Delhi District Court
Fir No. 18/09 ; State vs . Mohd. Afzal ; Ps Seelam Pur ; U/S 3(4) & ... on 10 December, 2010
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FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA
IN THE COURT OF SH. B.S. CHUMBAK, ADDITIONAL SESSIONS
JUDGE-3 /NORTH EAST DISTT./ KKD COURTS / DELHI
FIR NO. 18/09
PS Seelam Pur
MCOC ACT 01/10
State VS. MOHD. AFZAL
S/O IQBAL GHAJI
HOUSE NO. K-221,
NEW SEELAM PUR,
DELHI
Present: Sh. Rajiv Mohan Ld. Special PP for the State.
Sh. Bahar-U-Barqi and Sh. S. Mansoori Advocates on behalf of
accused.
ORDER ON CHARGE
1.On 16/1/2009 a case u/sec. 3(2) and (4) of Maharashtra Control of Organized Crime Act, 1999 (hereinafter referred to as MCOCA), extended to NCT of Delhi, vide GSR 6(E) dt. 2nd January 2002 was registered against Mohd. Afzal pursuant to the sanction granted u/s 23 (1) (a) of MCOCA, vide FIR no. 18/09 at PS Seelam Pur.
2. Brief facts arising out of this case are that a proposal for registration of FIR u/s 23 (1) (a) provisions of MCOCA against above named accused was sent by Sh. Ved Singh Malik SHO of P.S Seelam Pur to the Joint Commissioner of Page 1/36 2 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA Police for seeking sanction for registration of the FIR for offence punishable u/sec. 3(2) and (4) of Maharashtra Control of Organized Crime Act (MCOCA), 1999. The Ld. Joint Commissioner of Police vide letter No. 203/ Pers. Sec./Jt. CP (NDR) dated 16.1.09 granted approval to register a FIR under the aforesaid provisions of Maharashtra Control of Organized Crime Act, 1999 against above named accused persons. In the letter dt. 16.1.09 forwarded by Sh. Ved Singh Malik, SHO P.S Seelam Pur following facts were disclosed :
i) It is reported that Mohd. Afzal s/o Iqbal Ghazi ( accused herein) started his criminal carrier in the year 1990. In the earlier period of his criminal life several cases of murder, attempt to murder, abduction, Arms Act and Criminal intimidation were registered against him. It is also mentioned that Mohd. Afzal formed his gang and started forcibly eviction of the premises in lawful possession of innocent persons with the object of accumulation of illegal wealth in collusion with other gang members namely Mohd. Yameen. It is also stated that on 10/6/00 one Dr. Tariq Kamal s/o Shafiq Alvi r/o 4, hospital quarters Dujana house Matia Mahal Jama Masjid Delhi reported that on 4/4/00 at about 9 p.m when he was closing his clinic, Page 2/36 3 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA Mohd. Afzal extended threat to vacate the clinic and thereafter on 1/5/00 he was abducted by two associates of Mohd. Afzal.
He was taken to house of Mohd. Afzal at Seelam Pur and on reaching there Mohd. Afzal and his associates extended threats to vacate the clinic. It is also reported that another case was registered on 15/6/03 on the basis of complaint filed by one Mohd. Khalil r/o C-8/40 Chauan Banger and in his complaint he stated that he was tenant for a long time and the tenanted premises had been purchased by some bad elements and they threatened him to vacate it. He also alleged that one Mohd. Afzal s/o Iqbal Ghazi threatened him to kill in case the house was not vacated. Accused was arrested and charge sheet was filed against him. It is also alleged that keeping in view the illegal desperate activities committed by the accused, a detention order under NSA (hereinafter called National Security Act) was also passed by the then Ld. Commissioner of Police on 20/6/03, which was executed on the same day.
ii) It is also alleged that Mohd. Afzal is still engaged in unlawful activities individually as well as with other associates for their Page 3/36 4 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA benefits and gaining undue economic or other advantage for himself.
