Monday, 16 September 2019

When accused should be released on anticipatory bail in prosecution for offence under MCOCA?

 It is no doubt true that the High Court has wide powers
under Article 226 of the Constitution when a petition is filed
invoking the writ jurisdiction of this Court, seeking protection of
fundamental rights of the Petitioner. We have ascertained the
claim of the Petitioner from the facts placed before us. The
perusal of the overall material against the Petitioner taken at its
face value, does not disclose any sufficient or tangible material
which according to us would justify the invocation of the
provisions of the MCOCA against the Petitioner. There is no
material placed on record to establish him as a member of any
crime syndicate nor it is established that he was a participant in
the commission of an offence by establishing that he had the
knowledge of the happenings in the Civil Hospital’s canteen
which was allotted to him on paper but which he never physically
administered by him. The confessional statement attributes no
role to the Petitioner and the chargesheet is bereft of any material

to establish that the Petitioner was in control of the canteen since
the year 2013. In such circumstances, we are prima facie satisfied
that the order granting sanction to prosecute the Petitioner by the
Special Inspector General of Police, CID, Pune, suffers from nonapplication
of mind as no material is brought on record in the
form of Charge Sheet justifying invocation of the provisions of
MCOCA against the Petitioner. In absence of any mens rea,
knowledge or intention, if the Petitioner is subjected to the rigors
of trial and with the stringent provisions of being incarcerated in
the absence of a provision for anticipatory bail and the grant of
bail being subjected to stringent condition enumerated in Section
23 of the Act, in our considered view the Petitioner is entitled for
protection against his arrest in the said offence reserving the
question of determination of validity of Section 21(3), in
appropriate proceedings. In the result, in exercise of our writ
jurisdiction to protect the fundamental rights of the Petitioner
enshrined in Article 21 of the Constitution of India and to protect
him from being arrested under the relevant C.R in respect of
which a charge-sheet has been filed and the Petitioner has been
shown to be an absconding accused, we direct that the Petitioner
shall not be arrested in absence of any material being available
against the Petitioner in the charge-sheet establishing his
culpability under the provisions of the Maharashtra Control of
Organized Crime Act, 1999.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.913 OF 2019

Surjitsingh Bhagatsingh Gambhir Vs.The State of Maharashtra

CORAM : SHRI RANJIT MORE &
SMT. BHARATI DANGRE, JJ.

PRONOUNCED ON : 13th SEPTEMBER, 2019.
 [Per: Smt. Bharati Dangre, J.]

1. On 12/02/2017, two candidates who were contesting
election of Zilla Parishad and Panchayat Samiti being the
nominated candidates of a political party arranged a dinner party

for their supporters and voters and what transpired in the said
party has resulted into registration of FIR No.36 of 2017 at the
instance of Baban R. Avhad. It is alleged that in the said party,
liquor was served along with dinner and two brothers of the
complainant who attended the party started feeling uneasiness in
the night of 12/02/2017 and since their condition deteriorated,
they were hospitalized in a private hospital at Ahmednagar. They
came to be shifted to the City Civil Hospital and while
undergoing the treatment, they breathed their last. As an
outcome of the consumption of liquor, 9 people died and 13
people took seriously ill and were required to be offered
treatments. The complainant, whose brothers met with the
untimely death lodged a complaint with MIDC Police Station and
an offence punishable under Section 304, 328 read with Section
34 of the IPC came to be registered. Relevant sections vide
Sections 65A, 65B, 65C, 65D, 65E, 68A and 68B and Section
18(1) and (2) of the Maharashtra Prohibition Act, 1949 were also
added to the crime and the accused came to be arrested.
During investigation, it was revealed that the alcohol, which
was supplied in the party was manufactured in one ‘Sai Bhushan
canteen’ of the City Civil Hospital, District Ahmednagar. It is
this canteen of the Civil Hospital which fell within the loop of
investigation and the present Petitioner, on a nexus being
established, came to be roped in.

