1. Organized crime syndicate allegations involving illegal gambling — Invocation of MCOCA — Confessions recorded by Additional Superintendent of Police — Challenge to admissibility and validity of invocation. (Para 1 , 2 , 3 , 4 , 5 , 6 )
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2022 Supreme(SC) 847
SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, SURYA KANT, JJ.
Zakir Abdul Mirajkar - Appellant
Versus
The State of Maharashtra & Ors. - Respondents
Criminal Appeal No. 1125 to 1130 of 2022, Special Leave Petition (Criminal) No. 3213, 3722, 3629, 3915, 3943, 4170 of 2020
Decided on : 24-08-2022
Important Points
The Court held that an Additional Superintendent of Police (Addl. SP) is of the same rank as a Superintendent of Police (SP) and is competent to record confessions under Section 18 of MCOCA. It further clarified that prior approval under Section 23(1)(a) MCOCA pertains to the offence, not the offender.
Subject
Criminal Law - Organized Crime
Act Referred
ALL INDIA SERVICES ACT: S.3
Banning of Unregulated Deposit Schemes Act: S.21, S.23
BOMBAY POLICE ACT: S.135, S.37, S.8
CONSTITUTION OF INDIA: Art.21, Art.309, Art.311(2)
CRIMINAL PROCEDURE CODE: S.154, S.161
EVIDENCE ACT: S.25, S.26
INDIAN PENAL CODE: S.109, S.120(b), S.143, S.147, S.149, S.155, S.307, S.323, S.324, S.332, S.353, S.395, S.420, S.427
MAHARASHTRA CONTROL OF ORGANIZED CRIMES ACT: S.18(1), S.2(1)(f), S.23(1)(a), S.23(2), S.3(1)(ii), S.3(2), S.3(4), S.3(5)
MAHARASHTRA CONTROL OF ORGANIZED CRIMES RULES: R.3(4)
MAHARASHTRA POLICE ACT: S.8(3)
Maharashtra Prevention of Gambling Act: S.4, S.5
Maharashtra Prohibition Act: S.65(e)
POLICE SERVICE CADRE RULES: R.4(1), R.4(2)
SCHEDULED CASTES AND SCHEDULED TRIBES PREVENTION OF ATROCITIES ACT: S.9
SCHEDULED CASTES AND SCHEDULED TRIBES PREVENTION OF ATROCITIES RULES: R.7(1)
Banning of Unregulated Deposit Schemes Act: S.21, S.23
BOMBAY POLICE ACT: S.135, S.37, S.8
CONSTITUTION OF INDIA: Art.21, Art.309, Art.311(2)
CRIMINAL PROCEDURE CODE: S.154, S.161
EVIDENCE ACT: S.25, S.26
INDIAN PENAL CODE: S.109, S.120(b), S.143, S.147, S.149, S.155, S.307, S.323, S.324, S.332, S.353, S.395, S.420, S.427
MAHARASHTRA CONTROL OF ORGANIZED CRIMES ACT: S.18(1), S.2(1)(f), S.23(1)(a), S.23(2), S.3(1)(ii), S.3(2), S.3(4), S.3(5)
MAHARASHTRA CONTROL OF ORGANIZED CRIMES RULES: R.3(4)
MAHARASHTRA POLICE ACT: S.8(3)
Maharashtra Prevention of Gambling Act: S.4, S.5
Maharashtra Prohibition Act: S.65(e)
POLICE SERVICE CADRE RULES: R.4(1), R.4(2)
SCHEDULED CASTES AND SCHEDULED TRIBES PREVENTION OF ATROCITIES ACT: S.9
SCHEDULED CASTES AND SCHEDULED TRIBES PREVENTION OF ATROCITIES RULES: R.7(1)
Headnote
(A) Maharashtra Control of Organized Crime Act, 1999 - Sections 2(1)(d), 2(1)(e), 2(1)(f), 18, and 23(1)(a) - Invocation of MCOCA - The appellants were accused of operating a gambling syndicate termed ‘Mumbai Matka’ with allegations of organized crime. Their confessions recorded by officers below the rank of Superintendent of Police were found inadmissible as per Section 18. The necessity of more than one charge-sheet against individual accused for invoking MCOCA provisions was clarified, noting that charges relate to the syndicate, not individuals (Paras 7, 8, 70, 79).
