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9. Ld. Counsel submits that "punishments" have been discussed in Section 53 IPC, which covers both imprisonment and fine. He submits that in the case of the offences punishable under Section 376(1) and (2) IPC, the statute prescribes minimum sentences, and the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term less than the mandatory minimum sentence.

10. On the other hand, Mr. Rahul Mehra, Ld. Standing Counsel (Crl.) submits that the MCOCA being a special Act on the subject of organized crime, will have overriding effect on the provisions of IPC, which are in the nature of general law. He relies on the maxim "generalia specialibus non derogant‖ and submits that the provisions of IPC cannot be looked at for the purpose of examining the validity of the provisions of the MCOCA. He further submits that the provisions of the MCOCA are comparable to the provisions of NDPS Act, 1985. The provisions of NDPS Act have already been upheld by the Supreme Court in Basheer V. State of Kerala, (2004) 3 SCC 609. Minimum fines prescribed under section 16 and onwards under the NDPS Act are comparable to the minimum fine imposed under the impugned section. He refers specifically to section 19 of the NDPS Act, which too prescribes the minimum mandatory fine of rupees one lakh, which may extend to two lakh rupees; and the proviso states that the fine imposed can be even higher than two lakhs for reasons to be recorded in the judgment, if the Court may think fit.

or something in between. This is the effect of the rationalisation of sentencing structure carried out by the amending Act 9 of 2001, in Section 27. A notification was issued on 9-10-2001, specifying in respect of 239 narcotic drugs and psychotropic substances, as to what would be ―small quantity‖ and ―commercial quantity‖.

(emphasis supplied)

35. Thus, a gradation of the prescribed punishments was introduced, to deal with offences depending on the gravity of the offence i.e. the quantity of drug/ substance involved. Pertinently, in respect of the severe nature of offences, minimum sentence and minimum fine was also prescribed.

36. Thus, Section 3 of the MCOCA is not an isolated instance where minimum sentence and minimum fine have been prescribed by the Legislature. By prescribing the minimum sentence and minimum fine, the Legislature - keeping in view the object with which the law is framed, seeks to emphasise the seriousness with which the offence deserves to be dealt with. The prescription of the minimum sentence and minimum fine in Section 3 is a conscious endeavour of the Legislature to deal with all the offenders under the MCOCA, who are engaged in continuous unlawful activity as members of an organized crime syndicate or gang driven by their motivation of making illegal monetary gains.

38. Firstly, the said order does not contain any ratio. Secondly, the view expressed by the learned Single Judge is only a prima facie view. Thirdly, the concession made by the State Government before the Court in relation to Section 3 of the MCOCA does not bind the State Legislature. Fourthly, what has been missed out is that Clause (i) of Section 3(1) of the MCOCA prescribes a minimum sentence of imprisonment for life, as opposed to a minimum sentence of imprisonment of 5 years for an offence covered by Section 3(1)(ii). Whereas in respect of an offence covered by Section 3(1)(i), the personal liberty of the offender is taken away for his entire life, the curtailment of the personal liberty of an offender covered by Section 3(1)(ii) would be, at least 5 years, but which may extend to his life. The objective of the law appears to be to denude the offender covered by Clause (ii) of Section 3(1) of his ill-gotten wealth while setting him free by awarding him a sentence which, invariably, would be for a shorter duration, than in respect of an offender covered by Clause (i) of Section 3(1). Both the clauses (i) and (ii) of Section 3(1) of the MCOCA deal with offenders who are guilty of offences of different degree, and are accordingly dealt with in the two clauses (i) and (ii) by providing a combination of sentence of imprisonment and fine. Pertinently, in Palaniappa Gounder (supra) the Supreme Court observed in relation to the power to impose fine under Section 302 IPC (apart from the substantive sentence) "Though there is power to combine a sentence of death with a sentence of fine that power is sparingly exercised because the sentence of death is an extreme penalty to impose and adding to that grave penalty a sentence of fine is hardly calculated to serve any social purpose. In fact, the common trend of sentencing is that even a sentence of life imprisonment is seldom combined with a heavy sentence of fine." In our view, it cannot be argued that, in respect of an offence covered by Clause (ii) of Section 3(1), the minimum fine should necessarily be less than the minimum fine prescribed in respect of the serious offence covered by Clause (i) of Section 3(1). For the aforesaid reasons, reliance placed by the petitioner on the Division Bench judgment of the Bombay High Court in Amit R. Saurabh (supra), also appears to be misplaced.