2. While investigating the crime, a proposal was made to
invoke provisions of Maharashtra Control of Organized Crime
Act, 1999 (“MCOCA”) on 05/02/2017.
In the said proposal total 20 accused persons were named
and the Petitioner was shown to be an absconding. On receipt of
the proposal, the Special Inspector General of Police, CID, Pune,
accorded his approval under Section 23(1)(a) of the MCOCA on
13/07/2017. The approval order brought out that A-8 Jagjitsingh
Gambhir had formed an Organized Crime Syndicate and engaged
in continuing unlawful activities with the object of gaining
pecuniary benefits for himself and other members of the gang.
Two offences registered with Tofkhana Police Station under the
provisions of the Maharashtra Prohibition Act, 1949 of which the
competent court has taken cognizance and one offence registered
with the State Excise under the relevant provisions of the
Maharashtra Prohibition Act, were relied on.
The name of the Petitioner came to be arraigned as a
member of the syndicate headed by A-8 Jagjitsingh Gambhir and
it was alleged that the present crime registered was also similar to
the offences considered for establishing continuing unlawful
activities and on satisfaction being recorded, the prior approval
for application and invocation of Sections 3(1)(i), 3(1)(ii), 3(2),
3(4) and Section 4 of the MCOCA came to be granted against
the accused persons including the Petitioner.

3. The next step taken was the sanction under Sub-Section (2)
of Section 23 of the MCOCA for the prosecution of the aforesaid
offences granted by the Additional Director General of Police,
CID, Pune, by his Order dated 10/08/2017 in which the
Applicant was assigned the role of a Member of the Syndicate and
was covered under the MCOCA. Pursuant to this, a Charge Sheet
came to be filed on 11/08/2017 and the contention of the
Petitioner is that he has been falsely implicated in the said crime
and while granting the approval/sanction by the Respondents,
there was complete absence of application of mind and according
to the Petitioner, there is no nexus established between the crime
registered and the Petitioner nor any incriminating evidence or
proof of commission of any illegal act either individually or
collectively has been attributed to the Petitioner and the
Petitioner questions the very act of the Respondents in arraigning
him as a member of the Organized Crime Syndicate and the filing
of the Charge Sheet against him under the relevant provisions.
4. To complete the narration of sequence of events, it is to be
noted that the Petitioner moved an Application seeking
Anticipatory Bail on 13/12/2018 which came to be rejected by the
Special Judge and the Additional Sessions Judge at Nashik on
17/01/2019 in view of the bar contained in Section 21 of the
MCOCA and while rejecting the said Application, the Special
Judge held that the said Application for grant of Anticipatory Bail

is not maintainable and rejected the same.
5. The Petitioner has, therefore, invoked the writ jurisdiction
of this Court by filing the present Criminal Writ Petition where
he seeks a relief of protection of his fundamental rights enshrined
in Article 21 of the Constitution and has prayed for protecting
him from being arrested. He has also prayed for striking down
the provisions contained in Section 21(3)(iii) of the MCOCA
being arbitrary and unconstitutional and being violative of
Articles 14, 19 and 21 of the Constitution. The Petitioner also
prays for quashing and setting aside the order of rejection of his
Anticipatory Bail Application dated 17/01/2019.
6. In support of the Petition, we have heard Mr. Ponda,
learned counsel, who would place reliance on the judgments of
the Apex Court in Ku. Hema Mishra v. State of U.P. reported in
AIR 2014 SC 1066 and he would submit before us that the High
Court while exercising its writ jurisdiction would weigh and
decide as to whether such proceedings are to be quashed or not
and this is distinct from the grant of interim protection against
arrest.
On the merit of the matter, Mr. Ponda would submit that
the Petitioner had applied in pursuance of a Tender Notice which
was published and invited bids to run the canteen in the Civil
Hospital and this tender was invited in the year 2011-12. He

