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4. Secondly, it is submitted that in terms of Section 2 (d) the offence under MCOCA would be attracted only when the "continuing unlawful activity" is by the Petitioner as a member of an organized crime syndicate in respect of which more than one charge sheet has been filed "within the preceding period of ten years" before a competent court and that court has taken cognizance of such offence. He refers to a list of cases involving the petitioner as produced by the prosecution and submits that only those cases in a period of ten years prior to the invocation of MCOCA were relevant. In the said period, from 1996 onwards, the Petitioner has been acquitted in all the cases except three which are pending trial and which includes the present case. It is submitted that the cases in which the Petitioner has been acquitted ought not to be considered for the purpose of determining whether the offences under MCOCA stands attracted, as that would work to the prejudice of the Petitioner. According to the petitioner a desperate attempt has been made by the prosecution to rely upon the bank statements of the Petitioner‟s mother‟s account to show that proceeds of crime were deposited there benami for the Petitioner‟s benefit.

5. Relying on the judgment of the Supreme Court in State of Maharashtra v. Bharat Shanti Lal Shah & Ors. 2008 (9) AD (SC) 708 Mr. Hariharan submits that the requirement under Section 21 (4) MCOCA that the Court has to be satisfied that the accused "is not likely to commit any offence while on bail" in refers to an offence under MCOCA. In the said decision the Supreme Court struck down as unconstitutional Section 21 (5) MCOCA which forbade a court from granting bail under the said Act if the court noticed that he was on bail in an offence under MCOCA "or under any other Act."

8. The charge sheet also records the following track record of the Petitioner:

"During the course of investigation, it came to the notice that the accused Satender Pal Singh @ Twinkle is an active and absent Bad Character (BC) of Police Station Karol Bagh, New Delhi and is involved in about 30 heinous criminal cases of Murder, Attempt to Murder, Rioting, Theft, Threatening, Gang Rape, criminal conspiracy, house trespass, extortion, waging war against the State, Terrorist and Destructive Activities (TADA), Explosive Substances Act and Arms Act etc. In various police stations in Delhi and Gurgaon (Haryana). On 21.03.06 at around 2 pm, after taking the approval/sanction of the Joint Commissioner of Police, Special Cell, Delhi, Section 3 of the Maharashtra Control of Organised Crimes Act 1999 (MCOCA) was added in the case against the accused Satender pal Singh @ Twinkle and on the same day further investigation of the case was handed over to me. After taking the necessary permission from the Designated Court of MCOCA, I further interrogated the accused Satender Pal Singh @ Twinkle and accordingly arrested him u/s 3 MCOCA on 23.03.06 and took him on PC remand. During the interrogation, he again disclosed that he has been involved in the heinous crimes for the last about 20 years and amassed a huge properties and wealth by threatening other and by other illegal means, with the help of his crime syndicate which consist his real brother Harpal Singh @ Pepsi and others. He, however, refused and denied all the facts as he disclosed in his disclosure statement and stated that he lost all his properties and wealth in the gambling business in the last ¾ years. Accused Satender Pal Singh had also refused to get his confessional statement recorded before the worthy DCP/Special Cell u/s 18 MCOCA. The records were also collected from the concerned Police Stations/Courts about the previous cases against Satender Pal Singh. On perusal of the previous involvements/cases of accused Satender Pal Singh it revealed that he started his criminal life from the year 1986, when he was a college student in Delhi University, when he attacked with an open knife on the canteen owner of his college and a case FIR No. 57/86 has been registered against him in PS Roshnara Road (now PS Roop Nagar), Delhi. In the year 1987, he has been involved in the cases of Robbery and Arms Act in the area of PS Karol Bagh, New Delhi he involved in five cases of threatening, attempt to murder and Arms Act etc. in 1988 and three cases in the year 1989. On his continuous involvements in the crime, the local police of PS Karol Bagh entered his name in the list of Bad Character (BC) of the area besides his real brother Harpal Singh @ Pepsi. He however did not mend his criminal mind and remained involved in the crime thereafter also and has been arrested with his other associates and his brother Harpal Singh in three cases of attempt to murder, TADA and Arms Act etc. in the year 1990, two cases of attempt to murder in 1992, one case of attempt to murder and Arms Act in 1993 and one case of attempt to murder and Arms Act in the year 1995. Thereafter, he along with his brother Harpal Singh @ Pepsi and other associates were arrested in the case of sensational murder in the broad day light in the Tis Hazari Court‟s complex, Delhi in the year 1997, in which two persons shot died on the spot by the accused Satender Pal Singh, his brother Harpal Singh and his other associates. During the judicial custody in the above mentioned murder case from 1997 to 2000, he was involved in five cases of hurt, threatening etc. and a sensational case of criminal conspiracy for waging war against the State, Explosive Substances Act and Arms Act, in which about 18 kgs RDX explosives, AK-47 rifle, timers, detonators and a large quantity of ammunitions were recovered from a truck. After releasing from the jail in the year 2001, he along with his other associates have been arrested in a case of abduction and gang rape in case FIR No. 650/02 u/s 363/366/427/376/368/34 IPC PS Lajpat Nagar, New Delhi. He still involved in the various crime as in the year 2004, he has been arrested along with his other associates in Case FIR No. 83/04 u/s 186/353/34 IPC & 25/27 Arms Act, PS Hari Nagar, New Delhi and 3/4/5 DPG Act, PS Special Cell, New Delhi. In most of the cases, he has been acquitted by the concerned courts. However, some cases are still pending trial against him, in the different courts. The certified copies of charge sheets and charges framed against him by the different courts during the last ten years, are also placed on the file."

