Delhi District Court
State vs Afzal on 26 August, 2013
State vs Afzal
In the court of Additional Sessions Judge03, North East District, Room no. 53,
2nd floor Karkardooma, Delhi.
In the matter of
S. C. No. M2/11
FIR No. 18/09
P.S. Seelampur
U/s 3 (4) & 3 (5) MCOCA
1999
State
(Govt. of NCT of Delhi) ...State
Versus
Afzal
son of Sh. Iqbal Ghaji
R/o K221, New Seelampur,
Delhi. . ..Accused
Date of institution : 13.4.2010
Decision reserved on : 30.7.2013
Date of decision : 21.8.2013
JUDGMENT
S. C. no. M2/11 Pages 1 of 52 State vs Afzal
1.1 (Case of the Prosecution) - The salient features of prosecution case, as set out, is that an FIR No.18/09, PS Seelampur, u/s 3 of the Maharashtra Control of Organized Crime Act, 1999 (in brief the Act, 1999) was registered after approval of the proposal dated 28.12.2008 (now Ex.PW1/X1), containing detail of 19 cases with brief introduction of nature of each case. The then SHO Sh. Ved Singh of PS Seelampur, made proposal (now Ex PW1/X1) for necessary approval to the higher authorities, since it was found accused Mohd. Afzal s/o Iqbal Gazi has criminal career from the year 1990, he was found involving in several cases of murder, attempt to murder, abduction, criminal intimidation and also cases registered under Arms Act against him. He formed his gang and he in collusion with his gang members like Mohd. Yasin, started forcibly eviction of premises from the lawful possession of innocent persons with the object of accumulation of illegal wealth. Moreover, he had also threatened the persons to kill them in case premises either house or clinic are not vacated. He was engaged in unlawful activities individually as well as with other associates for their benefits and gaining undue economic or other advantage for himself. Further, because of activities committed by the accused, a detention order dated 20.1.2003 (now Ex.PW16/P) under the National Security Act was also passed by Commissioner of Police.
S. C. no. M2/11 Pages 2 of 52 State vs Afzal
Then the Joint Commissioner of Police by Order No.203/Pers. Sec./Jt.CP (NDR) dated 16.1.2009 (now Ex.PW16/A) by exercising power conferred u/s 23(1)(a) of the Act, 1999, granted approval to apply the provisions of Section 3(2) & 3(4) of the Act and Sh. Data Ram, ACP, Seelampur, was directed to investigate the case. Thus, FIR No. 18/2009, PS Seelampur, Delhi, (now Ex.PW1/A) u/s 3(2) & 3 (4) of Act, 1999 was registered and it enumerates also details of 19 cases which were registered against the accused Mohd. Afzal & Others, for showing his involvement, desperateness and organized syndicate; the said 19 cases have also been detailed/reiterated in chargesheet specifically, the chargesheet has been filed under section 3(4) and 3(5) of the Act, 1999, the details of cases reads as follows: Sr. FIR Number. Date Under section/s P.S. Name and address of No. the associates 1 510 (Ex.PW14/A) 11.10.90 324/34 IPC Seelam Pur Mustakeem @ Sanno s/o Bundu Khan, R/o K269, New Seelampur, Delhi.
2 524 (Ex.PW14/B) 17.10.90 302/34 IPC Seelam Pur (1) Mohd. Chaman s/o Islamudin R/o B71, New Seelam Pur, Delhi (2) Mohd. Shan @ Sanno s/o Mohd.Miyan r/o Jhuggi 'C' Block Near Imambara, New Seelam Pur, Delhi.
(since decided)
*3 407 (Ex.PW14/C) 24.7.93 506/34 IPC Seelam Pur (since decided)
*4 632 (Ex.PW14/D) 11.11.93 324/34 IPC Seelam Pur (since decided)
S. C. no. M2/11 Pages 3 of 52
State vs Afzal
*5 139 (Ex.PW14/E) 19.3.94 324/34 IPC Seelam Pur (since decided)
*6 456 (Ex.PW14/F) 14.7.95 307/34 IPC Seelam Pur Sabir Chaudhary s/o
Nazim Ali r/o C30,
New Seelam Pur,
Delhi. (since decided)
7 28.11.95 147/149/353/332/ Anand (1) Shiekh Kamal @
34 IPC Vihar Kamaluddin s/o Mohd.
Iqbal, R/o K228, New
Seelampur, Delhi.
(2) Mirajuddin s/o
Asloob r/o K227, New
270 Seelampur, Delhi.
*8 831 (Ex.PW14/G) 01.11.97 302/307/452/334 Seelam Pur (1) Sabir Chaudhary
ICP s/o Nazim Ali r/o C
30, New Seelam Pur,
Delhi.
(2) Dilshad s/o Abdul
Rashid, R/o A23, New
Seelam Pur, Delhi
(3) Salim @ Bobby s/o
Mohd. Ali, R/o A13,
Chauhan Bangar,
Delhi. (since decided)
9 189 (Ex.PW9/A) 23.3.98 186/353/332/ 323/ Tilak Marg Irfan s/o Sirajuddin r/o
34 IPC 985, Gali Madarsa,
Matia Mahal, Jama
Masjid, Delhi.
S. C. no. M2/11 Pages 4 of 52
State vs Afzal
*10 169 (Ex.PW14/H) 22.4.2K 302/225B/ 120 Seelampur (1) Sabir Chaudhary
& (Ex.PW10/E) B/201/ 216/34 IPC s/o Nazim Ali r/o C
30, New Seelam Pur,
Delhi.
(2) Shiekh Kamal @
Kamaluddin s/o Mohd.
Iqbal, R/o K228, New
Seelampur, Delhi.
(3) Famida w/o Sabir,
r/o K324, New Seelam
Pur, Delhi.
(4) Mohd. Yamin s/o
Mohd. Ibrahim, R/o A
198, Gali No.7,
Chauhan Bangar,
Delhi.
(5) Mohd. Habib @
Habib Pahlwan s/o
Buniyad, R/o C36/30,
Chauhan Bangar,
Delhi.
(6) Akbar s/o
Nasiruddin r/o B51,
New Seelam Pur,
Delhi. (since decided)
*11 212 (Ex.PW14/I) 19.5.2K 452/506/323/ Seelam Pur (1) Akbar s/o
365/34 IPC Nasiruddin r/o B51,
New Seelam Pur,
Delhi.
(2) Shiekh Kamal @
Kamaluddin s/o Mohd.
Iqbal, R/o K228, New
Seelampur, Delhi.
(since decided)
S. C. no. M2/11 Pages 5 of 52
State vs Afzal
12 256 (Ex.PW14/J) 10.6.2K 452/506/342/ Seelam Pur Mohd. Yamin s/o
365/34 IPC Mohd. Ibrahim, R/o A
198, Gali No.7,
Chauhan Bangar,
Delhi.
13 172 (Ex.PW14/K) 6.5.01 452/506/323/ 34 Seelam Pur Mirajuddin @ Lallu
& (Ex.PW10/C) IPC s/o Aslam r/o H215,
New Seelampur, Delhi.
14 353 (Ex.PW13/A) 22.9.01 25/54/59 Arms Sikaraband
Act (U.P.)
15 246 (Ex.PW8/A) 19.7.02 186/353/307/ 34 Welcome
IPC
16 391 (Ex.PW14/L) 30.10.02 25/54/59 Arms Seelam Pur
& (Ex.PW10/E) Act
*17 177 (Ex.PW14/M) 15.6.03 506 IPC Seelam Pur (since decided)
18 178 (Ex.PW14/N) 15.6.03 25/54/59 Arms Seelam Pur
& Ex.PW10/C Act
19 617 (Ex.PW14/O) 10.10.06 452/323/336/ Seelam Pur Bilal @ Sheikh Kamal
& Ex.PW10/D 506/34 IPC & @ Kamal @
27/54/59 Arms Kamaluddin s/o Mohd.
Act Iqbal, R/o K228,
Seelam Pur, Delhi.
(* now, decided cases, they are eight in number as per record) 1.2 Then investigation was carried firstly by PW15 ACP Data Ram and then by PW17 ACP Chander Kant, Seelampur, Sub Division North East District, Delhi. PW15 , during his investigation, gathered and collected information and record with regard to cash, bank account, jewelery, movables and immovable properties of the accused as well as motor vehicles owned and possessed by the accused. In addition, record pertaining to declaration of S. C. no. M2/11 Pages 6 of 52 State vs Afzal assets in nomination filed by accused to contest the election was also collected during investigation, besides record of chargesheets filed against him and the cognizance taken on those cases by the competent court of law. After collection of such material, the report of FIR no. 18/09 was furnished to the Joint Commissioner of Police, who considered it and accorded sanction (now Ex.PW1/B) U/s 23(2) of Act to prosecute the accused. The accused was also arrested. Then chargesheet was filed that not only that offences U/s 3(4) and 3(5) of the Act,1999 are made out but also that the accused has assets having value of Rs.59,64,575/, which could not have been satisfactorily accounted for by the accused nor disclosed any source of income nor income tax return of his income was ever since filed by him. He accumulated the properties by illegal activities. The chargesheet U/s 173 Cr P C also enumerates the detail of 19 cases, which were registered against the accused and his associates, which has already been reflected in paragraphs no. 1.1 above. It has also been mentioned in another subtable in the chargesheet, which is of cases at serial number 10,12,13,16,18, and 19, that record of proceedings of cognizance taken by the court vis a vis names of associates of the accused Mohd. Afzal.