Iii) The details of the cognizable cases registered, in which the court has taken cognizance and charge sheet has been filed against the accused are as follows:
1 Case FIR No. 510/90, u/sec. 324/34 IPC, P.S Seelam Pur. 2 Case FIR No. 524/90, u/sec. 302/34 IPC, P.S Seelam Pur. 3 Case FIR No. 407/93, u/sec. 506/34 IPC, P.S Seelam Pur. 4 Case FIR No. 632/93, u/sec. 324/34 IPC, P.S Seelam Pur. 5 Case FIR No. 139/94, u/sec. 324/34 IPC, P.S Seelam Pur. 6 Case FIR No. 456/95, u/sec. 307/34 IPC, P.S Seelam Pur. 7 Case FIR No. 270/95, u/sec. 147/148/149/353/332/34 IPC & 3 &4 D.P.P Act, P.S Anand Vihar.
8 Case FIR No. 831/97, u/sec. 302/307/452/34 IPC, P.S Seelam Pur.
9 Case FIR No. 189/98, u/sec. 186/353/332/323/34 IPC, P.S Tilak Marg, Delhi.
10 Case FIR No. 169/00, u/sec. 302/225 B/120B/201/216/34 IPC, P.S Seelam Pur.
11 Case FIR No. 212/00, u/sec. 452/506/323/365/34 IPC, P.S Seelam Pur.
12 Case FIR No. 256/00, u/sec. 452/506/342/365/34 IPC, P.S Seelam Pur.Page 4/36 5
FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA 13 Case FIR No. 172/01, u/sec. 452/506/323/34 IPC, P.S Seelam Pur.
14 Case FIR No. 353/01, u/sec. 25 Arms Act, P.S Sikandrabad Distt. Buland Shahar U.P.
15. Case FIR No. 246/02, u/sec. 186/353/307/34 IPC, P.S Welcome.
16 Case FIR No. 391/02, u/sec. 25 Arms Act, P.S Seelam Pur.
17 Case FIR No. 177/03, u/sec. 506 IPC, P.S Seelam Pur.
18. Case FIR No. 178/03, u/sec. u/sec. 25 Arms Act, P.S Seelam Pur.
19 Case FIR No. 617/06, u/sec. 452/323/336/506/34 IPC & 27 Arms Act, P.S Seelam Pur.
3. It is also alleged that a detention order under NSA was also passed for a period of an year i.e w.e.f 20/6/03. Accused has also accumulated huge property movable or immovable out of ill gotten money. He has also purchased number of building and houses and on the basis of aforesaid facts sanction 23(1)(a) was granted by Ld. Joint Commissioner of police vide his order dated 16/1/2009.
4. Investigation of this case was initially assigned to Sh. Datta Ram, ACP/IO and Page 5/36 6 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA thereafter to Sh. Chander Kant ACP. During the investigation, irrespective of the documentary proof with regard to above mentioned cases registered against the accused in which the court has taken cognizance, the other evidence pertaining to the accumulation of movable and immovable properties by the accused Mohd. Afzal are also brought on record wherein it is mentioned that accused himself declared to be owner of the following property at the time of filing the nomination for contesting the Delhi Assembly Election scheduled to be held in the year 2008:
a). Cash amount of Rs.50,000/-
b). Cash deposited in his account maintained in Central Bank of India.
c). One Car Scorpio.
d). One Maruti Car Zen.
e). 150 grams gold, 200 grams silver.
f). Four Biggas agricultural land at Khurja Road purchased by accused on 22/3/05 from one Riazul Mustfa.
g). House bearing No. 221, built up on 22 ½ yards plot purchased by accused on 12/1/2002 from one Sh. Iqbal Ghazi s/o Mohd. Asloob.
h). One property E-1/166 measuring 22 ½ yards purchased by accused from one Sh. Manzoor Ahmed on 9/6/02 for Rs.6,10,000/-.Page 6/36 7
FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA
5. After completion of investigation and on obtaining a requisite sanction as provided u/s 23 (2) of MCOCA, challan u/sec. 173 Cr.P.C for the offences punishable u/sec. 3(4) and 3(5) of MCOCA filed before this court being designated court.
6. After taking cognizance for the offence u/sec. 3(2) & 3(4) MCOC Act against the accused copies were supplied to him as required u/sec. 207 Cr.P.C, thereafter case was fixed for consideration of charge.
