1. Petitioner 1 is one of the thirteen accused in the case relating to serial bomb blasts which took place in the suburban trains of Western Railways on 11/7/2006, being MCOCA Special Case No.21 of 2006. Petitioner 2 is one of the nine accused in the case concerning four bomb explosions which took place in the compound of Hamididya Masjid and Baba Kabrastan and nearby Mushawarat Chowk on 8/9/2006 being MCOCA Special Case No.23 of 2006. Petitioner 3 is one of the nineteen accused in the case relating to seizure of arms in Aurangabad on 9/5/2005 and on some subsequent days, being MCOCA Case No.16 of 2006.

2. In this petition filed under Article 226 of the Constitution of India (for short, “the Constitution), the petitioners have challenged the constitutional validity of that part of section 2(1)(e) of the Maharashtra Control of Organised Crime Act, 1999 (for short, “the MCOCA”) which refers to insurgency. For this purpose, we need not go into all the facts. It is, however, necessary to have some idea about the charges levelled against the petitioners in the respective charge-sheets.

3. In MCOCA Special Case No.21 of 2006, the charge-sheet, inter alia, says that the accused in the said case hatched a criminal conspiracy sometime in the year 1999 such as waging war against the Government of India, creating instability in the State of Maharashtra and India by indulging in organized subversive activities. The charge-sheet, further, states that the modus operandi of the accused conforms to the professional ideology and agenda of Lashkar-e-Toiaba. The charge-sheet further alleges that the accused were either members of Students Islamic Movement of India (for short, “SIMI”) or were associated with it. The chargesheet mentions that in collaboration with SIMI and Lashkar-e- Toiaba, the accused wanted to wage war against the Government AJN 4 of India by striking terror in the minds of people by use of violence or force by causing large scale destruction of life and property in order to cripple the national economy through disruption of Public Transport System which tantamounts to insurgency.

4. The charge-sheet in MCOCA Special Case No.23 of 2006, inter alia, states that the accused therein had received arms training in Pakistan and were indoctrinated to carry out insurgent and terrorist activities in India. The charge-sheet further states that the basic aim of the accused was to wage war against the Government. For that purpose, they collected men and explosives. The charge-sheet further states that the accused are part of terrorist organization SIMI, who with the help of some others, exploded bombs and killed people.

5. The charge-sheet in MCOCA Special Case No.16 of 2006, inter alia, states that the accused are members of a terrorist gang. The accused wanted to create disaffection against the Government and carry out widespread terrorist activities to destabilize the Government and break down the infrastructure and create chaos. The charge-sheet further states that some of the accused had gone to Kashmir and received arms training there from Lashkar-e- Toiba. The charge-sheet further states that the huge cache of arms which was recovered from the accused was brought for the purpose of carrying out terrorist activities and fostering insurgency. In all the three cases, therefore, it appears to be the case of the prosecution that the petitioners are engaged in unlawful activities with the objective of promoting insurgency.

6. Before we deal with the submissions of Mr. Sebastian, the learned counsel appearing for the petitioners, we must note that the constitutional validity of the MCOCA was challenged in this court in a group of writ petitions and this court in Mr. Bharat Shantilal Shah, Smt. Shamim Mirza Arif Begand& Mr. Sanjay Patil v. The State of Maharashtra, 2003 Bom.C.R. (Cr.) 947 held that the MCOCA is constitutionally valid except certain provisions which were struck down. This court specifi