would submit that the Petitioner being the successful bidder, was
awarded the tender to run the said canteen. However, he would
also submit that since Condition No.3 of the tender document
viz. Security Deposit Amount and the Bank Guarantee was never
complied with by the Petitioner, the possession of the canteen was
never made over to him. He would further submit that the
tender which was floated was only to operate the canteen for a
period of 12 months and the period mentioned in the Tender
Notice expired in the year 2013.
Mr. Ponda would further submit that there was no
compliance on the part of the Petitioner of Condition Nos.15, 16
and 17 of the Tender and the Petitioner has never installed any
electric meter nor paid any electricity bill, property tax, etc. which
would establish any connection between himself and the canteen
which was being run in the Civil Hospital. He would further
submit that on a letter being addressed to the Civil Hospital
Authorities, it has come on record during the course of
investigation that rent for four months approximately
Rs.80,000/- was deposited by another accused Zakir Shaikh and
the attempt of Mr. Ponda is to convince us that the Petitioner was
not at all connected to the Civil Hospital nor he was involved in
the conduct of its day-to-day affairs. He would rely upon several
statements recorded during the course of investigation and in
particular two statements recorded under Section 18 of the
MCOCA and he would then make a reference to the statement of

Mr. Mohan Duggal and Mr. Sonu Duggal, who had stated that
one Jithu Gambhir, a distant cousin of the Petitioner had made
over the canteen to him to be run in the year 2013 itself and a
positive assertion is made that they had paid the money to Zakir
Shaikh. Based on the confessional statement and the other
statements recorded during the course of investigation, Mr. Ponda
would submit that it is apparent that since 2013, the licence
issued under the Shops and Establishments Act, 1948 of Sai
Bhushan canteen was in the name of one Jagjitsingh Gambhir and
the canteen which was allotted on a tender process to the
Petitioner was sub-let to Mr. Jagjitsingh Gambhir and the
Petitioner was never part of the day-to-day business of the
canteen. He would also submit that on the basis of the
statements, the position that emerges is that the canteen premises
were run by three persons viz. Mohan Duggal, Zakir Shaikh and
Jagjitsingh Gambhir along with Sonu Duggal. He would take us
through the relevant portions of the said statements of Mohan
Duggal and Sonu Duggal and also of Savita Duggal. He also
relied upon the statement of Sanjay Dongre recorded on
07/04/2017 stating clearly that the canteen was in the name of
Surjeet Singh Gambhir and it was run by Jittu Gambhir and Zakir
Shaikh and Mohan Duggal was managing the canteen.
In sync with the said witnesses, one Nagnath Dongre’s
statement is also recorded along with Sudhakar Bade, Santosh
Choudhary and Sanjay Hamkare. Based on the aforesaid

statements, Mr. Ponda would make an assertion that even
assuming for a moment that the canteen was allotted to the
Petitioner in the year 2013, whether he could be held guilty for
commission of an offence as serious as Organizing a Crime
Syndicate by virtue of simple act of sub-letting the premises and
can he be attributed a role as a member of an Organized Crime
Syndicate in absence of any positive act being traced to him.
7. Mr. Ponda would rely upon a catena of judgments to submit
that mens rea is an essential ingredient for commission of a crime
and having knowledge of commission of crime and in a serious
offence like the one under the MCOCA, he would submit that
mens rea must be established besides the fact of an agreement to
commit a crime. Mr. Ponda would take his argument further by
submitting that in the charge-sheet the Petitioner is shown to be
absconding but it is not so and he would submit that it is apparent
that there is no evidence to show that he was running the canteen
premises and it is rather for the prosecution to prove ultimately
that he was directly connected to the act or omission and a mere
bald allegation is not sufficient.
8. In support of the respondents, the Public Prosecutor Shri
Deepak Thakare would invite our attention to the charge-sheet
and he would emphasize on the seriousness of the charges levelled
against the accused persons. Shri Thakare would submit that the

charge-sheet specifically alleged that Sai Bhushan canteen was in
possession of the present petitioner and inspite of having
knowledge of the fact that Accused nos.7, 8 and 9 are carrying out
a trade of illicit liquor in the said canteen, the petitioner had
permitted the running of canteen at the hands of these accused
and therefore a very serious charge is attributed to the petitioner.
Shri Thakare would submit that the use of the illicit liquor on the
particular day has caused 9 deaths and had placed several other
persons in a precarious state of life. He also points out that
charge-sheet is filed against the present petitioner under Section
299 of the Code of Criminal Procedure since he is absconding
and a provision is made for filing the supplementary charge-sheet
under Section 173(8) of the Cr.P.C. Shri Thakare would lay
emphasis on the seriousness of the offence with which the
petitioner is charged and he would rely on several documents
placed on record along with the charge-sheet and would submit
that the petitioner was de jure in charge of the canteen from
which the illicit liquor was supplied. According to Shri Thakare,
it is not in dispute that the canteen was allotted to the petitioner
since he complied with the terms and conditions and he would
also place reliance on the statement of Shri Sonawane, Civil
Surgeon of the Civil Hospital who had issued a letter to continue
the canteen contract till further instructions. He would also
submit that Dr.Sonawane has been placed under suspension for
issuing such a letter and continuing the said contract inspite of