7. Arguments on behalf of Ld. Special PP for the state and ld. counsel for accused on the point of charge heard.
8. Ld. Special PP for state submitted that undisputedly the accused has been charge sheeted for the cognizable offences in which the punishment provided is more than three years and the court has taken cognizance within ten preceding years. The sanction, necessary for taking cognizance of the offences under MCOC Act against the accused is also obtained from joint commissioner of police on 13.04.10. This sanction was accorded since the joint commissioner of police was convinced that the accused was the member of an organized crime syndicate and according to him there was sufficient Page 7/36 8 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA evidence to prove continuing unlawful activities, "organized crime syndicate"
and that more than one charge sheet had been filed before competent courts within ten preceding years against the accused and the court had taken cognizance of these charge sheets.
9. It is further pleaded that the accused himself declared to be the owner of the movable and immovable properties at the time of filing nomination for contesting the Delhi Assembly Election in the November 2008. The detail of all the properties is already discussed above. No explanation to the fact that from where he secured the money to purchase the agricultural land in UP and two houses in Delhi despite of the fact that he has not been doing any business or service in the territory of Delhi or outside Delhi. In view of the factum of filing more than one charge sheet against the accused within ten preceding years coupled with the fact that he has accumulated unexplained movable and immovable property clearly goes to show that the accused has been continuing with unlawful activities singly or as a member of organized crime syndicate/on behalf of such syndicate by use of violence or threat of violence or intimidation or coercion or other unlawful means, with the objective of gaining pecuniary benefits/undue economic/other advantages for himself. Page 8/36 9 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA
10.Irrespective of aforesaid material brought on record by the IO Ld. Special PP for state submitted that since a detention order dated 20.6.03 was also passed u/s 3 of National Security Act against the accused thereby he was detained and kept in jail for a period of an year. In the year 2002, 2003 and 2006 accused was also found in possession of unlawful arms and cases were registered against him vide FIR no. 391/02 , 178/03 and 617/06 respectively and in a case registered u/s 452/323/336/506/34 IPC r./w Sec. 27 of Arms Act accused allegedly fired a shot in a gali while leaving the house of his brother Ranjha and all these instances raises a presumption in favour of prosecution and against the accused by virtue of provisions of section 17 and 22 of MCOC Act which reads thus :
Special Rules of evidence - (1) Notwithstanding anything to the contrary contained in the Code, or the Indian Evidence Act, 1872 (1 of 1872) for the purposes of trial and punishment for offences under this Act or connected offences, the court may take into consideration as having probative value, the fact that the accused was -
(a) on any previous occasion bound under section 107 or section 110 of the Code;Page 9/36 10
FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA
(b) detained under any law relating to preventive detention; or ( c) on any previous occasion was prosecuted in the Special Court under this Act.
(2) 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.
(3) xxxxxxxxxxxxxxx Section 22 - Presumption as to offences under section 3 - (1) In a prosecution for an offence of organized crime punishable under section 3, if it is proved -
(a) that unlawful arms and other material Page 10/36 11 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA including documents or papers were recovered from the possession of the accused and there is reason to believe that such unlawful arms and other material including documents or papers were used in the commission of such offence; or
(b) xxxxxxxxxxxxxxx (2) In a prosecution for an offence of organized crime punishable under sub section (2) of section 3, if it is proved that the accused rendered any financial assistance to a person accused of, or reasonably suspected of, an offence of organized crime, the Special Court shall presume, unless the contrary is proved, that such person has committed the offence under the said sub section (2)."
11.It is further submitted that sanction was accorded by senior police officers which again raises a presumption that sanctioning authority had applied its mind before granting the same. It is also submitted that the members of organized crime syndicate should have continued unlawful activities individually or collectively if the facts that accused had been involved in more than one cognizable offence punishable with a term of imprisonment for three Page 11/36 12 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA years or more within ten preceding years and also after the coming into force the MCOCA within the territory of NCT Delhi, would indicate that he is involved in continuing unlawful activities as member of organized crime syndicate and therefore the prosecution under the MCOCA is maintainable.
12. He further submitted that charge sheet has already been filed before the special court, therefore, there is no need for this court to interfere at this stage of framing of charge and also placed his reliance on a decided case cited as Onkar Nath Mishra & others Vs. State (NCT of Delhi) and another 2008 (1) JCC 65 wherein it is observed as under :-
"At the stage of framing the charge, the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. As framing of charge affects a person's liberty substantially, need for proper consideration of material warranting such order was emphasized."
