Delhi District Court
Ps Shahdara vs Mst. Sita Devi & Ors. (2002) 1 Scc 714 on 29 August, 2014
In the court of Sh. Parveen Singh, Additional Sessions Judge03, North East
District, Room no. 53, 2nd floor, Karkardooma, Delhi.
S. C. No. M1/11
Unique ID No. 02402R0343372009.
FIR No. 19/09
P.S. Shahdara
U/s 3 (1) (i) (ii), 3(4) & 3 (5)
The MCOC Act 1999
State
(Govt. of NCT of Delhi)
Versus
Mohd. Naim @ Pahalwan
son of Kallan Khan
R/o A81, Main Road
Kardam Puri, Shahdara
Delhi. ...Accused
Date of Committal : 21.11.2009.
Decision reserved on : 02.08.2014.
Date of decision : 29.08.2014
FIR No. 19/09 Pages 1 of 3
PS Shahdara
JUDGMENT
1. The brief case as set up against the accused is, that it was found by the prosecution that the accused Mohd. Naim had taken to crime at a very young age and was a desperate criminal, who was involved in violent crimes. It was also observed that he ran a gang with Danish, Aarif, Sufi Kalwa, Shahdat, Intzar and Abid as members. He developed a fearsome reputation in the area, people were scared from him and nobody came forward to depose against him and his gang members. He used to commit crimes for pecuniary gain and had no respect for law of land. In most of the cases registered against him, he committed offences by working in a gang and most of them were done for pecuniary gain. He had no other means of livelihood except to live on the earnings of organized crimes. On these lines, a proposal dated 15/01/2009 Ex.PW20/A, for registration of a case u/s 3 (2) (4) of The MCOC Act as extended to NCT of Delhi, against accused Mohd. Naim, was moved by Insp. M.A. Khan, the then SHO P.S. Shahdara. Jt. Commissioner of Police, New Delhi range granted approval vide order dated 16/01/2009 (Ex.PW22/A) and thus, the FIR No.19/09 was registered with P.S. Shahdara u/s 3 (1)(i) (ii), 3(4) & (5) of Maharashtra Control of Organized Crime Act, 1999.
FIR No. 19/09 Pages 2 of 3 PS Shahdara 1.1 The case was investigated by ACP Sh. Beer Singh and he collected the
details of previous involvements of accused Mohd. Naim. He collected the certified copies of the chargesheets in case FIR No.462/05 dated 16/08/2005, u/s 307/336/34 IPC of P.S. Seelampur; FIR No.357/06 dated 04/06/2006 P.S. Seelampur, u/s 302/120B/34 IPC; FIR No.190/00 dated 30/08/2007, P.S. Hauz Qazi, u/s 307/34 IPC.
1.2 He thereafter collected the reports from the MLO regarding ownership of two vehicles. One being TATA Safari bearing registration no.DL3CA8560 and the other, a Scorpio bearing registration no.DL4CNB0641. The accused was then arrested on 25/05/2009 and his confessional statement (Ex.PW20/B) u/s 18 of MCOCA was recorded on 28/05/2009 by Sh. Anand Mohan, DCP (East). The accused along with his confessional statement was then produced before the Ld. Chief Metropolitan Magistrate, Delhi on 29/05/2009 and her proceedings in this respect are Ex.PW23/B. During the investigation, it was found that accused had 2 PAN cards bearing no.AAGFN9327F and AEBPN4008. During the investigation, it was also found that the accused was the owner of property no. A81/A, Gali No. 4, West Jyoti Nagar, Delhi and was also owner of two cars. During the investigation, it was also found that the accused was holding two bank accounts. In one account, there was total transaction of Rs.28,36,490/ and in second account, there was a total transaction of Rs.3,55,000/. It was also found during investigation that his firm namely Naim Garments was not registered with Registrar of Firms and this firm was non existent. It was also found during investigation that the income tax returns of the year 200708 and 200809 filed by the accused in his personal name FIR No. 19/09 Pages 3 of 3 PS Shahdara were not showing that the accused could have an income to hold such property. It was also found that the alleged firm Naim Garments had never filed any income tax returns for the preceding four years.
2. Vide order dated 22.01.2011, charge u/s 3 (1) (i) (ii), u/s 3 (4) and u/s 3 (5) of The MCOC Act was framed against the accused to which he pleaded not guilty and claimed trial.
3. To prove its case, the prosecution examined 25 witnesses. 3.1 PW1 ACP Sh. D.L. Gautam deposed that in the year 2006, being the IO of FIR no.357/06, u/s 302/120B/34 IPC of P.S. Seelampur, he had arrested the accused Mohd. Naim. After the completion of investigation, he filed the charge sheet Ex.PW1/A. He denied during crossexamination that the accused was falsely implicated in this case.
3.2 PW2 is HC K. Singh who deposed that on 16/01/2009, being posted as Duty Officer at P.S. Shahdara at about 8.05 a.m., he had received a rukka of Insp. M.A. Khan and he registered FIR no.19/09 (Ex.PW2/A) in the present case. He made an endorsement on the same which is Ex.PW2/B and investigation was marked to ACP Sh. Beer Singh. He denied that FIR was registered later on. 3.3 PW3 is SI Prem Singh. He deposed that in the year 2005, he was posted as ASI at P.S. Seelampur. He being posted at P.S. Seelampur, was the IO of FIR no.462/05, u/s 307/336/384/34 IPC and u/s 27 of Arms Act , had arrested the accused Mohd. Naim in that case. After the completion of investigation, he filed the chargesheet and the charges against the accused were framed on 17/11/2007. The FIR No. 19/09 Pages 4 of 3 PS Shahdara certified copy of the chargesheet and the charge in the judicial file is collectively Ex.PW3/A. He denied that the accused was falsely implicated. 3.4 PW4 SI Ram Prakash deposed that in the year 2008, he was the IO of case FIR no.181/08, u/s 307/120B/34 IPC and 25/27 Arms Act. In this case, he had arrested the accused and after completion of investigation, he filed the charge sheet. Cognizance was taken and charge was framed against the accused vide order Ex.PW4/A. During crossexamination, he denied that the accused was falsely implicated in this case without any evidence.
3.5 PW5 is Virender Singh Rawat who brought the registration record of TATA Safari bearing registration no.DL3CAC8560. The vehicle was registered in the name of the accused and registration certificate was Ex.PW5/A. This vehicle was purchased for a sum of Rs.10,45,759/ from Sanya Automobiles on 08/02/2008. The three documents collectively Ex.PW3/B were submitted at the time of registration of vehicle. These are, copy of election Icard, copy of PAN card and Form 20 bearing photograph and signatures of accused. The sale certificate/notice along with receipt/invoice issued by Sanya Automobiles are Ex.PW5/C collectively. 3.6 PW6 Surender Singh is the Operation Manager with ING Vysya Bank. He deposed that on 25/09/2009, he was working as Customer Care Manager at ING Vysya Bank. Vide letter no.5350/642/200910 dated 25/09/2009 Ex.PW6/A, he had supplied to the IO the statement of account (Ex.PW6/B5 pages collectively) of Mohd. Naim for account bearing no.535010136609. The account was opened on 27/06/2007 and till 25/09/2009, the account was operational.
FIR No. 19/09 Pages 5 of 3 PS Shahdara 3.7 PW7 Shyam Sunder is LDC/Dealing Clerk from State Transport
Department and he brought the record pertaining to vehicle no.DL4CNB0641 which was registered on 23/02/2006 in the name of Mohd. Salim. At the time of registration, owner had submitted Form no.20,34, copy of purchase receipt and photocopy of election identity card for registration of vehicle. Original file of registration was Ex.PW7/A (11 pages) and the registration certificate was Ex.PW7/B. 3.8 PW8 is Sh. Vaibhav Motani. He deposed that he had worked with one Amit Marvah, who was then Branch Manager. The letter dated 25/09/2009 Ex.PW8/B had signatures of Mr. Amit Marvah at point A. Vide this letter, the statement of account Ex.PW8/A (12 pages) pertaining to account no.072305000143 in the name of M/s Naim Garments, A81, Main Road, Kardam Puri near Shani/Saturday Market, was supplied to the IO. This account was opened on 13/10/2008 and was closed on 08/10/2009.
3.9 PW9 is Sh. Ajay Saklani, LDC from Record Room (Sessions), Karkardooma Courts. He brought the certified copy of charge sheet (Ex.PW3/A) in FIR No. 462/05 of PS Seelampur The cognizance order of learned MM is Ex.PW9/A1 and the charge framed in this case is Ex.PW9/A. He also brought the certified copy of the chargesheet (Ex.PW1/A) in FIR No. 357/06 of PS Seelam Pur. The charge in that case was framed vide Ex.PW9/B and the cognizance was taken vide order Ex.PW9/C. He also deposed that in FIR No. 462/05, vide judgment dated 18.08.2010, the accused was convicted and vide order dated 20.08.2010, he was FIR No. 19/09 Pages 6 of 3 PS Shahdara released on probation for two years. During his cross examination, he admitted that accused Mohd. Naim was acquitted in FIR No. 357/06 vide judgment dated 02.07.2007.
3.10 PW10 is Sanjeet Kumar, LDC from Record Room (Sessions), Tis Hazari Court. He brought the summoned record of FIR No. 190/2000 of PS Hauz Khas. Certified copy of the chargesheet is Ex.PW10/A. Order of cognizance of learned MM is Ex.PW10/C and the charge was framed against the accused vide Ex.PW10/B. 3.10.1 During his cross examination, he deposed that as per the record, the accused persons in case FIR No. 190/2000 had been acquitted vide judgment dated 23.08.2001.
3.11 PW11 is Sh. A.K. Barolia, Income Tax Officer, Ward 4(1), New Delhi. He deposed that on the request of SHO PS Shahdara, he, vide his letter Ex.PW11/A, had sent the photocopies of ITR of Md. Naim having PAN No. AEBPN4008G. He had brought the original assessment file of accused of the year 200809 and the copies of the same were exhibited as Ex.PW11/P1 (colly). Vide his letter Ex.PW11/B, he had sent to the ACP Shahdara, the photocopies of ITR filed by Md. Nain having PAN No. AEBPN4008G for the assessment year 200708. Photocopies of the same were exhibited as Ex.PW11/P2. 3.12 PW12 is SI B.R. Zaidi from UP Police. He deposed that he was assigned investigation in FIR No. 271/09 u/s 307 IPC of PS Sector 20, Noida, UP. After the completion of investigation, he filed the charge sheet against the accused FIR No. 19/09 Pages 7 of 3 PS Shahdara in that case vide Ex.PW12/A. He had also investigated the case FIR No. 386/09 u/s 25/27 Arms Act against Mohd. Naim and the certified copy of the charge sheet was exhibited as Ex.PW12/B. 3.12.1 During his cross examination, he denied that on 26.05.2009, Mohd. Naim was lifted from outside the Karkardooma Court or that he was illegally detained in PS Sector 20, Noida for four days. He denied that a revolver, fired cartridge and the live cartridge were planted upon the accused or that the incident was false. He denied that the brotherinlaw of the accused was present with license of revolver at police station and the brother in law of the accused was forcibly sent away from the PS, or that the licensed revolver of the brotherinlaw of the accused was falsely planted upon the accused.
3.13 PW13 is Sh. B.L. Meena, ITO from ward No. 34 (4) of New Delhi. He deposed that in response to the inquiry of ACP Shahdara relating to PAN No. AAGFN9327F, he had issued a letter Ex.Pw13/A to the ACP, Shahdara. 3.14 PW14 is Mohd. Zabbar. He deposed that about five years prior to the date of his examination, his brother Ibrahim @ Baddu was residing at Seelam Pur Delhi, and he was murdered. During his inquiry, he came to know that his brother was killed by Suffi Sattebaz alongwith his coaccused Zaffar, Naim and others. He gave a complaint in writing to the DCP, North East, copy of which was exhibited as Ex.PW14/A. On the day of murder of his brother, his brother left Meerut for Delhi telling him, that he had to take Rs.10 lacs from Suffi Sattebaz.
