2007 Supreme(SC) 172

2007(2) Supreme 1018
SUPREME COURT OF INDIA
(From Bombay High Court)
Dr. AR. Lakshmanan and Altamas Kabir, JJ.
State of Maharashtra & Ors.—Appellants
versus
Lalit Somdatta Nagpal & Anr.—Respondents
Special Leave Petition (Crl.) Nos. 3320-3321 of 2005
With
SLP (Crl.) Nos. 1101, 4581 and 4611 of 2006
Decided on 13-2-2007
Counsel for the Parties :
For the Appellants : Mukesh K. Giri, Advocate.
For the State of Maharashtra : U.U. Lalit, Sr. Advocate, Ravindra Keshavrao Adsure, Nitin Sangra, Sanjeev Kr. Choudhary, Advocates.
For the Respondents : Harish N. Salve, R.F. Nariman, Mukul Rohtagi, Sr. Advocates, Ankur Chawla, Ishwari Prasad Bagaria, Santosh Paul, Ashish Jha, Garuv Vatts, Ms. Ruby Singh Ahuja, M.J. Paul, Shakil Ahmed Syed, Sushil Karanjkar and K.N. Rai, Advocates.

IMPORTANT POINTS
1. Provisions of the Maharashtra Control of Organized Crime Act, 1999, can be applied in respect of offences under Sections 3 and 7 of the Essential Commodities Act as the limitation of the power to impose punishment only for a maximum period of two years for an offence under the enactment of the Essential Commodities (Special Provisions) Act, 1981 did not preclude the authorities from applying the provisions of the MCOCA for offences under Sections 3 and 7 of the 1955 Act.
2. In taking recourse to the provisions of the MCOCA 1999, which has the effect of curtailing the liberty of an individual and keeping him virtually incarcerated, a great responsibility has been cast on the authorities in ensuring that the provisions of the Act are strictly adhered to and followed.

Headnote:Maharashtra Control of Organized Crime Act, 1999—Section 23(1)(a)—Essential Commodities Act, 1955—Sections 3 and 7—Essential Commodities (Special Provisions) Act, 1981—Section 12AA(1)(a)—Applicability of provisions of MCOCA in respect of offences alleged to have been committed u/Ss 3 and 7 of the Essential Commodities Act—On raid of Petrol Pump, Deputy Commissioner of Police seized two iron tanks of 12,000 and 6,000 litres capacity, greenish lubricating oil in 200 litres barrel, 45 kilos of white chemical powder and ten motor tankers containing petroleum products and arrested 9 persons in connection therewith—Sessions Judge rejected anticipatory bail applications of all the applicants except that of wife of accused ‘LN’—Writ petition filed challenging approval order passed u/s 23(1)(a) of MCOCA—High Court allowing the writ petition held that provisions of MCOCA would have no application to the cases against petitioners having regard to the provisions of the Essential Commodities Act—Whether judgment of the High Court is sustainable—(No)—However, having regard to the stringent provisions of MCOCA, its provisions will have to be very strictly interpreted—However, in this case the sanctions which formed the very basis of the investigation have been given mechanically and are vitiated, therefore, cannot be sustained.

       Held : The said view taken by the High Court in our judgment is incorrect inasmuch as the offences under the 1955 Act continued to attract the provisions of Section 7 thereof. The only change brought about by the 1981 Act was to limit the power of the Special Court to impose punishment for a maximum period of two years. The offence continues to remain punishable up to a maximum period of seven years so as to attract the provisions of MCOCA.(Para 52)

       However, we are in agreement with the submission that having regard to the stringent provisions of MCOCA, its provisions will have to be very strictly interpreted and the concerned authorities would have to be bound down to the strict observance of the said provisions. There can be no doubt that the provisions of the MCOCA have been enacted to deal with organized criminal activity in relation to offences which are likely to create terror and to endanger and unsettle the economy of the country for which stringent measures have been adopted. The provisions of the MCOCA seek to deprive a citizen of his right to freedom at the very initial stage of the investigation, making it extremely difficult for him to obtain bail. Other provisions relating to the admission of evidence relating to the electronic media have also been provided for. In such a situation it is to be seen whether the investigation from its very inception has been conducted strictly in accordance with the provisions of the Act. (Para 54)