It is further observed that :
"If on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can Page 12/36 13 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."
13.Ld. Counsel appearing on behalf of accused submitted that there is no evidence at all on record which is indicative that accused was the member of organized crime syndicate. It is further contended that there was no material before the sanctioning authority for invoking MCOCA against the accused. After registration of the FIR the IO of this case intentionally had not disclosed and brought on record all the true facts before the sanctioning authority for obtaining sanction to file the charge sheet. Admittedly total number of 19 cognizable cases have been allegedly registered w.e.f 11.10.90 till 10.10.06 in which the court has taken cognizance. The FIR was registered on 16.2.09, therefore, the cases registered beyond period of ten years i.e prior to 16.2.1999 cannot be taken into consideration for invoking MCOC Act as provided Page 13/36 14 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA u/s 2 (d) of the MCOC Act and those activities cannot be construed within the term "preceding ten years." After excluding the cases registered prior to year 1999 only ten cases left to be considered by this court for the purpose of invoking the provisions of MCOCA against the accused. On perusal of the charge sheets of those cases mentioned at sl. no. 10 to 19 in the charge sheet filed against the accused it is established that in most of the cases either the accused has been discharged or acquitted except the one case u/s 25 Arms Act registered at PS Seelam Pur vide FIR no. 178/03 and another u/s 452/323/336/506/34 IPC r./w Sec. 27 of Arms Act registered at PS Seelam Pur vide FIR no. 617/06. On perusal of the brief facts of the case u/s 25 Arms Act it transpires that:
"On 15.6.03 SI Ajay Kumar alongwith Ct.
Dharampal apprehended accused Mohd. Afzal s/o Mohd. Iqbal Ghazi who was wanted in a case u/s 506 IPC registered at PS Seelam Pur vide FIR no. 177/03 and during his personal search one loaded country made pistol was recovered form his possession."Page 14/36 15
FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA
14.In view of these facts and considering the previous enmity between the accused and the senior police officials of the district, instances of false implication of the accused in the present case cannot be ruled out as the accused has already filed a criminal complaint against the senior police officials on which ld. MM has taken cognizance, recorded statement of witnesses and also pleased to issue the process against the senior police officials. The revision was preferred against the said order which was also dismissed vide order of Hon'ble High Court of Delhi, SLP filed against the order of Hon'ble High Court of Delhi was also dismissed vide order dated 22.7.05 of Hon'ble Supreme Court of India.
15.Facts of the other case registered vide FIR 617/06 are as follows :
"On 10.10.06 Iqbal Ghazi r/o Mohd. Rasooq (father of accused) stated that when he asked his son Kamal to stop the illegal trade of selling smacks, he used to threaten him , his son Afzal (accused herein) had also been taking favour of his son Kamal. It is further stated that they both of them threatened him for dire consequences. He further stated that on that day at about 4:30p.m when his son Page 15/36 16 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA Ranjha was present, Kamal and accused Afzal forcibly entered into the first floor of the house and had beaten his son Ranjha. Accused Afzal was holding pistol in his hand and fired in the gali while leaving the house."
16.On Perusal of the facts of this case it appears that case was registered only on the basis of statement of father of accused and father of accused has been regularly appearing before this court and he specifically stated that he has not filed any complaint to the police officials and police officials of their own registered the case, however, he has no any grudge against his son. The case is solely based and registered on the basis of statement/grievance of the father of accused and father of accused has been specifically stated that he has not filed any such complaint before the police official. Therefore, it is established that the police official with the sole aim to take revenge against the accused falsely implicated him in this case and no case except the aforesaid two cases are pending against the accused after coming into force the said Act in NCT of Delhi.
Page 16/36 17 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA
17.On perusal of facts of both the cases which were admittedly registered after coming into force the provisions of MCOCA to National Capital Territory of Delhi it is no where mentioned that the accused is a member of an organized crime syndicate, used violence with the objective of gaining pecuniary benefits and in such circumstances it cannot be said that the facts of both the cases are within the purview of definition of organized crime as provided u/s 2 (e) of the MCOCA.