3.14.1 During his cross examination, he admitted that he had not seen Suffi FIR No. 19/09 Pages 8 of 3 PS Shahdara
Sattebaz, Zaffar and Naim killing his brother Baddu. He could not tell how his brother earned Rs. 10 lacs. He admitted that in his complaint to DCP Ex.PW14/A, he had mentioned that his brother Ibrahim @ Baddu used to earn money by unlawful activities and volunteered, that his brother used to live with Sufi Sattebaz and might have been working with Sufi Sattebaz. He denied that during his inquiry, he had not come to know regarding the involvement of Sufi Sattebaz, Mohd. Naim and others in murder case of his younger brother or that his brother had not told him that he was going to Delhi to get Rs.10 lacs from Suffi Sattebaz. 3.15 PW15 is Ahad Bashir. He deposed that on 16.08.2008, accused had fired on him. On the basis of his complaint, FIR No. 462/05 was registered at PS Seelampur. Accused Naim was demanding Rs.11/12 lacs from him and when he refused to pay, Naim alongwith Sufi Kalwa fired on him. 3.15.1 During his cross examination, he deposed that his statement was recorded by the IO in that case in October 2009. He denied that no such statement was recorded by the IO. He admitted that he was having a factory of jeans. He did not know if in the year 2005, accused Naim was having a factory of jeans. He knew Neeraj Jain, who was a businessman at Gandhi Nagar. Prior to the year 2002, he was having transactions with Neeraj Jain. He was not having any business relations with the accused Naim. He denied that neither accused demanded Rs.11/12 lacs from him nor threatened him. He denied that in the year 2005, accused Naim had not fired at him.
3.16 PW16 is Sh OP Bhatia who deposed that as per the request of FIR No. 19/09 Pages 9 of 3 PS Shahdara
IO/ACP Dharamvir Joshi, he had inspected the property no. A81/1, Gali No. 4, West Jyoti Nagar Extn. Shahdara, Delhi. After the inspection of the property, he prepared a valuation report Ex.PW16/A and as per the same, in the year 2007, the value of the property was Rs.15,50,000/.
3.16.1 During his cross examination, he deposed that no written request was sent to him by the IO for the valuation of the property. He admitted that there was difference in the value of the property in the year 2005 and 2007. He admitted that he had not annexed any document with his report Ex.PW16/A and volunteered, that he had followed the guidelines of the Govt. notification regarding the value of the land issued from time to time for . He denied that he had not considered the local value of the property, or that he had prepared the report as per the directions of IO/ACP. He denied that he had not valued the property correctly, or that he had prepared the report as per his wish.
3.17 PW17 is Inps. Shivaji Chauhan. He deposed that on 13.11.2009, he was posted as Inspector SCRB. On that day, as per the request of ACP Dharamvir Joshi, he had handed over the criminal dossier of Mohd. Naim to the ACP. The dossier was exhibited as Ex.PW17/A. 3.18 PW18 is HC Kamal Singh. He deposed that he was posted as MHC (R) in PS Shahdara. The record pertaining to accused persons containing register no. 9 part III was transferred to PS Jyoti Nagar. He had brought the record of previous and present involvement of accused Naim. The same was exhibited as Ex.PW18/A. As per the record, the accused was involved in 8 criminal cases.
FIR No. 19/09 Pages 10 of 3 PS Shahdara 3.18.1 During his cross examination, he deposed that he was not aware about
the present status of all the cases mentioned in Ex.PW18/A. 3.19 PW19 is PS Rawat, Ahlmad in the court of Sh. TS Kashyap, Learned ASJ, Karkardooma Court. He brought the record of case FIR No. 181/08 of PS Shahdara. As per the record, accused Naim was one of the accused in the said FIR. He deposed that as per record, on 20.12.2008, cognizance of offence in FIR No. 181/08 was taken by Ld. ACMM and the case was committed to Sessions on 12.02.2009. Certified copy of the charge sheet, list of witnesses, list of accused and the order sheets of the said case were collectively exhibited as Ex.PW19/A. 3.20 PW20 Insp. M.A. Khan deposed that from the year 1998 till 2009, five cases were registered against the accused pertaining to PS Mukherjee Nagar, PS Hauz Qazi, PS Seelampur and Shahdara. The accused was found to be engaged in continuous unlawful activities and was running an organized crime syndicate. He saw the previous record of the accused and made a proposal, Ex.PW20/A dated 15.01.2009, for invocation of the provision of MCOC Act against the accused. On 16.01.2009, the Joint CP had gave his approval u/s 23 (1) (a) of MCOC Act. Consequently, on 16.01.2009, the present FIR was registered against the accused. He had given the rukka Ex.PW20/B to the duty officer PS Shahdara; who on receipt of rukka, registered the case vide FIR already Ex.PW2/A. After registration of FIR, copy of FIR Ex.PW2/A, the rukka and the sanction order u/s 23 (1) (1) of MCOC Act was handed over to Sh. Bir Singh, ACP Shahdara, for the purpose of investigation.
FIR No. 19/09 Pages 11 of 3 PS Shahdara 3.20.1 During his cross examination, he deposed that from the nature of the
offences having been committed by the accused and the trial of cases that was pending, he deduced the inference that the accused was running an organized crime syndicate as some of the cases were related to extortion/ demand of money. He denied that the five cases as mentioned in the proposal of the invocation of MCOC Act were false cases, or that from the years 1998 to 2009, the accused was not having an organized crime syndicate or that there was no evidence on record against the accused to show that the accused was running an organized crime syndicate. He denied, that he had mechanically signed the proposal without going through the record and, on being asked by the Sr. Police officers and out of his personal enmity with the accused.
3.21 PW21 is Anand Mohan, DIG (Law and Order), Andaman & Nicobar Island. He deposed that on 28.05.2009, he was posted as DCP East District, Delhi. On that day accused Mohd. Naim s/o Kalan Khan, who was arrested in present FIR, was produced before him by the IO ACP Bir Singh for the purpose of recording confessional statement. As per the verbal communication of Joint CP, he was verbally requested by the DCP North East to record the confessional statement. He recorded the confessional statement in his office between 05.30 p.m. to 07.10 p.m. The confessional statement was typed on his dictation by Ct. Nizamuddin. Before recording this confessional statement of accused, in compliance of provisions of Section 18 of MCOC Act, he had explained to the accused, that the accused was not bound to make a statement and if he did so; it could be used as evidence against him. Thereafter, the accused voluntarily and willingly made his confessional FIR No. 19/09 Pages 12 of 3 PS Shahdara statement. The confessional statement was recorded in Hindi which according to the accused he could read, write and understand. He then gave a certificate as per the requirement of MCOC Act. The confessional statement Ex.PW21/A was signed by him at point B, by the accused at points A, A1, A2, A3 and A4 and by Ct. Nizamuddin at point B(*). After recording the statement, it was handed over to the IO in an envelope duly sealed with the seal of DCP East. The IO was directed to produce the sealed envelope containing the confessional statement and accused before the court of CMM, Delhi.
3.22 PW22 is Sh. Dharmender Kumar, Spl. Commissioner of Police, Law & Order. He deposed that on 16.01.2009, he was working as Joint Commissioner at New Delhi Range. He received a proposal for invocation of the provisions of MCOC Act in respect of accused Mohd. Naim. From the documents and the proposal forwarded to him, he was of the opinion that it was a fit case where in the provisions of MCOC Act could be invoked against the accused and he granted approval on the proposal form Ex.PW20/A, which had his signatures at point B. On the same day, vide order Ex.PW22/A, he accorded approval for invocation of MCOC Act and for registration of FIR u/s 3(ii) & 3(4) of MCOC Act. After the investigation, the case was produced before him and after going through the documents submitted by the IO and the previous charge sheets against the accused, vide sanction order Ex.PW22/B, he accorded sanction for prosecution of the accused Mohd. Naim u/s 3 (i), section 3(4) and section 3(5) of MCOC Act.
3.23 PW23 is Ms. Kaveri Baweja, Ld. ASJ (Fast Track Court) from Tis FIR No. 19/09 Pages 13 of 3 PS Shahdara
Hazari Court. She deposed that on 29.05.2009, he was posted as CMM, Delhi and the accused along with an envelope containing statement of accused Mohd. Naim was produced before her by the IO/ACP Bir Singh. The statement of accused had been already recorded by Sh. Anand Mohan, DCP/ East District for compliance of Section 18 of MCOC Act. Accordingly, she called the accused in her chamber and made inquiries regarding the voluntariness of the statement before the DCP East District, Delhi. The accused stated, that he had been threatened to append his signatures on the statement recorded by DCP/East District but his statement was voluntary. She recorded the statement Ex.PW23/A of accused Mohd. Naim which had her signatures at point B and that of the accused at point A. The proceedings in this respect were exhibited as Ex.PW23/B, which had her signatures at point A. Thereafter, she sent the original statement of the accused alongwith the proceedings in a sealed cover to the court of Sh. B.S. Chumbak, Ld. ASJ, Karkardooma Court, Delhi.
3.24 PW24 Bir Singh is the first IO of the case. On 16.01.2009, he had received a proposal Ex.PW20/A under the provisions of MCOC Act against the accused Mohd. Naim. He forwarded the same to DCP North East for approval and for registration of FIR under the relevant provisions of MCOC Act. The forwarding Ex.PW24/A, had his signatures at point B. He received the proposal after approval on 16.01.2009 and, he gave directions for registration of FIR to SHO Shahdara vide Ex.PW24/B. He requested that the investigations in the present case be handed over to him. He applied for obtaining the certified copies of five cases against the accused as mentioned in the proposal order. The said cases were FIR No. 296/98 u/s FIR No. 19/09 Pages 14 of 3 PS Shahdara 302 IPC of PS Mukherjee Nagar, FIR No. 190/2000 u/s 307/34 IPC of PS Hauz Qazi, FIR No. 462/05 u/s 307/184 IPC of PS Seelampur, FIR No. 357/06 u/s 302 IPC of PS Seelampur and FIR No. 181/08 u/s 307/34 IPC of PS Shahdara. He obtained the certified copies of all the cases except case FIR No. 296/98 and 181/08. The copies of the said cases are already Ex.PW1/A, Ex.PW3/A and Ex.PW10/A. 3.24.1 On 25.05.2009, he arrested the accused vide arrest memo Ex.PW24/C. He obtained the police custody remand of the accused and the accused was interrogated thoroughly. When accused volunteered to give his confessional statement, he was produced before Sh. Suredner Singh Yadav, the then DCP, North East. DCP North East, after the conversation with the Joint CP, directed him to produce the accused before Sh. Anand Mohan, the then DCP East, for recording of statement. On 28.05.2009, he produced the accused before the DCP East, and after sending him out of the office, DCP East recorded the confessional statement of the accused. Upon receiving the sealed envelope containing the confessional statement of the accused, on 29.05.2009, he produced the accused, along with the sealed envelope, before the Ld. CMM, Delhi. He was made to go out of the court and the Ld. CMM conducted her proceedings and gave a sealed envelope to him. He then handed over the sealed envelope to the concerned MCOC Court of Sh. B.S. Chumbak and the accused was remanded to JC. He further deposed that during the investigation, the accused had disclosed that he was owner of one TATA Safari bearing no. DL3C8560. The said number was incomplete as there was some other digit after '3C'. The accused was also in possession of another vehicle i.e. Mahendra Scorpio, which was registered in the name of one Salim. He had obtained the details FIR No. 19/09 Pages 15 of 3 PS Shahdara of the two vehicles from the concerned transport authority. The registration details of TATA Safari was exhibited as Ex.PW5/A and of Mahendra Scorpio was Ex.PW7/B. Mahendra Scorpio was purchased on a loan from ICICI Bank, the details of which were Ex.PW7/A. 3.25 PW25 is Sh. Dharamvir Joshi. He had investigated this matter and during the investigation, he had collected the certified copies of charge sheet and orders of cognizance in respect of FIR No. 181/08 u/s 307/120B/34 IPC of PS Shahdara wherein accused Mohd. Naim was an accused alongwith Sufi Kalwa, Shahadat, Arif and Danish. The certified copy of the same was placed on record and was exhibited as Ex.PW19/A and Ex.PW4/A. He also collected the certified copies of charge sheet and order of cognizance in respect of Crime record no. 385/2009 registered at PS Noida, Sector 20 wherein Mohd. Naim and Danish were accused. Certified copy of charge sheet is Ex.PW12/A and the order of cognizance is Ex.C1. He also collected certified copy of FIR no. 386/2009 Ex.PW12/B and the order of cognizance Ex.PW25/A wherein Mohd. Naim was charged for offence u/s 25/27 Arms Act. He also recorded statement of public witnesses namely Babbu Malik @ Ahad Bashir, who was complainant in FIR No. 462/2005 u/s 384/336/307/34 IPC registered at PS Seelam Pur. He also recorded statement of Mohd. Zabbar, whose brother was murdered over sharing of booty in respect of which FIR No. 357/06 u/s 302 IPC was registered at PS Seelam Pur wherein Mohd. Naim, Sufi Kalwa and Akram were accused. He also recorded statement of Sh. O.P Bhati, approved valuer of the property who had valued the property no. A/81/1, Kardam Puri, Delhi which was owned by accused Mohd. Naim and was purchased by him in 2007. As per the FIR No. 19/09 Pages 16 of 3 PS Shahdara report Ex. PW16/A, the property was valued at Rs.15,50,000/. 3.25.1 He also obtained the bank account details in respect of Naim Garments from ICICI Bank. The report of the bank is Ex.PW8/B and other documents in this regard running in 12 pages were Ex.C1. He found from the report that a total amount of Rs.3,55,000/ was credited and a total amount of Rs.4,74,739/ was withdrawn. He had also collected records from ING Vaishya Bank Ltd., Yamuna Vihar and the report is Ex.PW6/A and related record is Ex.PW6/B. This report showed that a total amount of Rs.28,29,011/ was withdrawn during the period 2007 to 2009. He had also sent a notice to Income Tax Officer for providing copies of ITR filed by Mohd. Naim for the year 2005 to 2009. His notice in this regard is Ex.PW25/B and in response to the notice, he received documents Ex.PW11/P2. He further deposed that according to the investigation, it was revealed that no income tax was paid by Naim Garments for the last four assessment years. The report in this regard report is Ex.PW13/A. He further deposed that he conducted physical verification regarding existence of firm Naim Garments and sent notice u/s 91 Cr.P.C. Ex.PW25/C to Sub Registrar of Firms, Plot No.419, Industrial Area, Patparganj, Delhi. In response to his notice, Assistant Registrar of Companies gave a reply vide Ex.PW25/D that no such firm was registered. He further verified the physical existence of firm Naim Garments, but no such firm was found in existence and on verification no such person was found carrying any kind of business in that firm. He collected ownership document in respect of property No. A81/1, Village Shikdarpur, in the abadi of gali No.4, West Jyoti Nagar, Delhi. The documents were provided from the office of Sub Registrar vide memo FIR No. 19/09 Pages 17 of 3 PS Shahdara Ex.PW25/E. Photocopy of GPA mark P24/A and photocopy of sale deed mark PW25/A were placed on record. The record also revealed that the property no. A 81/1, was purchased from Mohd. Salim by accused Naim for a consideration of Rs.1,10,000/.
