime would amount to permitting the police to
send anybody behind bars by merely filing two false or not entirely true
chargesheets against such person. Police authorities may file a
chargesheet to make out an offence of attempt to commit murder from a
simple hurt. Even if the accused were to be eventually acquitted in such
cases, or convicted only for offence punishable under Section 323 of the
Penal Code, that of causing simple hurt, since he was accused of an
offence of attempt to commit murder, which is punishable with
imprisonment for more than three years, of which cognizance was
taken, such person would be booked for offence of organised crime.
Therefore, according to them, such an interpretation is impermissible. It
was further contended that taking into consideration the previous
chargesheets would amount to exposing the person concerned to double

T
jeopardy which is specifically prohibited under Section 300 of the Code
of Criminal Procedure. The learned counsel submitted that convicting a
person merely because a chargesheet had been filed in the past (in
which case the person may have even been acquitted after trial) would
amount to convicting him only on a chargesheet, which has been
disapproved by the Supreme Court in Dalip Singh Vs. State of Punjab,
reported at 1997(3) Current Criminal Journal 223.
93. Sitting singly, both of us had considered this question and in
the judgment rendered by one of us (A.H. Joshi, J.) in Amarsingh
Kisansingh Thakur v. State of Maharashtra, reported at 2006 ALL MR
(Cri) 407, the following conclusions were drawn in paras 18 and 21 :
“18. It can be seen that in all these offences

either of the accused persons jointly with one
amongst the three and some amongst the outside
offender are subject matter of charge-sheet and
further process of taking cognizance thereon has
occurred. The evidence so brought before the Court
adequately proves the charge framed against the
accused under Section 3(1) and 3(4) of M.C.O.C.
Act of being a member of organized criminal
syndicate and remaining thereof as a device of
livelihood.”
“21. This Court, therefore, holds that finding

of trial Court holding the accused guilty was like
an infalliable conclusion based on an arithmetic
equation about which trial Court was rendered
@
optionless. Conviction is based on objective

evidence. No subjective element is at all involved.
The conviction under appeal, therefore, cannot be
faulted as erroneous or an unavailable conclusion.
The appeal, therefore, reveals to have no merit.”
94. Similar view was taken by learned Single Judge in Dinesh
Mahadev Bhondve Vs. State of Maharashtra, reported at 2007(2)
Mh.L.J.(Cri.) 718 on which the learned counsel for parties relied. In
that case, a complaint from one Pujari of Kamshet was received for
offence punishable under Section 387 read with Section 34 of the Penal
Code and the same was registered as Crime No.95 of 2001. During the
enquiry it transpired that several criminal cases of serious offences were
registered in the past against accused No.1, who was the head of gang,
which was indulging in these offences. Therefore approval under
Section 23(1)(a) of MCOC Act was sought and the Special Inspector
General accorded approval, whereupon Crime No.54 of 2001 was
registered under MCOC Act. After completing investigation, a report
was submitted to the Director General of Police, who accorded sanction
for prosecution. The prosecution was simpliciter under the provisions of
MCOC Act and not associated with the offence reported by one Pujari of
Kamshet. The Trial Court had convicted the appellants of offence under
MCOC Act. While deciding the appeal, the learned Single Judge had

quoted in para 18 of his judgment from paragraphs 25, 27 and 28 in
Bharat Shah's case. The observations of the Court in paras 19, 21 and
22 of the judgment may be usefully reproduced as under :
“19. ...Besides filing of more than one charge-

sheet in respect of the alleged activity prohibited by
law, the Court must have taken cognisance of such
offences. In other words, mere filing of more than
one charge sheet is not enough. In addition, such
continuing unlawful activity has been committed by
individual singly or jointly as a member of
organised crime syndicate or on behalf of such
syndicate, by use of violence or threat of violence or
intimidation or coercion or other unlawful means
with the objective of gaining pecuniary benefits or
gaining undue economic or other advantage for
himself or any other person or promoting
insurgency. The question is : whether all these
requirements are attracted in the present case or
whether there is evidence to substantiate each of
this aspect.
21. The ocular as well as documentary

evidence on record supports the prosecution case
that stated criminal activities were committed
during the relevant period in succession in the
locality by the appellants and their henchmen or
associates. There is evidence that the accused No.1
was the mastermind and kingpin of the gang of
which others including accused Nos.3 and 4
(appellants herein) were members. The said
persons were operating in the locality for quite
some time and had created reign of terror in the
area. The accused were indulging in such crimes
singly or jointly as member of the gang led by
accused No.1 or on behalf of that gang. Further,
most of the offences indulged by them were covered

within the offences under Chapter XVI and XVII of

Indian Penal Code (of offences affecting the human
body and of offences against property) with
objective of gaining pecuniary benefits or gaining
undue economic or other advantage for themselves
and to reign supremacy or terror in the area. The
fact that the reported offences committed by the
appellants and other members of the gang were
ascribable to offences under Chapter XVI and XVII
of Indian Penal Code presupposes that the unlawful
activity indulged in was by use of violence or threat
of violence or intimidation or coercion or other
unlawful means. Each of the appellants have
indulged in an offence of organised crime and were
members of the organised crime syndicate or gang
headed by accused No.1. A priori, the conclusion
recorded by the trial Court holding appellants
guilty of offence punishable under section 3(1)(ii)
as well as section 3(4) of the Act is inevitable.
22. ...In such a situation, it was not necessary for

the prosecution to produce evidence to establish
that, in fact, the accused had indulged in
commission of the respective unlawful activities
indicated against his name. However, all that the
prosecution is expected to establish is that more
than one charge sheet have been filed before the
competent Court against that accused within the
preceding period of 10 years for invoking MCOCA
provisions qua him; and that the Courts have taken
cognisance of such unlawful activities which are
punishable with imprisonment of 3 years or more,
undertaken either singly or jointly by the accused as
member of the organised crime syndicate or on
behalf of such syndicate by use of violence or threat
of violence or coercion or any 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.” (Emphasis supplied)

95. From the above observations, at the first blush it may seen
that in Dinesh Bhondwe's case this Court had taken the view that by
merely establishing that more than one charge sheets in respect of
offence punishable with imprisonment for over two years cognizance
whereof has been taken by Court concerned, offence of organised crime
is proved. However, it has to be noted that the Court had duly
considered and quoted the observations in paragraph 27 in Bharat
Shah's case that limited purpose of “continued unlawful activities” was
to see the antecedents of the persons and not to convict. After having
done so the learned Single Judge could not have taken a contrary view
and could not have held that the offence is complete upon proof of two
earlier charge sheets. The Court then proceeded to dismiss the appeals
after considering the other aspects of the matter.
96. One of us (R.C. Chavan, J.) had the advantage of elaborate
arguments on this question duly supported by several judgments having
a bearing on the issue including judgment in Amarsingh's case, but not
that in Dinesh's case, while deciding Criminal Appeal No.664 of 2002
and others (Prafulla s/o Uddhav Shende v. State of Maharashtra) by a
judgment dated 18-11-2001. After considering the ratione` of these
judgments, one of us (R.C. Chavan, J.) had come to the conclusion that

an offence of organised crime can not be established merely by proof of
filing two or more chargesheets showing involvement of the accused in
offence punishable with imprisonment of two years or more of which
cognizance has been taken by the Competent Courts.
97. After considering the several judgments cited at Bar, keeping
aside the views taken by us individually, we have re-examined the whole
question. All the relevant provisions of MCOCA have already been
discussed in earlier part of this judgment.
98. In some of the judgments cited, apart from the previous
chargesheets, there was some substantive crime, information in respect
of which was recorded under MCOC Act. Hence, the question of only
previous charge sheets constituting the offence did not strictly arise in
those cases, for instance, Ramakant Jamunasingh Singh v. The State of
Maharashtra, reported at 2002 ALL MR (Cri) 1269, Bhaya @ Raju S.
Rajput Vs. State of Maharashtra, reported at 2006 ALL MR (Cri) 1979,
Gulab Vs. State of Maharashtra, reported at 2007(2) Mh.L.J.(Cri.) 538,
Mohd. Iqbal Vs. State, reported at 2007(1) Mh.L.J. (Cri.) 385 and
Sidharth Janmajay Vs. State, reported at 2005 ALL MR (Cri) 460.