the fact that the term of the contract had expired. In these
peculiar facts, Shri Thakare submits that the petitioner has been a
participant in the Organized Crime Syndicate and he cannot deny
that in the canteen, illicit liquor was being brewed and was
supplied and by remaining a mute spectator to the entire
happenings in the canteen which was given to him after following
the tender process, he has become the active participant in the
crime syndicate and according to Shri Thakare, the approval was
rightly granted by the superior officers to prosecute the petitioner
under the provisions of MCOCA.
9. With the assistance of learned counsel for the parties, we
have perused the Writ Petition which also contains the chargesheet
filed in the relevant C.R and we have also heard respective
counsel who have advanced and put before us their rival claims.
In order to ascertain the role attributed to the petitioner by the
prosecution, we would be required to rewind the clock and go
back in the year 2011 and in specific to 26th December 2011 when
an advertisement came to be issued in the local newspapers
inviting bids for running a canteen in the civil hospital at
Ahmednagar. The tender document set out the terms and
conditions and invited bids for running of the canteen of the civil
hospital for a period of 12 months. The tender stipulated that the
bidder would specify the rent amount and the minimum rent
amount was specified as Rs.16,600/-.

It also stipulated as a condition of tender that as soon as the
tender is allotted, a deposit of Rs.50,000/- is to be mandatorily
made and a bank guarantee of Rs. One lakh to be deposited. It
also stipulated that unless and until an agreement is reduced in
writing accepting all the terms and conditions on a stamp paper of
Rs.100/-, the canteen would not be started. Another condition of
the tender was that the electricity bill, municipal corporation tax
and the water bill would be borne by the successful bidder.
Pursuant to the said tender notice, the tender was allotted to the
Petitioner who offered an amount of Rs.18,181/- which was the
highest bid received. The work of running a canteen was,
therefore, allotted in favour of the Petitioner by the Civil Surgeon,
General Hospital, Ahmednagar by his order dated 11th June 2012.
The terms and conditions of the tender documents were included
in the said allotment letter and the Petitioner executed an
affidavit on 14th November 2013 accepting the terms and
conditions. It is the specific case of the Petitioner that though he
was allotted the said canteen, he never actually run the same and
though the tender of the Petitioner was accepted, he did not
comply with the stipulations in the tender notice and in
particular, the condition of the deposit of security deposit of
Rs.50,000/- and the bank guarantee of Rs.1 lakh was never
complied by the Petitioner nor did he file an affidavit on a stamp
paper of Rs.100/- accepting the terms and conditions of the
contract and he also did not comply with the condition of

installation of an electricity meter in his name and payment of
water tax, electricity bill or property tax nor did he pay the
monthly rent or ever received notice about payment of such rent.
The case of the prosecution is that the Petitioner was allotted the
licence to run the canteen in the civil hospital on 11th June 2012
and he continues to run the same when the incident occurred on
12th February 2017. The basis of the prosecution case is based on
an erroneous premise since the tender itself stipulated that the
permission to run the canteen is for a period of 12 months and
therefore, we find substance in the argument of Mr. Ponda that in
any case, after a period of five years, the Petitioner cannot be said
to run a canteen, even assuming for a moment that he started
running the canteen after allotment of tender in his favour.
In order to establish the said facts, the prosecution has
placed reliance upon several statements recorded during the
course of investigation, apart from the confessional statement of
one Mohan Duggal and his son Sonu Duggal. The statements
recorded during the course of investigation bring on record a
completely different saga. The confessional statement of Mohan
Duggal recorded on 6th August 2017 is perused by us. In the said
statement, he proceeds to state that the canteen at the civil
hospital was taken by Surjit Singh, the brother of one Jitu Sheth.
However, since the canteen was not running smoothly, he was
called by Jitu Sheth through one Zakir Shaikh prior to four years
and his willingness was sought to run the canteen on a condition

