Indian Kanoon - Search engine for Indian Law

12. Mr. Luthra, learned senior counsel for petitioner further contended that the basic distinction between Section 3(5) and 4 of MCOCA is that for the applicability of Section 3(5) of MCOCA, the prosecution is required to establish that the property accumulated was either the proceed of organized crime or was derived from funds of organized crime syndicate whereas for Section 4 of MCOCA it is only required for the prosecution to prove that at any point of time, either before or at the time of offence, the person facing trial under the said Act was holding property for which he cannot satisfactorily account for. Section 4 MCOCA is clearly applicable to the facts of the present case.

„State vs. Satya Prakash‟, Crl. M.C.No. 2138/2010 decided on 03.11.2011(Delhi); „Sachin Bansilal Ghailal, Umesh Mohan Kirve vs. State of Maharashta‟, 2014 Lawsuit (Bom.) 1163 and „Ajay Aggarwal vs. Union of India‟, (1993) 3 SCC 609.

16. Per contra, Mr. Dayan Krishnan, learned senior counsel for the respondents vehemently contended that except FIR No.69/07, no other offence has allegedly been committed by the respondents within the territorial limits of Delhi. The expression, "continuing unlawful activity" as defined under Section 2 (1) (d) of MCOCA is the basic ingredient of an offence under Section 3 thereof which is not fulfilled in the present case. Provisions of Sections 177 and 178 Cr.P.C. are not applicable to the facts of the present case. MCOCA is a special statute. The provisions of MCOCA have to be strictly applied and cannot be extended with regard to the offences that have been committed outside Delhi while considering Section 2 (1) (d) of MCOCA.

28. Undoubtedly, MCOCA was enacted to curb the menace of organized crime with the realization that the menace resulting in such criminal activity knows no boundaries. In the statement and objects of MCOCA, it is clearly mentioned that the organized crime knows no boundaries and the syndicate makes a common cause with terrorist gangs and foster narco-terrorism which extends beyond national boundaries. Thus, the said contents of the objects and reasons behind the spirit of MCOCA show that the aspect of territorial jurisdiction was confined by legislation only for the purpose of determining as to whether any organized crime has been committed in Delhi or not. But for continuing unlawful activity, legislation was not intended to confine the continuing unlawful activity or conspiracy or abetment of facilitation or money flow to any limit of territorial jurisdiction. It is also true that the organized crime has emerged as a serious threat to our society and that the organized crime syndicates make a common cause with terrorist gangs and foster narco-terrorism which extends beyond the national boundaries. However, one cannot lose lost track of the fact that MCOCA is not a Central enactment restricted its application to the state of Maharashtra and Delhi. The extent of applicability of MCOCA to Delhi is provided under Section 1(2) MCOCA as under:-

6. Jurisdiction of Special Court- Notwithstanding anything contained in the Code, every offence.

punishable under this Act shall, be triable only by the Special Court within whose local jurisdiction it was committed or at the case may be, by the Special Court constituted for trying such offence under subsection (1) of section 5."

30. If the contention of the learned Senior counsel for the State is accepted, it would not be unusual to see cases in which there is not even a single charge-sheet on which the cognizance is taken by a competent Court in Delhi, however, there exist charge-sheets outside Delhi on which cognizance is taken by the competent Court, would be brought before the Special Courts in Delhi to invoke the provisions of MCOCA in Delhi. However, if this would have been the intention of the legislature, they would not have confined the provisions of the said Act to Delhi or Bombay alone rather MCOCA would have been enacted as a Central law. This would also have an effect of making the provisions of Section 1(2), 5 and 6 of the MCOCA otiose because in all such cases, the court would still be competent to bring the matters under the ambit of MCOCA for the cases registered and charge-sheet filed thereupon in the states to which MCOCA does not apply.