3.25.2 He further deposed that from the investigation conducted by him, it was revealed that accused Naim was not having any known source of income. From the record of cases registered against accused Naim and his associates, it was also revealed that the accused was involved in commission of organized crime with his associates for the purpose of gaining pecuniary gain. He concluded investigation and submitted the case file before DCP North East District and then before Joint CP, New Delhi Range, for obtaining sanction to prosecute the accused as required u/s 23 (2) MCOCA. After perusal of record, sanction (Ex.PW22/B) to prosecute the accused Naim was granted by Joint CP, Sh. Dharmender Kumar. 3.25.3 During his cross examination, he deposed that he had not gone through the all charge sheets collected by him during investigation but he had certainly gone through some of the charge sheets. He admitted that in the previous charge sheets wherein accused Naim was involved it was nowhere mentioned that accused Naim was running a syndicate or he was member of syndicate. He further deposed that he had gone through proposal Ex.PW20/B and had not raised any objections with Insp. M.A. Khan with regard to the contents of the proposal. At length, he was cross examined on the contents of the proposal Ex.PW20/B and as to what contained and not contained therein. He admitted that during the investigation, no amount/ cash was recovered from the accused. He admitted that none of the FIR No. 19/09 Pages 18 of 3 PS Shahdara witnesses examined by him uttered specific word like 'accused is the head of Organized Crime Syndicate', or word like 'gang of crime syndicate'. He also admitted that there was no specific word 'pecuniary gain' mentioned by the witnesses in their statement during investigation. During the investigation, he had not asked the witnesses about the regular source of income of Mohd. Naim. 3.25.4 He denied that the present case was based on the FIRs mentioned and enumerated in the proposal Ex. PW20/B and there was nothing against the accused to charge sheet him under the MCOCA or the provisions of MCOCA had been wrongly invoked. He was not aware that all the 7 cases mentioned in the report under Section 173 Cr.P.C. had been decided and volunteered, that he knew about three cases and out of them; case FIR No. 190/2000 of Hauz Khas, FIR No. 357/2006, PS Seelampur had resulted in acquittal and FIR No. 462/2005, PS Seelampur had resulted in conviction of the accused. He had not made any inquiry from PW1 ACP B.L. Gatuam. He was asked to see challan of FIR No. 357/06 Ex.PW1/A and to state whether there were any allegations that offences had been committed either for pecuniary gain or that accused Naim was acting either as head of the gang or member of the gang. He replied that the words like crime syndicate or pecuniary gain or member of gang or head of gang were not contained in the contents of charge sheet Ex. PW1/A and volunteered, that word ''association'' was mentioned therein, besides they were in group and Section 34 IPC had also been mentioned. He denied that he had not scrutinized the record properly or carried out the investigation properly or that he was deposing falsely. He did not recollect whether any DD entry was registered after formal registration of FIR No. 19/2009 FIR No. 19/09 Pages 19 of 3 PS Shahdara i.e. the present FIR, and prior to filing the charge sheet in the court. He had not seized the Tata Safari and Scorpio car in this case. He had not collected any document pertaining to ownership of vehicles Tata Safari and Scorpio. He had not made any inquiries from Mohd Saleem in this case. He had also not made any inquiry from the family members i.e. children and wife of Mohd Saleem to know about the actual as well as physical possession and ownership of Scorpio car. He denied that there was nothing in the charge sheet to infer that the accused had acquired the Tata Safari and Scorpio vehicles from the properties acquired from commission of offences under MCOCA. He admitted that charge sheet did not make it specifically clear that the bank balance came from commission of particular cases and volunteered, that the accused had no regular source income. He denied that the present case under the provision of MCOCA was registered just on the ground that accused was BC in PS Shahdara or some other cases were registered against him. He denied that accused was operating jeans manufacturing unit under the name and style M/s Naim Garments or that it was his source of income. He denied that it was simple case of non filing of income tax return by the accused of his firm M/s Naim Garments or that provision of MCOCA had been invoked wrongly. He denied that the accused had not committed any organized crime for pecuniary gain or that he never acted as a head or member of any crime syndicate.
4. Thereafter, statement u/s 313 Cr.P.C of accused was recorded. In his statement u/s 313 Cr.P.C, the accused stated that he has been doing the business of jeans and prior to that, he was operating a milk dairy. He also stated that he had been doing the business of jeans for last about 8 years. He further stated that his FIR No. 19/09 Pages 20 of 3 PS Shahdara monthly income was approximately Rs.25,000/. He had no technical , mechanical or education experience. When he came to Delhi, there was a kachi colony in Kardampuri and after his shifting to Delhi, he was operating a milk dairy and had around 30 buffaloes in that dairy. He was assisted by his brother and one helper in the said business. He admitted that an FIR No. 296/98 u/s 302 IPC was registered against him at PS Mukherjee Nagar but stated that he was falsely implicated in that case and later on he was acquitted in that case. He also admitted that he was arrested in FIR No. 190/2000 u/s 307/34 IPC of PS Hauz Qazi wherein he was charge sheeted with Md. Imran, Liyakat and Mohd. Akil and after cognizance charges Ex.PW10/B were framed. He also admitted that in FIR No. 462/05 u/s 336/307/34 IPC and U/s 25/27 Arms Act he was charge sheeted vide charge sheet Ex.PW3/A. He stated that he was falsely implicated in this case. He also admitted an FIR No. 357/2006 u/s 302 IPC was registered in PS Seelampur where he was arrested in respect of murder of Ibrahim @ Baddu and case was charge sheeted vide Ex.PW1/A and after cognizance (Ex.PW9/C), charges Ex.PW9/B were framed. He also admitted an FIR No. 181/2008 u/s 307/120B/34 IPC was registered in PS Shahdara where he was arrested in respect of attempt to murder and was charge sheeted vide Ex.PW4/A and he appeared in the court on 20.10.2009.
4.1 He further stated that on 08.02.2008, a Tata Safari bearing registration no. DL 3C AC 8560 was bought by his elder brother Mohd. Saleem in his name and the said vehicle was got financed from the bank and he had to make repayment of the amount as the cheques of his brother bounced. As regards Scorpio Mahindra bearing registration no. DL ACN B0641, he stated that this vehicle was purchased FIR No. 19/09 Pages 21 of 3 PS Shahdara by his brother and he had nothing to do with this vehicle. He admitted that he had a PAN card having number AEBPN4008G in his name and had filed income tax returns for the years 200708 and 200809. He also admitted that he had another PAN No. AAGFN9327F in the name of Naim Garments but he did not remember for which years he had filed income tax returns and the period for which he had not filed income tax returns. As regards property no. A81/1, Gali No. 4, West Jyoti Nagar, Delhi, he stated that his father had purchased this property and transferred it in the name of his brother Mohd. Salim. He was then shown sale deed Ex.PW25/A carrying photographs of his brother and the vendor and he stated, that the photograph at point PX was of his brother . With regard to purchase of a double storey house of 50 sq. yards out of 110 sq. yards vide Ex.PW24/A from Mohd. Saleem, he admitted that he had purchased this property from his brother. He denied that the value of the property was worth Rs.15,50,000/ and that the value had been shown on higher side. When he had purchased this property, it was constructed up to ground floor.
4.2 He admitted that he was having a saving bank account no. 32499874 with ING Vyasa Bank and as per statement Ex.PW6/B, there were total transaction of credits/ deposit of Rs.28,36,490/ and withdrawal of Rs.28,29,011/ between 27.06.2007 to 24.09.2009. He stated that he dealt with this account during the period he was carrying his business. He also admitted having bank account no. 072305000143 in the name of M/s Naim Garments and that as per statement Ex.C1, there were transactions of Rs.3,55,000/. He stated that he was carrying his business and during that tenure, he had dealt with this account. He denied that during FIR No. 19/09 Pages 22 of 3 PS Shahdara investigation, it was discovered that he was involved in two more FIRs no. 385/2009 and FIR No. 386/2009 both of PS Noida Sector 20 and stated that he was lifted from the court. With regard to his confessional statement Ex.PW21/A which was shown to him, he stated that it bore his signatures but he had not given any such statement. He admitted that on 29.05.2009, he was produced before the CMM, Delhi for his confessional statement and the proceedings to this effect were Ex.PW23/B. In his defence, he stated that he was innocent and had been falsely implicated in all cases pending against him . Because of lack of proper education, he failed to pay the income tax regularly in the name of his firm and he had not committed any office. 4.3 Thereafter, his additional statement u/s 313 Cr.P.C was recorded on 07.07.2014 where he admitted that in FIR No. 357/2006, he had been mentioned as accused. He stated that he was falsely implicated in that case and later on he was acquitted in that case.
5. In his defence, he examined one Rahees Miyan as DW1. DW1 deposed that he was a tailor by profession and stitched jeans pant. he worked as tailor of Mohd. Naim since the year 2006. On the day of his examination, he was working at H. No A81, Gali No. 4, Kardampuri, Delhi. In the year 2006, there were about 20 to 25 sewing machines installed at H. No. A81, Gali No. 4, Kardampuri and about 30 to 35 people were working there. On the day of his deposition, Mr. Babar was running business of stitching jeans pant as a contractor. 5.1. During his cross examination, he deposed that in his presence, the police had never visited the premises no. A81, Gali No. 4, Kardam Puri. He used to FIR No. 19/09 Pages 23 of 3 PS Shahdara earn Rs.300/ per day by stitching jeans pant @ Rs.10/ per piece. In the year 2006, accused Naim used to bring raw material such as jeans for stitching. He denied that there was no regular work was being carried out in that premises. He denied that accused was having no source of income and he earned money through his criminal activities.