@¡
99. In Bharat Shantilal Shah Vs. State of Maharashtra, reported
at 2003 ALL MR (Cri) 1061 a challenge to the constitutional validity of
MCOC Act, was considered by a Division Bench of this Court. Definition
of continuing unlawful activity in Section 2(1)(d) was sought to be
attacked by advancing the following arguments :
“19. Dealing with the next definitions in section 2(1)(d)

of 'continuing unlawful activity' it was submitted that it
suffers from violation of article 14 as it treats unequals
as equals. It makes an activity continuing unlawful
activity if more than one charges of cognizable offence
punishable with imprisonment of three years or more
are filed in competent court, it does not touch an
activity as continuing unlawful activity if undertaken by
a person who is known to be a criminal but more than
one charge sheets have not been filed against him. A
person charged ten times of an offence though acquitted
on every occasion may yet be roped in as a person
engaged in continuing unlawful activity. Whereas a
person who is convicted for an offence for three years
punishment cannot be touched by this definition if he is
not charged with more than two of such offences. The
definition therefore treats as equal persons who are
hopelessly unequal ... The arguments appear to be
attractive at the first blush, but deeper scrutiny reveals
the hollowness of the argument.”
100. Dealing with the objections to this definition the Court
observed in paragraph 25 of the judgment as under :
“25. ... In our opinion, there is no violation of

article 14 by this definition. If we read the definition
again, what has been defined as continuing unlawful
activity is a member of organized crime syndicate in
¢£
respect of which any activity prohibited by law and done

repeatedly i.e. more than once for which charge sheet
has been filed in the court of competent jurisdiction in
the past ten years. The purpose of definition is to define
what continuing unlawful activity is and it is for the
purposes of defining what is continued unlawful activity
that those charges are to be taken into consideration.
Mere taking into consideration of such charges cannot
result in discrimination of the kind alleged by Shri
Manohar. The activity must be continuing unlawful
activity and to define it with clarity it is provided that
any person who in the past was charge sheeted for more
than one charge of such activity or crime the cognizance
of which has been taken and imprisonment for which is
more than three years should be taken into account.
The fact of the person having been charge sheeted in
such cognizable offences in the past makes the unlawful
activity, continuing unlawful activity. This section only
defines what the activity is. It does not itself provide for
any punishment for that activity. Had punishment been
provided the submission that it treats while punishing
unequals as equals may carry weightage. That being
not the case in the challenge to section 2(1)(d) of the
Act we see no vagueness or violation of article 14 by the
definition. We find that the provision treats all those
covered by it in a like manner and does not suffer from
the vice of class legislation.” (emphasis supplied)
In paragraph 27 the Court then went on to observe as under :
“27. We also do not find substance in the challenge that the

equality clause in the Constitution is violated because the
definition ropes in anyone charged more than once,
irrespective of whether the charge resulted in an acquittal
or conviction. The circumstances that followed the charge
are not material. The provision only defines what is
continued unlawful activities and refers to whether a person
has been charged over a period of ten years for the purpose
of seeing whether the person is charged for the first time or
¤¥
has been charged often. The circumstance of conviction or

acquittal that followed the charge are not material. The
limited purpose is to see antecedents of the person. Not to
convict.” (emphasis supplied).
101. The Court held that Sections 3 and 4 of MCOC Act inherently
contemplate mens rea. The Court held the provisions of MCOC Act
except those contained in Sections 13 to 16 to be valid and struck down
the provisions of Sections 13 and 16 as beyond the legislative
competence of State Legislature. This Court also held that the words in
sub-section (5) of Section 21 of the Act “or under any other Act on the
date of the offence in question” were violative of Article 14 of the
Constitution and, therefore, were to be deleted.
102. This judgment was challenged by the State of Maharashtra
before the Apex Court insofar as it held Sections 13 to 16 of MCOC Act
as unconstitutional.
103. The Apex Court in judgment reported at 2008 AIR SCW 6431
upheld the judgment of the Bombay High Court deleting the words “or
under any other Act....” from sub-section (5) of Section 21. The
questions raised before the Supreme Court were concerned basically
with constitutionality of interception of conversation or

¦§
communication, which was the subject-matter of Sections 13 to 16 of
the Act. The Apex Court reversed this Court only to the extent this
Court held the provisions ultra vires.
104. There was no cross appeal by Bharat Shah challenging the
order of the High Court upholding constitutional validity of the
provisions of Section 2(d), (e) and (f) and Sections 3 and 4 of MCOC
Act. Therefore, the Supreme Court had, not gone into that question.
The Court, however, observed that there was no vagueness as the
definitions defined with clarity what was meant by continuing unlawful
activity, organised crime and also organised crime syndicate. The Court
specifically concluded that after examining the judgment of the High
Court in depth on the issue of constitutional validity of Sections 2(d),
(e), (f) and Sections 3 and 4 of MCOC Act, that the Court was in accord
with the finding arrived at by the High Court that the aforesaid
provisions cannot be said to be ultra vires of the Constitution and that
the Supreme Court did not find any reason to take a different view than
what is taken by the High Court while upholding the validity of the
aforesaid provisions.
¨©
105. Since in the present case, the question raised is about the
definition of “organised crime”, in view of these observations of the
Supreme Court, it may be permissible to conclude that the findings of
this Court in Bharat Shah's case in this regard which have been quoted
earlier would have to be followed.
106. This Court had specifically held that had punishment been
provided for continuing unlawful activity, the submission that while
punishing, it treats unequals as equals may carry weight. The Court
upheld the validity of the provision defining “continuing unlawful
activity” only because the Act did not provide any punishment for that
activity. In para 27 it was made clear that the limited purpose of
continuing unlawful activity was to see antecedents of the person and
not the convict.
107. It was contended that the observations in Bharat Shah's case
by this Court have to be read in context of the fact that Section 2 is a
definition clause which just defines the offence and, therefore, could
not have prescribed punishment, which Section 3 prescribes. It is truly
said that Section 2 merely defines, not only the offence of “organised
crime” but also other terms used in the Act. What is material is the
ª«
definition of offence of “organised crime” and not the definitions of
other terms included in Section 2. Had the term “continuing unlawful
activity” been synonymous with “organised crime”, it would not have
been necessary for the Legislature to include two definitions. It would
have been sufficient to provide for only one definition of continuing
unlawful activity and make that activity punishable. The definitions in
clauses (d) and (e) clearly show that one of the components of
organised crime is continuing unlawful activity and, therefore,
organised crime is something more than mere continuing unlawful
activity.
108. Thus the fact of more than one chargesheet having been filed
in competent Court in preceding period of ten years and such Court
having taken cognizance of such offence, is merely one of the
ingredients of the offence of organised crime. Therefore, it cannot be
contended that the offence of organised crime is completed by collection
of previous criminal activities.
109. In Jaisingh Ashrfilal Yadav & Ors. v. State of Maharashtra &
Anr, reported at 2003 ALL MR (Cri) 1506, to which the learned A.P.P.
drew my attention, a Division Bench of this Court was considering the

¬
constitutionality of the provisions of MCOC Act. The Court observed in
paragraph 9 as under :
“9. The analysis of the definition of the organised crime,

therefore, would reveal that continuing unlawful activity
is one of its ingredients. ... 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.”
(Emphasis supplied)
110. The Court then considered the challenge based on Article
20(1) of the Constitution of India. In paragraph 19 the Court observed
as under :
“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 24.02.1999. It
also does not converts any activity done prior to
24.02.1999 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 Singh's case as
well as in Sajjan Singh's case.” (Emphasis supplied)
This too would show that for establishing offence of
organised crime something more than mere continuing unlawful activity
is necessary.
111. Though it is not necessary to press in aid judgments in the
context of other enactments, the learned counsel relied on judgment of
the Apex Court in Kalpanath Rai v. State, reported at III(1998) Current
Criminal Reports 37 (SC), where the Supreme Court was considering
similarly worded provision of Section 3(4) of Terrorists and Disruptive
Activities (Prevention ) Act (equivalent to Section 3(4) of MCOCA), in
light of meaning assigned to 'Terrorist Act”. In Section 3(1) of the TADA
(equivalent to definition of organised crime in Section 2(e) read with

°±
punishment Section 3(1) of MCOCA). The Supreme Court held in
paragraph 35 of the judgment as under :
“35. There are two postulates in Sub-section (5). First

is that the accused should have been a member of “a
terrorists gang” or “terrorists organisation” after
23.5.1993. Second is that the said gang or organisation
should have involved in terrorist acts subsequent to
23.5.1993. Unless both postulates exist together Section
3(5) cannot be used against any person.”
The learned counsel submitted that unless existence of organised crime
syndicate after MCOC Act came into force is established, there would be
no question of holding appellants guilty of offence of organised crime.
Therefore, merely showing participation in continuing unlawful activity
would not be sufficient.
112. It is not clear as to how, after not only noticing, but also
quoting from para 27 of the judgment of Division Bench in Bharat shah's
case, that limited purpose of previous charge sheets is to see antecedents
and not to convict, the learned Single Judge in Dinesh Bhondwe's case
[2007 (2) Mh.L.J. (Cri) 718] held that cognizance of previous two
charge sheets was enough. Possibly this aspect was not raised and so
not dealt with or lost sight of. It ought to have been noticed that the
word “continuing” in the phrase “continuing unlawful activity” used in

