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2018 Supreme(Del) 1824
IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, I. S. MEHTA, JJ.
MOHD. IRFAN - Petitioner
Versus
STATE OF NCT OF DELHI & ANR - Respondents
W.P.(CRL) 2093 of 2018 & Crl.M.B. No. 1123 of 2018, Crl.M.A. No. 12670 of 2018
Decided on : 23-07-2018
For the Petitioner:Mr. Ajay Garg and Ms. Shilpa Sharma, Advocates.
For the Respondent:Mr. Rahul Mehra, Standing Counsel, GNCTD with Mr. Chaitanya Gosain, Adv, Mr. Anil Soni, CGSC with Mr. Abhinav Tyagi, Advocate
The prescription of the minimum sentence and minimum fine in Section 3 of the MCOCA is a conscious endeavor of the Legislature to deal with offenders engaged in continuous unlawful activity as members of an organized crime syndicate or gang driven by their motivation of making illegal monetary gains.
Headnote:
MCOCA - Challenge to constitutionality and vires of section 3(1)(ii) - Section 3 MCOCA
Fact of the Case:
The petitioner challenged the constitutionality and vires of section 3(1)(ii) of the Maharashtra Control of Organized Crime Act, 1999 (MCOCA) and sought a writ of certiorari for quashing the order on sentence dated 11.04.2018.
Finding of the Court:
The court found no merit in the challenge to the illegality and constitutionality of Section 3(1)(ii) of the MCOCA and dismissed the petition.
Issues: The issue was whether the impugned section 3(1)(ii) is arbitrary, discriminatory, or harsh, since it imposes a mandatory minimum fine of Rs.5 lakhs.
Ratio Decidendi: The court held that the prescription of the minimum sentence and minimum fine in Section 3 is a conscious endeavor of the Legislature to deal with all the offenders under the MCOCA, who are engaged in continuous unlawful activity as members of an organized crime syndicate or gang driven by their motivation of making illegal monetary gains.
Final Decision: The court dismissed the petition, leaving the parties to bear their respective costs.
VIPIN SANGHI, J.
1. The Petitioner has preferred the present writ petition to challenge the constitutionality and vires of section 3(1)(ii) of the Maharashtra Control of Organized Crime Act, 1999 (MCOCA, for short) which was extended to National Capital Territory of Delhi by notification dated 02.01.2002; and to seek a writ of certiorari for quashing of the order on sentence dated 11.04.2018 passed by Ld. ASJ-03 (South), Saket Court, in SC No. 6989/2016, in so far as it has imposed a fine of rupees five lakhs with default imprisonment of 2 years under section 3 (1)(ii) of the MCOCA.
2. On 22.04.2010, FIR No. 111/2010 was registered at PS Vasant Kunj, Delhi against the petitioner and others under section 3 of the MCOCA. Post investigation, charge sheet was filed on 28.07.2010 against the petitioner herein and other accused persons for the offences under Section 3 of the MCOCA. Charges were framed against the petitioner and other accused Baldev Raj, Rafiq and Shabhuddin u/s 3(1) of the MCOCA, and against accused Munesh Kumar and Paras u/s 3(2) of the MCOCA vide order dated 5.12.2011. Petitioner pleaded “not guilty” and thus the case went to trial. The Ld. ASJ, vide judgment dated 28.03.2018 held the Petitioner and accused Irfan, Baldev, Rafiq and Shahbuddin guilty for the offence punishable u/s 3(1)(ii) of the MCOCA, while accused Munesh and Paras were acquitted. Vide order on sentence dated 11.04.2018, the petitioner was sentenced to imprisonment for the period already undergone (8 years and 4 months), along with fine of Rs. Five lakhs and, in case of default of payment of fine, to undergo simple imprisonment for two years. The petitioner states that he continues to languish in jail as he is not in a position to deposit the heavy fine of Rs. Five Lakhs upon him.
3. Before we proceed further, and to be able to appreciate the submission of the petitioner, we may reproduce herein below Section 3 MCOCA, which reads as follows:
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 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 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 of 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)
4. Ld. Counsel for Petitioner submits that Section 3 (1)(ii) of the MCOCA, in so far as it prescribes mandatory imposition of minimum fine of rupee