6. Thereafter, the arguments were addressed on behalf of State by Sh. Ravinder Bhati, Ld. Addl. PP and on behalf of the accused by Sh. Ashutosh Bhardwaj.
7. Learned Addl. PP has contended that the prosecution has proved on record the previous unlawful activities of the accused which was done by him as a part of organized crime by virtue of chargesheets and cognizance orders proved on record. He has further contended that these acts were done by the accused for gaining pecuniary, economic or other advantages. He has further contended that the prosecution has also proved that the accused who was engaged in organized crime was having properties beyond his means and thus, it has to be presumed that these properties were obtained by organized crime. In view of this, he has contended that there is sufficient evidence on record to convict the accused u/s 3 (1) (i) (ii), 3(4) and 3 (5) of The MCOC Act.
8. It has been contended by learned counsel for the accused that prosecution has failed to prove that the accused was either acting as a member or head of a crime syndicate or he was committing organized crime for and on behalf of the such syndicate for pecuniary gain. He has further contended that prosecution FIR No. 19/09 Pages 24 of 3 PS Shahdara has failed to prove that what was the formation of crime syndicate and there was no common accused in all cases or majority of cases pending against the accused and therefore, it cannot be said that the accused was running a crime syndicate. He has further contended that approval order dated 16.01.2008 passed by Sh. Dharmender Kumar, Jt. Commissioner of Police was passed prior to the conclusion of investigation to show that the accused Naim was running a crime syndicate for organized crime. It has further been contended that the approval order states that Mohd. Naim was kingpin of the gang and in the very next paragraph it states that the accused was running an organized crime syndicate, thus, till then the investigating agency was not sure that who was the head of the alleged crime syndicate. It has further been contended that the approval order had not been passed against anyone because the operative part of the approval order does not mention against whom the sanction has been granted. Therefore, it is not a technically correct approval order. It has further been contended that the sanction order is also not correct as per law because there is no allegation in the sanction order that accused was running a crime syndicate or he was acting as a member or head of the crime syndicate or that he had committed any organized crime for pecuniary gain for and on behalf of such syndicate. He has further contended that in State of Maharashtra & Ors. v. Lalit Somdattal Nagpal & Ors, SLP No. 332021 of 2005, 1101, 4581, 4611 , the Hon'ble Supreme Court has observed that : However, we are in agreement with the submission that having regard to stringent provisions of MCOCA, its provisions will have to be very strictly interpreted and the concerned authorities would have to be bound down to the strict observance of the said FIR No. 19/09 Pages 25 of 3 PS Shahdara provisions. There can be no doubt that the provisions of the MCOCA have been enacted to deal with the organized criminal activity in relation to offences which are likely to create terror and to endanger and unsettle the economy of the country for which stringent measures have been adopted. The provisions of the MCOCA seek to deprive a citizen of his right to freedom at the very initial stage of the investigation, making it extremely difficult for him to obtain bail. Other provisions relating to the admission of evidence relating to the electronic media have also been provided for. In such a situation it is to be seen whether the investigation from its very inception has been conducted strictly in accordance with the provisions of the Act.
8.1 It has further been contended that there is no allegation in the charge sheet against the accused that the offences were committed by the accused as a member/ head of organized crime syndicate or on behalf of such crime syndicate for pecuniary gain. In fact, no FIR was related to any organized crime syndicate or offence committed with object to gain pecuniary benefit because, there was no such allegation in any of the previous charge sheets filed against the accused. The pending cases and the charge sheets filed against the accused only show that the accused was a criminal but for invoking the provisions of MCOCA, the prosecution had to show that the accused was running an organized crime syndicate and mere an allegation, that the accused was involved in few cases with other accused persons would not be sufficient to say that the accused was running a crime syndicate.
8.2 He has further contended that in the judgment of State of Maharashtra v. Rahul Ramchand Taru, Hon'ble High Court of Bombay has held that in order to constitute continuing unlawful activity, following requirements of FIR No. 19/09 Pages 26 of 3 PS Shahdara law should be satisfied:
(i) more than one charge sheet, alleging commission of cognizable offence punishable with imprisonment of three years or more;
(ii) a charge sheet should consists of averments, alleging unlawful activity undertaken either singly or jointly by the accused;
(iii) as a member of organized crime syndicate or on behalf of such syndicate;
(iv) the cognizance of such offence is taken by the competent court. 8.2.1 In order to bring an alleged act within the ambit of the MCOCA, the aforementioned requirements are mandatory. The word 'in respect of which' occurring in the definition clause of 'continuing unlawful activity' connotes that it is not a normal charge sheet for offence with imprisonment of 3 years or more. The charge sheet sans allegations that the alleged act was undertaken either singly or jointly by the accused who was a member of an organized crimes syndicate or is undertaken on behalf of such syndicate, would not fall within the ambit of an expression ''continuing unlawful activity'', occurring in MCOCA. 8.2.2 He has thus contended, that mere filing of more than one charge sheets alleging the commission of cognizable offence punishable with imprisonment of three years or more is not sufficient. To invoke the provisions of MCOCA, the prosecution has to prove / show that in such charge sheets, it has been alleged that the accused either singly or jointly, as a member of crime syndicate committed, the unlawful activity. He has further contended that mere filing of charge sheets in the past is not sufficient and can only be considered as one of the requisite for constituting offence of organized crime.
FIR No. 19/09 Pages 27 of 3 PS Shahdara 8.3 He has further contended that the prosecution has alleged that
accused has accumulated huge wealth by commission of organized crime. The accused has been alleged to be the owner of property no. A81/A , Gali No. 4, West Jyoti Nagar, Delhi and stated to be in possession of two cars. The accused was also stated to be holding two accounts. In one account, there was total transaction of Rs.28,36,490/ and in the second account, there was a total transaction of RS.3,55,000/. However, the prosecution has brought nothing on record to prove that the accused had earned the above said amount after committing organized crime. In the year 2007, in which the substantial part of the transaction had taken place, no FIR was lodged against the accused. The prosecution has miserably failed to prove that there has been any nexus between the properties accumulated by the accused and any FIR registered against him.
8.4 He has further contended that even the confessional statement, though it has been denied by the accused, does not contain any allegation that the accused was member of any gang or that he committed any offence for or on behalf of such gang for pecuniary gain, or that he had deposited any amount in any of his bank accounts or purchased any property after committing any organized crime. Therefore, the observation of Hon'ble Supreme Court in Ranjeet Singh Brahamjeet Singh Sharma v. State of Maharashtra that unlawful activity alleged in the previous chargesheet must have nexus with the commission of crime has not been fulfilled.
8.5 He has further contended that the value of the properties owned by the accused as shown by the valuer is also incorrect because, the valuer himself had FIR No. 19/09 Pages 28 of 3 PS Shahdara admitted that there was difference in the value of the property during the period of 200709. Moreover, the value of the property itself cannot prove that the accused had committed any offence under the provisions of MCOC Act. 8.6 He has further contended that PW25 in his examination in chief did not state that the accused was head or member of any crime syndicate or that the accused had committed any organized crime for and on behalf of any such crime syndicate for pecuniary gain.
8.7 Summarizing the same, learned counsel for the accused has reiterated again that in none of the FIRs registered against the accused there was an allegation that the accused was running any crime syndicate or that he was a member or any crime syndicate; that there was nothing on record to show that the accused had committed any crime for and on behalf of such syndicate for pecuniary gain; that there was nothing on record to prove that the properties of the accused had been accumulated after committing organized crime or from the proceeds of the crime; that the report u/s 173 Cr.P.C and the remaining challan is self contradictory because somewhere it states that the accused running a gang as kingpin and somewhere it states that the accused was a member of the same; that the approval order passed against the accused was not technically correct; that till today, prosecution has not taken any action against any other persons named in the approval order; that there was no allegation in the approval order that the accused was running any crime syndicate; and that the confessional statement, though denied by the accused, is contradictory to the prosecution story and hence, it is submitted that the accused deserves to be acquitted of the charges.
FIR No. 19/09 Pages 29 of 3 PS Shahdara
9. I shall consider the legal propositions raised on behalf of the prosecution and the counter legal propositions as submitted on behalf of the accused and consider the evidence in this light.
10. The accused in this case has been charged for committing offence of organized crime which is punishable u/s 3 (1) (i) & (ii), 3 (4) and section 3 (5) of The MCOC Act. Therefore, it becomes very necessary to look at the definition of organized crime as provided u/s 2 (e) which would necessitate considering the definition of continuing unlawful activity as defined u/s 2 (d) of The MCOC Act. 10.1 For a crime to be an organized crime, it is necessary for the prosecution to prove that the person charged was engaged in continuing unlawful activity (a) either singly or jointly, (b) either as a member of organized crime syndicate or on behalf of such syndicate, (c) such an activity is committed by use of violence or threat of violence or intimidation or coercion or other unlawful means and, (d) this unlawful activity was committed with the objective of gaining pecuniary or gaining undue economic or other advantage for the person charged or for any other person or for promoting insurgency.
10.2 In view of the aforesaid definition of organized crime, it becomes necessary to look at two more definitions as provided under The MCOC Act. First is the definition of continuing unlawful activity as provided u/s 2 (d) of The MCOC Act. As per section 2(d) of the Act, an activity would be a continuing unlawful activity if (a), the activity is prohibited by law for time being in force, (b) activity is or was cognizable offence punishable with imprisonment of three years or more,
(c) it was undertaken either singly or jointly as a member of organized crime FIR No. 19/09 Pages 30 of 3 PS Shahdara syndicate or on behalf of such syndicate, (d) in respect of such activity, more than one charge sheets have been filed before a competent court within the preceding period of ten years and (e) that court has taken cognizance of such offence. 10.3 This in turn necessitates to have a look at the definition of organized crime syndicate as provided u/s 2(f) of the Act. In section 2 (f) of The MCOC Act, organized crime syndicate has been defined as (a) a group of two or more persons
(b) who act either singly or collectively as syndicate or gang & (c) indulge in activity of organized crime.
10.4 If all these definitions are taken together, to bring home the guilt of the accused, the prosecution will have to prove that the accused was indulged in : (1)an activity which was prohibited by law in force at the time when it was committed;
(2)that the activity was a cognizable offence punishable with imprisonment of 3 years or more;
(3)that in respect of similar activities in the past more than one charge sheets had been filed in the court of competent jurisdiction within the preceding period of ten years and the court had taken cognizance of such offence. (4)that the activity was undertaken by the accused either singly or jointly with others or, (5)that it was undertaken by group of two or more persons, who were acting either collectively or singly i.e as an organized crime syndicate. (6)that the activity involved use of violence, threat of violence, intimidation, coercion or other unlawful means.
FIR No. 19/09 Pages 31 of 3 PS Shahdara
(7)that the activity was done with the object of gaining pecuniary benefits or gaining undue economic or other advantages for himself or for any other person or for promoting insurgency.
10.5 On these parameters, let us test the evidence led by the prosecution to prove its case. The prosecution will have to prove that the accused was/ is a member of organized crime syndicate for which the prosecution shall have to prove that the accused is engaged in organized crime which in turn can only be proved by the prosecution if it proves that the accused is engaged in continuing unlawful activity.
10.6 To prove that the accused in engaged in continuing unlawful activity, the prosecution has proved on record few charge sheets and their cognizance orders.
10.7 The brief synopsis of these charge sheets in tabular form is as under:
FIR NO U/s Names of Cognizance Order/ Order on
Associates charge
462/08 307/336/384/34 1 Neeraj Jain s/o Chargesheet is Ex.PW3/A.
PS Seelampur IPC & 25/54/59 Malkhan Singh Cognizance Order is Ex.PW9/A
Ex.PW3/A Arms Act 2. Md. Hassan @ Charge framed on 17.11.2007 Sufi Kalwa s/o Sher Ali 181/08 307/120B/34 IPC 1. Shahadut Chargesheet is Ex.PW19/A. PS Shahdara & 25/27 Arms 2. Arif Cognizance order is dated Ex.PW19/A Act 3. Md. Hasan @ 20.12.2008.
