The central legal point established in the judgment is that the offence of organized crime under the MCOC Act requires involvement in substantive crimes, and mere continuing unlawful activity is not sufficient to constitute organized crime.

JUDGMENT

Mangesh S Patil, J. - This is an appeal under Section 12 of the Maharashtra Control of Organized Crime Act, 1999 (hereinafter the MCOC Act) being aggrieved and dissatisfied by judgment and order returned by the learned Special Judge, MCOC, Aurangabad convicting the appellants under Section 3(1)(ii) and Section 3(4) of the MCOC Act and sentencing them to suffer rigorous imprisonment for 12 years under Section 3(1)(ii) and rigorous imprisonment for 10 years under Section 3(4) and in addition imposing a fine of Rs.5,00,000/- on each, count in default sentencing them to further rigorous imprisonment of two years on each count.

2. The facts which lead to the Appeal may be summarized as under:

In the night intervening 16.01.2001 and 17.01.2001 the appellants committed dacoity in village Kothewadi Tq. Pathardi, District Ahmednagar and even committed rape on few women for which Crime No.08/2001 was registered for the offences punishable under Section 395, 342, 376(2)(g), 354, 506(2) of the Indian Penal Code. During the investigation of that crime it transpired that the appellants were involved in organized crime wherein charge sheets were filed and the courts had taken cognizance. Accordingly the approval was sought under Section 23 and the present crime was registered. The prosecution examined in all 11 witnesses mostly on the point and concerning the earlier crimes. By the impugned judgment the appellants have been convicted and sentenced as mentioned herein above.

3. The learned advocate Mr. Ghanekar vehemently submitted that bearing in mind the fact that Section 3 of the MCOC Act prescribes for punishment for 'organized crime' as defined under Section 2(1)(e) and not for being involved in 'continuing unlawful activity' as defined under Section 2(1)(d), the appellants could not have been convicted under that provision without being charged for any substantive offence. He would submit that though continuing unlawful activity is an ingredient for constituting an organized crime, in order to constitute an organized crime, the offender must be involved in some crime of the kind described in the definition of organized crime. He would therefore submit that mere proof regarding involvement of the appellants in continuing unlawful activity was not sufficient to convict them. He would submit that admittedly, the appellants have not been charged for any substantive offence in the present crime and have been convicted merely for engaging in continuing unlawful activity during previous years.

4. The learned advocate would point out that the witnesses examined by the prosecution are mostly relating to the previous crimes registered against the appellants and do not make out any new substantive offence. He would further submit that the appellants have been duly tried for the previous crimes and consequently could not have been again tried for commission of those crimes. He would submit that even though the appellants have been involved in several crimes, they have been duly tried for all those crimes and irrespective of the decisions, all these previous crimes would merely demonstrate as to how they have been engaged in continuing unlawful activity as defined under Section 2 (1)(d). However, over and above, the prosecution will have to establish that they have engaged in organized crime as defined under Section 2(1)(e) which is punishable under Section 3.

5. In support of his submission the learned advocate Mr. Ghanekar would place reliance on the Division Bench decision of this Court in Criminal Appeal No.308/2002, Madan S/o. Ramkisan Gangwani Vs. State of Maharashtra and connected Appeals dated 26.03.2009 and Single Bench Decision of this Court in Criminal Appeal No.184/2015, Pundlik S/o. Ukla Pawar and Ors. Vs. State of Maharashtra with connected Appeals dated 14.07.2020.

6. Per contra, the learned APP would submit that there is enough evidence to demonstrate as to how the appellants have been engaged in continuing unlawful activity. They