²²
Sections 2(d) and (e) is not without significance. If the word
“continuing” were to be omitted from the two clauses, the interpretation
sought to be put forth was possible, since in that case more than one
charge sheets in the past would be “unlawful activity” as defined in
clause 2(d) and the same component would go in clause 2(e). Since the
legislature must be held to have used every word carefully and since
redundancies cannot be imagined, full effect would have to be given to
all the words used while defining the offence. If the interpretation
sought to be put forth by the prosecution were to be accepted the word
“continuing” would become superfluous.
113. If for the sake of argument, as held in Dinesh Bhondwe's case
two charge sheets in the past are held to be sufficient, than those two
charge sheets would have to be in respect of offences committed after
MCOCA came into force with the objective of gaining pecuniary or other
benefit by use of violence etc.; which may have been the case in Dinesh
Bhondwe. In other words, if it is taken that offence of organised crime is
constituted by proof of continuing unlawful activity, such activity would
have to be shown to have been committed by use of violence, etc. and
with the objective of gaining pecuniary or other advantage, after MCOC
Act came into force. This will also comply with the requirement of
³´
“within 10 years”, since MCOC Act came into force on 24-2-1999. Such
is not the present case. Therefore, first, it may not be permissible to
hold that previous charge sheets, in themselves, are enough to constitute
offence of organised crime, and secondly, in the present case there are
no such more than one charge sheets, filed after MCOC Act came into
force.
114. The learned Additional Public Prosecutor eruditely analysed
the definitions contained in clauses (d) and (e) and (f) of Section 2 of
the Act. She submitted, and rightly in my view, that by using the word
“means”, while defining the three expressions the Legislature has chosen
to define the terms exhaustively, as contrasted with definitions which
may use the words “includes” or “means and includes”. Therefore, her
contention that in spite of such exhaustive definition, it would be
necessary to interpret the terms expansively with reference to long title
or preamble or statement of objects cannot be accepted. Only in case of
ambiguity would recourse to such aids in interpretation be justified and
in my view though the definitions are intertwined there is no ambiguity.
Therefore the words used would have to be strictly interpreted in light
of observations in the case of Lalit Nagpal.

µ¶
115. If the provisions of the Act are read in entirety, in the light of
foregoing discussion, they will show that offence of “organised crime” is
constituted by atleast one instance of continuation, apart from
continuing unlawful activity evidenced by more than one chargesheets
in preceding ten years : This is so because :
(a) If “organised crime” was synonymous with “continuing

unlawful activity”, two separate definitions were not
necessary.
(b) The definitions themselves show that ingredients of use

of violence in such activity with the objective of gaining
pecuniary benefit are not included in definition of
“continuing unlawful activity”, but find place only in
definition of “organised crime”.
(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

chargesheet filed, the classification of crime in Section
3(1)(i) and 3(1)(ii) 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) If the offence of organised crime itself is comprised of

previous offences in respect of which chargesheets have
been filed, or in other words such chargesheets are a
component of the offence of organised crime, all such
offences referred to in such chargesheets could be tried at
one trial, and the rider in Section 7 about triability of the
accused under the Code at the same trial would be
redundant.
(f) Entire Section 18 of the Act would become redundant if

“continuing unlawful activity” evidenced by proof of
filing of two chargesheets is equal to organised crime,
since question of recording confessions would not arise.
Certified copies of chargesheets, with certified copy of
order thereon by the Court taking cognizance, would be
admissible without formal proof and if this itself was
enough to constitute offence, no other evidence would be
required to be tendered.
(g) For the same reason, there may be no need to examine

any witnesses and consequently Section 19 would be
redundant.
¹Tº
(h) If proof of filing two chargesheets is enough to establish

offence of organised crime, there may be no occasion to
carry out any investigation, other than collecting copies
of charge sheets. Consequently, it would be unnecessary
for high ranking police officers to wield the power to
allow recording information or to sanction prosecution
after such chargsheets are collected.
116. The legal principles that emerge from the foregoing
discussion are :
(i) As held by the Supreme Court in State of Maharashtra

and others v. Lalit Somdatta Nagpal and another,
reported at (2007) 4 SCC 171, the provisions of
MCOC Act have to be strictly interpreted.
(ii) Since the definition clauses, Sections 2(d), (e) and (f),
use the word “means”, the definitions are exhaustive.
(iii) The definition are unambiguous and words used are

not susceptible to two interpretations.
(iv) As observed by the Apex Court in Ranjitsingh

Brahmajeetsing Sharma v. State of Maharashtra and
another, reported at 2005 Cri.L.J. 2533, the words
“other unlawful means” have to be read ejusdem
generis, the phrases “by use of violence” etc.
»W¼
(v) Similarly, the words “other advantage” has to be read

ejusdem generis “pecuniary benefits” as held by a
Division Bench of this Court in Sherbahadur Akram
Khan and others v. State of Maharashtra, reported at
2007(1) Bom.C.R. (Cri) 26.
(vi) As held by a Division Bench of this Court in Bharat

Shantilal Shah v. State of Maharashtra, reported at
2003 ALL MR (Cri) 1061, and Jaisingh Ashrfilal Yadav
and others v. State of Maharashtra and another,
reported at 2003 ALL MR (Cri) 1506, 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
antecedents and not to convict, without proof of other
facts which constitute the ingredients of Section 2(e)
and Section 3, which respectively define commission of
offence of organised crime and prescribe punishment.
(vii) Approval for recording information under Section 23

of MCOC Act would not restrict the scope of
investigation and would not exclude filing of
chargesheet in respect of incidents or involvement of
persons disclosed in course of investigation.
(viii) There would have to be some act or omission which

amounts to organised crime after the Act came into
½¾
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).
117. Applying these principles to the charge sheet and evidence
tendered disclose that offences allegedly uncovered in course of
investigation after information was recorded do not qualify to be
organised crime. It is also not shown that there are more than one
chargsesheets filed after MCOCA came into force indicating involvement
of appellants in offence aimed at pecuniary or like gain by means of
violence or the like if analogy of Dinesh Bhondwe's case were to be
applied. The only chargesheet in relation to such an offence is one at
Sr.No.33 in the chart. The present chargesheet does not disclose
commission of another such offence after the offence dated 18.09.1999
(one at Sr.No.33). Therefore, conviction of any of the appellants for
offence punishable under Section 3(1)(i) or 3(1)(ii) of MCOCA cannot
be upheld.
118. Once complicity of appellants in offence of organised crime is
not proved, since appellants have not been previously adjudged to be
members of organised crime syndicate, evaluation of evidence about

¿[À
harbouring appellant Santosh, or appellants being members of organised
crime syndicate, or amassing wealth from activities of such syndicate
would be only an academic exercise. Even so, it may be necessary to
carry it out.
119. In order to prove charge “thirdly” the prosecution examined
P.W.49 PSI Sadanand Inamdar, P.W. 61 Dharmu Jadhav, P.W. 63 PSI
Rajendra Vibhandik who were instructed by P.W. 74 DCP Manglaji
Siram to search for appellant Santosh Ambekar and reported that they
could not find Santosh Ambekar in Nagpur.
120. P.W. 49 PSI Sadanand Inamdar stated that on 13.10.1999
ACP Siram of Kotwali Division asked him to search for accused Santosh
Ambekar. He searched for Santosh Ambekar but could not find
appellant Santosh Ambekar. He made necessary entries in the station
diary, which are proved at Exhs. 383 to 500,. He has also proved
acknowledgment of service of letters on Sushma and Shashikant
Ambekar vide Exhs. 504 and 505.
121. P.W. 49 PSI Inamdar also stated that on 18th September,
1999 Crime No.289/1999 was registered in Police Station, Tahsil under

ÁÂ
Section 399 of the Penal Code and Section 25 of the Arms Act in respect
of which he filed chargesheet, a copy whereof is at Exh.506. It led to
Sessions Trial No.225/2001. There is no reason to disbelieve the word
of this witness that he did search for Santosh but could not find him,
though suggestion was given to him that Santosh was freely moving in
the ward itself.
122. P.W. 61 API Dharmu Jadhav stated that on 11.12.1999 ACP
directed him to search absconding accused Santosh Ambekar.
Accordingly he searched Santosh Ambekar but could not find him and
necessary entries were made in the station diary vide Exhs. 606 and
607. He also made similar searches on 12th and 13th December, 1999
and in respect of which he made entries at Exh.608 to Exh.611.
123. P.W. 63 P.S.I. Rajendra Vibhandik stated that he searched for
accused Santosh from 04.10.1999 to 05.11.1999 as per directions of
ACP and could not find him. He made necessary entries in the station
diary vide Exh.617 to 645. Chart in respect of these entries is at
Exh.616. P.W. 79 P.I. Mahajan too proved several extracts of station
diary in respect of search of accused Santosh by himself, P.S.I.
Vibhandik and PSI Inamdar.