Sufi Kalwa
4. Danish FIR No. 19/09 Pages 32 of 3 PS Shahdara FIR NO U/s Names of Cognizance Order/ Order on Associates charge 357/06 302/34 r/w 120B 1. Rehmat Chargesheet is Ex.C1. PS Seelampur IPC and 25/54/59 2. Jafar @ Order of charge is Ex.PW9/B Arms Act Kankata
3. Shakeel @ Shakiluddin 190/2000 307/34 IPC & 1. Liyakat Ali Chargesheet is Ex.PW10/A and PS Hauz Qazi 25/54/59 Arms 2. Md. Akil Cognizance was taken vide Act 3. Mohd. Imran Ex.PW10/C. 10.8 From the evidence on record, it is very much evident that the accused has not challenged that these charge sheets were not filed against him or that he was not accused in these charge sheets or the court of competent jurisdiction had not taken cognizance of the offence. Therefore, this fact stands proved that the aforesaid charge sheets under aforesaid sections with aforementioned coaccused/ associates were filed against the accused Md. Naim
11. The first question which needs to be decided is, whether these charge sheets and the activities alleged therein constitute continuing unlawful activity? 11.1 In this regard, the first requirement which has to be fulfilled is, that the activity committed was prohibited by the law in force at that time and was a cognizable offence having a punishment of three years or more. 11.2 A perusal of these charge sheets and the provisions under which these charge sheets were filed clearly shows that the activities committed by the accused constituted offences and the punishment provided for them under the law for the time being in force was three years or more. It is also very clear that all these charge sheets were filed in the preceding ten years and a competent court had taken FIR No. 19/09 Pages 33 of 3 PS Shahdara cognizance of the offences alleged in these charge sheets. 11.3 However, learned defence counsel, in view of judgment Bombay High Court in Rahul Ramchand Tharu (supra)' case ,has contended that these charge sheets cannot be used for invoking the provisions of The MCOC Act. He has contended that it has been held by Hon'ble Bombay High Court in Rahul Ramchand Tharu's case (supra), that previous charge sheets cannot be the simple charge sheets for offences having punishment of three years or more. These charge sheets have to have the allegations that the alleged act was undertaken either singly or jointly by the accused as a member of organized crime syndicate or was undertaken on behalf of such syndicate. Failure to mention this fact would fail to bring these activities within the ambit of expression 'continuing unlawful activity' occurring in The MCOC Act. He has contended that even if the previous charge sheets are considered, it is very much clear that in none of the charge sheets, it has been mentioned that the alleged act was undertaken by the accused either singly or jointly as a member of an organized crime syndicate, or on behalf of such syndicate. Thus, the contention of Sh. Bhardwaj is, that on the basis of these chargesheets, the prosecution cannot prove its case against the accused that the accused was indulged in commission of organized crime.
FIR No. 19/09 Pages 34 of 3 PS Shahdara 11.4 I have carefully gone through the judgment of Hon'ble Bombay High
Court in Rahul Ramchand Tharu's case (supra) but I find that in this regard, the law as laid down in some other judgments also needs to be discussed. The division bench of Hon'ble Bombay High Court in Govind Sakharam Udhe v. State of Maharashtra: 2009 (3) Bombay CR (Crl.) 144 has held as under:
34. Therefore, the MCOCA contemplates a situation where a group of persons as members of organized crime syndicate indulge in organized crime. That is, they indulge in use of violence, threats of violence, intimidation, etc. to gain pecuniary benefit or undue economic or other advantage for themselves or any other person. These activities as per the definition of organized crime are continuing unlawful activity prohibited by law.
35. It is now necessary to go to the definition of 'continuing unlawful activity'. Section 2(1)(d) defines 'continuing unlawful activity' to mean an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly as a member of an organized crime syndicate or on behalf of such syndicate in respect of which more than one chargesheet have been filed before a competent court within the preceding ten years and that court have taken cognizance of such offence. Thus, for an activity must be prohibited by law;
(a) the activity must be prohibited by law;
(b) it must be a cognizable offence punishable with imprisonment of three years or more;
(c) it must be undertaken singly or jointly;
(d) it must be undertaken as a member of an organized crime syndicate or on behalf of such syndicate.
(e) in respect of which more than one chargesheet have been filed before a competent court.
FIR No. 19/09 Pages 35 of 3 PS Shahdara
36. The words 'in respect of which more than one chargesheet have been filed' cannot go with the words 'a member of a crime syndicate' because in that case, these words would have read as 'in respect of whom more than one chargesheet have been filed'.
37. But even otherwise, if all provisions are read together we reach the same conclusion. Section 2(1) (d) which defines 'continuing unlawful activity' sets down a period of 10 years within which more than one chargesheet have to be filed. The members of the crime syndicate operate either singly or jointly in commission of organized crime. They operate in different modules. A person may be a part of the module which jointly undertakes an organized crime or he may singly as a member of the organized crime syndicate or on behalf of such syndicate undertake an organized crime. In both the situations, the MCOCA can be applied. It is the membership of organized crime syndicate which makes a person liable under the MCOCA. This is evident from section 3(4) of the MCOCA which states that any person who is a member of an organized crime syndicate shall be punished 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 fine, subject to a minimum of fine of Rs.5 lakhs. The charge under the MCOCA ropes in a person who as a member of the organized crime syndicate commits organized crime i.e. acts of extortion by giving threats, etc. to gain economic advantage or supremacy, as a member of the crime syndicate singly or jointly. Charge is in respect of unlawful activities of the organized crime syndicate. Therefore, if within a period of preceding ten years, one chargesheet has been filed in respect of organized crime committed by the members of a particular crime syndicate, the said charge sheet can be taken against a member of the said crime syndicate for the purpose of application of the MCOCA against him even if he is involved in one case. The organized crime committed by him will be a part of the continuing unlawful activity of the organized crime syndicate. What is important is the nexus or the link of the person with organized crime syndicate. The link with the 'organized crime syndicate' is the crux of the term 'continuing unlawful activity'. If this link is not established, that person cannot be roped in.
FIR No. 19/09 Pages 36 of 3 PS Shahdara 11.5 The requirement of previous chargesheets and the kind of
chargesheets needed to attract the provisions of The MCOC Act was also discussed by Hon'ble Delhi High Court in the judgment of Satender Pal Singh @ Twinkle v. State, Bail Appln. 159/2008 and Crl. Mas 171, 999 and 1329/08 decided on 24.03.2009 wherein it was held that :
9. The first point to be considered whether the offence under MCOCA stands prima facie attracted in the instant case. The Statement of Objects and Reasons (SOR) for enacting the MCOCA was taken note of by the Supreme Court in the decision of Bharat Shanti Lal Shah. The SOR adverts to the fact that organised crime has been a serious threat to the society for some years now and that ''the organised criminal syndicates make a common cause with terrorist gangs and foster narco terrorism which extend beyond national boundaries.'' Para 2 of the SOR acknowledges that:
The existing legal framework i.e. the penal and procedural laws and the adjudicatory system are found to be rather inadequate to curb or control the menace of organized crime. Government has, therefore, decided to enact a special law with stringent and deterrent provisions including in certain circumstances power to intercept wire, electronic or oral communication to control the menace of the organized crime.
10. The very definition of 'organized crime' under Section 2 (1) (e) read with 2(1) (d) MCOCA shows that the offence thereunder is attracted if the charge sheet has been filed and cognizance taken of the offence committed by the Petitioner in the past ten years. In other words, the MCOCA does not require the chargesheet to filed to end in a conviction. It appears from the very object of enacting the MCOCA that the mere fact that the accused may ultimately be acquitted in such a case will no take away the applicability of the said provision. If that interpretation were to be permitted, the very object of enacting a separate special law to deal with 'organized crime' even while acknowledging the inadequacy of the existing legal framework would be defeated. It is the filing of the charge sheet that attracts the offence of 'organised crime' and not the result of the consequent trial. Also, it is intended to deal with a situation where a person facing trial for the commission of a serious offence, continues FIR No. 19/09 Pages 37 of 3 PS Shahdara indulging in criminal activity even while he is facing trial in the earlier case or cases. The legislative intent is apparent from the fact that provision does not state that in the event of an acquittal of the accused in the chargesheet, the offence will cease to be attracted. In Bharat Shantilal Shah, the Supreme Court upheld the decision of the Bombay High Court with negatived the challenge to the constitutional validity of Sections 2 (d),
(e) and (f) and Sections 3 and 4 MCOCA. It was further explained in Ranjitsingh Brahamjeetsingh Sharma in para 32 that ''an offence falling within the definition of organised crime and committed by an organized crime syndicate is the offence contemplated by the SOR.'' In light of this legal position, even if one were to restrict the scrutiny of cases involving the petitioner to the period after 1996, the acquittal of the petitioner in all but three of the cases against him in this period, will not make a difference to the applicability of the MCOCA. The detailed background of the petitioner's past involvement and the types of cases as detailed in the chargesheet, prima facie indicates that the provisions of the MCOCA stood attracted. In Gokul Bhagaji Patil the Supreme Court reminded that in MCOCA cases, in addition to the basic considerations i.e., the seriousness of the crime, reasonable apprehension of the witnesses being tampered, '' the limitations in sub section (4) of Section 21 of MCOCA need to be kept in view.'' An additional factor in this case would be the presumption that is attracted against the petitioner in terms of Section 22 MCOCA since arms were recovered from him and his associate at the time of their arrest.
11.6 Therefore, in view of the aforesaid legal propositions laid down by Hon'ble Delhi High Court and Hon'ble Bombay High Court, the position in this regard which emerges is, that the unlawful acts in respect of which previous charge sheets had been filed must be the acts which The MCOC Act seeks to prevent.
These acts should have a direct nexus to the activities for the prevention of which, The MCOC Act has been enacted.
11.7 With all deference to the judgment of Hon'ble Bombay High Court in Rahul Ramchand Tharu's case (supra), I find that a bench of similar strength of FIR No. 19/09 Pages 38 of 3 PS Shahdara the Hon'ble Bombay High Court in Govind Ram Udhe's case (supra) had also discussed this aspect of previous chargesheets and had not made it a binding requirement that in the previous chargesheets, it should be clearly mentioned that the act was done by the accused as a member of an organized crime syndicate or on behalf of such syndicate. A similar view appears to have been taken by the Hon'ble Delhi High Court in Satender Pal Singh's case (supra). Therefore, although the previous chargesheets on the basis of which the MCOC Act has been invoked cannot the simple chargesheets for offence carrying punishment of three years or more but at the same time; simply because the chargesheets did not specifically mention that the act was done by the accused as a member of or on behalf of organized crime syndicate, these chargesheets cannot be thrown out and the accused cannot be acquitted on this ground. What is required is, that these chargesheets should either expressly or impliedly lead to a conclusion that the act alleged was not a simple crime for which punishment of three years of more was provided but it was an act which was committed by the accused as a member of organized crime syndicate or on behalf of such syndicate.
12. Therefore, the point which needs to be decided is whether the acts done by the accused were done as a member of organized crime syndicate or on behalf of such syndicate?
12.1 It is a well known fact that crime syndicates are formulated in secrecy. There can be no direct proof of formation of a crime syndicate as can be obtained for legal organizations. A crime syndicate is formed when two or more persons join together and pursue criminal activities for pecuniary gains or FIR No. 19/09 Pages 39 of 3 PS Shahdara economic gains or other advantages. Thus, existence of crime syndicates has to be inferred from the activities conducted by such group. 12.2 Chargesheet of FIR no. 357/06 of PS Seelampur is with regard to murder of one Buddu. As per the complaint, Buddu was engaged in robbery and dacoity. This Buddu used to keep his booty with Sufi Sattebaaz. When this Buddu wanted to settle his accounts, he was murdered by the accused alongwith his associate Sufi Sattebaaz, Jafar @ Kankata, Rehmat and Shakeel @ Shakiluddin. From these allegations, existence of an organized crime syndicate can be clearly inferred.
12.3 The second chargesheet is of FIR no. 462/05 of PS Seelampur. This was a case where the accused had tried to extort money from the complainant and on the resistance of the complainant had fired shots upon the complainant. In this case, the coaccused of Mohd. Naim was the same Sufi Kalwa. The allegations in the chargesheet and the same associate committing the offence again points towards the existence of a gang or crime syndicate. Therefore, it is very much evident that at least there are two chargesheets on record from which an inference of a kind of organized crime syndicate can be drawn.