that he would be required to deposit an amount of Rs.50,000/-
and would be required to pay an amount of Rs.6000/- by way of
loan to Zakir Shaikh. Agreeing to these conditions, Mohan
Duggal started running the canteen and he has stated that he and
his son Sonu were collectively running the canteen. The
statement further disclose that there was no profit in the said
business of running the canteen. He had further stated that in the
year 2016, Jitu Sheth and Zakir Shaikh told him that they would
bring the liquor from Daman and store it in the canteen and start
selling it from there to which he had objected. After some period
of time, Jitu Sheth introduced Mohan to one Bharat Joshi and
told him that he is an expert in preparing illicit liquor and he
used to bring the said liquor in the kitchen and also carry out the
mixing of the liquor in his canteen. Shri Mohan Duggal further
state that when he was coerced to consent to such an
arrangement, on account of fear, he permitted the illicit liquor to
be prepared in the canteen and to be sold therefrom. The
statement thus named Jitu Sheth as the main person who was
assisting him financially and who was in control of the entire
business run in the canteen. The statement then makes a
reference to the incident of supplying the liquor to Bhimraj
Avhad who was supplied with three boxes of liquor which came
to be delivered for an advance of Rs.5,000/- paid to Zakir Shaikh.
The confessional statement of Sonu Duggal is somewhat
similar on the lines of the statement of Mohan Duggal. The wife

of Mohan Duggal i.e. Sarita also produced one receipt from the
police when the keys of the canteen being run by her husband
Mohan Duggal was returned to her. Her statement recorded on
28th February 2017 discloses that her husband was running a
canteen and in his venture he was assisted by her son. She had
further stated that prior to five years, the canteen was handed over
to her husband by one Zakir Shaikh and Jitu Gambhir. She also
stated that whatever profit was earned out of the said canteen was
shared by her husband with Zakir Shaikh and Jitu Gambhir.
Statement of one Sanjay Thombre, Nagnath Dongre and Santosh
Chaudhary recorded by the Investigating Agency in sync disclose
that the canteen was in the name of Surjeet Singh Gambhir but it
was run by Jitu Gambhir and Zakir Shaikh and Mohan Duggal
was looking after the canteen with the assistance of Sonu Duggal
and Hamid Shaikh.
10. Perusal of the said statement clearly emulate that the
canteen was run by Jitu Gambhir and Zakir Shaikh through
Mohan Duggal, Sonu Duggal and Hamid Shiakh. Reliance is also
placed on the statement of Dr. Shri Sonawane, Civil Surgeon of
Civil Hospital, Ahmednagar. This statement makes an interesting
reading as it proceeds to state that on 15th August 2013, the
canteen in the vicinity of the Ciivl Hospital was handed over to
Surjit Singh Gambhir by the then Civil Surgeon Dr. D.C.
Athavale on complying with the procedural formalities for a

period of one year. He further proceeds to state that the term of
the contract came to an end on 14th August 2014 and since the
canteen was being run, till the further tender process was
undertaken, he had issued orders on 2nd September 2014
permitting Surjit Sigh Gambhir to continue to run the canteen
and thereafter, tender notice came to be issued in the local
newspaper inviting bids for running the canteen. In the mean
time, since on 18th December 2014, the State Government took a
policy decision to the effect that if a contract involved an amount
of more than Rs. Three lakhs, an e-tender should be floated and
thereafter, he put up a note for processing e-tender. However, on
some technical count, the process was never implemented and
that is how the canteen continued with Surjit Singh Gambhir.
Dr.Sonawane proceeded to state that since no complaint was
received from anyone, Surjit Singh Gambhir was never asked to
close the canteen and he had never visited the said canteen nor
did he receive any complaint about the illegal operation in the
said canteen. This is the entire material that is collected by the
Investigating Agency during the course of investigation and the
prosecution has relied upon the said statements to connect the
Petitioner to the incident of consumption of illicit liquor on 12th
February 2017 which resulted into death of 9 persons and
grievous injury to 13 other persons.
11. Perusal of the entire material relied upon by the prosecution