Ã*Ä
124. There would be no reason for these witnesses, to falsely state
that Santosh Ambekar was missing. It may be seen that P.W. 74 DCP
Mangalaji Siram had also stated that a proclamation was issued in the
name of Santosh and was affixed to the door of the house of Santosh
Ambekar vide Exh.365. It was suggested to the witness that he had
merely made a farce to show that Santosh Ambekar was missing when
he was actually present in Nagpur.
125. The learned Additional Public Prosecutor Mrs. Dangre
submitted that there was no question of creating a farce to show that
Santosh Ambekar was not present. Since if Santosh was indeed present
and police knew of it, the police would not have failed to arrest him.
She submitted that in that case there would have been no occasion for
the police to undertake an exercise to have telephones intercepted in
order to trace movements of appellant Santosh.
126. P.W. 78 ACP Chavhan was Police Inspector at the relevant
time and stated that at the direction of ACP Rude, who was the
Investigating Officer, he took search of house of Santosh on 28.07.2000
in presence of panchas vide panchnama Exh.534 and seized documents
which are at Exh.534(1) to 534(9). He stated that as directed by ACP

ÅÆ
Rude he had taken accused Santosh and PSI Kad to Mumbai on
12.08.2000 to hotel Hira in Girgaon Mumbai which was shown by the
accused and seized relevant record from the Hotel Manager. He also
claimed to have been taken by accused Santosh to Hotel Sharda, Chira
Bazar, Mumbai and states that he seized relevant record from the
Manager of the Hotel, vide Exh.713 to 716 and 670 and 671. He stated
that he submitted report vide Exh.718.
127. P.W. 66 Rajbahadur Angadrai, Manager at Sharda Hotel,
Chira Bazar, Mumbai. P.W. 77 Premkumar Sharma is Manager of Hotel
Hira at Girgaon, Mumbai where accused Santosh alleged to have stayed
by registering himself in false names. It may be seen that P.W. 66
Rajbahadur Angadrai admitted that he had not identified appellant
Santosh Ambekar when police brought appellant Santosh to his hotel,
and only upon perusal of the record he identified the appellant Santosh.
P.W. 77 Premkumar Sharma also admitted that he has stated before the
police that he was not knowing the person who was brought by the
police, but only after checking registers of the hotels he identified the
person as one who has stayed in his hotel at different alias. This casts
a serious doubt on the story that Santosh stayed in the hotels under
some different names. Had Santosh indeed stayed in these two hotels
ÇÇ
under different names and had the witnesses i.e. P.W. 66 and P.W. 77
had an opportunity to know Santosh as the same person, the moment
he was produced by the police, the witnesses would have stated that he
was the customer who had stayed at their hotels under the names given
in the register. As far as evidence of P.W. 66 Rajbahadur Angadrai is
concerned, he admitted that the room was booked in the name of
Prashant Pawar accompanied by another person. Merely because name
of Prashant Pawar was mentioned in the register it could not be inferred
that appellant Santosh gave his name as Prashant Pawar as he could as
well have stayed in the hotel as companion of said Prashant Pawar. In
that case, there is no question of his having concealed his identity.
Therefore, evidence of these two witnesses is not of clinching character
to show that Santosh Ambekar stayed in the hotels under some different
names. Even if the evidence of P.W. 66 Rajbahadur Angadrai and P.W.
77 Premkumar Mishra, Managers of Hotels at Mumbai is accepted at its
face value namely that appellant Santosh had stayed at their hotels
under different names as per record produced at Exhs. 670, 671, 713 to
716, still it does not show as to how other accused persons can be said
to have helped Santosh in concealing himself or had haboured him.

È#ÉÉ
128. P.W. 26 Manisha was serving on a telephone booth of one
Sanjay Charde (P.W.28), having telephone Nos. 772685, 772511 having
conference phone facility. P.W. 28 Sanjay, however, does not say that
these telephones had conference call facility. Telephone No. 768246,
which according to P.W. 28 had this facility is not mentioned by P.W. 26
Manisha. According to Manisha, Sanjay had permitted Sushma
Ambekar (mother) and Neha Ambekar (sister of Santosh) to avail
conference phone facility. She used to mention in the call register “M”
for mother and “S” for sister.
129. P.W. 28 Sanjay Charde corroborated P.W. 26 Manisha about
availment of conference call facility by mother and sister of Santosh
from his booth. In view of contradictions in the evidence of the two
witnesses as to the telephone numbers on which conference calls were
allegedly made, their evidence may not be of much use.
130. P.W. 80 Sudhir Mehta stated that he was serving as Executive
of BPL Mobile Connection and received letter from Shri Rude on
24.07.2000 vide Exh.737 asking for information in respect of the mobile
phone No.9821084989 for the period from February, 2000 to July,
2000. He stated that he gave a reply which is at Exh.738. The reply

È#ÉÈ
was signed by Sharayu Prabhu on behalf of General Manager. By that
reply they had proved information about the calls which were available
with them. He proved the information given at Exh.739(1) to 739(35).
131. P.W. 59 Shri Baidyanath Mishra was Commissioner of Police,
Nagpur from May, 2000 to December, 2000. He stated that he made a
request to Additional Chief Secretary, Home for tapping of four
telephone numbers vide Exh.137. The competent authority accorded
permission / sanction to tap the telephone vide Exh.136. He had
assigned the job to D.C.P. Kulwantkumar. He stated that subsequently
they sought permission to tap only one telephone vide Exh.358 and
received permission vide Exh.359. He identified the note sheets which
bear his, Additional Chief Secretary's and Kulwant Kumar's signatures at
Exh.599. He proved order about disconnection of interception at
Exh.356. He also proved correspondence in respect of transfer of
appellant Bablu Mohite vide Exh.552, 594, 596, 597 and 599. The
cross-examination shows that the officer had written letters for
interception on the basis of this discussion with the Investigating Officer
and perusal of the case diary.

Ê#ËTÌ
132. P.W. 27, retired A.C.P. Vijay Kayande states about steps taken
in having telephone Nos. 762882, 772059, 767222 and 731706 to be
intercepted by carrying letter of Commissioner of Police to the
Additional Chief Secretary. He proved office copy of note sheet with the
signature of Additional Chief Secretary, Home at Exh.135 and the order
issued at Exh.136. His cross-examination does not disclose any reason
to warrant disbelief.
133. P.W. 69 Shri M.R. Patil was Additional Chief Secretary,
Home, who had authorised intercept of telephone numbers at the
request of police vide note sheets at Exh.358 and 599 as also 356 & 359.
134. P.W. 62 Mrs. Namrata Tiwari was working as Area Manager,
Telephones and stated having received order in respect of interception
of four telephones namely, 762882, 772059, 767222 and 731706 vide
Exh.126, which she was supposed to implement. Accordingly she stated
that she diverted four telephone lines by providing one connection in
Itwari Exchange in separate room where there was no public rush. The
Police Officers used to attend Itwari Exchange for the purpose of
interception from 20.06.2000 to 12.07.2000. From 14.07.2000
interception in respect of one telephone No.731706 was again started by

Í#ÎWÏ
providing same facility which continued up to 13.08.2000. She stated
that she had kept the telephone numbers under observation and had
provided printouts of particulars of the outgoing calls like time and
duration to the police machinery. The printout in respect of Telephone
No. 731706 was proved by her at Exh.613. She explained the entires in
the printout.
135. P.W. 41 Gopal Padole, Sub-Divisional Engineer (Legal) of
Nagpur Telephones stated that he received a letter dated 13.06.2000
from the Additional Chief Secretary, Home for intercepting Telephone
Nos. 762882, 772059, 767222 and 731706. He proved copy of letter at
Exh.136, along with covering letters of Commissioner of Police at
Exh.353 and 354. He stated that accordingly intercept facilities were
provided to the police in the concerned Telephone Exchange for the
period up to 12.07.2000. On 11.07.2000 he received another letter
from Home Department to disconnect the intercepts for telephone
Nos.762882, 772059, 767222 and proved copies of letters at Exh.355
and 356. He stated that instructions for continuing interception of
telephone No.731706 was received from Home Department, and he
identified the letter of Home Department at Exh.359 to be one which
permitted this interception. He admitted in his cross-examination that