18.In support of his contention ld. Counsel for accused also relied upon the decided case cited as Rajnjeetsingh Brahamjeetsing Sharma vs. State of Maharashtra reported in 2005 (CRL) 1538 (S.C) , State of Maharashtra vs. Bharat Baburao Gavhane & others reported in 2006 (CRL) 2895, State of Maharashtra vs. Lalit Somdutta Nagpal 2007 (3) Scale 49, Dilip Kumar Vs. State 1976 CRL J 184, Krishan Govind Patil vs. state of Maharashtra 1963 (2) CRL J 351, MCD vs. State of Delhi 2005 (2) JCC 756, State of Maharashtra Vs. Bharat Shanti Lal Sha VII 9 (2008 ) SLP 739 and Sher Page 17/36 18 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA Bahadur Akram Khan Vs. State of Maharashtra 2007 (1) Bombay CRL J
26.
19.In view of the aforesaid material placed on record and the observations given by their lordships in the aforesaid decided cases no ingredients to attract the provisions of section 3(4) and (5) are attracted against accused person and requested for discharge of the accused.
20.After hearing arguments on behalf of ld. counsel for the accused person and ld. Special PP for state I am of the view that while dealing with the cases under the provisions of MCOCA the court must bear in mind the purpose of enacting the MCOC Act which is as follows :
a) This act was enacted in 1999, since it was felt by the legislature that the existing legal frame was inadequate for checking the menace of organized crime. The sole object of the Act was to prevent and control criminal activity by organized crime syndicate or gangs and for matters connected therewith or incidental thereto. The statement of objects and enactment of this Act are that:
"Organized crime has for quite some years now come up as a very serious threat to our society. It knows no Page 18/36 19 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA national boundaries and is fueled by illegal wealth generated by contract killings, extortion, smuggling in contrabands, illegal trade in narcotics, kidnapping for ransom, collection of protection money and money laundering etc. the illegal wealth and black money generated by the organized crime is very huge and has serious adverse effect on our economy."
21. In view of aims and objects of enactment of said act and before considering the facts and circumstances and the material collected by the IO in the present case it would be appropriate to set out certain provisions of MCOCA.
Section 3(1) defines that :
(1)Whoever commits an offence of organized crime shall-
(i) xxxxxxxxxxxxxxx
(ii)xxxxxxxxxxxxxxx Section 3 (2) xxxxxxxxx Section 3(3) xxxxxxxxxx Section 3 (4) Any person who is a member of an organized crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.
Section 3 (5) Whoever holds any property derived or obtained from commission of an organized crime or which Page 19/36 20 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA 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 fine, subject to a minimum fine of rupees two lacs.
Section 2 (d) defines the expression continuing unlawful activity which reads thus:
"continuing unlawful activity means 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 charge sheets have been filed before a competent court within the preceding period of ten years and that court has taken cognizance of such offence."
Definition of Organized Crime is stipulated in section 2(e) of MCOCA which reads thus :
"Organized Crime means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organized crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or Page 20/36 21 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA promoting insurgency."
Section 2 (f) defines the term of Organized crime syndicate which reads thus:
"Organized crime syndicate means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organized crime."
22. I also carefully perused the observations given by their lordships in the decided case cited as Rajnjeetsingh Brahamjeetsing Sharma vs. State of Maharashtra reported in 2005 (CRL) 1538 (S.C) wherein it is observed as under :
"31. Interpretation clauses contained in sections 2(d), 2(e) and 2((f) are inter-related. An 'organized crime syndicate' refers to an 'organized crime' which in turn refers to 'continuing unlawful activity'.
32. The statement of Objects and Reasons clearly states as to why the said Act had to be enacted. Thus, it will be safe to presume that the expression 'any unlawful means' must refer to any such act, which has a direct nexus with the commission of a crime which MCOC Act seeks to prevent or control. In other words, an offence falling within the definition of organized crime and committed by an organized crime syndicate is the offence contemplated by the Statement of Objects and Reasons. There are offences and offences under the Indian Penal Code Page 21/36 22 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA and other penal statutes providing for punishment of three years or more and in relation to such offences more than one chargesheet may be filed. As we have indicated hereinbefore, only because a person cheats or commits a criminal breach of trust, more than once, the same by itself may not be sufficient to attract the provisions of MCOCA."