(B) Confessions and procedures - The court stressed that confessions must meet stringent statutory requirements, as established in previous judgments, particularly regarding proper recording and the identity of the recording officer (Paras 75, 78).
(C) Organized crime definition - The court examined the definitions of organized crime and conspiracy as set out in the MCOCA, dismissing the argument that gambling alone does not invoke organized crime provisions, noting potential connections to broader criminal activities (Paras 9, 11, 77).
Facts of the case:
The prosecution alleged the appellants ran an organized crime syndicate known for illegal betting. Following an investigation and the recording of their confessions by an Additional Superintendent of Police, the appellants challenged the admissibility of these confessions, stating statutory violations.
Findings of Court:
The court ruled that the confessions recorded by an officer below the rank of Superintendent of Police were inadmissible under Section 18 MCOCA. The appeals were dismissed, and the court clarified that the appellants could apply for bail (Paras 80, 81).
Issues: The primary issues addressed included the authority of an Additional Superintendent to record confessions under Section 18 and the validity of invoking MCOCA against the appellants without individual charge sheets for each (Paras 7, 8).
Ratio Decidendi: The court held that the strict requirements for confessions under MCOCA cannot be circumvented by procedural shortcuts, reaffirming the hierarchical structure of the police as critical for lawful recording of confessions (Paras 83, 87).
Result: Appeals dismissed.
(B) Confessions and procedures - The court stressed that confessions must meet stringent statutory requirements, as established in previous judgments, particularly regarding proper recording and the identity of the recording officer (Paras 75, 78).
(C) Organized crime definition - The court examined the definitions of organized crime and conspiracy as set out in the MCOCA, dismissing the argument that gambling alone does not invoke organized crime provisions, noting potential connections to broader criminal activities (Paras 9, 11, 77).
Facts of the case:
The prosecution alleged the appellants ran an organized crime syndicate known for illegal betting. Following an investigation and the recording of their confessions by an Additional Superintendent of Police, the appellants challenged the admissibility of these confessions, stating statutory violations.
Findings of Court:
The court ruled that the confessions recorded by an officer below the rank of Superintendent of Police were inadmissible under Section 18 MCOCA. The appeals were dismissed, and the court clarified that the appellants could apply for bail (Paras 80, 81).
Issues: The primary issues addressed included the authority of an Additional Superintendent to record confessions under Section 18 and the validity of invoking MCOCA against the appellants without individual charge sheets for each (Paras 7, 8).
Ratio Decidendi: The court held that the strict requirements for confessions under MCOCA cannot be circumvented by procedural shortcuts, reaffirming the hierarchical structure of the police as critical for lawful recording of confessions (Paras 83, 87).
Result: Appeals dismissed.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Advocates appeared:
For the Petitioner(s): Mr. Aabad Ponda, Sr. Adv. Mr. Sandeep Sudhakar Deshmukh, AOR Mr. Sajid Imtiyaz Mahat, Adv. Mr. Sidharth Luthra, Sr. Adv. Ms. Bansuri Swaraj, Adv. Mr. Siddhesh Kotwal, Adv. Ms. Ana Upadhyay, Adv. Ms. Manya Hasija, Adv. Mr. Akash Singh, Adv. Mr. Nihar Dharmadhikari, Adv. Mr. Akshat Kumar, Adv. Mr. Sheezan Hasmi, Adv. Mr. Nirnimesh Dube, AOR Mrs. Yugandhara Pawar Jha, AOR Mr. Kunal Verma, AOR Mr. Atmaram NS Nadkarni, Sr. Adv. Mr. Salvador Santosh Rebello, AOR Mr. Raghav Sharma, Adv. Mr. Kanishk Arora, Adv. Ms. Nidhi Vardhan, Adv. Mr. Yugandhara Pawar Jha, AOR Mr. Pradeep Rai, Sr. Adv. Mr. Anand Mishra, AOR Mr. Amrendra Kumar Singh, Adv. Mr. Shree Prakash Sinha, Adv. Mr. Rakesh Mishra, Adv. Mr. Nawalendra Kumar, Adv. Mr. Rishabh Gupta, Adv. Mr. Shekhar Kumar, AOR
For the Respondent(s): Mr. Raja Thakare, Sr. Adv. Mr. Rahul Chitnis, Adv. Mr. Sachin Patil, AOR Mr. Aaditya A. Pande, Adv. Mr. Geo Joseph, Adv. Ms. Shwetal Shepal, Adv. Mr. Akash Kavade, Adv.