       The offence under MCOCA must comprise continuing unlawful activity relating to organized crime undertaken by an individual singly or jointly, either as a member of the organized crime syndicate or on behalf of such syndicate by use of coercive or other unlawful means with the objective of gaining pecuniary benefits or gaining undue economic or other advantage for himself or for any other person or for promoting insurgency. In the instant case, both Lalit Somdutt Nagpal and Anil Somdutt Nagpal have been shown to have been involved in several cases of a similar nature which are pending trial or are under investigation. As far as Kapil Nagpal is concerned, his involvement has been shown only in respect of CR No. 25/03 of Rasayani Police Station, Raigad, under Sections 468, 420, 34, Indian Penal Code and Sections 3, 7, 9 & 10 of the Essential Commodities Act. In our view, the facts as disclosed justified the application of the provisions of the MCOCA to Lalit Nagpal and Anil Nagpal. However, the said ingredients are not available as far as Kapil Nagpal is concerned, since he has not been shown to be involved in any continuing unlawful activity. Furthermore, in the approval that was given by the Special Inspector General of Police, Kolhapur Range, granting approval to the Deputy Commissioner of Police (Enforcement), Crime Branch, C.I.D., Mumbai to commence investigation under Section 23(1) of MCOCA, Kapil Nagpal has not been mentioned. It is only at a later stage with the registering of CR No.25/2003 of Rasayani Police Station, Raigad, that Kapil Nagpal was roped in with Lalit Nagpal and Somdutt Nagpal and permission was granted to apply the provisions of the MCOCA to him as well by Order dated 22nd August, 2005. (Para 55)

       Having regard to the stringent provisions of the MCOCA, Section 23(1)(a) provides a safeguard to the accused in that notwithstanding anything contained in the Code of Criminal Procedure, no investigation of an alleged offence of organized crime under the MCOCA, 1999 can be commenced without the prior approval of a police officer not below the rank of Deputy Inspector General of Police. An additional protection has been given under Sub-section (2) of Section 23 which prohibits any Special Court from taking cognizance of any offence under the Act without the previous sanction of a police officer not below the rank of Additional Director General of Police.(Para 58)

       In the instant case, though sanction had been given by the Special Inspector General of Police, Kolhapur Range, on 31st August, 2004, granting permission under Section 23(1)(a) of the MCOCA 1999 to apply its provisions to the alleged offences said to have been committed by Anil Nagpal, Lalit Nagpal and Vijay Nagpal, such sanction reveals complete non-application of mind as the same appears to have been given upon consideration of an enactment which is non est. Even if the subsequent approval order of 22nd August, 2005 is to be taken into consideration, the organized crime referred to in the said order is with regard to the alleged violation of Sales Tax and Excise Laws, which, in our view, was not intended to be the basis for application of the provisions of the MCOCA 1999. To apply the provisions of MCOCA something more in the nature of coercive acts and violence is required to be spelt out so as to bring the unlawful activity complained of within the definition of “organized crime” in Section 2 (a) of MCOCA.(Para 59)

       In our view, both the sanctions which formed the very basis of the investigation have been given mechanically and are vitiated and cannot be sustained. In taking recourse to the provisions of the MCOCA 1999, which has the effect of curtailing the liberty of an individual and keeping him virtually incarcerated, a great responsibility has been cast on the authorities in ensuring that the provisions of the Act are strictly adhered to and followed, which unfortunately does not appear to have been done in the instant case.(Para 60)

       Having regard to the fact that we have dismissed the Special Leave Petitions filed by the State of Maharashtra against the order of the Bombay High Court holding that the provisions of MCOCA had been misapplied to the facts of the case, the stringent provisions regarding bail under the MCOCA 1999 will no longer be attracted in this case. Since the petitioner has been under arrest since the date of his surrender on 1st July, 2005, and having further regard to his medical condition, we direct that the petitioner, Lalit Somdutt Nagpal, be released on bail to the satisfaction of the Chief Judicial Magistrate, Kolhapur.(Para 65)