Ð#ÑÒ
he was not the person to provide technical facilities and also did not
know the policemen who had been to his exchange for operating the
intercepts.
136. P.W. 64 Pundlik Dhongale was also working in Itwari
Telephone Exchange and stated about providing facility of intercept to
police officers from Gadhave and Dorwe. He stated that he was the
person who provided printouts of the telephone vide Exh.613 to the
police.
137. P.W. 68 DCP Shri Kulwant Kumar stated about note sheets
and correspondence about interception of telephones. He stated that he
had deputed PSIs Dorwe and Gadwe for intercepting the telephones. He
admitted in cross-examination that there was no written communication
between him and the Investigating Officer ACP Rude, and that
communication was oral. He denied that he had not taken care to
ascertain that there was no need for interception.
138. P.W. 76 PSI Dattatraya Gadwe stated that he intercepted
telephone numbers along with his colleague PSI Dorwe. According to
him, telephone No.731706 was in the name of Vandana Verma, 762882

Ó#Ô[Õ
was in the name of Ramnikbhai Parekh, 772059 was in the name of
Milind Kharwade and 767222 was in the name of Sanjay Khule. He
stated about formalities and arrangements made by the authorities in
the Telephone Exchange and then stated about actual interception by
him and PSI Dorwe in shifts of 12 hours each, continuously from
26.06.2000 to 12.07.2000. He stated that he used to listen to the
conversation which was simultaneously tape recorded. As soon as
conversation is over, he used to reverse the tape, hear conversation
again and make a rough note of that conversation in writing. If there
was any important piece of information it used to be passed on to the
higher authorities by him. On the basis of rough notes he used to
prepare a fair draft or script of day to day conversation. He proved
report of notes of his observation at Exh.707.
139. P.W.76 PSI Gadwe stated that from conversation dated
26.06.2000 he gathered that Santosh had informed his mother of mobile
telephone number 9821129098 on which he could be contacted. The
conversation showed that Santosh used to contact his parents, sister and
wife and inform them of his whereabouts from various telephone
numbers. Santosh used to talk to his family members on Vandana
Verma's telephone number 731706. This number was intercepted

Ö#×Ø
further up to 13.08.2000 and in respect of these intercepts he had
submitted reports at Exh.708 and 709. From the telephonic
conversation he came to know that wife, mother and son of Santosh
were to proceed to Delhi by plane and that Santosh was to leave
Bombay and go to Delhi to join them. This talk was going on from
18.07.2000 and it was decided to implement the decision on 28th July,
2000. Telephonic conversation dated 23.07.2000 between Santosh and
his sister Vandana revealed that Santosh told his sister that he saw an
official of Crime Branch, Nagpur at Delhi and therefore, he was leaving
Delhi. He directed his sister Vandana to inform his other sister Archana
at Delhi about this. Accordingly, Vandana informed Archana on her
Delhi telephone Nos. 5571097 that Santosh was to leave Delhi. He
claims to have informed PSI Kad that Santosh was to leave Delhi. On
24.07.2000 they learnt that Santosh was caught by PSI Kad at Mumbai
Airport.
140. There were further conversations between Vandana and
some others about arrest of Santosh, his police custody remands, etc.
He stated that they had obtained computer printouts from the Telecoms
Authorities about dialled numbers and handed them over to their
superiors. He also suggested that he had tendered 11 cassettes to P.I.
Chavhan on 14.08.2000.
Ù#Ú*Û
141. P.W. 78 ACP Chavhan stated that he received 11 cassettes
from PSI Gadwe and Dorwe on 14.08.2000 along with computer
printouts and he kept them in his personal custody and handed them
over to ACP Rude on 01.09.2000 vide Exh.719. His cross-examination
does not yield anything new.
142. As a result of these intercepts police came to know about the
conversation between appellant Santosh and his family members, some
of whom are appellant before this Court.
143. The learned counsel for the appellants submitted that this
evidence is of no value since there is no evidence about identification of
voice of appellant Santosh or his family members. The learned counsel
further submitted that the fact that the tapes were not kept securely and
were retained by ACP Chavhan for fifteen days without any rhyme or
reason before they were handed over to ACP Rude on 01.09.2000 would
also cast a doubt on the veracity of evidence of P.W. 16 Dattatraya
Gadwe that the voices which he heard were those of Santosh Ambekar
and his family members.

Ü#ÝÞ
144. In Yusufali Esmail Nagree v. The State of Maharashtra,
reported at AIR 1968 SC 147, on which the learned counsel for the
appellants placed reliance, the Court was considering the admissibility
of tape-recorded conversation. In para 6 of the judgment, the Court
held that if a statement is relevant, an accurate tape record of the
statement is also relevant and admissible. The time and place and
accuracy of the recording must be proved by a competent witness and
the voices must be properly identified. The Court observed that one of
the features of magnetic tape recording is the ability to erase and re-use
the recording medium and because of this facility, the evidence must be
received with caution and the Court must be satisfied beyond reasonable
doubt that the record has not been tampered with.
145. The learned counsel, therefore, submitted that this evidence
should have been rejected. As rightly pointed out by the learned
Additional Public Prosecutor, this contention has to be rejected. It has
to be seen that these intercepts have in fact led to the arrest of appellant
Santosh at Mumbai.
146. P.W. 73 PSI Kad stated that he was directed to go to Bombay
in search of accused Santosh and therefore, reached Bombay on

ß#àá
23.07.2000. He obtained necessary entry pass for entry at Bombay
Airport vide Exh.687. He stated that at about 7.30 to 8.00 p.m. after a
flight of Jet Airlines had landed, Santosh Ambekar was coming out. He
and constable Ramnaresh caught Santosh, made him to sit at the office
of Airport Security, informed his superior officer P.I. Chavhan, called
panchas and recorded arrest panchnama after seizing cash of
Rs.4,000/-, rings etc. vide Exh.685. He also proved at Exh.683 and 684
boarding pass and ticket which were found with Santosh Ambekar. He
stated that P.I. Chavhan had thereafter come to Bombay and both of
them brought accused Santosh Ambekar to Nagpur by Bombay-Nagpur
flight on next day i.e. on 24.07.2000. He then took Santosh for medical
examination vide station diary entry at Exh.688 and submitted
memorandum vide Exh.689. He denied that he and P.I. Chavhan
trapped Santosh without any authority. He denied that Santosh was
arrested on 23.07.2000 at Panvel at the house of one Diwakar Wadkar
(which suggestion would falsify the claim that Santosh Ambekar was in
Nagpur itself). He admitted that the boarding pass and ticket mentioned
the name Sharma S. and not Santosh Ambekar.
147. P.W. 72 Swapnil Gaikwad is panch at the arrest of Santosh
Ambekar at Mumbai airport and seizure of articles from him vide

â&âã
Exh.683, 684 and 685. There is no reason to disbelieve this witness.
148. P.W. 39 Manju Kaur was working with NOVA Tours and
Travels and proved that on 20.07.2000 one Rajesh had booked three
tickets for Mrs. S.S. Ambekar and N.S. Ambekar, Master Sanjeet for
Nagpur-Delhi flight of the same day and stated that the fare was paid in
cash of Rs.11,100/-. She stated that contact number given was 727558.
She proved necessary extract and copies of tickets.
149. Had the intercepts being incorrect or had the talk which PSI
Gadwe heard been in respect of someone else, there was no question of
Santosh Ambekar being arrested at Mumbai Airport on the basis of
information which became available through the intercepts. Therefore,
it has to be held that appellant Santosh had kept himself away from the
police. It has also to be held that movements of appellant Santosh were
known to his family members, particularly Vandana Verma appellant
No. 3 and Sushma Ambekar appellant No. 2, who did not inform the
police of whereabouts of Santosh Ambekar.
150. The learned counsel for the appellant submitted that the term
“harbour” has not been defined in MCOCA it has been defined under
ä&ää
Section 52-A of the Penal Code, which reads thus :
“52-A. “Harbour” - Except in Section 157, and in section

