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42. We now proceed to look into the relevant observations made by this Court as contained in paras 9, 10 and 11 resply:

"9. It was in the above backdrop that the High Court held that once the respondents had been acquitted for the offences punishable under IPC and the Arms Act in Crimes Nos. 37 and 38 of 2001 and once the trial court had recorded an acquittal even for the offence punishable under Section 4 read with Section 25 of the Arms Act in MCOCA Crimes Nos. 1 and 2 of 2002, all that remained incriminating was the filing 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 MCOCA. The filing of charge-sheets or taking of the cognizance in the same did not, declared the High Court, by itself constitute an offence punishable under Section 3 of MCOCA. That is because the involvement of the respondents in previous offences 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 NEUTRAL CITATION R/CR.MA/16869/2023 ORDER DATED: 04/12/2023 undefined offence 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 MCOCA. That reasoning does not, in our opinion, suffer from any infirmity.

10. The very fact that more than one charge-

sheets had been filed against the respondents alleging offences punishable with more than three years' imprisonment is not enough. As rightly pointed out by the High Court commission of offences prior to the enactment of MCOCA does not by itself constitute an offence under MCOCA. Registration of cases, filing of charge-sheets and taking of cognizance by the competent court in relation to the offence alleged to have been committed by the respondents in the past is but one of the requirements for invocation of Section 3 of MCOCA. Continuation of unlawful activities is the second and equally important requirement that ought to be satisfied. 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 offence under Section 3 of the Act.

NEUTRAL CITATION R/CR.MA/16869/2023 ORDER DATED: 04/12/2023 undefined

11. In the case at hand, the offences which the respondents are alleged to have committed after the promulgation of MCOCA were not proved against them. The acquittal of the respondents in Crimes Nos.37 and 38 of 2001 signified that they were not involved in the commission of the offences with which they were charged. Not only that the respondents were acquitted of the charge under the of 2002. No appeal against that acquittal had been filed by the State. This implied that the prosecution had failed to prove the second ingredient required for completion of an offence under MCOCA. The High Court was, therefore, right in holding that Section 3 of MCOCA could not be invoked only on the basis of the would come into play only if the respondents were proved to have committed an offence for gain or any pecuniary benefit or undue economic or other advantage after the promulgation of MCOCA. Such being the case, the High Court was, in our opinion, justified in allowing the appeal and setting aside the order passed by the trial court."

(g) However, we need to clarify something important. Shiva alias Shivaji Ramaji Sonawane (supra) dealt with the situation, where a person commits no unlawful activity after the invocation of the MCOCA. In such circumstances, the person cannot be arrested under the said Act on account of the offences committed by him before coming into force of the said Act, even if, he is found guilty of the same. However, if the person continues with the unlawful activities and is arrested, after the promulgation of the said Act, then, such person can be tried for the offence under the said Act.