2.1 (Charge) : Accused Afzal had been charged u/s 3(4) and 3(5) of Maharashtra Control of Organized Crime Act, 1999 that firstly, he alongwith his coassociates / gang members indulged in continuing unlawfully activities within the area of various police stations of NCT of Delhi and in the different S. C. no. M2/11 Pages 7 of 52 State vs Afzal States of India w.e.f the year 2000 till 2006 and due to such activities, he committed ten cognizable offences punishable for period more than three years and in all the cases competent court had taken cognizance and thereby he committed above mentioned unlawful activities being a member of organized crime syndicate by use of violence, threat and also found in possession of unlawful Arms with the objective of gaining pecuniary benefits and secondly during the aforementioned period while doing the continuing unlawful activities being the member of organized crime syndicate with the objective of gaining pecuniary benefits, he possessed unaccountable movable and immovable properties. However, the accused pleaded not guilty and claimed trial. Therefore, the case was put to prosecution evidence. 2.2 (Prosecution evidence) - In order to establish the charges, the prosecution examined as many as 18 witnesses, their names, purpose of examination and precise examination are enumerated and classified as follows
1. PW6 Inspector Anand Sagar No.D1/347, SHO PS Najafgarh, Delhi - to prove that on 31.10.2002, he had taken over the charge of PS Welcome as SHO and an FIR No.246/02 u/sec. 186/353/307/34 IPC was under investigation and 4.12.2002, complete record of investigation was put before him, he prepared charge sheet against three Zakir @ Saleem, Mohd. Yasin @ Yaseen Pardhan @ Guddu Chaudhary and Mohd. Afzal s/o Iqbal u/s 186/353/307/34 IPC and he proved the FIR (Ex.PW6/A). (PW6 has been cross examined, on behalf of accused, for proving that the case was not pertaining to extortion, contract killing etc. of FIR No. 246/2002).
S. C. no. M2/11 Pages 8 of 52 State vs Afzal 2. PW9 ACP Vinod Kumar - to prove filing of chargesheet that on
23.3.1998, he was posted as SHO PS Tilak Marg and after completion of investigation in FIR No.189/98 U/s 186/353/332/323/34 IPC by SI Raj Kumar, charge sheet (Ex PW9/A) was filed against accused Irfan s/o Sirajuddin, Shekh Afzal s/o Mohd. Iqbal, Firoz Alam s/o Sarfraj Alam and Inderjeet s/o Chander Bhan. (he has also been crossexamined on behalf of accused that in the said case FIR No. 189/98, there was no monetary transaction involved but it was pertaining to obstruction to the duties by the Government Servant in lockup of Patiala House Court).
3. PW10 Sh. Bhupender Kumar, Ahlmad attached to the court of Ms Bhawani Sharma, Ld. M.M., KKD Courts, Delhi - to prove orders of taking cognizance by the court, order dated 23.1.2002 Ex.PW10/A of FIR No.256/2000, PS Seelampur, u/s 342/365/452/506/34 IPC in which the court had taken cognizance ; order dated 26.6.2002 Ex.PW10/B in case FIR No.172/01, PS Seelampur, U/s 323/452/506/34 IPC in which the court had taken cognizance; order dated 19.5.2005 Ex.PW10/C in case FIR No.178/03, PS Seelampur, u/s 25 of Arms Act in which the court had taken cognizance ; order dated 15.3.2008 Ex.PW10/D in case FIR No.617/06, PS Seelampur, u/s 452/323/336/506/34 IPC r/w 27 of Arms Act in which the court had taken cognizance ; of order of cognizance and framing of charge against accused Afzal in case FIR No.391/02, PS Seelampur, u/s 25 of Arms Act, as Ex.PW10/E.
4. PW11 Shri M.S. Dabas, ACP, Traffic, New Delhi - to prove that on 27.11.1995, he was posted as SHO PS Anand Vihar and on that day an FIR No.270/95 u/s 147/149/186/332/353 IPC & Section 3 / 4 Prevention of damage to Public Property Act, was registered in PS Anand Vihar in which accused Afzal was arrested and charge sheet was filed on 15.12.1995 against him. (whereas, he was crossexamined from the angle that neither PW11 scribed the FIR nor there is any noting under his signature nor he had carried any checking of FIR No. 270/95).
5. PW13 HCP Prem Chand No.12, PS Sikendrabad - to prove registration of FIR NO.353/2001, Ex.PW13/A u/s 25 Arms Act, PS Sikendrabad, Distt. Bulland Shehar, wherein accused Afzal was arrested for possessing illegal weapon. (He S. C. no. M2/11 Pages 9 of 52 State vs Afzal has been crossexamined on behalf of accused that he was not aware of facts of case FIR No. 353/2001, PS Sikandrabad, District Bulandsahar nor about the status of chargesheet or its cognizance).
6. PW14 Inspector Jagdish Prasad, Addl. SHO PS Seelampur, Delhi - to establish about the fifteen cases (i.e. which are out of 19 cases, but other than at serial number 7,9,14 and 15 shown in table in paragraph 1 above) registered against the accused, their record are Ex.PW14/A to Ex.PW14/O, their complete detail has already been shown in the table in paragraph No. 1 above vis a vis there was detention order Ex. PW14/P by the competent authority against the accused under the provisions of National Security Act. (whereas, PW14 has been crossexamined that none of the 15 cases mentioned pertain to cross border terrorism, narcotics, money laundering and kidnapping for ransom). ****______________________________________________________****
7. PW7 Sh.Pramod Kumar, LDC office of the DEO, Distt. North East, Nand Nagri, Delhi -to prove assests of the accused, which was also declared by the accused in his declaration of assets in nomination Ex.PW7/A (consisting of 10 pages) by accused Hazi Afzal s/o Iqbal Gazi, for contesting the election of MLA for the constituency AC65, Seelampur, filed before Returning Officer. (whereas, he was crossexamined from the point of view that neither PW7 was personally present of nomination furnished nor he is the custodian of the record nor accused had appeared before him with regard to filing of nomination paper). ****______________________________________________________****
8. PW1 Inspector Ved Singh Malik No.D1/881, Security Vinay Marg, New Delhi - to establish that after receiving the approval u/s 23(1)(a) of MCOCA from the competent authority for invoking provisions of sec. 3(2) & sec. 3 (4) of MCOCA, he prepared the ruqqa (Ex.PW1/A) and on the basis thereof, formal FIR No.18/09 was registered and the investigation was assigned to ACP Mr.Datta Ram. (whereas, he was crossexamined in detail, on behalf of accused, to infer that neither any evidence was collected or observed against the accused to conclude illegal activities by him nor any evidence was collected to say that accused collected movable or immovable property earned by illegal activities.
S. C. no. M2/11 Pages 10 of 52 State vs Afzal
Further, he was also crossexamined that no case of kidnapping for ransom, smuggling in contrabands or money laundering or collection of protection money was registered against him as per proposal Ex.PW1/XY).
9. PW15 Shri Data Ram, ACP New Friends Colony, South East District - to establish that on 29.12.2008, he was posted as ACP Seelampur, a proposal Ex.P1/X1 of PW1 Inspector Ved Singh Malik was put up before him, he andonsidered and then forwarded it to the Joint Commissioner NDR through DCP NorthEast. After registration of FIR, he was assigned investigation and he carried the investigation of case as first Investigating Officer. During investigation, he applied and collected record of ownership of Maruti Car Zen, also applied for record of nomination form containing asset declaration by the accused for contesting election of MLA as BSP candidate and investigation remained with him upto 18.02.2009. (Whereas, he has been thoroughly cross examined on behalf of the accused to establish that there was no transfer of money or transaction with regard to FIR No. 256/2000 and FIR No. 170/2003 nor of contract killing or trade in narcotics or money laundering. Further, he has also been crossexamined that because of taking revenge, the accused has been falsely implicated as there was complaints against the senior police officer of police, which was matter of proceedings before the court of Metropolitan Magistrate or before Hon'ble High Court of Delhi or before Hon'ble Supreme Court of India)
10. PW16 Mr. Dharmender Kumar, Special Commissioner of Police, PHQ, ITO, Delhi - to prove that on 16.1.2009, a proposal for invoking the provisions of MCOCA against accused Mohd. Afzal s/o Iqbal Gazi, was received and after going through the complete record, the approval (Ex.PW16/A) was accorded u/s 23 (1)(a) of MCOCA for registration of the case under the provisions of MCOCA as well as its investigation. Further, the record and report of investigation FIR NO.18/09, PS Seelampur was presented , it was considered. On 13.4.2010, sanction u/s 23(2) of MCOCA (Ex.PW16/B) for prosecution of accused Mohd. Afzal was accorded. (PW16 was crossexamined in detail on the lines of crossexamination of PW15vis a vis there was no evidence against the accused either to invoke the provisions of Section 23 (1) (a) of the Act for S. C. no. M2/11 Pages 11 of 52 State vs Afzal registration of the case or for directions for investigation or for according sanction to prosecute or the sanction has been accorded mechanically was the main of contention in crossexamination).
