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"8. It was in the above backdrop that the High Court held that once the respondents had been acquitted for the ofence punishable under the IPC and Arms Act in Crime Nos. 37 and 38 of 2001 and once the Trial Court had recorded an acquittal even for the ofence punishable under Section 4 read with Section 25 of the Arms Act in MCOCA crime Nos. 1 and 2 of 2002 all that remained incriminating was the fling of charge-sheets against the respondents in the past and taking of cognizance by the competent Court over a period of ten years prior to the enforcement of the MCOCA. The fling of charge-sheet or taking of the cognizance in the same did not, declared the High Court, by itself constitute an ofence punishable under Section 3 of the MCOCA. That is because the involvement of respondents in previous ofences was just about one requirement but by no means the only requirement which the prosecution has to satisfy to secure a conviction under MCOCA. What was equally, if not, more important was the commission of an ofence by the respondents that would constitute '' continuing unlawful activity''. So long as that requirement failed, as was the position in the instant case, there was no question of convicting the respondents under Section 3 of the MCOCA. That reasoning does not, in our opinion, sufer from any infrmity. The very fact that more than one charge-sheet had been fled against the respondents alleging ofences punishable with more than three years imprisonment is not enough. As rightly pointed out by the High Court commission of ofences prior to the enactment of MCOCA does not by itself constitute an ofence under MCOCA. Registration of cases, fling of charge sheets and taking of cognizance by the competent court in relation to the ofence alleged to have been committed by the respondents in the past is but one of the requirements for invocation of Section 3 of the MCOCA. Continuation of unlawful activities is the second and equally important requirement that ought to be satisifed. It is only if an organised crime is committed by the accused after the promulgation of MCOCA that he may, seen in the light of the previous charge-sheets and the cognizance taken by the competent court, be said to have committed an ofence under Section 3 of the Act.

4. The Apex Court then made observations in paragraph No.9 in favour of the accused and they are as under

:-
''9. In the case at hand, the ofences which the respondents are alleged to have committed after the promulgation of MCOCA were not proved against them. The acquittal of the respondents in Crime Nos. 37 and 38 of 2001 signifed that they were not involved in the commission of the ofences with which they were charged. Not only that the respondents were acquitted of the charge under the Arms Act even in Crime Case Nos. 1 and 2 of 2002. No appeal against that acquittal had been fled by the State. This implied that the prosecution had failed to prove the second ingredient required for completion of an ofence under MCOCA. The High Court was, therefore, right in holding that section 3 of the MCOCA could not be invoked only on the basis of the previous charge-sheets for Section 3 would come into play only if the respondents were proved to have committed an ofence for gain or any pecuniary beneft or undue economic or other advantage after the promulgation of MCOCA. Such being the case, the High Court was, in our opinion, justifed in allowing the appeal and setting aside the order passed by the Trial Court."
(d), namely, the Competent Court taking cognizance of the ofence as stipulated under Section 2(1)(d) in respect of two earlier cases will get fulflled."'

7. It can be said that the Apex Court was considering the ingredients of ofence punishable under Sections 2(2)(1)(e) of MCOCA Act 1999 and the Apex Court considered the defnition of continuing unlawful activity given in Section 2(1)

(d). Thus, the tenability of the case fled under the provision of MCOCA Act or taking cognizance of ofence under this Act was considered by the Apex Court and the point involved in the present matter i.e whether conviction can be given only for the ofences punishable under provisions of MCOCA Act when no ofences punishable under Section Indian Penal Code is proved was not involved. It is true that he can be tried for the ofences punishable under the MCOCA Act when the requirement of provision of Section 2(1)(d) is complied with but at the end, while deciding the case the Court is expected to consider as to whether he was actually involved in such activities and for that the ofence of such activity needs to be proved. Thus, for taking cognizance of the ofences punishable under MCOCA Act requirements are diferent and for punishment/ conviction for ofences under MCOCA Act, requirements are diferent.

8. The learned A.P.P placed reliance on some observations made by this Court in the case reported as Mr. Bharat Shantilal Shah Vs. The State of Maharashtra ( 2003 ALL MR (Cri) 1061) and Madan S/o Ramkisan Gangwani Vs. State of Maharashtra [2009 ALL MR ( Cri) 1447 ]. The facts of the case show that the appellant of that case was tried for ofences of extortion, forcing transfer of property etc and also the provisions of MCOCA Act. Thus, there was charge not only for the provision of MCOCA Act but for Indian Penal Code ofences like ofences punishable under Section 384, 386, 387 and 120-B of the Indian Penal Code. The facts show that some of the accused were convicted for the ofences punishable under Sections 384, 387 read with Section 120-B of the Indian Penal Code and they were convicted for the ofence punishable under Sections 3(i)(ii) of the MCOCA Act but some of the accused were convicted for the ofence punishable only under MCOCA Act like punishable under sections 3(2)(1) of MCOCA Act read with Section 120-B IPC and Section 3(2) of MCOCA Act read with 120-B of the Indian penal Code. In view of these circumstances, some observations were made by this Court. This Court is not reproducing those observations in view of the observations already made by this Court.