23. I also carefully perused the observations given in a decided case cited as State of Maharashtra vs. Bharat Baburo Gavhane and others reported in 2006 ALL MR (CRL) 2895 wherein it is observed as under:
"While considering the provisions of section 2(1)(e) of the MCOC Act has observed, that, merely stating that a gang leader and his associates run a crime syndicate with a view to gain pecuniary benefits an advantages and supremacy over rival gangs by violence, intimidation and other coercive means, is not sufficient to maintain a prosecution under the MCOC Act."
24. Ld. Counsel on behalf of accused contended that acts which are committed to constitute an offence under different provisions of Indian Penal Code 1860 (hereinafter referred to as IPC) prior to the said act being made applicable to Delhi could not be taken into account for prosecuting the petitioner u/s 3 of the said Act which provides for the punishment of organized Page 22/36 23 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA crime.
25. It is further contended that organized crime has been made a new offence under the provisions of said act and natural sequittior is that only acts done after the enactment has come into force would be relevant for determining whether the offence of such organized crime has been committed which is punishable in accordance with section 3 of said Act and also placed his reliance on decided case cited as Appa @ Prakash Harihar Londhe vs. State of Maharastra and others 2006 ALLMR (Cri) 2804 observed as under:
"For the purpose of organized crime there has to be a continuing unlawful activity and there cannot be continuing unlawful activity unless atleast two charge sheets are to be found to have been lodged in relation to the offence punishable with three years imprisonment during the period of ten years. If no illegal activities as contemplated by MCOC Act are committed after 1999 (after 2nd January 2002 in the territory of NCT of Delhi) then the past activities prior to 1999 may not be of any help for registering any FIR only on the basis of those past activities, but if two or more illegal activities are committed after 1999, then the past activities can be taken into consideration in order to show the continuity."Page 23/36 24
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26. On the question of significance of pecuniary gain Ld. counsel for the accused placed his reliance on a decided case cited as Sherbahadur Akram Khan (Supra) wherein it is observed as under :
"An activity would be termed as a continuing unlawful activity if more than one chargesheet has been filed before the competent court against the members of the gang either individually or jointly within the preceding ten years. However, it must be established that such an offence or unlawful activity is undertaken by a person with the objective of gaining pecuniary benefits or gaining undue economic or other advantage for himself or any other person or for promoting insurgency. Such unlawful activity could include the use of violence or threat of violence or intimidation or coercion.
Taking into consideration the details of the various chargesheets which have been filed by the prosecution and admitted by the Ld. APP, it is obvious that some of the accused have been charged for offence which can, by no stretch of imagination, be considered to give the accused any pecuniary or undue economic or other advantage, either for the accused himself or for any other person. Offences punishable under section 323, 324, 325 and 326 r/w 34 are not such as would provide any pecuniary benefit or undue economic gain to the accused. Some of these offences have resulted from a quarrel at a public water tap. Fist blows have been allegedly used by the accused in most of the cases whereas in one or two instances the accused has allegedly used a chopper or an iron rod to assault the victim. Amin Page 24/36 25 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA Momin Khan, accused no.6 is involved in most of the cases mentioned and two of such cases relate to offences under section 379 read with 34 of the Indian Penal Code. However, there is no material on record to indicate as to how the accused who may be a part of one family belong to an organized crime syndicate. The mere fact that the accused are related to each other and have committed offences either individually or jointly, would not, in our opinion, lead to the inference that the accused formed an organized crime syndicate. Admittedly, there is no chargesheet at all pending against accused no.11. The only allegation against accused no.11 is that, she sheltered two of her sons after they had allegedly committed certain offences. There is no material on record to demon as to how she could be linked with any of allegedly committed by the accused in the previous 10 years. In our opinion, members of one family need not necessarily be part of an organized crime syndicate merely because some of the members of the family are involved in unlawful activities.
Apart from this, as aforesaid, the unlawful activity is not relatable to any pecuniary advantage or economic gain for the accused. The words in section 2(e) "with the objective of gaining pecuniary benefits or gaining undue economic or other advantage" will have to be given some effective meaning. Applying the principle of ejusdem generis the words "other advantage"
would have to be interpreted in the same manner as the previous terms "pecuniary benefits" or "undue economic advantage".