130 in the case in which the harbour is given by the wife
or husband of the person harboured, the word “harbour”
includes the supplying a person with shelter, food, drink,
money, clothes, arms, ammunition or means of
conveyance, or the assisting a person by any means,
whether of the same kind as those enumerated in this
section or not, to evade apprehension.”
151. They submitted that appellant Vandana Verma and Sushma
Ambekar are not proved to have supplied Santosh Ambekar with any
shelter, food, drink, money, clothes, arms, ammunition or means of
conveyance, or assisted Santosh Ambekar by any means to evade
apprehension. They pointed out that it was not that Vandana Verma
and Sushma Ambekar allegedly informed Santosh of movements of
police. On the other hand it is Santosh who was heard as telling his
sister that he had noticed policeman of Crime Branch, Nagpur at Delhi.
Therefore, according to the learned counsel, the evidence about
intercepted telephonic conversation cannot led to the conclusion that
appellant Santosh had been provided harbour by any of the appellants.
The learned A.P.P. rightly pointed out that Section 3(3) of the MCOCA
does not provide punishment only for harbouring but also for concealing
the whereabouts of a person involved in organised crime. Therefore,
according to her, since appellants Sushma Ambekar and Vandana Verma

å&åæ
were shown to be in touch with Santosh Ambekar and therefore, knew
his whereabouts, their failure to inform the authorities of whereabouts
of Santosh would amount to concealment.
152. The learned counsel for the appellant submitted that this
conclusion cannot be drawn since even if it is presumed for a while that
these appellants were in the know of whereabouts of Santosh Ambekar
they were not under any duty to inform the police, since they did not
know that Santosh was a person involved in any organised crime
syndicate. They submitted that offence punishable under Section 3(3)
of the MCOCA cannot be completed without proof of the element of
mens rea, as held in Bharat Shah as well as Ranjitsingh's cases and since
they lacked necessary knowledge, in the absence of ingredient of mens
rea, this offence could not have been held as proved. In any case,
whether the appellant Santosh can be held guilty of concealing himself,
or whether the appellant Sushma Ambekar and Vandana Verma can be
held to have concealed Santosh Ambekar or whether other appellants
abetted by conspiracy into such concealment would depend on the fact
whether the appellant Santosh is proved to be involved in organised
crime, or is proved to be member of such organised crime syndicate to
the knowledge of other accused persons. Since he is not proved to have

ç&çè
been involved in organised crime or to have been a member of
organised crime syndicate this evidence turns into a cipher.
153. The charge “fifthly” pertains to appellants amassing property
from income of organised crime syndicate. For this purpose the
prosecution tendered following evidence :
154. P.W. 46 Narendra Kubde was a panch at the seizure of
mobile phone, cash, gold ornaments etc. on 25.07.2000 vide Exh.371.
He also proved panchnama at Exh.171 and 231 which were admitted by
the defence. He identified all the articles seized vide panchnama
Exh.231, to be at Exh.232 to 234. He also proved panchnama at
Exh.235 and documents seized thereunder at Exh.236 to 239. On
10.08.2000, according to him, appellant Ashok Botnis stated that he
would produce certain documents from his house. Memorandum was
made vide Exh.372 and documents at Exh.373(1) to 373(15) were
seized vide seizure memo vide Exh.373.
155. P.W. 48 Janglu Bure and P.W. 71 Mohd. Khan were panch at
discovery and seizure of mobile phone from accused Habib Rathod on
24.09.2000 vide Exh.380 and Exh.381.

é&éê
156. P.W. 23 Mrs. Padmavati Dabhade stated that she knew
appellant Santosh, Bandu, Shivankar, Habib Rathod, Ravindra Khule
and Milind Kharwade. She sold a house in New Sarafa Bazar to Santosh
and others by a registered sale deed for Rs.8,50,000/- in 1993.
Consideration had been received by her son Ratnakar, who did all paper
work. She claims to have received only Rs.One lac before the Sub-
Registrar. Her son Ratnakar was murdered (but this does not seem to
have anything to do with appellants). She denied suggestion in cross
that consideration was fixed at only Rs.1,50,000/- and denied recitals to
this effect in sale deed Exh.120 dated 09.12.1993. She admitted that
there is the recital that Rs.50,000/- was paid at home, as also that house
was 70 years old. This evidence is obviously of no use. For proving
that property was procured from organised crime, or was held on behalf
of an organised crime syndicate, punishable under Sections 3(5) & 4 of
MCOCA, such property should have been purchased only after offence of
organised crime came to be created. Property purchased in 1993 when
the offence was itself not known cannot attract penal provisions
contained in Sections 3(5) and 4.
157. Same holds good about evidence of P.W. 24 Ramchandra
who stated that he sold his house in Itwari in 1997. He received

ë&ëì
Rs.1,00,000/- initially and again Rs.1,00,000/- in November, 1997.
Two sale deeds were separately executed in February, 1998 in the
names of Santosh and his wife. He received Rs.1,70,000/- in cash and
and two cheques of Rs.2,00,000/- each at the time of registration. Each
sale deed was for Rs.3,35,000/-, but he had actually received
Rs.8,00,000/-. Sale deeds are at Exhs. 122 and 123. In cross-
examination it was suggested but denied that in fact he had received
only Rs.6,70, 000/- and not Rs.8,00,000/-.
158. P.W. 37 Gurubachansingh stated that he was Manager at
Escort Finance Company. In 1997 he financed purchase of Maruti
Esteem car by Santosh Ambekar by advancing a sum of Rs.2,50,000/-
and had issued a cheque for Rs.2,37,575/- after deducting first
instalment. The vehicle was registered at Raipur and was got
hypothecated with Escort Finance. He stated that a sum of Rs.91,750/-
was received from Santosh towards repayment. Last repayment having
been received in 1998. The amount due may be more than
Rs.4,00,000/-. He stated in cross-examination that the case in respect of
this finance to Santosh Ambekar is pending before an Arbitrator in the
Delhi High Court.

í&íî
159. P.W. 38 Jasvindersingh stated that in 1995 he purchased a
Maruti Esteem car bearing Registration No.MP-23-L-3941 and left it
with Nagpur Auto Deal on 01.08.1997 after receiving Rs.3,20,000/-.
He stated that in August, 1997 he signed the transfer forms in which
name of purchaser was mentioned as Santosh Ambekar. He proved the
necessary documents of the car.
160. P.W. 43 Sudhakar Pasare stated that he was dealing in
automobiles since 1988-89. In February, 1992 one Jagannath Atmaram
Deshmukh sought to sell Maruti Van bearing No.MP-09-A-324. One
Gautam Kochar expressed readiness to purchase the vehicle for
Rs.90,000/-. Gautam Kochar provided finance and the vehicle was
eventually sold to one Sushma Ambekar vide delivery note at Exh.363.
He stated that transaction was between Deshmukh and Gautam Kochar
and he was merely a commission agent. This purchase of a van in the
year 1992 after seeking loan is utterly irrelevant for proving amassing
wealth by organised crime.
161. P.W. 67 retired A.S.I. Yashwant Choudhary stated that he
was incharge of station diary at Police Station, Tahsil on 10.10.1999.
When as per directions of P.S.I. Inamdar he wrote letter Exh.673 to

ï&ïð
R.T.O. Raipur and handed over report of R.T.O. Raipur endorsed on the
same letter to the investigator. How this transaction about purchase of
car in 1997 could fit in Section 315 or Section 4 of the MCOCA may be
known only to the Investigating Officer.
162. P.W. 70 P.I. Vinod Yeskade stated that by order dated
29.02.2000 he was directed by ACP Siram to seize house property of
accused Santosh Ambekar's and a car bearing No.MP 23-L-3941 vide
Exh.677. Accordingly, he seized the property vide Exh. 167 and 168
after making entries in the station diary vide Exh.553 and 554. He
proved his compliance report at Exh.678.
163. P.W. 51 Krushna Senad stated about execution of the sale
deed of his house property to appellant Shashikant Ambekar for a sum
of Rs.3,00,000/- though price recorded in the sale deed was
Rs.1,25,000/- only. He claimed to have received Rs.83,000/- by cheque
and rest in cash. He stated that appellant Santosh was his neighbour
and also that the house had been purchased by his father for a sum of
Rs.1,350/- only. He admitted in cross-examination that he had received
Rs.35,000/- at home, Rs.7,000/- at the time of execution of the sale
deed, in cash and a cheque of Rs.83,000/-. However, he denied that he

ñ&ñò
had received only that amount and stated that he had received the sum
of Rs.3,00,000/-. This sale deed is dated 22nd September, 1997. Even if
it is held as proved that Shashikant Ambekar had undervalued purchase
of property in 1997, it cannot be attributed to illgotten wealth from
organised crime without proving indulgence in such crime prior to
purchase, first, even the crime chart and charge sheets relied on do not
show involvement in crimes committed with use of force for pecuniary
gain prior to 1997 and secondly, the offence itself was not on statute
book at the relevant time.
164. Same holds good about evidence of P.W. 58 Dilip Maske is
contractor who was allotted contract of construction of Santosh Towers,
as also after a gap of 4-5 years, work of construction of the house of
Santosh Ambekar on Nikalas Mandir Road. He stated that labour used
to be paid by the owners of the building and he had received his fees of
Rs.35,000/- to Rs.40,000/-. As far as residential house is concerned, he
stated that he had received his fees of Rs.1,50,000/- but was yet to
recover about Rs.35,000/- to Rs.40,000/- from Santosh Ambekar. He
stated that the cost of construction of the house may be Rs.25,00,000/-
to Rs.30,00,000/-. Santosh Towers was constructed in the year 1993.