12.4 The third chargesheet relates to FIR No. 181/08 of PS Shahdara where again the accused had attempted to kill one Hashim. In this chargesheet also, Sufi Kalwa was his associate. Therefore, the association of Sufi Kalwa alongwith accused Mohd. Naim is a regular feature of these chargesheets. 12.5 The fourth chargesheet is of FIR No. 190/2000 of PS Hauz Qazi where accused Mohd. Naim alongwith his associate Sufi Kalwa had fired at Zahid FIR No. 19/09 Pages 40 of 3 PS Shahdara who had dared to depose against them.
12.6 Thus, it cannot be said that these chargesheets are simple chargesheets for offences carrying punishment for three years or more. It is visible that there is a pattern in these charge sheets where Mohd. Hasan @ Sufi Kalwa was associated with the accused in three cases. Therefore, these chargesheets clearly show that some kind of organization or association had been formed of which the accused was an active member. However, this organization can only be termed as an organized crime syndicate if the unlawful activities of this organization are of the nature which The MCOC Act seeks to prohibit.
12.7 The organized crime syndicate as defined u/s 2(f) of The MCOC Act means a group of two or more persons who indulge collectively in activities of organized crime. From the chargesheets, it is established that accused Mohd. Naim and his associate Sufi Kalwa together formed a crime syndicate. Whether it was an organized crime syndicate or not can be decided only after it is established that the accused as a member of this syndicate had indulged in activities of organized crime. For an activity to be an organized crime, such an activity has to be unlawful activity as discussed above. The ingredients of unlawful activities have been proved by prosecution by way of various chargesheets which have been proved on record. However, for an unlawful activity to be an organized crime, this activity has to be done: (a) by use of violence or threat of violence or intimidation or coercion or other unlawful means and (b) with the objective of gaining pecuniary benefits or gaining undue economic gains or other advantages for himself or for any other person or from promoting insurgency.
FIR No. 19/09 Pages 41 of 3 PS Shahdara
13. It has further been contended by learned counsel for the accused that none of the chargesheets show that the crimes were committed by the accused for pecuniary gains or economic advantages. He has contended that most of the chargesheets are unrelated to any pecuniary gains and words ''other advantage'' has to be read in context of the words ''pecuniary gains or economic advantages'' and have to be taken to be having similar meanings.
13.1 In this regard, I find that the full bench of Hon'ble Bombay High Court in State of Maharashtra v. Jagain Gagansingh Nepali @ Jagya & Ors, Crl. Appeal No. 20/2011 has held that the term 'other advantage' which has been used in section 2 (e) of MCOCA cannot be read as ejusdem generis to the word 'pecuniary benefit and undue economic advantage'. While so holding, the Hon'ble Bombay High Court has held that :
The perusal of section 2 (e) would reveal that after the words ''gaining pecuniary benefits'' there is a ''comma'' followed by the words ''or gaining undue economic or other advantage''. We have already reproduced herein above the dictionary meaning of ''pecuniary'' and ''economic''. To a pertinent query as to what the words ''other advantage'' could mean if the principle of ejusdem generis was to be applied. Mr. Ponda, learned counsel stated that other advantage would mean and include financial, material, monetary profit, corruption, controlling market, parallel market and enrichment of participation. It can , thus, clearly be seen that all these would encompass within the term either '' pecuniary'' or ''economic''. It would, thus, be clear that the class or category of ''pecuniary benefit'' and ''economic advantage'' will stand exhausted. As such one of the essential conditions for applying the principle of ejusdem generis, would not be available. Since the preceding words do not constitute mere specification of the genus but constitute description of complete genus, the rule of ejusdem generis will have FIR No. 19/09 Pages 42 of 3 PS Shahdara no application as held by the Apex Court in Amar Chandra Chakraborty v. Collector of Excise, Tripura & Tribhuban Parkash v. Union of India (cited supra). It is a settled principle of law that the rule has to be applied with care and caution. It is not inviolable rule of law but it has only permissible inference in the absence of any indication to the contrary. For the reasons to be discussed herein after we also find such a narrow construction. If the construction as put forth by the respondents has to be accepted, then the term ''other advantage'' would become otiose.
13.2 The court further tried to explain this position by giving examples of other advantages and held as under:
35. For appreciating this issue, it would also be relevant to refer to subsection (4) of section 3 of MCOCA. It can be seen that the said provision also provides for punishment only by virtue of a person being a member of the organized crime syndicate. If the contention advanced by the respondents is to be accepted, subsection (4) of section 3 will be rendered redundant. We are also of the considered view that there could be various ''unlawful continuing activities'' by a member of '' organized crime syndicate'' or by any person on behalf of such a syndicate which can be for the advantages other than economic or pecuniary. We will consider some illustrations.
(i) A politician is murdered by a member of organized crime syndicate or gang on its behalf at the behest of rival political leader. In the facts of a given case, this was without any pecuniary or economic consideration, it was to gain an advantage in the nature of political patronage to the said organized crime syndicate by the political leader at whose behest the murder has taken place.
(ii) If a member of an organized crime syndicate or any person on its behalf murders or kills the leader of another syndicate or rival gang in order to get supremacy in the area, there may be no direct economic or pecuniary advantage by that particular unlawful activity. However, in the long term by the very fact of having supremacy in the area, the organized crime syndicate would be in a position to get economic or pecuniary advantage.
(iii)A witness in the trial against the member of an organized crime FIR No. 19/09 Pages 43 of 3 PS Shahdara syndicate may be killed. There may not be any pecuniary advantage in such an activity, however, advantage of assuring acquittal of member of the syndicate could be there.
(iv)A member of an organized crime syndicate murders another member of such syndicate. There may be no pecuniary or economic benefit by such an activity, however, there may be advantage to a person committing murder of getting a stronghold or supremacy in the 'organized crime syndicate' of which he is a member.
These could be some of the few illustrations which may come in the term ''other advantage''. There can be many more.
13.3 In view of the above position of law that the term ''other advantage'' as used in section 2(e) of The MCOC Act has not to be read in the context of, or as an extension to the term pecuniary gain or economic advantages as used in this section. The term ''other advantage'' has been used by legislature to broaden the sphere of organized crime as defined in section 2 (e) of The MCOC Act. 13.4 To establish that the accused was doing unlawful activities for pecuniary gains and other advantages, the prosecution has proved before the court chargesheets of four cases.
13.5 The first one is the case FIR No. 462/05, the charge sheet of which is Ex.PW3/A, was with the allegations of firing and intimidating the complainant Ahad Basir. In this case, the charges against the accused were framed u/s 25/54/59 of Arms Act as well as sections 384/307/34 r/w section 120B IPC. Admittedly, in this case, the accused was convicted vide judgment dated 18.08.2010 and then granted probation vide order dated 20.08.2010. The complainant in this case had also appeared as PW15, he had stated that on 16.08.2008, accused Mohd. Naim, whom he identified in the court, had fired upon him. Accused Naim was FIR No. 19/09 Pages 44 of 3 PS Shahdara demanding Rs.11/12 lacs from him and when he refused to pay, accused Mohd. Naim along with Sufi Kalwa had fired upon him and in this regard, FIR No. 462/05 was registered. During his cross examination, nothing material had come out to disbelieve his testimony. He denied the suggestion that Md. Naim had never threatened him to give Rs.11 lacs, or that accused Md. Naim and Sufi Kalwa had never fired upon him. Even otherwise, the cross examination loses its value as the accused was convicted in that case because the allegations were found to be correct. From this evidence, it is very much clear that the offence registered in FIR No. 462/05 was committed by the accused for pecuniary gains as he wanted to extort money from the complainant.
13.6 The second FIR is 357/06, the charge sheet of which is Ex.C1. The cognizance against the accused upon this charge sheet was taken on 17.10.2006. It was alleged in this charge sheet that the accused had murdered one Buddu. The cause of murder was stated to be, that Buddu used to be involved in activities of dacoity and robbery and used to keep his share of booty with one Sufi Sattebaz. When he wanted to settle his accounts, he was murdered. It was also stated in the FIR that Jafar @ Kankatta, who was coaccused with Md. Naim was working for Md. Naim. Here, it is unclear from the chargesheet whether, the offence of murder was committed by the accused along with his associates for gaining pecuniary, economic or other advantages.
13.7 The next charge sheet is Ex.PW10/A in FIR No. 190/2000 u/s 307/34 IPC and 25/54/59 Arms Act. In this case, the accused was charge sheeted on the allegations of firing at and injuring one Jahid because the said Jahid had dared to FIR No. 19/09 Pages 45 of 3 PS Shahdara depose against the accused and his associates. Evidently, the act was not done for pecuniary gain or economic advantage; so the question is, what would be the advantage that the accused would be seeking from this offence and would it be covered within the term ''other advantage'' as mentioned in section 2 (e) of The MCOC Act? In my opinion, the advantage which the accused sought to seek from this offence was of establishing fear in the minds of the people and the supremacy of his syndicate. By firing at the complainant Jahid, a clear message was sent to the public of the locality that nobody should dare to depose against this crime syndicate and if anybody did dare to do so, he would meet the same fate as that of the complainant. This is the advantage which every crime syndicate seeks in order to establish its supremacy in the area in which it operates. Thus, the fear so created would further the cause of the syndicate. Fear is the greatest asset of crime syndicates. Therefore in my opinion, the advantage which was sought to be achieved by this act is very much covered within the term ''other advantage'' as defined in section 2(e) of The MCOC Act.
13.8 The next chargesheet is FIR No. 181/08 of PS Shahdara. In this case, it was alleged that the accused had attempted to kill one Hashim. The accused along with his coaccused Shahadat had fired upon Hashim and his brother Ahmad Ali, which resulted in Hashim being injured. It was also alleged that this offence was committed by the accused to avenge the death of his brother Salim. 13.9 Thus, there are at least two chargesheets in which the crime syndicate of the accused had done activities in order to gain pecuniary and other advantages.
14. However, there are other contentions on behalf of the accused which FIR No. 19/09 Pages 46 of 3 PS Shahdara are required to be dealt with before deciding whether the accused can be held guilty of offences u/s 3 of The MCOC Act.
15. The first such contention is that the report u/s 173 Cr.P.C and the remaining challan is self contradictory because somewhere it states that the accused was running a gang as kingpin and somewhere it states, that the accused was a member of the gang.
15.1 In this regard, I find that it is not a contradiction which would affect the case of the prosecution. Even if it is admitted, that somewhere the accused has been stated to be a kingpin of the gang and somewhere he has been stated to be a member of the gang, this cannot come to aid of the accused as The MCOC Act does not differentiate between a member of an organized crime syndicate, or kingpin of that syndicate.
16. The next contention is that the approval order passed against the accused was not technically correct. It is contended that on 16.01.2009, the approval order was passed by Sh. Dharmender Kumar, Spl. Commissioner of Police prior to the conclusion of investigation to show that accused Mohd. Naim was running a crime syndicate. It is further contended that the approval order states that Mohd. Naim was a kingpin of the gang and in the very next paragraph, it states that the accused was running an organized crime syndicate. Thus, till the approval order was passed, the investigating agency was not sure as to who was the head of the alleged crime syndicate. It has also been contended on behalf of the accused that the approval order has not been passed against anyone because the operative part of the approval order does not mention against whom the sanction has been FIR No. 19/09 Pages 47 of 3 PS Shahdara granted and thus, it is not a technically correct approval order. 16.1 On the aspect of sanction, the division bench of Hon'ble Bombay High Court in Ganesh Nivrutti Marne v. The State of Maharashtra, Crl. Appeal No. 930/2009 on 07.05.2010 has held as under:
15. At the outset, we must state that we are unable to accept the argument that the approval order or the sanction must specifically state the charges and the role of each accused. Neither the approval order nor the sanction order is expected to be like a treatise. It cannot be equated with a chargesheet. Undoubtedly, it is necessary for the investigating authority to place adequate material before the authority which grants approval and sanction and the approval order and the sanction order being not a mechanical exercise must disclose application of mind. But they are not expected to be verbose. It is wrong to hold that prolixity is indicative or application of mind. We have carefully read the approval order. It refers to the proposal and relevant papers submitted by the Kothrud Police Station. It states the names of the accused, who are members of the organized crime syndicate. It states that after perusal of the material it appears that the accused are indulging in continuing unlawful activities for gaining pecuniary undue economic and other advantages and, therefore, it is necessary to initiate action under the provisions of the MCOCA and, therefore, the approval is being given for that purpose. The approval order, in our opinion, is issued after proper application of mind.