disclose that the canteen was allotted by tender process to the
petitioner but since the Petitioner did not complete the
formalities, he was never physically placed in possession of the
canteen and at the most, the case of the prosecution can be
believed to the extent that though the canteen was allotted to the
Petitioner, he had sublet it in the year 2013 itself and from 2013,
Jagjit Singh Gambhir, a distant cousin was running the canteen
through Mohan Duggal who had made a statement that he had
deposited an amount of Rs.50,000/- with Jitu and was paying
rent of Rs.600/- to Zakir Shaikh. The prosecution has not
collected any evidence in form of any statement leading to a
conclusion and establishing that in the year 2017 when the
incident took place in the month of February, the Petitioner was
in any way connected to the running of Sai Bhushan canteen of
the Civil Hospital at Ahmednagar. The specific stand of the
petitioner is that he had no knowledge about the activity taking
place in the canteen since he was neither paying the rent nor
paying the electricity bill, corporation tax, water bill which could
establish his connection to the canteen in the year 2017. The
Investigating Officer had also addressed a letter to the civil
authorities on 4th April 2019 seeking certain information and it is
responded to by an authorized person from the civil hospital who
categorically stated that Surjit Sigh Gambhir did not deposit the
amount of Rs.50,000/- or the bank guarantee in the period
between 15th August 2013 to 31st January 2016. He also

categorically stated that Surjit Singh Gambhir has never deposited
any receipts of payment of water bill, electricity bill, corporation
tax etc. As far as the deposit of the amount of rent of
Rs.80,000/-, the information supplied is to the effect that one
Razak Shaikh had deposited an amount of Rs.80,000/- towards
rent for which a receipt was issued on 1st September 2014 and the
said amount has been deposited through challan in the
Government treasury. The aforesaid material thus irresistibly lead
to a conclusion that Jitu Gambhir was running the said canteen
through Mohan Duggal and his son Sonu Duggal and the
petitioner was not in control of the affairs of the canteen either
physically or financially. The Labour Department has also
informed that the Sai Bhushan canteen registered under the
Shops and Establishments Act is in the name of Jagjit Singh
Gambhir. It can thus be seen that from the year 2013, the
petitioner was not in control of the affairs of the canteen and we
are satisfied with the contention of Mr. Ponda that the Petitioner
cannot be held responsible for any of the misdeeds with which he
is charged and in specific, the case of the prosecution to the effect
that the petitioner who was in possession of Sai Bhushan canteen
has allowed the canteen to be run by Mohan Duggal, Jagjit Singh
Gambhir and Zakir Kadar Shaikh though he was aware that they
are indulging in preparation of spurious liquor and its sale. The
prosecution has no material to demonstrate that the liquor boxes
which were purchased by accused no.4. Bhimraj Avhad from Sai

Bhushan canteen, was being run by Sujit Singh Gambhir. In
absence of the material brought on record, during the course of
investigation, sanction came to be granted by the Additional
Director General of Police, CID, Maharashtra State, Pune to
prosecute the petitioner under Section 3(1)(i), 3(1)(ii), 3(2), 3(4)
and Section 4 of the MCOCA.
12. In the backdrop of the aforesaid material brought on record
in the form of Charge-sheet filed on completion of investigation,
we would examine the arguments advanced by Mr. Ponda as
regards the absence of mens rea on his part and, therefore, it
would be necessary to see the culpability of the Petitioner and his
involvement in the commission of crime either directly or
indirectly in the light of the material collected by the prosecution
to be used and relied upon in prosecuting the present Petitioner.
13. The essence of criminal law has been said to lie in the
maxim - "actus non facit reum nisi mens sit rea ". There can be
no crime without an evil mind and therefore the essence of an
offence be it under the IPC or any other law for the time being in
force, is the wrongful intent, without which an offence cannot be
established. This examination of mental element or mens rea
requisite for every crime, will have to be ascertained from the
surrounding circumstances since the direct evidence of mens rea
at times may not be readily available. Mens rea referred to a