For the Petitioner(s): Mr. Aabad Ponda, Sr. Adv. Mr. Sandeep Sudhakar Deshmukh, AOR Mr. Sajid Imtiyaz Mahat, Adv. Mr. Sidharth Luthra, Sr. Adv. Ms. Bansuri Swaraj, Adv. Mr. Siddhesh Kotwal, Adv. Ms. Ana Upadhyay, Adv. Ms. Manya Hasija, Adv. Mr. Akash Singh, Adv. Mr. Nihar Dharmadhikari, Adv. Mr. Akshat Kumar, Adv. Mr. Sheezan Hasmi, Adv. Mr. Nirnimesh Dube, AOR Mrs. Yugandhara Pawar Jha, AOR Mr. Kunal Verma, AOR Mr. Atmaram NS Nadkarni, Sr. Adv. Mr. Salvador Santosh Rebello, AOR Mr. Raghav Sharma, Adv. Mr. Kanishk Arora, Adv. Ms. Nidhi Vardhan, Adv. Mr. Yugandhara Pawar Jha, AOR Mr. Pradeep Rai, Sr. Adv. Mr. Anand Mishra, AOR Mr. Amrendra Kumar Singh, Adv. Mr. Shree Prakash Sinha, Adv. Mr. Rakesh Mishra, Adv. Mr. Nawalendra Kumar, Adv. Mr. Rishabh Gupta, Adv. Mr. Shekhar Kumar, AOR
For the Respondent(s): Mr. Raja Thakare, Sr. Adv. Mr. Rahul Chitnis, Adv. Mr. Sachin Patil, AOR Mr. Aaditya A. Pande, Adv. Mr. Geo Joseph, Adv. Ms. Shwetal Shepal, Adv. Mr. Akash Kavade, Adv.
Table of Contents
2. Admissibility of confessions recorded by Additional Superintendent of Police — Validity of MCOCA invocation regarding gambling activities and requirement of multiple charge-sheets per accused. (Para 9 , 10 , 11 , 12 , 13 , 14 )
3. Distinction between rank and designation — Interchangeability of SP, Additional SP, and DCP posts — Approval under Section 23(1)(a) MCOCA relates to offence, not offender. (Para 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70 , 71 , 72 , 73 , 74 , 75 , 76 , 77 , 78 , 79 )
4. Additional Superintendent of Police is of the same rank as Superintendent of Police; MCOCA invocation requires multiple charge-sheets against the syndicate, not each individual member. (Para 58 , 61 , 63 , 74 , 78 , 79 )
5. Appeals dismissed — Liberty granted to approach High Court for bail — Evidentiary value of confessions left for trial court determination. (Para 80 )
6. Is a confession recorded by an Additional Superintendent of Police admissible under Section 18 of MCOCA?
Yes. The court held that rank is a class or category encompassing multiple posts. Since the posts of SP, Additional SP, and DCP are interchangeable and share the same rank, an Additional SP is not below the rank of an SP. (Para 58 , 59 , 61 , 63 )
7. Must the approval order under Section 23(1)(a) of MCOCA name every accused person?
No. Prior approval is qua offence and not qua offender. The competent authority must be satisfied that an organized crime was committed; specific offenders can be identified and added during the investigation. (Para 72 , 73 , 74 )
8. Does every accused member of a syndicate need multiple charge-sheets filed against them to satisfy the definition of continuing unlawful activity?