ó&óô
165. P.W. 57 Architect Shekhar stated about preparing plans of a
building on Nikalas Mandir road for Santosh Ambekar at estimated cost
of Rs.35,00,000/- on built up area of 3500 sq.ft. The estimate is at
Exh.234. He also claims to have prepared a plan of partition at the
building at the instance of appellant Ashok Botnis, which was sent to
Botnis vide covering letter vide Exh.232. He admitted in cross-
examination that the plan as well as elevation etc. are on paper and
without actually seeing the construction it is not possible to make
valuation. However, he also stated in cross-examination that the
existing structure which is on the spot is worth Rs.35,00,000/-. He
admitted that when he visited in April, 1999 the cost of construction was
Rs.4,84,100/-.
166. P.W. 29 Johnson Kadaloo, Income Tax Officer stated that he
was working as Income Tax Officer of Ward No.1(2) in the month of
August, 2000. Requisition was received from the police about
information in respect of the appellant Santosh Ambekar vide Exh.151.
It was found that Santosh Ambekar, Neha Ambekar, Shashikant
Ambekar, Sushma Ambekar and Renuka Khule were assessed in the said
ward. In the following assessment years income shown by Santosh
Ambekar was as under :

õö#÷
1996-97 - 42,000
1997-98 - 43,500
1998-99 - 73,000
Source was shown to be commission and brokerage. Copies
of returns furnished by him was proved by the witness at Exh.152 to
155.
167. Mrs. Neha Ambekar has disclosed income of Rs.57,500/- for
the year 1998-99 from business of beauty parlour vide return at
Exh.156. Shashikant Ambekar had shown income of Rs.41,500/- in
1996-97, Rs. 42,500/- in 1997-98 and Rs.62,750/- in 1998-99 vide
returns at Exh.157 to 159. The source was labour charges of making
silver ornaments. Mrs. Sushma Ambekar had submitted return for 1998-
99 showing income of Rs.55,000/- vide Exh.160 from business of selling
sewing household clothes. Smt. Renuka Khule had shown income of
Rs.28,100/- for the asessment year 1993-94 from the business of
goldsmithry and for the year 1994-95 Rs.30,500/- vide return at
Exh.161.
168. P.W. 30 Narendra Kane was working as Income Tax Officer
for new Ward No.1(1). He stated that a requisition was received from
øù&ø
the police vide Exh.151, 152 in respect of returns of Ashok Botnis. For
the financial year 1997-98 vide Exh.164 income of Rs.75,100/- was
shown. For the financial year 1998-99 income of Rs.91,990/- was
shown vide Exh.165 from the business, interest, commission etc. Along
with return other documents were submitted which were proved at
Exh.165(1) to 165(3).
169. May be, the evidence of the two Income Tax Officers shows
that the persons concerned did not have enough income to invest in
properties. But this is unhelpful to conclude that properties were
purchased with ill gotten wealth. It may be that they had suppressed
income. Unless involvement in offence of organised crime is proved,
further, inferences are not permissible, and, mere allegation of
involvement in organised crime or membership of such syndicate would
not be enough.
170. P.W. 31 Gulab Bhangad was serving as Sub-Registrar at
Raghuji Nagar-2, Nagpur since 10.08.2000. He received a letter from
Crime Branch at Exh.174 seeking information in respect of two
transactions. He submitted valuation vide Exh.175. The Crime Branch
also sought certified copies of the documents which were provided as at

øùù
Exh.88 and 125. They were dated 28th July, 1999 and 06.10.1998. A
copy of the sale deed dated 08.09.1999 registered on 18.10.1999 was
also proved by him as at Exh.176. Copy of sale deed dated 08.09.1999
was proved by him as at Exh.177. He stated that evaluation in the
document was correct as per ready reckoner.
171. P.W. 32 Natthu Dhepe was also working as Sub-Registrar at
Nagpur from 09.08.2000. He stated that a letter has been received from
Crime Branch at 09.10.2000 vide Exh.179. As per requisition he
prepared true copies of the documents and valuation of the properties
documents were registered vide Sr.No.732/93, 228/98, 712/97,
1316/97 and 91/95, copies whereof are at Exh.120, 122, 123, 181, 182
and 183. He also proved letter which was written by him to the Crime
Branch at Exh.180. He stated that the valuation shown in the document
was as per ready reckoner for the particular year.
172. P.W. 44 Manoj Sharma is panch at the breaking seal of the
house and having property measured and received vide panchnama at
Exh.365 and 366.

úû*ü
173. P.W. 34 Shri Vivek Salve was working as Executive Engineer,
P.W.D. He stated having received letter on 16.08.2000 from the Crime
Branch vide Exh.251, in pursuance of which he directed the Sub
Divisional Engineer to comply. Accordingly his subordinates Shewalkar
and Doifode contacted police, got properties located and upon unsealing
by police, took measurements, inspected the property and valued the
properties as per P.W.D. Rules. He produced the circular of P.W.D. For
valuation at Exh.254. He stated that after receipt of report of his
subordinates he submitted information about valuation vide letter dated
30th September, 2000 at Exh.255.
174. P.W. 47 Shri Vijay Doifode stated that after receiving
directions from the Executive Engineer he took measurements of five
buildings and two buildings which were sealed and opened with the
permission of the Court. He stated that he was accompanied by Shri
Madhusudan Shewalkar, Sectional Engineer. The properties were : (1)
Santosh Towers, Itwari House No.966, (2) House No.1086, (3) House
No.307 at Bhandara Road, (4) House No.322, Kothi Road, (5) House
No.1086 Itwari, (6) House No.484 near Itwari High School, (7) House
No.1181/04, Itwari. He stated that for evaluating the buildings he has
considered year of construction, nature of construction, nature of

ýþ#ÿ
structure fixtures and the locality. He had admitted in his cross-
examination that he did not have any specific information about the
ownership of the property by a particular person, as well as shares of
various persons in the property. He admitted that the owners or share
holders were not called at the time of valuation.
175. P.W. 53 Shri Madhusudan Shewalkar is Sectional Engineer
who had accompanied P.W. 47 Vijay Doifode and his evidence is to the
same effect. He proved valuation reports at Exh.532 (1) to 532(7).
According to which House Nos.(1) 966 was worth Rs.646209, (2)
House No.317 was worth Rs.12,74,923/-, (3) House No.472 was worth
Rs.60,46,000/-, (4) House No.486 was worth Rs.5,56,686, (5) House
No.1086 was worth Rs.9,31,798/-, (6) House No.484 near Itwari High
School was worth Rs.96,000/-and (7) Radhe Building, House No.1181
was worth Rs.20,90,698/-. He stated that the valuation was excluding
the value of the land. The cross-examination does not disclose anything
to disbelieve his evidence.
176. P.W. 55 PSI Moreshwar Atram stated that on 09.09.2000
ACP Rude directed him to visit property Nos. 317 and 472, open seal of
the properties and allow P.W.D. employees to make valuation vide