26. It is further contended that since convictions or acquittals in cases Page 25/36 26 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA previously filed are not relevant, it would be unnecessary to look into the evidence in respect of such crimes tendered in the present trial. According to Ld. counsel such evidence is not admissible on the twin grounds of double jeopardy and possibility of two courts coming into contradictory findings in respect of same incident. Reliance is placed on a decided case cited as Madan Vs. State of Maharastra Crl Appeal 308/02 decided on 26.3.09 wherein division bench of High court held that principle enunciated in section 300 Cr.P.C cannot be violated in the absence of any expressed provisions in MCOCA.
27. Section 300 (1) of the Code of Criminal Procedure contains the ban against second trial of the same offence against the same person which reads thus :
"Person once convicted or acquitted not to be tried for same offence-
A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried against for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub section (1) of section 221, or for which he might Page 26/36 27 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA have been convicted under sub section (2) thereof.
28. Reliance is also placed on a decided case cited as Dilip Kumar Sharma Vs. State of M.P 1976 CRL J 184(1) wherein it is observed as under .
"An order of acquittal in regard to the previous offence wipes out the guilt and turpitude attaching to the previous conviction, for, the true implication of an acquittal is as if the offender did not commit the offence for which he was tried, no matter whether the acquittal is founded on benefit of doubt or rests upon an overall rejection of the prosecution case. The sequiter that the order of acquittal implies the innocence of the accused is not dependent upon the, stage of the court proceeding at which the order was passed but it depends, plainly, upon the fact of acquittal itself."
29. In view of the observation given by their lordships in the aforesaid decided case I carefully perused the material collected by IO during the investigation of this case and analyzed the same wherein it transpires as under :
(i) The evidence collected against the accused are that he is allegedly involved in 19 criminal cases out of which 14 cases were registered prior to coming in force the MCOC Act in the territory of NCT of Delhi and out Page 27/36 28 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA of five remaining cases in three cases the accused either acquitted or discharged and only two cases i.e one u/s 25 of Arms Act and another u/s 452/323/336/506/34 IPC r/w Sec. 27 of Arms Act are pending adjudication before the competent court against the accused and according to Ld. counsel for accused the facts of both the cases does not disclose the essential ingredients of organized crime as defined u/s 2(e) of the Act.
30. In view of the contentions raised by Ld. Counsel for accused and Ld. Special PP for state following issues are raised which requires to be considered before passing the order on charge :-
(i) Ld. Counsel for accused pointed out that sanction u/s 23 (1)(a) of MCOC Act to register the case u/s 3(2) and (4) of MCOC Act was accorded vide order dated 16.1.09 of the then Ld. Joint Commissioner of Police, whereas sanction for prosecuting the accused u/s 23(2) of MCOC Act was granted under section (4) and (5) of section 3 of MCOC Page 28/36 29 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA Act which is totally against the mandate of the provisions of Section 23 of MCOC Act. Whether it amounts to fatal to the prosecution?
On this issue Ld. Special PP for state submitted that initially at the time of registration of the case no evidence i.e documentary or oral was available with the investigating authority except the fact that more than one cognizable case in which court has taken cognizance was pending against the accused coupled with the fact that he had in his possession unexplained movable and immovable property and only on the basis of these facts sanction to invoke the provisions of MCOCA was accorded. However, during investigation of this case many new facts also brought on record and on the basis of those facts, sanction to prosecute the accused for the offence u/s 3(4) and (5) of MCOC Act was granted and in such circumstances it cannot be said that the sanction to prosecute the accused for the said offence is not granted in conformity with the provisions of section 23 (2) of the MCOC Act.. On considering the facts of this case and contentions raised by both the Page 29/36 30 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA parties I am of the view that plea taken by the counsel for the accused is not tenable in law and hence declined.
(ii) Whether the facts of this case are within the purview of the definition of continuing unlawful activity as defined u/s 2(d), organized crime as defined u/s 2(e) and organized crime syndicate as defined u/s 2(f).