16.2 In the present case, PW22 had given approval Ex.PW22/A. With regard to the approval order, he deposed that on on 16.01.2009, he received a proposal for invocation of the provisions of The MCOC Act in respect of accused Mohd. Naim. The proposal was moved by SHO Insp. M.A Khan. He perused the accompanying documents and as per the proposal, there were five criminal cases pending against accused Mohd. Naim and in the last ten preceding years, FIR No. 19/09 Pages 48 of 3 PS Shahdara concerned courts had taken cognizance of offences which were having punishment of three years or more. From the perusal of the documents and the proposal so forwarded, he was of the opinion that it was a fit case where in the provisions of MCOC Act could be invoked against the accused. Thus, on the proposal Ex.PW20/A, he gave granted approval at point B. On the same day, vide order Ex.PW22/A, he accorded approval for invocation of MCOC Act and for registration of FIR u/s 3(ii) & 3(4) of MCOC Act. Vide sanction order Ex.PW22/B, he accorded sanction for prosecution of the accused Mohd. Naim u/s 3 (i), section 3 (4) and section 3(5) of MCOC Act.
16.3 On this approval order, PW22 was cross examined. He admitted that the word ''organized crime syndicate'' was not mentioned in the proposal Ex.PW20/A and volunteered, that the words mentioned in the proposal were that the accused Mohd. Naim was a desperate criminal and he operated a gang and he was involved in various cases of heinous crimes and same thing was mentioned in para 6 of the last page of the proposal. He admitted that the specific word that the accused Mohd. Naim ''was head or member of the organized syndicate'' was not mentioned in proposal Ex.PW20/A and volunteered, that he operated a gang was mentioned in first para of the proposal itself. He admitted that the words that ''accused Mohd. Naim had committed organized crime'' were not specifically mentioned in the proposal Ex.PW20/A. He admitted that to invoke the provisions of The MCOCA against a person, it was necessary that he must be either head or member of the crime syndicate and he must commit an organized crime. He did not seek any written clarifications from his subordinates including the SHO and ACP FIR No. 19/09 Pages 49 of 3 PS Shahdara Shahdara. However, he had discussed the case with his subordinates and was of the opinion that the accused was a member of an organized gang and he had obtained pecuniary gain and other advantages while operating the said gang. He denied that he had passed mechanical order Ex.PW22/A for according sanction on the basis of number of cases pending against accused Mohd. Naim.
16.4 I find that the approval order Ex.PW22/A, refers to the proposal submitted by Insp. M.A Khan. It names the members of his gang as associates. It states that the approving authority had perused the material placed before it and from that material it appeared that the accused was indulged in continuing unlawful activities and has committed murderous assaults on several persons for pecuniary gain.
16.5 Therefore, from the perusal of the approval order, the examination and the cross examination of PW22, it is clearly established that the approval u/s 23 (1)(a) of The MCOC Act for investigation was granted after due application of mind.
17. As regards the contention of learned counsel for the accused that the approval order was passed prior to the conclusion of investigation to shows that the accused Mohd. Naim was running a crime syndicate for organized crime; I find that this contention does not hold any weight as in fact, the approval was for investigation and no investigation could have been carried out under the provisions of The MCOC Act or to establish any offence being committed under MCOCA without such approval.
18. The further contention of the learned counsel for the accused is, that FIR No. 19/09 Pages 50 of 3 PS Shahdara in the approval order, somewhere the accused has been stated as kingpin of gang and somewhere it is stated that the accused has been running a gang and therefore, till the passing of approval order, the investigating agency was not sure who was the head of the gang. I find that this contention can be of no help to the accused for two reasons. First is that the use of word kingpin of a gang in the normal day to day language will have the same meaning as running a crime syndicate. Here again, it was only an approval for investigation and the investigating agency need not have been sure of as to who was the head of gang. Secondly, The MCOC Act does not differentiate between the head of organized crime syndicate or member of organized crime syndicate. Thus, even if it is agreed that the investigating agency at the time of granting approval order was not sure as to who was the head of the gang, this contention would be of no help to the accused. 18.1 The approval order has been further challenged on the ground that it has not been passed against anyone because the operative part of the approval order does not mention against whom the sanction has been granted. In this regard, the law has been discussed by Hon'ble Supreme Court in case of Vinod G. Asrani v. State of Maharashtra, 2007 (3) SCC 633, which is as under:
7. According to Mr. Altaf Ahmed, the noninclusion of the petitioner's name in the approval granted under Section 23 (1) (a) is of no consequence since during investigation his complicity was established and thereafter, sanction was sought to prosecute him alongwith the others under Section 23 (2) of MCOCA. Mr. Ahmed submitted that the allegations against the petitioner were sufficient to charge sheet him under the provisions of MCOCA along with other accused as being part of an organized crime syndicate involved in the commission of organized crimes.
FIR No. 19/09 Pages 51 of 3 PS Shahdara
8. We have carefully considered the submissions made on behalf of the respective parties and the relevant provisions of MCOCA and we are of the view that the High Court did not commit any error in dismissing the petitioner's writ application. We are inclined to accept Mr. Altaf Ahmed's submissions that noninclusion of the petitioner's name in the approval under Section 23 (1) (a) of MCOCA was not fatal to the investigation as far as the petitioner is concerned. On the other hand, his name was included in the sanction granted under Section 23 (2) after the stage of investigation into the complaint where his complicity was established. The offences alleged to have been committed by the petitioner has a direct bearing and/ or link with the activities of the other accused as a part of the Chhota Rajan gang which was an organized crime syndicate.
9. As pointed out by Mr. Ahmed, this Court in the case of Kari Chaudhary vs. Mst. Sita Devi & Ors. (2002) 1 SCC 714, had while considering a similar question observed that the ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so, who had committed it. The scheme of the Code of Criminal Procedure makes it clear that once the information of the commission of an offence is received under Section 154 of the Code of Criminal Procedure, the investigating authorities take up the investigation and file charge sheet against whoever is found during the investigation to have been involved in the commission of such offence. There is no hard and fast rule that the First Information Report must always contain names of all persons who were involved in the commission of an offence. Very often the names of the culprits are not even mentioned in the F.I.R. and they surface only at the stage of the investigation. The scheme under Section 23 of MCOCA is similar and Section 23 (1) (a) provides a safeguard that no investigation into an offence under MCOCA should be commenced without the approval of the concerned authorities. Once such approval is obtained, an investigation is commenced. Those who are subsequently found to be involved in the commission of the organized crime can very well be proceeded against once sanction is obtained against them under Section 23 (2) of MCOCA.
18.2 From the aforesaid judgment of Hon'ble Supreme Court, it stands FIR No. 19/09 Pages 52 of 3 PS Shahdara
established that the approval order need not specifically name the persons against whom an approval has been granted. In fact, the approval is for the investigation to find out whether the offences alleged to have been committed under MCOCA have been committed and who had committed those offences. Therefore, merely because the approval order did not state specifically that this order was passed to invoke the provisions of The MCOC Act against accused Mohd Naim, would not make the approval order bad in law. Even otherwise, if the entire order is read, it will be seen that it discusses the proposal which was made to invoke the provisions of The MCOC Act against accused Mohd. Naim. It states that he was operating a gang with various associates. It states that Mohd. Naim was kingpin of the gang and he operated his gang in Delhi and surrounding areas. It further states the names of his associates as members of crime syndicate and then it states that the approving authority was satisfied that the accused persons were running an organized crime syndicate and they had been committing organized crime with the objective to gain pecuniary, economic and other advantages. Therefore, the approval order clearly defines the organized crime syndicate which was to be investigated and in my opinion, was a valid approval order.
19. It has further been contended that the sanction order was not as per law as there was no allegations in the sanction order that the accused was running a crime syndicate, or he was acting as a member or head of that syndicate, or that he has committed any organized crime for pecuniary gain for and on behalf of such syndicate.
19.1 The sanction order is Ex.PW22/B. I have carefully perused the FIR No. 19/09 Pages 53 of 3 PS Shahdara
sanction order. It states that the sanctioning authority had gone through the case file submitted by the investigating officer and had also perused the statements of witnesses and the documents enclosed with it. In para 4, it further states that the sanctioning authority had found that there were sufficient grounds to believe that the accused Mohd Naim alongwith his associates had been involved in organized crime. Therefore, the sanction order clearly states that the accused Mohd. Naim was involved in organized crime. It further states that by his nefarious activities, the accused had earned huge amount of money. This clearly implies that sanctioning authority was satisfied that the accused had gained such advantages from organized crime as defined u/s 2 (e) of the MCOC Act. 19.2 PW22, when cross examined on the part of sanction, admitted that in none of the statements of witnesses which he had perused while according sanction u/s 23 (2) of MCOC Act, the witnesses had stated that the accused Naim had accumulated money by illegal means and volunteered, that it was an inference drawn by him after having perused the entire record placed before him as compared to the ITRs, and (in view of the provided) no known sources of income of the accused. He denied that he had passed orders u/s 23 (1) (a) and 23 (2) in a mechanical manner and without applying his mind and without going through the documents submitted before him. In his examination in chief, this witness has stated that he had gone through the previous chargesheets also. Therefore, I am of the considered opinion that no fault or illegal infirmity can be found in the sanction order Ex.PW22/B and the accused has not been able to assail it.
19.3 From the above discussion, I am of the opinion that the prosecution FIR No. 19/09 Pages 54 of 3 PS Shahdara has proved the following facts:
(a) that in the preceding 10 years, more than two charge sheets had been filed against the accused for offence carrying punishment of three years or more and cognizance had been taken against the accused in all these cases by a competent court and in one of the cases, accused was convicted.
(b) the accused was working with a defined set of associates and it leads to an inference of existence of an crime syndicate.
(c) that these activities were committed/ done by the accused jointly with one or more members of his syndicate.
(d)the offences alleged in these charge sheets were committed by the accused for pecuniary or economic gains or other advantages.
(e) thus the accused as member of an organized crime syndicate had committed unlawful activities for pecuniary and other advantages. 19.4 In view of my above discussion, I hold the accused guilty of offence u/s 3 (1) (ii) of The MCOC Act.
20. The accused has also been charged for offence u/s 3 (5) of The MCOC Act. Section 3(5) of the MCOC Act reads as under: (5) Whoever holds any property derived or obtained from commission of an organized crime or which has been acquired through the organized 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 find, subject to a minimum fine of rupees two lacs.
20.1 The allegation of the prosecution is, that the accused had been holding properties derived from commission of organized crime. To prove these FIR No. 19/09 Pages 55 of 3 PS Shahdara allegations, the prosecution has alleged that the accused owns two vehicles, one immovable property and had huge transactions in his bank accounts without any known source of income.
20.2 The vehicles stated to be owned by accused are a TATA Safari bearing registration no. DL3CA 8560 and a Mahindra Scorpio bearing registration no. DL 4CNB 0641.
20.3 To prove that these vehicles are owned by the accused, the prosecution has examined PW5. He had brought the registration record of TATA Safari bearing no. DL 3CAC 8560 and proved the registration certificate as Ex.PW5/A. Ex.PW5/A shows that this vehicle was registered in the name of the accused. He also proved the form 20 for registration of this vehicle vide Ex.PW5/B and the sale certificate issued by Sanya Auto Mobiles Pvt. Ltd. vide Ex.PW5/C. The sale certificate showed the purchase value of this vehicle to be Rs.10,45,759/. 20.4 To prove the ownership of Mahindra Scorpio bearing registration no. DL 4CNB 0641, PW7 Sh. Shyam Sunder was examined by the prosecution. He had brought the original file with regard to the registration of vehicle and proved the same vide Ex.PW7/A and the registration certificate of Scorpio vide Ex.PW7/B which shows that the vehicle was in the name of Mohd. Salim. 20.5 Therefore, from the evidence, it is visible that this vehicle was not owned by the accused and in absence of any evidence to show it was purchased 'benami', it cannot be considered his property. Thus, out of two vehicles only one vehicle i.e. TATA Safari bearing registration no. DL 3CAC 8560 has been proved to be owned by the accused.