letters Exh.539 and 540. He claims to have gone to the office of P.W.D.,
received letter Exh.540, unsealded house in presence of panchas,
allowed P.W.D. Officials to take measurement, sealed property again
and kept the keys and the seal in envelope Exh.541. He also proved
panchnama at Exh.366. Similar procedure was followed in respect of
property at Exh.317. The key and the seals were kept in envelope at
Exh.365. He submitted his report vide Exh.542. He admitted in cross-
examination that he made no attempts to ascertain shares of the accused
in each property.
177. P.W. 25 Kedar Dhale claimed to have sold his property for
Rs.12,00,000/- vide Exh.125 dated 05.10.1998 to Anil Ninave, Santosh
and Ashok Botnis. He, however, stated in cross examination that he did
not know Santosh and Ashok.
178. P.W. 40 Kishore Meshram proved seizure of certain
documents from appellant Ashok Botnis vide Exh.527. He also
identified the documents seized to be at Exh.527(4) to 527(28).
179. P.W. 54 Mohd. Shabir stated that in Aguust, 2000 he was
called as panch in the office of Crime Branch, where, in his presence,

vide Exh.527 a bag was seized containing 28 documents, which were
marked as Exh.527(1) to 527(28). He, however, denied that the
documents were actually seized from appellant Ashok Botnis in his
presence and therefore, was declared hostile.
180. Evidence of P.Ws. 31 Gulab, 32 Nathu, 44 Manoj, 34 Vivek,
47 Vijay, 53 Madhusudan, 55 PSI Atram, 25 Kedar, 40 Kishore and 54
Mohd. Shabir is of no use in the absence of proof of involvement of
appellants in organized crime. Even according to P.W. 8 Sangeeta both
appellant Santosh Ambekar and Ashok were her and her husband's
partners in construction business. Relations soured, and disputes arose.
Though the possibility that these appellants might have suppressed
income, is not ruled out, unless nexus between the income and crime is
established, (which has not been done), the properties cannot be held to
have been obtained from income of organised crime.
181. P.W. 81 ACP Rude had conducted investigation in this case
after he received an order to that effect vide Exh.755. He took over
from ACP Solanki. He stated about interrogation of appellant Santosh,
seizure of several documents, recording statements of witnesses and
confidential witnesses, arresting accused persons etc. He stated that on

10.08.2000 accused Ashok Botnis agreed to discover some documents
about sale transactions from his house and therefore, after making
memorandum vide Exh.372 in presence of panchas he recovered
documents vide Exh.373. On 01.09.2000 he received documents and
cassettes of telephone intercepts. He secured certified copies of
chargehseets through his subordinates. He got the property valued
through P.W.D. Authorities. On 29.01.2000 P.I. Chavhan produced
accused Habib Rathod. On the same day after obtaining remand he was
interrogated. Memorandum of his willingness to produce documents
from his house was recorded in presence of panchas vide Exh.380 and
relevant documents were seized vide Exh.381. Search of house of
accused Habib yielded keys etc. which were seized. After completion of
investigation he filed chargesheet bearing No.247/2000 on 06.12.2000.
The cross examination comprises of suggestions which have been mostly
denied by the witness.
182. The role of the Investigating Officer is only to collect
evidence. His evidence only indicates the procedure followed in
investigation. His word does not provide any proof of commission of an
offence.

183. To sum up the evidence tendered discloses that :
(i) Acts or omissions uncovered in course of investigation
and which were subject-matter of the trial were not
shown to have been committed by use of violence, etc.
with the objective of gaining pecuniary or other
benefit.
(ii) Acts for which various appellants had been separately
chargesheeted on thirty one occasions in the past were
mostly committed before MCOC Act came into force.
(iii) As to cases after MCOC Act came into force – in one
case chargesheet itself is not proved to have been filed;
and four crimes did not pertain to gaining pecuniary or
other benefit by use of violence etc., leaving only one
crime of preparation to commit dacoity. Even if
acquittal therein is ignored, it does not indicate
plurality of unlawful activity and therefore, does not
amount to organised crime.

(iv) Since involvement of any of the accused in organised
crime is not established, questions of any of them
being member of organised crime syndicate, or their
conspiring and providing harbour to one of the
appellants, or their holding property derived from
organised crime, or the possession of wealth
disproportionate to their income amounting to an
offence under Section 4 of the Act, do not arise.
(v) In any case, most of properties are shown to have been
purchased before MCOC Act was enacted.
184. In view of this, the learned trial Judge was not justified in
holding appellants guilty for the offences for which she has convicted
and sentenced them. Their convictions and sentences cannot be
sustained.
185. All the appeals are, therefore, allowed.
186. Conviction of appellants for various offences and sentences
imposed upon them, as indicated in paragraph 8 of this judgment are set

aside. They shall be set at liberty forthwith, if not wanted in any other
case (except appellant Madan Ramkisan Gangwani, who died during
pendency of the appeal and therefore, not in jail).
187. Fine, if paid, shall be refunded to them. Any properties, if
attached, shall be released from attachment after a period of three
months from this judgment.
188. Accused No.3 Prakash Namdeo Dhande, who has also been
convicted and sentenced as indicated at the beginning of the judgment,
has not preferred any appeal. However, the foregoing discussion would
also govern his case.
189. His conviction and the sentence imposed upon him are also
set aside. If in jail, he shall be set at liberty, if not wanted in any other
case.
JUDGE JUDGE
RR..

MCOCA-Division Bench Order 26mar09

Загружено:

Сведения о документе

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

MCOCA-Division Bench Order 26mar09

Загружено:

Авторское право:

Доступные форматы

IN THE HIGH COURT OF JUDICATURE AT BOMBAY :

NAGPUR BENCH, NAGPUR.

CRI. APPEAL NO.308 OF 2002

Madan S/o. Ramkisan Gangwani,

The State of Maharashtra

Milind S/o. Wamanrao Kharwade,

State of Maharashtra through

Bablya @ Hemant Narayan Mohite,

State of Maharashtra through

Ashok S/o. Inderlal Botnis,

Santosh S/o. Shashikant Ambekar,

The State of Maharashtra

1. Shashikant S/o. Damodar Ambekar,

2. Sushma W/o. Shashikant Ambekar,

3. Vandana W/o. Rajkumar Verma,

All R/o. Shanti Road, Itwari,

4. Mahesh S/o. Mansingh Solanki,

5. Ashok S/o. Vishwanath Mathale,

The State of Maharashtra

Habib Abdul Rashid S/o. Abdul Rashid Rathod,

CORAM: A.H. JOSHI &

Date of Reserving Judgment : 23.03.2009.

JUDGMENT : ( Per : R.C.Chavan, J)

1. This bunch of appeals arise out of judgment dated

17.05.2002, by the learned Judge, Special Court under the Maharashtra

Control of Organised Crime Act, 1999 (hereinafter referred to as

2. Facts, which led to prosecution and conviction of appellants

Act in her painstakingly written judgment. They may be briefly stated as

In Itwari area, which is commercial hub of Nagpur having

large number of jewellers and goldsmiths, a gang led by appellant

Santosh Ambekar (in Criminal Appeal No.324 of 2002) was operating.

This gang indulged in extortion, forcing transfer of properties and other

criminal acts whereby they amassed huge wealth. Appellant Santosh

Ninawe had engaged a commission agent by name Ashok Botnis

(appellant in Criminal Appeal No.323 of 2002) for deals in property.

recovering money meant for Anil Ninawe without latter's knowledge.

This led to clashes between Santosh and Anil.

3. On 9-4-1999 after 5.30 p.m., Anil had received a telephonic

with deadly weapons assaulted Anil Ninawe while he was about to

but was pronounced dead. An offence was registered against appellant

Santosh and others at Police Station Lakadganj, which has been

separately investigated into, and in which separate chargesheet was

In the said Sessions Case No.161 of 2000, appellants Santosh,

Babloo and Prakash were acquitted by Court of Sessions on 5-8-2005.

4. PI Prakash Mahajan submitted a proposal on 20-8-1999 for

permission under Section 23(i)(a) of MCOC Act for registering

information against appellant Santosh under MCOC Act. On 26-9-1999,

necessary permission was granted by the Commissioner of Police,

Nagpur. ACP Kotwali Division was entrusted with investigation.

Accordingly, PI Mahajan registered Crime No.299 of 1999 for offences

investigation to ACP Shri Siram.

5. Appellant Santosh was absconding. A search was launched

properties were attached. Permission to tap telephone connections of

relatives of Santosh was obtained and on the basis of information

received from the intercepts, appellant Santosh was arrested at Mumbai

Airport on 23-7-2000. The intercepts also provided clues about

involvement of other accused.

6. Upon transfer of ACP Siram, investigation was entrusted to

ACP Solanki and after him to ACP Rude. In course of investigation,

other gang members were arrested, interrogated and at their instance

properties were seized. Inventories of properties amassed were also

drawn up. Criminal record of gang members was collected and on

finding that there was enough evidence of involvement of the accused

persons in offences punishable under Sections 3 and 4 of MCOC Act