11. PW17 ACP Chander Kant, Seelampur Sub Division, North East District, Delhi to prove that he is second Investigating Officer, he was given investigation on 08.07.2009 and who took the investigation after investigation by PW15 Sh. Data Ram ACP. Further, he carried the investigation and not only collected the relevant record from the authorities but also arrested the accused on 20.10.2009, collected record and verified PAN Card of accused, detail of ownership of Zen Car and Scorpio viz a viz other allied investigation in respect of its finance; bank account detail of accused, valuation of the immovable property owned/possessed by the accused. Moreover, statement of public witness PW8 Manzoor Ahmed was also recorded. (However, he has also been cross examined in detail from all angles, like provisions of the Act 1999 are not attracted, no unlawful activities were found against accused between 08.07.2009 to 20.10.2009, the phase of investigation by PW17. . Lastly, he was also cross examined, for proving, that property of accused was not acquired by illegal activities but he has sound financial background of his parents, or his father operates milk dairy or his family is operating an eatery. The remaining cross examination was on the lines of crossexamination carried to PW 15 and PW 16 ).
****______________________________________________________****
12. PW2 Sh. Om Prakash, Record Keeper, Transport Authority, Sheikh Sarai, Delhi - he was examined to prove ownership and registration of vehicle No.DL 3CAS0956 Scorpio MAM Mahindra registered on 19.4.2006 in the name of accused Mohd. Afzal Gazi as Ex.PW2/A. (He was crossexamined to establish that vehicle was purchased by availing finance from M/s Balbir Finance Company but no other means).
13. PW5 Sh. Balbir Singh s/o Sh. Dariyav Singh, Balbir Finance Co., A32, Petrol Pump C. Palace, New Delhi to establish that vehicle No. DL3CAS0965 Scorpio was on finance given by it to accused Mohd. Afzal and to prove his S. C. no. M2/11 Pages 12 of 52 State vs Afzal report (Ex.PW5/B) and statement of account (Ex.PW5/C) qua amount/installments paid by the accused from time to time.
14. PW3 Shri Suraj Pal, Record Keeper, Transport Authority, Sarai Kale Khan, Delhi - to prove the ownership and registration of vehicle No. DL6CC 0239, Maruti Zen, Ex.PW3/A in the name of accused Mohd. Afzal Gazi, which was initially in the name of Mukesh Kukreja r/o 97, AGCR, Enclave, Delhi on 22.3.1997 and thereafter it was transferred in the name of Mohd. Afzal on 17.5.2005. (He was crossexamined from the angle that it is second hand vehicle, which was purchased from Mr. Mukesh Kukreja, it was purchased against consideration).
15. PW4 Shri O.P. Bhatia s/o Sh. T.R. Bhatia, Approved Valuer, R/o 36A, BlockC to D, Pankha Road, Janak Puri, Delhi - He was examined for establishing and proving his report Ex.PW4/A with regard to valuation of property E1/66, New Seelampur, belonging to the accused, the same was of Rs. 6.25 Lacs. PW4 has also carried valuation of Rs. 18,19,000/ Lacs of other property K221, New Seelampur, Delhi and to prove his report Ex.PW4/B. Lastly, PW4 is a Government approved valuer holding valid license and degree in Civil Engineering. (Whereas, he was crossexamined that property no. K221, New Seelampur was received by the accused as an attorney of his father and the valuation suggested in report Ex.PW4/B is not proper; he was also cross examined that the opinion rendered of valuation of other property E1/66, New Seelampur is not based on proper data or record or documents).
16. PW8 Sh. Manzoor Ahmed s/o Mohd. Ibrahim, R/o E1/66, New Seelampur, Delhi - to prove that he is a sole public witness and on 9.8.2008 PW8 entered into an agreement to sell his first floor of E1/66, New Seelampur to accused for consideration of Rs. 6,50,000/, the accused could not arrange the amount and asked time, which was also extended. When time lapsed and PW8 offered to return the earnest money of Rs.2 lac, but be insisted to have house and none else. On 9.6.2009 ( correct date was clarified in cross examination in place of date 9.5.2009 stated inadvertently) he took the PW8 to the office of Sub Registrar, got the papers signed from but no payment was made and there is balance amount still outstanding. Later, signatures were obtained by the accused S. C. no. M2/11 Pages 13 of 52 State vs Afzal from his wife and son, whereas, PW8 was ready to return the advance amount, however, the documents were got signed without payment of balance amount, accused also took the possession of the said premises , balance amount of Rs.70,000/ is still outstanding. (whereas, PW8 was crossexamined in detail to spell out that neither the accused nor anyone else on his behalf made used force or coercion but the transaction was a contractual, the accused never refused balance amount. Further, the record of prosecution, about the visit of PW8 in the office of Sub Registrar Delhi is unconvincing and not authenticated as record of inspection is being projected, record of appearance/attendance in the office of Sub Registrar Nand Nagri Delhi).
17. PW18 Dinesh Chand, Registration Clerk, Sub Registrar Office, Sikandrabad - to prove sale deed (Ex.PW18/A) in favour of accused and to establish the ownership of agricultural land measuring 0.230 hectare in the name of accused purchased on 22.03.2005, purchased by the accused. (whereas, PW18 has been crossexamined that he is not aware about the transaction or facts or record of sale deed nor of terms of revenue record maintained and he is not to be believed).
18. PW12 Shri Raj Kishan Jha, Record Keeper, Ward 34/3, Income Tax Department -to prove that accused applied and got PAN Card No.ANRPA4298G issued on 4.11.2008 in his name Mohd. Afzal s/o Mohd. Iqbal Gazi, and he never filed income tax return as per reply of the department (Ex.PW12/B). ****_______________________________________________________**** Then prosecution evidence was closed.
2.3 (Statement of accused and defence evidence) It was followed by statement of accused, without oath, u/s 313 Cr.P.C. He has denied the allegations and record also, with plea that he has been implicated falsely. His version, in nutshell, is that no public witness had deposed against him. Police witnesses S. C. no. M2/11 Pages 14 of 52 State vs Afzal are personally inimical against him and his family because his father Mr. Iqbal Gazi was the complainant in so many cases. In the year 1985, a complaint was filed against some MCD officials and police officials for setting at fire the cattle shed of the complainant in which 1516 calves of cows and buffaloes were burnt and died. The said case was withdrawn on 28.2.1987 under political pressure . He is innocent but falsely implicated.
The accused opted to lead defence evidence, he produced two witnesses viz official witness DW1 Kalyan Singh, Ahlamad attached to the court of Metropolitan Magistrate, Karkardooma, Delhi to prove that a complaint no. 84/2001 under the title Mohd Iqbal Gazi V s Vivek Gogia, U/s 302 IPC (EX DW1/A) is pending and also another official witness DW2 ASI Ram Niwas for providing other official for his defence and innocence. Both the witnesses were cross examined on behalf of State through its Special Public Prosecutor. Then defence evidence was closed.
3.1 (Argument) - Then, final oral arguments were opened by Shri Rajiv Mohan, Ld Special Public Prosecutor for the State and it was followed by arguments on behalf of accused, by ld. defence counsels Shri R M Tufail and Shri D B Goswami, Advocates. They have also placed written synopsis, while relying upon precedent or reasons given in case law. There are rival contentions as it is claimed on behalf of State that it has succeeded to establish the charges S. C. no. M2/11 Pages 15 of 52 State vs Afzal and whereas on the other side of defence, it is claimed that not only from the inception of proposal for registration of FIR was abuse of process of law but also State failed to collect any evidence qua the allegations, what to say about proof of formal charges framed. However, during arguments both the sides have referred the Statement of Objects and Reasons of the Act, 1999, the Preface to Act, the Preamble of the Act, relevant sections, therefore, for discussing the their case, it is expedient to reproduce them hereunder, so that their contentions are appreciated appropriately.
"Statement of Objects and Reasons Organised crime has for quite some years now come up as a very serious threat to our society. It knows no 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. It is seen that the organized criminal syndicates make a common cause with terrorist gangs and foster narco terrorism which extend beyond the national boundaries. There is reason to believe that organized criminal gangs are operating in the State and thus, there is immediate need to curb their activities.
It is also noticed that the organized criminals make extensive use of wire and oral communications in their criminal activities. The interception of such communications to obtain evidence of the commission of crimes or to prevent their commission is an indispensable aid to law enforcement and the administration of justice.
2.The existing legal frame work 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 S. C. no. M2/11 Pages 16 of 52 State vs Afzal circumstances power to intercept wire, electronic or oral communication to control the menace of the organized crime".
Preface (to Act) As explained in the statement of object and reasons, the menace of organised crime was on the increase and there was no effective law in the Maharastra State to effectively control the organised crime, Mumbai being the economic capital of India, it is s targeted centre of criminals who hoard money through illegal means. In recent years criminal activities like murders of tycoons related to films industry as well by builders, extortion of money from businessmen, abduction etc. show that criminal gangs are active in the State. To cope with them, legislation in the lines of the present law was essential. Effective measures against the misuse of law have been provided in the Act itself. It is hoped that with the passing of this law, unlawful elements spreading terrorism in the society can be controlled to great extent and it will go a long way in minimizing the feeling of fear spread in the society.
Preamble of Act, 1999 :
" An act to make special provisions for prevention and control of, and for coping with, criminal activity by organized crime syndicate or gang, and for matters connected therewith or incidental thereto".
Section 2(d) '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 organised crime syndicate or on behalf of such syndicate in respect of which more than one chargesheets have been filed before a competent Court, within the preceding period of ten years and that Court has taken cognizance of such offence;
section 2(e) 'organised crime' means any continuing unlawful activity by an individual, singly or jointly, either a member of an organised crime syndicate or S. C. no. M2/11 Pages 17 of 52 State vs Afzal one 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 benefit, or gaining undue economic or other advantage for himself or any other person or promoting insurgency.
section 2(f) 'organised 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 organised crime.