No. The requirement of more than one charge-sheet applies to the organized crime syndicate as a whole, not to each individual member alleged to be part of that syndicate. (Para 78 , 79 )
9. Can MCOCA be invoked if the primary activity is illegal gambling, which carries a lower sentence than three years?
Yes, if the gambling is the route through which the accused abet the commission of organized crime, which involves cognizable offences punishable by three years or more. (Para 76 , 77 )
JUDGMENT :
Dr. Dhananjaya Y. Chandrachud, J.
| Contents | |
| A. Facts | |
| B. Issues | |
| C. Submissions | |
| D. | Analysis |
| i. An overview of the Maharashtra Control of Organized Crime Act 1999 18 | |
| ii. Confession made before a police officer “not below the rank of the Superintendent of Police” | |
| iii. Conditions for invocation of the MCOCA | |
A. Facts
1. The prosecution alleges that the appellants are members of an organized crime syndicate which has engaged in a systematic course of activities for cheating members of the public by conducting the ‘Mumbai Matka’. To explain ‘matkas’ in simple terms, those who wish to gamble place bets on numbers/playing cards. At the end of the cycle, the results are to be declared based on a random draw of numbers/playing cards and those who correctly guess the winning digits/playing cards win while the others lose. Instead of declaring the winning digits on the basis of a random draw, the organizers of the Mumbai Matka are alleged to identify the number on which the least bets are placed and declare that to be the winning digit. This is allegedly done in order to ensure that the pay-out is minimal and the profit is as large as possible.
2. Salim Mulla is alleged to be a bookie who accepts bets for the Mumbai Matka. It is the prosecution’s case that he would transfer the money he received through the Mumbai Matka to Rakesh Agarwal and Manish Agarwal if he anticipated that he would be unable to repay in the event that the number on which he accepted the highest number of bets was declared the winning number. Rakesh Agarwal and Manish Agarwal would allegedly accept the risk and discharge the obligation to pay the gamblers if that particular number was indeed declared the winning number. Further, they would in turn allegedly transfer the money they received from Salim Mulla to Samrat Korane, the appellant in SLP (Criminal) No. 3722 of 2020, and Zakir Mirajkar, the appellant in SLP (Criminal) No. 3213 of 2020. The latter two, along with Sharad Korane, the appellant in SLP (Criminal) No. 3629 of 2020 would assume the risk and transfer the money once again to Viral Savla, the appellant in SLP (Criminal) No. 3915 of 2020 and Jayesh Savla, the appellant in SLP (Criminal) No. 4170 of 2020, amongst others. It is alleged that in this fashion, the petitioners and various others are members of an organized crime syndicate, of which the lynchpin is Salim Mulla. The main organizers of the Mumbai Matka are alleged to be Prakash Savla, the appellant in SLP (Criminal) No. 3943 of 2020, his son Viral Savla and his brother Jayesh Savla. Finally, Rajendra Dave, the appellant in SLP (Criminal) No. 6034 of 2022 is alleged to assist Salim Mulla and the Savla family by distributing protection money to various gangsters and purchasing property from the proceeds of the illegal gambling business. According to the prosecution, the proceeds from the matka business are used to finance criminal gangs and underworld dons.
3. On 8 April 2019, the Assistant SP, Kolhapur and a team of police personnel raided what is alleged to be a gambling den (colloquially known as a ‘matka’ den) controlled by Salim Mulla. It is the prosecution’s case that Salim Mulla’s wife, Shama Mulla, along with some others, assaulted the police team when they were recording the panchnama at the gambling den.
4. FIR 136 of 2019 for offences punishable under Sections 143 , 147, 149, 395, 307, 353, 332, 155, 109, 324, 323 and 427 of the INDIAN PENAL CODE 1860,1 “IPC” Sections 4 and 5 of the Maharashtra Prevention of Gambling Act 1887, 2[“Gambling Act”] Section 65(e) of the Maharashtra Prohibition Act 1949 and Sections 3 7 and 135 of the BOMBAY POLICE ACT 1951 was registered in PS Rajarampuri, Kolhapur on the basis of a complaint made by one of the members of the raiding party. The Investigating Officer was of the opinion that the accused were members of an organized crime syndicate led by Salim Mulla, as defined in Section 2(1)(f) Maharashtra Control
