KHANDBPARKAR R. M. S. , J.

( 1 ) HEARD. Rule. By consent, rule made returnable forthwith in both the petitions. Since common question of facts and law arise in both these petitions, they were heard together and are being disposed of by this common judgment.

( 2 ) THE petitioners seek to challenge the provisions of section 21 (3) of the maharashtra Control of Organised Crime Act, 1999, hereinafter referred to as "the MCOCA" as also the approval dated 31-10-2004 granted under section 23 (1) (a) of the MCOCA by the respondent No. 1 for applying the provisions of the MCOCA in relation to the C. R. No. 39/2004 against the petitioners. The applicability of the provisions of the MCOCA to the offences alleged to have been committed by the petitioners is sought to be challenged on various grounds.

( 3 ) PURSUANT to the raid at the factory premises of one Deepak Mundada wherein two iron tanks of 12000 and 6000 litres capacities, a motor tanker containing benzin, greenish lubricating in 200 litres barrel, 45 kilos of white powder in 5 gunny bags and a motor tanker containing mineral turpentine oil were found and seized under Panchnama, and on recording of the statement of Ranjit Pandurang Desai a case is stated to have been registered under the c. R. No. 39/2004 with the Karveer police station, Kolhapur, against 11 persons named therein as the accused with the allegation that Deepak Mundada, in collusion with other accused persons, engaged in adulteration of petroleum products and thereby committed offences punishable under sections 3 and 7 of the Essential Commodities Act, 1955, hereinafter referred to as "the EC act" as well as under section 3 of the Petroleum Storage and Distribution Act, 2000, hereinafter referred to as "the PSD Act". It is revealed that out of 11 accused persons, 9 accused persons were arrested and produced before the chief Metropolitan Magistrate, Kolhapur and though initially they were remanded to judicial custody, subsequently they were released on bail. The investigation thereafter was transferred to the Crime Branch, Mumbai pursuant to the orders of the Director General of Police, Maharashtra. The petitioners herein preferred anticipatory bail application and though initially succeeded in getting protection against their arrest, same came to be dismissed in August, 2004. They then approached this Court as well as the Apex Court but could not satisfy the Court to secure any relief except that for a period of two weeks from the date of disposal of the S. L. P. the police were not expected to arrest the petitioners. That was the order passed on 14-12-2004.

( 4 ) IT is not necessary to refer to all the grounds of challenge and the petitions can be conveniently disposed on consideration of only one ground which relates to the order of approval for applicability of the MCOCA to the petitioners. It is the contention on behalf of the petitioners that the provisions of the MCOCA can be applied to the persons against whom more than one charge-sheet had been filed in relation to the cognizable offences punishable with punishment of minimum three years. Under sections 3 and 7 of the E. G. Act the maximum punishment prescribed is of two years as per the Essential Commodities (Special Provisions) Act, 1981, hereinafter referred to as "the ECSP Act" and which was in force at the relevant time. It is therefore the contention of the petitioners that the orders dated 31-10-2004 granting approval under section 23 (i) (a) of the MCOCA by the respondent No. 1 clearly indicate that the approval for application of the provisions of the MCOCA to the petitioners has been granted contrary to the provisions of the MCOCA and, therefore, the said orders cannot be sustained. The offences which would be required for the purpose of constituting the continuing unlawful activity under the provisions of MCOCA would be those which are punishable with imprisonment of three years or more and the offences for which the petitioners were charg