Section 3. Purnishment for organised crime (1) - whoever commits an offence of organised crime shall (i) if such offence has resulted in death of any person, be punishable with death or imprisonment for life and shall also be liable to a fine, subject to minimum fine of of rupees one lac;
(ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine, subject to minimum fine of rupees five lac. (2)xxxxx (3)xxxxx (4) Any person who is a member of an organised crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs, (5)Whoever hold any property derived or obtained from commission of an organised crime or which has been acquired through the organised crime syndicate funds shall be punishable with a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum fine of rupees two lacs. 3.2 From the provisions of law and case law presented, State of Maharastra Vs Bharat Shanti Lal 2008 AIR SCR 6431 and Cr APP no. 664/2002 dod 18.11.2008 by Hon'ble Bombay High Court AND in The State of Maharashtra through Asstt. Commissioner of Police, Anti Terrorism Squad vs Pragyasinh Chandrapalsinh S. C. no. M2/11 Pages 18 of 52 State vs Afzal Thakur & Ors. (AND The State of Maharashtra vs Lt. Colonel Prasad Shrikant Purohit AND Sh. Ajay Eknath Rahirkar vs The State of Maharashtra) the essential requirement of law was discussed that to understand the meaning of "organized crime", as defined under Clause (c) of Section 2 (1) of MCOCA Act, the meaning of "continuing unlawful activity" and "organized crime syndicate"
as defined under Clause (d) and (f) of the said Section is to be understood. If so understood, for charging a person of organized crime or being a member of organized syndicate, it would be necessary to prove that the accused concerned have indulged in:
(i)an activity
(ii)which is prohibited by law,
(iii)which is a cognizable offence punishable with imprisonment for three years or more
(iv)undertaken either singly or jointly,
(v)as a member of organized crime syndicate i.e. acting as a syndicate or a gang, or on behalf of such syndicate.
(vi) (a) in respect of similar activities ( in the past) more than one chargesheets have been filed in competent court within the preceding period of ten years.
(b) and the court has taken cognizance of such offence.
(vii) the activity is undertaken by;
(a) violence, or
(b) threat of violence, or intimidation, or
(c) coercion
(d)other unlawful means
(viii)(a) with the object of gaining pecuniary benefits or gaining undue economic or other advantage for himself or any other person, or
(b) with the object of promoting insurgency.
4.1 (Argument of State) - It is submitted that the Act, 1999 is a specical legislation originally enacted by the State of Maharastra, it has been extended to Delhi by notification in 2002, whereby offence of organized crimes has been S. C. no. M2/11 Pages 19 of 52 State vs Afzal made punishable, which are committed after date of notification and implement of the Act in Delhi. The prosecution under the Act can be carried for continuing unlawful activity, as defined in the Act. Reliance in placed o Jagmohan @ Mohar Singh Vs Commissioner of Police, 2007 (1) JCC 292 - where it is held that "
again as stated earlier, the petitioner is not being prosecuted for whatever he did in the past. He is being prosecuted for continuing with the unlawful activity.
Certainly, if a person commits no unlawful activity and is not arrested in any case after the invocation of MCOCA, he cannot be arrested under this Act on account of offence committed by him before coming into operation of MCOCA.
Even if he had been found guilty in them. In case, however, he continues with his unlawful activity and is arrested after the promulgating of the Act, the Act will come into play and he can be arrested and challaned for this Act."
4.2 The definition of Organized Crime in section 2(e) of the Act, 1999 is clear and unambiguous, but it is to be read in the light of purpose and object of special legislation as well preamble of the Act, which further makes abundantly clear the legislative intent for bring this statue, when general procedural law and adjudicatory law are there. The Act, 1999 contains specific provisions of procedure, evidence and substantive provisions. He relies upon, Zameer Ahmed Latiful Rehman Sheikh vs State of Maharashtra & Ors., MANU /SC/0289/2010 that while dealing with provisions the Act 1999, on the interpretation of provisions in the light of purpose and the object for which Act was enacted, it was held that interpretation must depend on the text and context. These are basis S. C. no. M2/11 Pages 20 of 52 State vs Afzal of interpretation. The interpretation is best which makes the textual interpretation match the contextual. A statue is best interpreted when we know why it was enacted. No part of the statute and no word or a statement can be construed in isolation. The statues have to be construed so that every word has a place and every thing is in its place.
4.3 In reference to section 2(f) defining Organized crime Syndicate, it is contended that important aspect not on act of an individual but to see whether he is working on behalf of any syndicate or a member of that syndicate. Further, the State has relied upon the reasons, qua definition of sec 2(f) of the Act, that activity can be undertaken by a person singly but it must be either on behalf of the such syndicate or jointly as member of organized crime. Further, two or more persons may act either singly or collectively as a syndicates or gang to commit the activities of organized crime but the basic emphasis was not on the act of an individual rather it is to be seen whether he is working on behalf of any syndicate or as a member of that syndicate; reliance has been placed on paragraph 37 of the judgment Govind Sakharamubhe Vs State of Maharashtra, 2009 all MR (Crl) 1903 , wherein it was held that " the members of the crime syndicate operate either singly or jointly in commission of organized crime. They operate in different module. 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 membership of S. C. no. M2/11 Pages 21 of 52 State vs Afzal organized crime syndicate which makes a person liable under MCOCA. This is evident from Section 3 (4) of MCOCA which states that any person who is a member of organized crime syndicate shall be punished with imprisonment. The charge under the MCOCA ropes in a person who as a member of organized crime syndicate commits organized crime i.e. acts of extortion by giving threats etc. to gain economic advantage of supremacy as a member of crime syndicate singly or jointly. Charge is in respect of unlawful activities of organized crime syndicate. Therefore, if within a period of preceding ten years one chargesheet has been filed in respect of the crime committed by a member of a particular crime syndicate, the said chargesheet can be taken against a member of said crime syndicate for the purpose of application of 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 in the nexus or the link of the person with organized crime syndicate. The link with organized crime syndicate is the crux of the term continuing unlawful activity. If this link is not established that person cannot be roped in." 4.4What would be meaning of gang or head of gang or member of syndicate, the State relies upon Brahm Prakash vs State & Ors., W.P. (Crl.) 1229/2003 dod 23.10.2007 (by Hon'ble High Court of Delhi) that while dealing with writ petition U/s 226 of Constitution of India to quash FIR, it was held that in order to be a member of gang, it is not necessary that the petitioner had to be a member of some already known gang. The petitioner himself can form a gang S. C. no. M2/11 Pages 22 of 52 State vs Afzal and be head of the gang and indulge into activities as defined under MCOCA, in order to constitute a gang only two or more persons are required and it is alleged in the FIRs registered against the petitioner that petitioner was in the company of his associates when petitioner had indulged into activities of threatening municipal contractor.
4.5 While discussing the scheme of section 3 of the Act, describing punishment, it is submitted that first it is to be read with the Preamble of the Act. Secondly, section 3(1)(i)(ii) of the Act defines punishment for organised crime and remaining part of section 3 is with regard to other matters connected thereto, viz Sec. 3(2), Sec. 3(3)Sec. 3(4)Sec. 3(5) defines punishment for conspiracy or abet, harbour, member of organised crime syndicate and holding of property obtained/derived from commission of an organised crime or though organised crime syndicate fund. Thus, requirement of condition of organized crime, continuing unlawful activity and of organized crime syndicate is in respect of offender to be dealt U/s 3 (1)(i)and (ii) of the Act but these requirements are not to be fulfilled against each individual dealing in respect of remaining part of section 3(2) to 3(5) of the Act, 1999. In Mohd. Farukh Abdul Gaffur and other Vs State of Maharashtra, JT 2009 (11) SC 47, in reference to section 3(2) of Act, qua conspiracy it, it was observed that accused had played an active important role in the conspiracy even though he did not participate in actual shoot out and that he had the knowledge of conspiracy in that view of the matter contentions of the learned counsel that he had not played any active role S. C. no. M2/11 Pages 23 of 52 State vs Afzal in the shoot out is found to be baseless.
4.6 The prosecution under the general law and prosecution under the Act, 1999 would be hit by principle of double jeopardy , a question is posed by Ld. Prosecutor and he also answers it in negative himself that section 2(d) contain a word 'preceding' which is to be read from date 24.2.1999 of enactment and also by deriving reasons and relying upon Jai Singh Vs State of Maharashtra, 2003 (0) all MR (Crl.) 1506 that for the the purposes of organized crime, there has to be a continuing unlawful activity. There cannot be continuing unlawful activity unless two chargesheets are to be found to have been lodged in relation to the offence punishable with three years imprisonment during the period of ten years. In other words, it proves that the activities which were offence under the law in force at the relevant time and in respect of which two charge sheets have been filed and court has taken cognizance during preceding ten years then it will be treated as continuing unlawful activity. It merely consider two chargesheets in relation to act which were already declared as an offence under the law in force to be one of requisite for purpose of identifying continuing unlawful activity and/or for the purposes of an action under the said Act. This by itself cannot be said to be in any manner violative of article 20(1) of Constitution of India. Reliance is further placed on Om Prakash Srivastava Vs State of Delhi 2009 164 DLT 218 and Jagmohan @ Mohar Singh Vs Commissioner of Police, 2007 (1) JCC 292 that aspect of filing of chargesheet and taking of cognizance is to be considered, instead of its result of conviction or acquittal. In Bharat Shanti Lal S. C. no. M2/11 Pages 24 of 52 State vs Afzal Shah vs State of Maharashtra (Crl. W.P. No.27/2003) it was held that filing of chargesheets and its cognizance is for limited purposes to see antecedents of the person and not convict.