FIR No. 19/09 Pages 56 of 3 PS Shahdara
21. The next allegation of the prosecution was that the accused had unaccounted wealth and had huge money transactions from his bank accounts. To prove this, the prosecution examined PW6 Surender Singh, Operations Manager from ING Vyasa Bank, Yamuna Vihar. He proved that the accused was holding an account bearing no. 535010136609 which was opened on 26.07.2007 and was in operation till 25.09.2009. The statement of account of this bank account was Ex.PW6/B (5 pages). During this period of three years and almost three months, the total amount of Rs.28,39,517.58 was deposited in this account and a total withdrawal of Rs.28,30,173.57 was made from this account. The accused during his statement u/s 313 Cr.P.C has admitted that this account belonged to him. He has also admitted the transaction and had explained the same by saying that since he was carrying his business, he had dealt with this account. 21.1 The prosecution then proved another bank account vide Ex.C1 (which was not disputed and admitted by the accused) in the name of Naim Garments and during the period of 13.10.2008 to 31.10.2008, a sum of Rs.3,55,000/ was deposited in this account and a sum of Rs.3,00,039/ was withdrawn from this account. The accused in his statement u/s 313 Cr.P.C admitted this account and the transactions but stated that the since he was carrying on his business, during the tenure of his business, he had dealt with this account. Thus, the prosecution has successfully proved that from the year 2007 to the year 2009, there were two bank accounts in which the accused had deposited and withdrawn money to the extent of Rs.31,00,000/.
21.2 The next asset which the prosecution has sought to prove was the FIR No. 19/09 Pages 57 of 3 PS Shahdara immovable property. 21.3 PW24 deposed that the accused had purchased a built up double
storey house measuring 50 sq. yards from his brother vide documents mark P24/A. The accused during his statement u/s 313 Cr.P.C admitted that he had purchased this property from his brother. Therefore, the admission of the accused during his statement u/s 313 Cr.p.C establishes the accused to be the owner of a of 50 sq yards out of 110 sq. yards of property no. A81, Kardampuri, Shahdara, Delhi. 21.4 To prove the value of the property, the prosecution had examined PW16 Sh. O.P Bhatia, Govt. Approved Valuer. He deposed that on 17.11.2009, he had visited the property no. A81/1, Gali No. 4, West Jyoti Nagar Extn, Shahdara, Delhi and on inspection and taking measurements, he had prepared his report Ex.PW16/A. As per his valuation as on January 2007, the value of the property was Rs.15.50 lacs. During his cross examination, he deposed that the value of a property differs as per its location. He admitted that there was a difference in the value of the property in the year 2005 and 2007. He had prepared the valuation report on the basis of the cost of land and cost of building. he admitted that he had not annexed any document and volunteered that for valuation of property, he had followed the guidelines of the Govt. Notification regarding the value of the land issued from time to time. He did not remember the day of notification which he had followed. He denied that had not valued the property correctly. 21.5 In his statement u/s 313 Cr.P.C, the accused was put this valuation report Ex.PW16/A and he stated that value of the property was not Rs.15.50 lacs as it has been shown on the higher side and valued at a later point of time. He further FIR No. 19/09 Pages 58 of 3 PS Shahdara stated that when he purchased this property, it was only constructed upto ground floor.
21.6 Admittedly, this property was transferred in the name of the accused by his real brother. The document mark PW24/A relied by the prosecution shows that this property was purchased from his brother for an amount of Rs.1.10 lacs. It also shows that this document of transfer was executed on 24.06.2005. The valuation report Ex.PW16/A valued the property for the year 2007 and not for the year 2005 in which this property was transferred in the name of the accused. Why the prosecution chose the year 2007 and not the year 2005 has not been explained by the prosecution. Therefore, the valuation report which does not pertain to the year 2005, i.e. the year of purchase, cannot be relied upon by the court to ascertain the valuation of the property. There is no other evidence on record by which the court can ascertain the true value of the property at the time of its purchase and therefore, I have to hold that in this regard, the prosecution has failed to prove that the property was not purchased for the amount stated in the documents of transfer. 21.7 In view of the above discussion, I find that the prosecution has successfully proved the accused to be owner of vehicle of TATA Safari, the total value of which was Rs.10,45,759/. However, with regard to this vehicle also, I find that the document Ex.PW5/C clearly shows that this vehicle was financed by ICICI Bank. The prosecution has also established huge transactions to the tune of Rs.31 lacs from the two bank accounts of the accused.
22. It has been contended by learned counsel for the accused that the prosecution has brought nothing on record to prove that the accused had earned FIR No. 19/09 Pages 59 of 3 PS Shahdara above stated amount after committing organized crime. He has further contended that in the year 2007, substantial part of transactions had taken place and in the year 2007, no FIR was lodged against the accused.
22.1 On this point, the prosecution examined PW11 Sh. A. K. Barolia, Income Tax Officer Ward 4 (1) New Delhi. He deposed that accused Mohd. Naim was having a PAN no. AEBPN4008G. He also proved the assessment files of the years 200809 vide Ex.PW11/P1 (colly) and of year 200708 vide Ex.PW11/P2 (colly).
22.2 The prosecution also examined PW13 Sh. B.L Meena, ITO from Ward No. 34(4) New Delhi. He deposed that on 17.08.2009, he was posted as ITO in ward no. 34 (4) Vikas Bhawan, New Delhi. On that day, on receipt of letter of ACP Shahdara regarding inquiries about PAN No. AA GFN 9327F in the name of M/s Naim Garments, he responded vide letter Ex.PW13/A. 22.3 If the above evidence is assessed, the document Ex.PW11/P1 i.e. the income tax returns of Md. Naim for the year 200809 shows his gross income to be Rs.2,14,175/ and this return also shows the profession of the accused as contractor. The document Ex.PW11/P2 is the income tax return of accused Mohd. Naim for the year 200708 and shows his gross income to be Rs.1,28,098/. This shows his trade to be of properties. These income tax returns were filed by accused Mohd. Naim in his personal capacity. The document Ex.PW13/A datd 17.10.2009 shows that for the last four years preceding from 17.10.2009, no income tax returns were filed for PAN No. AA GFN 9327F which pertains to Naim Garments. Meaning thereby, for the years 200506, 200607, 200708 and 200809, Naim Garments had FIR No. 19/09 Pages 60 of 3 PS Shahdara not filed any income tax returns.
22.4 Thus, the prosecution has brought on record the evidence to prove that accused had purchased a vehicle worth more than Rs.10,00,000/ and in a span of two years, he had deposited and withdrawn money to the extent of Rs.31 lacs from his two bank accounts. The prosecution has also proved that the income tax returns of the accused for this period do not reflect that the accused could have had this much money.
22.5 It has been contended by learned counsel for the accused that firstly, prosecution has not got any evidence to show that this wealth was earned by accused my means of organized crime and secondly, accused by the evidence of DW1 has shown that he was running a jeans factory and was having earnings from this factory.
22.6 With regard to the contention that the accused was running a jeans factory and had earnings from that factory; I find that except DW1, who had only given his oral testimony, nothing has been brought on record to establish that the accused was carrying this business. Accused could have brought on record his account books to prove the kind of business and earnings he was having. On the contrary, the income tax returns of the accused reflect that the accused could not have been running a business wherefrom he would have been earning such a huge amount. It is also to be noticed that on the one hand the accused claimed himself to be running a factory of stitching jeans and on the other hand, in his income tax returns, he had shown himself to be a contractor and in the business of properties. This also falsifies the claim of the accused that he was running a factory of FIR No. 19/09 Pages 61 of 3 PS Shahdara stitching jeans.
22.7 As regards the contention of learned counsel for the accused that the prosecution has not brought any evidence to link the earnings of the accused with the organized crime; I find that it is very difficult to bring direct evidence to link a person's earnings or wealth with commission of crime and it is to remove this difficulty that the legislature had incorporated in The MCOC Act the special rules of evidence and has incorporated section 17 (2) which is reproduced as under: Where it is proved that any person involved in an organized crime or any person on his behalf is or has at any time been in possession of movable or immovable property which he cannot satisfactorily account for, the Special Court shall, unless contrary is proved, presume that such property or pecuniary resources have been acquired or derived by his illegal activities.
22.8 As it has already been found by the court that the accused was involved in organized crime, it was for the accused as per the provisions of section 17 (2) of The MCOC Act to satisfactorily account for the possession of the movable or immovable property which he was holding. The accused was thus, duty bound to explain the court how much down payment he had made for TATA Safari bearing registration no. DL 3CA 8560 and what were the monthly installments of his vehicle and the source of income to pay these installments. The accused was further duty bound to explain the huge deposits and withdrawal to the tune of Rs.31 lacs in his two bank accounts. To explain this, the accused only brought oral testimony of DW1. However, in my opinion, the accused was required to produce his books of account and his order books etc. to prove that he was running a legitimate business and the amount deposited in his bank accounts were the FIR No. 19/09 Pages 62 of 3 PS Shahdara proceeds of this legitimate business earned from his legitimate customers. The accused has failed to do any of such things and thus, has failed to rebut the presumption of section 17 (2) of The MCOC Act. I accordingly find that the prosecution has successfully proved his case u/s 3 (5) of The MCOC Act and the accused is accordingly held guilty for offence u/s 3 (5) of The MCOC Act.
23. Resultantly, the accused is convicted u/s 3 (1) (ii) and under section 3 (5) of The MCOC Act.
24. Be heard separately on the point of sentence.
Announced in open court (Parveen Singh) today on 29.08.2014. Additional Sessions Judge03 (This judgment contains 62 pages (NE): Karkardooma Courts, and each page bears my signatures.) Delhi. FIR No. 19/09 Pages 63 of 3 PS Shahdara
In the court of Sh. Parveen Singh, Additional Sessions Judge03, North East District, Room no. 53, 2nd floor, Karkardooma, Delhi. S. C. No. M1/11 Unique ID No. 02402R0343372009.
FIR No. 19/09 P.S. Shahdara U/s 3 (1) (ii) & 3 (5) The MCOC Act 1999 State (Govt. of NCT of Delhi) Versus Mohd. Naim @ Pahalwan son of Kallan Khan R/o A81, Main Road Kardam Puri, Shahdara Delhi. ...Convict ORDER ON SENTENCE
1. Learned Addl. PP for the State has contended that seeing the past antecedents of the convict, the convict does not deserve any leniency and thus, maximum punishment as provided u/s 3 (1) (ii) and 3(5) of The MCOC Act i.e. life imprisonment should be awarded to the convict.
FIR No. 19/09 Pages 64 of 3 PS Shahdara
2. Countering the same, learned counsel for convict has contended that the convict has already be in prison for a very long time and during this period, the brothers of the convict have already died. He has further contended that the convict has four minor children to look after. He has further contended that the convict has also to look after 14 minor children of his brothers, out of whom 04 are boys and 10 are girls. Therefore, without the convict, his family would live uncared for and without any means to live with.
3. I have carefully considered the rival contentions and have weighed the aggravating and mitigating circumstances against the convict.
4. It is correct that the convict has a criminal record but in my opinion, that alone is not sufficient to award maximum punishment as provided under law as the mitigating circumstances such as being the only male member to take care of a large family outweigh the award of maximum punishment.
5. Considering the facts and circumstances, u/s 3 (1)(ii) of The MCOC Act, the convict is sentenced to rigorous imprisonment for a period of 10 (ten) years and a fine of Rs.5,00,000/. In default of payment of fine, the convict shall undergo simple imprisonment for a period of two years.
FIR No. 19/09 Pages 65 of 3 PS Shahdara
6. U/s 3 (5) of The MCOC Act, the convict is sentenced to rigorous imprisonment for a period of 05 (five) years and a fine of Rs.2,00,000/. In default of payment of fine, the convict shall further undergo simple imprisonment for a period of one year.
7. Both the sentences awarded above shall run concurrently. Benefit of section 428 Cr.P.C be given to the convict. File be consigned to the record room.
Announced in open court (Parveen Singh) today on 17.09.2014. Additional Sessions Judge03 (This order contains 03 pages (NE): Karkardooma Courts, and each page bears my signatures.) Delhi. FIR No. 19/09 Pages 66 of 3 PS Shahdara