10. The very definition of „organised crime‟ under Section 2 (1) (e) read with 2(1) (d) MCOCA shows that the offence thereunder is attracted if the charge sheet has been filed and cognizance taken of the offence committed by the Petitioner in the past ten years. In other words, the MCOACA does not require the chargesheet so filed to end in a conviction. It appears from the very object of enacting the MCOCA that the mere fact that the accused may ultimately be acquitted in such a case will not take away the applicability of the said provision. If that interpretation were to be permitted, the very object of enacting a separate special law to deal with „organised crime‟ even while acknowledging the inadequacy of the existing legal framework would be defeated. It is the filing of the charge sheet that attracts the offence of „organised crime‟ and not the result of the consequent trial. Also, it is intended to deal with a situation where a person facing trial for the commission of a serious offence, continues indulging in criminal activity even while he is facing trial in the earlier case or cases. The legislative intent is apparent from the fact that provision does not state that in the event of an acquittal of the accused in the chargesheet, the offence will cease to be attracted. In Bharat Shantilal Shah, the Supreme Court upheld the decision of the Bombay High Court which negatived the challenge to the constitutional validity of Sections 2 (d), (e) and (f) and Sections 3 and 4 MCOCA. It was further explained in Ranjitsingh Brahmajeetsing Sharma in para 32 that "an offence falling within the definition of organised crime and committed by an organised crime syndicate is the offence contemplated by the SOR." In light of this legal position, even if one were to restrict the scrutiny of cases involving the petitioner to the period after 1996, the acquittal of the petitioner in all but three of the cases against him in this period, will not make a difference to the applicability of the MCOCA. The detailed background of the petitioner‟s past involvement and the types of cases as detailed in the chargesheet, prima facie indicates that the provisions of the MCOCA stood attracted. In Gokul Bhagaji Patil the Supreme Court reminded that in MCOCA cases, in addition to the basic considerations i.e., the seriousness of the crime, reasonable apprehension of the witnesses being tampered, "the limitations in subsection (4) of Section 21 of MCOCA need to be kept in view." An additional factor in this case would be the presumption that is attracted against the petitioner in terms of Section 22 MCOCA since arms were recovered from him and his associate at the time of their arrest.