4.7 Ld Prosecutor, considering the defence of accused appearing from cross examination of witnesses, explains that section 2(e) of the Act, 1999 also comprises object of organised crime, which could be manyfold, however, each object is to be construed from the point of Statement of Objects and reasons for enactment and its Preamble; each objective is distinct, they are not governed by principle of interpretation of enjusdem generis. State relies upon State of Maharashtra Vs Jagan Ganshing Nepali @ Jagaya and another ( Crl Appeal No. 20/2011, decided in August 2011), (while referring/discussing earlier decision of Sherbahadur Akaram Khan Vs State of Maharashtra, 2007 All MR (Cri.) 1 and Madan Ramkishan Gangwani Vs State of Maharashtra, 2009 All MR (Cri.) 1447) while interpreting the term organized crime, whether word 'other advantage' appearing in the definition of section 2(e), must be ejusdem generis of phrase 'gaining pecuniary benefit' or ' gaining undue economic', therefore, after referring the objects and reasons of enacting the Act, it was held by hon'ble High court of Bombay that term 'other advantages' cannot be read as ejusdem generis with the words 'pecuniary benefits' and 'undue economic'. Further, it was also observed that ' legislative intent is clear, that MCOCA is for curbing the organized crime. Unless there is prima facie material, firstly to establish that there is an organized crime syndicate and secondly, that organized crime has S. C. no. M2/11 Pages 25 of 52 State vs Afzal been committed by any member of organized crime syndicate or any person, on behalf of such syndicate, the provisions of MCOCA cannot be invoked'. 4.8It is again submitted that principle of ejusdem genris does not apply with regard to other terms of section 2(e) of the Act, while relying upon State of Maharashtra Vs Bharat Shanti Lal Shah & Ors., JT 2008(10) SC 77 where in it was held that word 'other unlawful means' appearing in section 2(e) of the Act, must not be ejusdem generis to the terms ' violence' or 'coercion' but it must relates to activity, for the prevention of which MACOCA was implemented. Further, in Dr. Mahipal Singh Vs CBI & Anr. W.P. (Crl.)_ 1555/2011 and Crl. M.A. No. 17832/2001, W.P. (Crl.) 1556/2011 and Crl. M.A. 17834/2011, W.P. (Crl.) 242/2012 and Crl. M.A. No.2046/2012 dod 21.5.2012, while interpreting the word 'unlawful means', in para 15 of the judgment, it was analyzed and concluded that word 'violence' has been used in section 146 and 153 of IPC, the word 'intimidation' has been used in IPC and U/s 506 of IPC the act punishable is criminal intimidation'. The word 'coercion' finds place in the Contract Act only. Thus, it would be seen that the words violence, intimidation and coercion do not belong to the same specific genus, and thus the word unlawful means, cannot be read ejusdem generis to the proceeding words and required to be widely construed keeping in mind the intent of the Statute. 4.9 Now, while coming to fact and evidence, it is submitted that prosecution has proved registration of 19 cases against the accused, chargesheets were also filed, for which cognizance have also been taken in majority of the cases, which S. C. no. M2/11 Pages 26 of 52 State vs Afzal reflect the past record and activities of the accused and his associates till recent time prior to registration of the FIR against him. The cases registered against him and cognizance taken against him of category punishable more than three years and where violence, or threat of violence was used for gaining pecuniary benefit. The facts proved satisfies the requirement of 'continuing unlawful activities'. He has accumulated huge property, its record has also been furnished and proved, however, he has not explained his legal source of income nor he filed any income tax return ever since despite obtaining PAN card. All the witnesses produced with regard to movable property like cars or immovable property valuation, or other witnesses were proving his funds/ income, either for payment of consideration amount or installment or funds etc. He is aged about 38 years but he accumulated property in lacs. PW8 Manzsoor Ahmad is a public witness, he has deposed as to how his property was acquired by use of intimidation, coercion and threat; the documents were got signed from him under threat, after preparing documents by the accused and signatures of his wife and son were also obtained by use of force by the accused and his kingpin/associates. He took possession of the property but balance amount has not been paid till date, nor any suggestion was put to PW8 with regard to non balance amount, for want of cross examination on vital aspects, amounts to admission of facts narrated by PW8. This proves about organized crime syndicate and benefit he derives or the manner/conduct they operates it. Under this kind of cases, such independent evidence hardly surfaced, however, S. C. no. M2/11 Pages 27 of 52 State vs Afzal prosecution has succeeded to produce one public witness. 4.10 Section 17 of the Act is a special rule of evidence, and the court may take into consideration the probative value of certain fact and one of the relevant is of prevention detention of the accused, which has been proved by order dated 20.6.2003 (Ex PW14/P) asper section 17(1) of the Act. However, section 17(2) of the Act talks about presumption against accused persons of the property or pecuniary resources possessed or acquired by illegal activities. The State has proved the properties of the accused by positive evidence, however, he accused could not rebut the presumption against him for want of any evidence by him nor disprove the case of prosecution. The prosecution has proved the charges against accused.
5.1 (Arguments on behalf of accused) - Whereas, ld defence counsel Shri R M Tufail, Advocate, has contentions juxtaposition to the State. The prosecution of accused is abuse of process of law, the proposal or approval to register FIR are also bad in law. However, the prosecution could not prove the charges against the accused. Shri D B Goswami, Advocate, supplements that prospective of the special enactment is to be kept in mind, why it was adopted in Delhi. It is not a Central Act but enacted by a State, because of certain local and social need prevailing in Maharastra and the purpose it was enacted to seen, whether those conditions are existing against the accused of this case. Generally, the ordinary procedure to be followed, as crime has relation with public order, general S. C. no. M2/11 Pages 28 of 52 State vs Afzal procedure cannot control or curb extraordinary crimes, however, that circumstances are to be seen while invoking the provisions of MCOCA, but provisions have been invoked against the accused, without existence of such circumstances. Shri R M Tufail, Advocate, submits that accused's father had filed complaints against police officers of area of Police Station Seelampur , the record thereof has been referred through the defence witnesses and because of retaliation, the case has been registered against him by the police under pressure from senior officers and prosecuted him falsely.
5.2 The aims and objects of the Act, 1999 reflects the intention of legislature to curb the offences like kidnapping for ransom, smuggling in contraband, illegal trade in narcotics, money laundering, collection of protection money etc. However, from the first proposal (Ex PW1/X1) till investigation or during trial, there is no evidence in this regard, even the witnesses during their cross examination affirms so. The allegations are of general law, like of IPC, to be tried in ordinary procedure established, however, invoking the provision of MCOCA is misuse of power and to deprive the accused of his fundamental rights. Ld counsel relies upon, Sherbahadur Akram Khan & Ors. vs State of Maharashtra, Crl. Appeal Nos. 202 and 980 of 2006, Maharashtra Control of Organized Crime Act, 1999, Section 2(f) -wherein it was held that for Organized crime syndicate, it may be by a gang , which may consist of two or more persons, indulge in continuing unlawful activity, however, accused related with each other and have committed offence either individually or jointly, would S. C. no. M2/11 Pages 29 of 52 State vs Afzal not lead to inference that they formed an organised crime syndicate. Moreover, a person who cheats or commits criminal breach of trust, more than once, the same by itself may not be sufficient to attract the provisions of MCOCA, the State may prosecute the accused under general provisions of law. 5.3 In the approval dated 16.1.2009(Ex P16/A) two FIR nos. 256/2000 and no.177/03 have been referred besides a name of Mohd Yamin as associates of the accused, however, throughout in the investigation no such record has been collected to infer the association of both nor Mohd. Yamin has been prosecuted in this case and there is also no reference of his name in sanction (Ex PW16/B) to prosecute. The things speak itself that as to how the law has been abused against the accused.
5.4 There is no evidence to show the involvement of accused in any activity for which provisions of the Act, 1999 would be applicable. There is no evidence that he committed organised crime or run a crime syndicate or a gang or he is its member, merely collection and filing of chargesheets of previous cases would no substitute of proof of relevant facts. Ld counsel for accused relies upon, State of Maharashtra Vs. Bharat Baburao Gavhane and Ors., reported in 2001 (1) Bom. CR 15 : 2006 ALL MR (Cri) 2895, that while considering the provisions of Section 2(1)(e) of the MCOC Act, it was observed that, merely stating that a gang leader and his associates run a crime syndicate with a view to gain pecuniary benefits and advantages and supremacy over rival gangs by violence, intimation and other coercive means, is not sufficient to maintain a prosecution S. C. no. M2/11 Pages 30 of 52 State vs Afzal under the MCOC Act.