On this issue Ld. Counsel for accused pointed out that no ingredients of the offence "organized crime" which defines continuing unlawful activity by an individual, singly or jointly, either as a member of an organized crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits are brought on record and also relied upon the observation given by their lordships in a decided case cited as Ranjeet Singh Brahamjeet Singh Sharma Vs. State of Maharashtra (Supra) that the interpretation clauses contained in sections 2(d) 2(e) and 2(f) are inter-related and organized crime Page 30/36 31 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA syndicate refers to an organized crime with in turn refers to continuing unlawful activity. It is further pointed out that statement of objects and reasons clearly states as to why the said act had to be enacted but in the present case there is no nexus with the objectives of MCOC Act and unlawful activities as alleged by the prosecution. All the offences as alleged can be tried separately under the provisions of Indian Penal Code or under any other penal laws. In support of his contention he further submitted that no unlawful activities as alleged by the prosecution is committed after coming into force the provisions of MCOC Act within the territory of NCT of Delhi and on perusal of the facts of this case none of the case is covered within the definition of "organized crime".
On the other hand Ld. Special PP for state submitted that the facts of the present case are squarely covered within the provisions of section 2
(d) (e) and (f) by virtue of the provisions of section 22 and 17 of the MCOC Act which raises a presumption as to the commission of offence u/s 3 of the Act wherein it is provided that in a prosecution for an offence Page 31/36 32 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA of organized crime punishable u/s 3, if it is proved that unlawful arms and other material including documents or papers were recovered from the possession of accused and there is reason to believe that such unlawful arms and other material including documents or papers were used in the commission of such offence, the special court shall presume, unless the contrary is proved, that the accused has committed such offence. Section 17 further provides special rules of evidence wherein it is provided that notwithstanding anything to the contrary contained in the code, or the Indian Evidence Act, 1872 for the purposes of trial and punishment for the offences under this Act or connected offences the court may take into consideration having probative value, the fact that accused was detained under any law relating to preventive detention and in the present case there are many cases were registered against the accused prior to coming into force the MCOC Act in the NCT of Delhi and admittedly one case u/s 25 of Arms Act registered on 15.6.03 i.e after coming into force the MCOC Act vide FIR no. 178/03 and another case registered on 10.10.06 u/s 452/323/336/506/34 IPC Page 32/36 33 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA r/w sec. 27 of Arms Act registered at PS Seelam Pur vide FIR no. 617/06 is registered and is pending trial before the competent court. It is also brought on record that FIR was registered on 16.1.09 vide FIR no. 18/09 and ten cognizable cases w.e.f 22.4.2000 to 10.10.06 were allegedly registered within 10 preceding years against the accused in which the competent court has taken cognizance, in all the cases the punishment provided is more than three years. Reliance is also placed on a decided case cited as Om Prakash Shrivastava @ Babloo Shrivastava Vs. State of NCT of Delhi & others Writ Petition (Crl) no. 375/07 and in view of the aforesaid facts and on considering the material brought on record during investigation of this case it appears that there are two FIR's one in the year 2003 and another in the year 2006 and both these cases were registered after the said Act coming into force and accordingly I am not in agreement with the contention of Ld. Counsel for accused that no case is registered against the accused after invocation of the said Act and the activities as alleged are not having any nexus with the objectives of MCOC Act. I accordingly, held Page 33/36 34 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA that sufficient material to invoke the provisions of MCOC Act are brought on record against the accused and sanction u/s 23 (2) of MCOC Act is appears to have been granted after application of mind.
(iii) On perusal of the material brought on record it also transpires that accused was also detained under the National Security Act for the period of one year w.e.f 20.6.03 which again raises a presumption to attract the provisions of MCOC Act.
It is also brought on record that accused was found in possession of movable and immovable properties detail of which had already been discussed and no reasonable explanation is given by the accused even during arguments of this case despite of the fact that sufficient material is brought on record by the prosecution that accused is neither having any PAN card nor filed his income tax return to show his income, in the office of Income Tax Department. In view of the facts and circumstances of this case at this stage it cannot be said that provisions of MCOC Act in the present case are not attracted.
Page 34/36 35 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA
31. In view of the aforesaid facts and circumstances of this case I am of the considered view that sufficient material is brought on record during the investigation of this case to attract the provisions of u/s 3(4) and (5) of MCOC Act against the accused person. Charge be framed accordingly.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court Delhi Dt. 10th December 2010 Page 35/36 36 FIR NO. 18/09 ; STATE VS. MOHD. AFZAL ; PS SEELAM PUR ; U/S 3(4) & (5) MCOCA Page 36/36