5.5 The accused was neither involved or prosecuted or convicted under the provisions of MCOCA, which came into force in Delhi in 2002. Moreover, the accused has not been shown or alleged to be in any activity to be said to be continuation of past criminal activity, therefore, MCOCA cannot be invoked and he should not have been prosecuted. Ld defence counsel relies upon, Prafulla vs State of Maharashtra, Cri. Appeal NO.664 of 2002 with Cri. Appeal No.665,717 of 2002 with Cri. Appeal Nos. 86, 90, 93, 215 of 2003 - Maharashtra Control of Organized Crime Act, 1999, section 3(i)(ii) and 3(4) - held, that mere proof of filling charge sheets in the past is not enough but it is to be shown that accused has indulged in any crime which can be said to be continuation of past criminal activity. Filing of chargesheet is one of the requisite for constituting the offence of organised crime but not the exclusive criteria, since indulgence in activities of organized crime is sine qua non for holding a person to be a member of organized crime syndicate.
5.6 Further, it is necessary for prosecution to show for invoking provisions of MCOCA that crime was aimed at pecuniary or other alike advantage, Whereas in the FIRs shown against accused, there is nothing like that he was doing illegal act or an organized crime or no complaint of his in illegal trade, kidnapping for ransom, money laundering etc. He relies upon, Madan vs Ram Kishan Gangwani vs State of Maharashtra, Cri. APPeal No.308 of 202 with Cri. Appeal No. 317,318,323,324,325 and 374 of 2002 Maharashtra Control of Organized S. C. no. M2/11 Pages 31 of 52 State vs Afzal Crime Act, 1999, Sections 3 and 4 - wherein it was held that for proving offence of organized crime, is to be proved among other things that the accused indulged in continuing unlawful activity and for proving involvement in continuing unlawful activity it is not necessary to prove past crime but only the fact that charge sheet has been filed in respect of the crime, that crime bears punishment of three years or more and that court has taken cognizance of the crime., Further it must also be established that such offence or unlawful activity undertaken by a person with the objective of gaining pecuniary or other like advantage for himself or of any other person; otherwise provisions of law of MCOCA would not apply. Evidence in respect of previous chargesheet may at the worst prove involvement in continuing unlawful activity but not organised crime. The offence like U/ss 323,324,325 and 326 IPC would not such as to provide pecuniary or undue economic gain, to invoke the provisions of MCOCA. 5.7 The accused has background of agricultural income, his father operates milk dairy, there is family business of eatery. There are exemptions of income from agriculture head. Income tax return is to be filed, when there is taxable income, otherwise it need not to filed in case it does not fall in that slab. Otherwise, nonfiling of return does not attract the provisions of MCOCA. It is also not mandatory to file return, in case PAN card is obtained. Moreover, the investigating officer has to collect evidence during investigation, his collection of evidence indicates the procedure followed by him, but his words are neither proof nor substitute of proof of commission of offence. Reliance has been placed S. C. no. M2/11 Pages 32 of 52 State vs Afzal on, Antim Bhagwandas Totla & Anr. vs Rashmi P. Karandikar & Ors., Cri. W.P. No. 545 and 1519 of 2007, wherein it was held it would not attract the provision of MCOCA since the impugned FIR is solely on the basis of evasion of sales tax, which would warrant proceedings in terms of Section 63 of the Sales Tax Act, while referring State of Maharastra Vs Lalit Somdatta Nagpal 2007 4 SCC 171 that evasion of sales tax, would not attract provision of MCOCA as it does not meet the objectives of the statute.
5.8 The evidence of police witnesses clearly spell out that neither they collected any evidence to be treated offences like kidnapping for ransom, smuggling in contraband, illegal trade in narcotics, money laundering, collection of protection money etc., curbing of which was the intend of legislature through the special statue, reliance is placed on State of Mahaerastra Vs Vishwanath Maranna Shetty (Crl Appeal no.1689/2012, dod 19.10.2012). PW8 Manzoor Ahmad throughout in his cross examination maintains that there no intimidation or force to sell the property, he also admits that his balance amount was never refused, but assured to be paid , if and when arranged. He further clarifies that ACP had recorded something else, which he had not deposed before him. The IO had not discovered anything or evidence against the accused despite constant surveillance for long period or during his period of investigation. There is no evidence that he formed any gang or syndicate or he is member of such gang or syndicate. One of the property is on power of attorney basis, which has been given by his father. There is no proof that property was acquired by illegal S. C. no. M2/11 Pages 33 of 52 State vs Afzal activities There is milk dairy of his parents and family business of eatery. One of the vehicle is second hand, the other vehicle was on finance but installment have been paid, how it could be termed acquisition by illegal activities. The valuation of immovables have also not been carried properly but with intention to implicate the accused in this case. There is specific provisions of prosecution under section 4 of the Act, 1999 in case there is possession of unaccountable wealth and its forfeiture/attachment, however, the accused was not prosecuted for such section, because no case is there. The accused has also proved record of pending prosecution against police officer, which establish the plea of accused. The prosecution could not prove the charges, therefore, he deserves acquittal. 6.1 (Finding) - The rival contentions are assessed in the light of material on record, oral and documentary evidence, provisions of law and precedent or case law presented, Preface to Act, 1999, Preamble of the Act, statement of Objects and Reasons , which have also been reproduced, hereinabove, to access them at glance.
6.2 Whether the facts and evidence on record, satisfy the test of law to prove the charges, thus it would be expedient to discuss firstly the test of law, since both the parties have their own stand and reservations, as State claims that it qualifies the test of law to prove charges U/s 3(4) and 3(5) of the Act and on the other side, accused claims that State does not qualify the test of law nor the spirit of Objectives for which the special law was enacted.
S. C. no. M2/11 Pages 34 of 52 State vs Afzal
The Scheme of the Act, 1999 can be culled out from the definitions of section 2 of the Act, 1999 and corresponding punishments provided in sections 3 and 4 of the Act, 1999, by reading them in the light of Preamble or Statement of Objects and Reasons vis a vis the background/Preface, which was reasons for bringing the special piece of legislation in the State of Maharashra. It was extended to Delhi by notification dated 2.1.2002 by the Central Government by exercising power conferred by section 2 of the Union Territories (Laws) Act, 1950. It has been enacted for prevention and control of and also for coping with, criminal activity by organised crime syndicate or gang and for other connected matter or incidental thereto.
Section 2(d) of the Act defines, 'continuing unlawful activity' and it talks about previous conduct and record of person involved in cases. If it is considered from the date of notification in Delhi, it means if prior to 2.1.2002 (i.e. date of notification and implementation of the Act in Delhi), any person was indulging in activities prohibited by law and which is cognizable offence with imprisonment of three years or more and it was undertaken either by such person singly or jointly, as a member of an organised syndicate and in respect thereof, more than one chargesheets have been filed within preceding ten years and cognizance of offence has been taken by competent court, it would not attract provisions of MCOC Act, 1999, if no subsequent such activities or unlawful activities are carried by him.
However, if one continues his 'unlawful activities ' after 2.1.2002, either S. C. no. M2/11 Pages 35 of 52 State vs Afzal singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by adopting mode of violence or threat or intimidation or coercion or other unlawful means, for purposes of gaining pecuniary gains or gaining undue economic or other advantages, for himself or for any other person, he commits offence of organised crimes, defined in section 2(e) of the Act and it is made punishable U/s 3(1)(i) or (ii) of the Act, 1999. What constitutes 'organised crime syndicate', it has been defined in section 2(f) of the Act, 1999 [ i.e. (i) a group of two or more person, (ii) who acts either singly or collectively, as a syndicate or gang and (iii) indulge in activities of ogranised crime]. Thus to constitute offence of organised crime [(section 2(e)], it has to satisfy the requirement of section 2(d) and section (f). Each ingredient (i) to (viii), as detailed in para 3.2 above, is to be satisfied, i.e.{ the ingredients (i) to (vi) are component of continuing unlawful activities, ingredient (vii) is component of mode/method adopted for executing activity and ingredients (viii) is about object/motive of activity}. The mode/use of different kind of forces (i.e. violence, threat of violence, intimidation or coercion, unlawful means) reflected in section 2(e) are independent of each other, they are not to interpreted as per principle of ejusdem generis of words are known by the company they keep, but to be seen from prospective of Preamble, Statement of Objects and Reasons and Preface of the Act. Similarly, there may be any motive or objective like (gaining pecuniary gains or gaining undue economic or other advantages for himself or for other person) as enumerated in section 2(e), they are independent of each S. C. no. M2/11 Pages 36 of 52 State vs Afzal other, they are also not to interpreted as per principle of ejusdem generis, but to be seen from view of Preamble, Statement of Objects and Reasons and Preface of the Act. The case against the accused is not of commission of organised crime.
6.3 Those, who does not commit organised crime, but conspires or abets or advocates or knowingly facilitates commission of organised crime, they are punishable U/s 3(2) of the Act; those who harbours or conceals any member of organised crime syndicate, they are made punishable U/s 3(3) of the Act. 6.4 Those, who are members of an organised crime syndicate as defined in sec. 2(f), [ i.e. (i) a group of two or more person, (ii) who acts either singly or collectively, as a syndicate or gang and (iii) indulge in activities of ogranised crime] are punishable U/s 3(4) of the Act. For proof of allegation of member of an organised crime syndicate, which is punishable U/s 3(4) of the Act, it is required to prove that two or more persons , act as syndicate or gang and they indulge in activities of organised crime but it is not required to prove that they committed organised crime, since it is separate offence, for which punishment is provided for commission of organised crime U/s 3(1)(i) and (ii) of the Act. 6.5 Further, those hold property derived or obtained from commission of an organised crime or acquired through the organized crime syndicate funds, are made punishable U/s 3(5) of the Act. In case, one is possessing the property on behalf of member of organised crime syndicate, he would be punishable U/s 4 of S. C. no. M2/11 Pages 37 of 52 State vs Afzal the Act.
6.6 By reading the definition of 'continuing unlawful activities', 'organised crime' and 'organised crime syndicate', a common term 'activity' is appearing in all the definitions. It has relevancy, while making test of commission of either organised crime or of organised crime syndicate. The activity in reference to 'continuing unlawful activities' talks about previous conduct/record of a person, term activity in reference to 'organised crime syndicate' is about indulging in activities of organised crime. Preamble or Statement of Objects and Reasons or Preface talks about prevention, control or coping with such activities and connected thereto or incidental thereto. When it meets the definition of section 2
(e), organised crimes is committed.
6.7 The "activities" are of nature prohibited by law and are cognizable offence punishable with imprisonment for three years or more and it is coupled with use of force/threat/violence with the objects of certain gains. It may vary from intimidation or extortion of money, abduction etc. to contact killings, illegal trade in narcotics, kidnapping for ransom, collection of protection money etc. After this introduction of test of law, now the facts and evidence on record is considered.
7.1 Thus, it is to be seen, whether there is group of two or more persons, who acts as gang or syndicate in activities of organised crime vis a vis there is previous record of such activities.
S. C. no. M2/11 Pages 38 of 52 State vs Afzal
There are 19 cases registered from the year 1990 to 2006 against the accused, out of them many has been decided. Out of them, the cases registered between 2000 to 2006 are, FIR no. 169/dt 22.4.2000,PS Seelampur, U/s 302/225/216/120B/201/34 IPC (Ex PW 10/E, of allegation of killing a person, who alongwith his father, was on way and accused with other killed him by using revolver) was registered against accused Mohd Afzal and five others (Mohd Yamin is one of them), its cognizance was also taken by the competent court of law. Further, FIR No.256/10.6.2000, PS Seelampur, U/s 452/506/342/365/34 IPC (Ex PW 10/A, of allegation on 4.4.2000 when Dr Tariq Kamal was closing his clinic, 4.5 ruffians, who were associates of Mohd. Afzal came to his clinic and threatened him to vacate the clinic and on 1.5.2000 Mohd Afzal's two associates abducted Dr Tariq Kamal, they took him to house of Mohd Afzal, he was threatened by them at point to pistol to vacate the clinic) was registered against him and Mohd Yamin , its cognizance was also taken by the competent court of law. Another FIR No.172/6.5.2001, PS Seelampur, U/s 452/506/323/34 IPC (Ex PW 10/B, of allegations that on 6.5.2001 Mohd Iqbal Gazi reported that Mohd Afzal, his brother Lallu with his wife, Yusuf came to his shop and attacked him and threatened him) was registered against him and others , its cognizance was also taken by the competent court of law. These FIRs/cases are prior to implementation of Act in National Capital Delhi. After this notification, there are four more cases viz. FIR no.177/03 PS Seelampur, U/s 506 IPC, (Ex PW14/M, of allegations of complainant Mohd Khalil, a tenant S. C. no. M2/11 Pages 39 of 52 State vs Afzal in the house, was threatened to kill by Mohd Afzal in case house is not vacated, as the said house was purchased by some gundas). FIR No. 617/10.10.2006, PS Seelampur, U/s 452/506/336/323/34 IPC r/w sec 27 Arms (Ex PW 10/D, that complaint Iqbal Gazi's one son Kamal was involved in the activities of selling smack, complaint asked him to stop it but complainant was threaten by Kamal, whom complainant's other son Mohd Afzal was supporting and then both threatened the complainant with dire consequences and they entered forcibly in his house, beaten the complaint and Afzal was having pistol, he also fired in gali while leaving the house) against accused and another Bilal @ Kamal; FIR NO. 391/30.10.02 & FIR no 178/15.6.03 both U/s 25 Arms Act, in PS Seelam Pur ( Ex PW 10/E, Ex PW10/C in respect of possessing loaded Arms/pistols) were registered against him and their cognizance was also taken by the competent court of law.
In addition, there is detention order dated 20.6.2003 (Ex PW14/P= Ex DW2/A=ExDW2/B2, issued Commissioner of Police, Delhi, with allegations that Mohd Afzal be detained and kept in jail to prevent him from acting in any manner prejudicial to the maintenance of public order) against the accused, vis a vis the accused had also produced record of his presentation (EX DW2/B1) and order dated `12.8.2003 (Ex DW2/PA, issued by Home Secretary, Home, which confirms that order for detention was for a period 12 months from 20..6.2003). The detention order can be considered in terms of section 17(1)(b) of the Act, being special rule of evidence.
S. C. no. M2/11 Pages 40 of 52 State vs Afzal
PW8 Manzoor Ahmed is sole public witness to the case. By reading his entire statement, what appears is that it is undisputed fact that there was sale transaction on 9.8.2008 whereby PW8 had agreed to sell his first floor of property no. E1/66, New Seelampur, Delhi, for a total consideration amount of Rs.6,50,000/ and balanced amount of Rs.70,000/ are still balance. What other facts are that he was paid earnest money of Rs.2 lac but the accused could not materialize the transaction in time, the said seller/PW8 was ready to return the earnest money, however, accused had insisted to purchase the house, the time was extended despite that the balance consideration amount could not arranged by him. Accused got prepared the papers, he insisted and got documents signed from the seller and he also got the possession vis a vis certain signature of his wife and son were also obtained through his associate. Accused said, he will pay the balance amount later, there was balance amount of Rs. 170,000/, cash of Rs.1,00,000/ was paid and a sum of Rs.70,000/ was not paid till date, but in cross examination witness says, the accused told that the amount would be paid if and when available. Thus, it can be concluded that that papers got executed in favour of accused were of payment of entire consideration amount, but entire consideration amount was not paid at the time of execution of such papers but at different interval, balance amount of Rs.70,000/ is still outstanding. Accused was arrested on 20.10.2009 but the balance amount was not paid even till date of his arrest. However, the said seller/PW8 had not lodged any police report.
7.2 What is emerging is that the accused was involved in the cases of S. C. no. M2/11 Pages 41 of 52 State vs Afzal
criminal intimidation, kidnapping, house trespass after preparing for hurt, assault, wrongful restraint, wrongful confinement, threat, prior to implementation/notification of Act, 1999 in Delhi as well as subsequent to implementation. He was also detained in jail for a period of one year to prevent him from acting in any manner prejudicial to the maintenance of public order. In the year 2008 and 2009 he alongwith his associates obtained possession of property, signature of PW8's wife and son, they got prepared the documents (Ex PW8, agreement to sell, receipt, possession letter, general power of attorney, Will all dated 9.6.2009, colly.), PW8 was not allowed to go through the papers got signed from him under pressure, which are of receipt of entire consideration amount despite entire consideration amount has not been paid till date, balance amount of Rs.70,000/ is still outstanding. It is projected like a promise to pay the amount (by putting question in cross examination of PW8 on behalf of accused) if and when available, but circumstances of firstly paying earnest money, then refusing to take back the earnest money because of lapse of time but insisting to take property and then getting the documents executed for entire consideration followed by taking the possession or signatures of other, described hereinabove, are suggesting the acts and deeds of accused and of his associates. 7.3 The evidence on record discussed in paragraphs 7.1 and 7.2 above, clearly spells out that the accused and his associates are indulging in activities which are prohibited by law. By looking into the activities and how it was performed, the circumstances are speaking themselves that not only the accused Mohd Afzal but S. C. no. M2/11 Pages 42 of 52 State vs Afzal also his associate or associates were with him. They were executing the task with the aid and assistance of each other as well as by use of Arms. Further, in their activities the elements of force, intimidation, threat, cause fear, abduction, alram, which are of 'unlawful means', are existing.
Ld defence plea that for want of proof of narcotics activities, border terrorism, kidnapping for ransom, money laundering, non registration of case/ FIR by PW8 etc., or such record does not fulfill the requirement of law, is not acceptable, as the activities of the accused are of 'unlawful means' being carried with aid and assistance of other by use of Arms also. Even in Statement of objects and reasons, a word/term 'etc' is mentioned, which conveys that the list is not exhaustive. In the Preface to Act, terms like extortion, kidnapping etc. have also been referred.
7.4 In para 7.1. above, there is reference of 19 cases, out of them seven FIRs and one unregistered case has been discussed, besides a case of preventive detention order. It is apparent that activities of either getting the clinic vacated by extended threat or kidnapping for that purposes; threat to kill for getting the house vacated from tenant, support for one Kamal for selling smack and threat to complainant therein, possessing and branding of Arms for such activities, are for the considerations, benefits and advantages of the accused for himself, his associates and for others for whom the activities were being executing. In respect of purchase of property from PW8, it also reflects undue economic advantage to the accused and his associates in respect of unpaid balance S. C. no. M2/11 Pages 43 of 52 State vs Afzal amount.
7.5 On the basis of analysis and conclusion in paragraph 7.1 to 7.4, it is held that the accused is member of organised crime syndicate as the prosecution has succeed to establish charge U/s 3(4) of the Act. Neither it gives any benefit to accused nor it disproves this charge just because accused's other associates have not been charge sheet in this case, because section 3(4) of Act, also talks about 'a member' of an organised crime syndicate and there is no mandate that all of them shall be chargesheeted together. There is also nothing coming out from the defence evidence to disprove the charge U/s 3(4) of the Act, 1999. Hence, accused is held guilty U/s 3(4) of the Act, 1999.
8.1. Another aspect left to be discussed and answered is with regard to property of the accused. The prosecution has carried investigation with regard to movable and immovable properties of the accused, which information was also declared by accused in his nomination form for contesting the election in November 2008; the State estimates value of his property around Rs.58,64,575/. However, there is no dispute with regard to existence of properties but it is vehemently protested on behalf of accused , firstly the valuation carried is on higher side and secondly, Mohd Afzal is attorney of his father in respect of property no. K221, New Seelampur, Delhi, how it could be assessed in his name. Lastly, the accused has sound financial background of agricultural income besides eatery is being operated.
S. C. no. M2/11 Pages 44 of 52 State vs Afzal
8.2. What is on record? PW 7 Shri Parmod Kumar, from the office of D.E.O., North East District, Nand Nagri, produced nomination cum declaration of assets record. There is no cross examination on behalf of accused that the record is not correct or it is improper or incomplete. The accused himself declared his cash, balance balance (i.e. he has saving bank account no. 23530 with Central Bank of India w.e.f 19.7.2005 as per record Ex PW17/A) , two vehicles, jewelery (gold and silver), one immovable residential family property in Delhi and agricultural land in Sikandrabad (purchased on 22.3.2005 for Rs.1,74,000/). However, except the value of motor vehicles, he declared total value of other properties as Rs.9,35,145/. As per record (Ex PW8/A dated. 9.6.2009), the first floor of house no. E1/66, New Delhi, was purchased for Rs.6,10,000/, out of which Rs.70,000/ is yet to be paid to seller and by addition of Rs. 5,40,000/of this property and Value of Scorpio of Rs. 8,24,637/ (as per record Ex PW5/A and Ex PW2/A, it was purchased on 19.4.06), the total values comes to Rs, 22,99,777/ plus the value of maruti zen car ( a second hand car purchased on 17.5.2005 as per record ex PW3/A, its exact value has not been shown by either side of the parties). The accused claims about financial sound condition of his parents because of agricultural/dairy income and income eatery house, whereas no witness or record has been proved for proof of agricultural income or dairy income or amount of income or else other income of accused. In the nomination declaration form, he disclosed one residential family house but no agricultural land or else has been specified. Thus no quantum of income has been proved. He S. C. no. M2/11 Pages 45 of 52 State vs Afzal is holder of PAN Card but no income tax return has been filed. The accused was 5th class standard of education and aged about 38 years at the time of his arrest and around November 2008, when he filed his nomination form for contesting the election.
It concludes that the accused has cash, jewelery, vehicles, immovable properties (except famiy property) purchased by him but he has not been able to prove/show his source of income or his regular occupation being his source of income. The record of purchase of properties pertain to period from 2005 to June, 2009, many of the properties were declared in nomination form in November 2008. There is rebuttable presumption of proviso to section 17 of Act, which was to be rebutted by the accused by giving satisfactorily account of such properties, however, the evidence led on behalf of Prosecution could not have been rebutted. The Scorpio vehicle was purchased for Rs.8,24,637/ out of which Rs.3,83,637/ was given as down payment and remaining amount of Rs.5,12,000/ was payable by installments, the accused had claimed that payment were tendered to financier, however, sources of funds have not been proved. Similarly out of Rs. 6,10,000/ for purchasing the first floor of property from PW8, a sum of Rs.5,40,000/ was paid, but from where the funds came, it has not been accounted by him. Similar is position with regard to purchase of agricultural land or jewelery. It would not help the accused to say that he was not charged for allegation of section 4 of Act, thus question of acquiring property by illegal activities does not arise, whereas section 4 of the Act applies S. C. no. M2/11 Pages 46 of 52 State vs Afzal when one is holding property on behalf of member of organised crime and in the present case, the charge is U/s 3(5) of the Act, that the accused is holding property of his own.
8.3 Hence, in view analysis and conclusion drawn in subparagraphs 8.1 and 8.2 above, it is held that prosecution has succeed to establish that accused Mohd Afzal has derived/acquired his properties by illegal activities and through organised crime syndicate funds/organised crime syndicate, whom he is a member; he is held guilty U/s 3(5) of the Act.
Announced in the open court (Inder Jeet Singh)
today, Sharavan 30, Saka 1935 Additional Sessions Judge 03,
North East District, KKD
Courts, Delhi.
21.08.2013
S. C. no. M2/11 Pages 47 of 52
State vs Afzal
State vs Afzal
FIR No.18/09
PS Seelampur
On mentioning
26.8.2013
Pr: Mr. Rajeev Mohan, Special Addl. PP for State.
Mr. R.M. Tufail with Mr. Anwar Ahmed, Counsels for convict, with a request that the matter is scheduled for 2 p.m. today, but they are preoccupied and matter may be heard in this session, since Special Addl. PP for State is also present.
Convict is called from lock up and he is produced from J.C. Arguments on the point of sentence are heard.
Be called again after lunch for orders.
(Inder Jeet Singh) Additional Sessions Judge03 (NE)/26.8.2013 At 2.55 P.M. Pr: H.C. Girish No.369/NE, Pervi Officer on behalf of State.
Convict Afzal is produced from J.C., his Cl. Mr. Anwar Ahmed Khan, Advocate, is also present.
ORDER ON THE POINT OF SENTENCE: (1) Ld. APP for State requests that Section 3(4) of the Maharashtra Control of Organized Crime Act, 1999 (in brief the Act, 1999) prescribes minimum punishment of five years and maximum punishment of imprisonment for life, S. C. no. M2/11 Pages 48 of 52 State vs Afzal besides minimum fine of Rs.5 lacs; Section 3(5) of the Act, 1999, prescribes minimum punishment of three years and maximum punishment of imprisonment for life, besides minimum fine of Rs.2 lacs. It is submitted that there is a long profile of activities of the convict, there is also involvement of convict's family members in other cases (which was mentioned in one of the order by Hon'ble High Court of Delhi) and the convict could not give account of his source of income from which he has earned a lot of amount and various properties (vehicles, houses, agriculture land etc.) were purchased. Under such circumstances, he is liable to be given exemplary punishment, which may be deterrent to others and also punishment to the convict. By explaining minimum punishment as well as the maximum punishment, Ld. Special Public Prosecutor quantifies that punishment of seven years each under both heads of Section 3(4) and Section 3(5) of the Act, would suffice the both ends of justice.
(2) Whereas Sh. R.M. Tufail, Advocate for convict requests, while opposing the submission of State, firstly the accused was never held guilty or convicted in any of the case, to say he has clean antecedents. Presently he is aged about 45 years, he has seven children - three daughters (aged about 15 years, 13 years and 11 years; the eldest daughter is of marriageable age as per personal law), four sons ( aged about 19 years, 8 years, 6 years and 4 years) a mother to be looked after, there is no male member in the family to look after them. In addition, he has four unmarried sisters, they are to be seen because his S. C. no. M2/11 Pages 49 of 52 State vs Afzal brother is not available to look after them because of certain constraints. So far contentions of State are concerned, one of the property is family property, the other properties valued by a witness is not only on higher side but exaggerated by him, as it was valued in the current period of dearness era, whereas as per the record on his face, the properties were purchased at earlier time, therefore, it has not the value as assessed by a witness of the State.
It is cardiac principle of administration of justice, that rehabilitation and reform is one of the theory, however, the State has presented the arguments in a manner as if there is no scope of such theory of reform. How a person / a citizen can be deprived of his such rights guaranteed by the law in its expressions in various forms, inclusive of the law laid down in precedents. The convict / accused deserves the leniency, considering the factors like, family strength, age of family members / dependents as well as his own age. Thus, the convict / accused deserves all kind of leniency.
(3) The submissions on behalf of State are suggesting of aggravating circumstances, like the previous involvement of convict in various cases and for the purposes of Act, 1999, it is not necessary that he was previously convicted in any case. Whereas, the submissions on behalf of convict are of mitigating circumstances that he was not a previous convict, he has a family and to look after them and there is always scope of rehabilitating and reforming. The court has to draw graph and to strike a balance where both S. C. no. M2/11 Pages 50 of 52 State vs Afzal ends of justice meet. It is apparent from the submission of State that extreme penalty of maximum punishment may be warranted in the cases which fall like rare of rarest cases, this case has not been construed of that category. Therefore, rigorous punishment of six years and fine of Rs.6 lacs (in default four years further imprisonment) U/s 3 (4) of the Act, 1999 AND rigorous imprisonment of four years and fine of Rs.3 lacs (in default three years further imprisonment) U/s 3 (5) of the Act, 1999, will meet both ends of justice. However, both the sentences will go together but the imprisonment in default of payment will commenced after completion of substantial punishment awarded. The convict is given benefit of Section 428 Cr.P.C. for the period already undergone in jail.
Whereas PW8 Manzoor Ahmed was not paid amount of Rs.70,000/ of balance consideration by the convict when the property was purchased, therefore, out of the realized amount of fine, Rs.70,000/ will be paid to him as a compensation.
Fine is not paid by the convict.
Copies of judgment, order on the point of sentence, evidence / record be provided to the convict under acknowledgment.
Two vakalatnamas are presented for attestation so that convict may avail appropriate remedy like appeal, both vakalatnamas are attested.
File is consigned to record room.
(Inder Jeet Singh)
S. C. no. M2/11 Pages 51 of 52
State vs Afzal
Additional Sessions Judge03
n (NE)/26.8.2013
S. C. no. M2/11 Pages 52 of 52