person’s knowledge and the concept was brought in the writings
of English Author - Eugene J. Chesney who promoted the idea
that the act itself does not make the person guilty of crime unless
mind is also guilty. There is a vital difference between the
individual who accidently done something that turns into a crime
and someone who sets out in his mind to do something to hurt
either any person or his property. The mens rea is all about intent
and the individual frame of mind when the crime is committed
and this intent can be gathered from the surrounding
circumstances.
14. The MCOCA is an enactment which contain special
provisions for prevention and control of organized crime and the
criminal activity by the organised crime syndicate or gang. The
said Act is a special enactment which was brought on the statute
book to deal with organised crimes which pose a serious threat to
the Society and crossed the international boundaries when it was
noted that the illegal wealth and black money generated by the
organised crime being very huge, which has serious effect on the
country’s economy and in the State of Maharashtra, the existence
of operation of organised criminal gang being noted, the need was
felt to curb their activities and to achieve this purpose, the
Maharashtra Act XXX of 1999 came to be enacted. The
Petitioner is charged with Section 3(1)(i)(ii), 3(2), 3(4) and
Section 4 of the said Act. Section 3 of the said Act provides for

punishment of organized crime and it reads thus:
“3. Punishment for organised crime-
(1) Whoever commits an offence of organised
crime shall,
(i) if such offence has resulted in the
death of any person, be punishable with death
or imprisonment for life and shall also be
liable to a fine, subject to a minimum fine of
rupees one lac;
(ii) in any other case, be punishable
with imprisonment for a term which shall not
be less than five years but which may extend
to imprisonment for life and shall also be
liable to a fine, subject to a minimum fine of
rupees five lacs.
(2) Whoever conspires or attempts to commit
or advocates, abets or knowingly facilitates
the commission of an organised crime or any
act preparatory to organised crime, shall be
punishable with imprisonment for a term
which shall be not less than five years but
which may extend to imprisonment for life,
and shall also be liable to a .fine, subject to a
minimum of rupees five lacs.
(3) Whoever harbours or conceals or attempts
to harbour or conceal, any member of an
organised crime syndicate; shall be

punishable, With imprisonment for a term
which shall not be less than five years but
which may extend to imprisonment for life
and shall also be liable to a, fine, subject to a
minimum fine of rupees five lacs.
(4) Any person who is a member of an
organised crime syndicate shall be punishable
with imprisonment for a term which shall not
be less, than five years but which may extend
to imprisonment for life and shall also be
liable to a fine, subject to a minimum fine of
rupees five lacs.
(5) Whoever holds any property derived of
obtained from commission of an organised
crime or which has been acquired through the
organised crime syndicate funds shall be
punishable with a term which, shall not be less
than three years but which may extend to
imprisonment for life and shall also be liable
to fine, subject to a minimum fine of rupees
two lacs.”
15. The MCOCA has assigned a specific meaning to the
following terms in the following manner:
“2(d) "continuing unlawful activity" means
an activity prohibited by law for the time
being in force, which is a cognizable offence
punishable with imprisonment of three years
or more, undertaken either singly or jointly,
as a member of an organised crime syndicate
or on behalf of such, syndicate in respect of

which more than one charge-sheets have
been field before a competent Court within
the preceding period of ten years and that
Court has taken cognizance of such offence;
(e) "organised crime" means any continuing
unlawful activity by an individual, singly or
jointly, either as a member of an organised
crime syndicate or on behalf of such
syndicate, by use of violence or threat of
violence or intimidation or coercion, or other
unlawful means, with the objective of gaining
pecuniary benefits, or gaining undue
economic or other advantage for himself or
any person or promoting insurgency;
(f) "organised crime syndicate" means a
group of two or more persons who, acting
either singly or collectively, as a syndicate of
gang indulge in activities of organised crime;
(g) "Special Court" means the Special Court
constituted under section 5.
16. The Petitioner is charged with commission of offence of
organised crime and since it has resulted into death of the person
and in other case, grave injury to others, clauses (i), (ii) of subsection
(1) of Section (3) is invoked and applied. As far as
invocation of Sub-section (2) of Section 3 is concerned, he is
alleged to have conspired or abetted or knowingly facilitated the
commission of an organised crime. By virtue of sub-section (4) of
Section 3 the Petitioner is being charged as a member of the
Organized Crime Syndicate. Perusal of the definition of the term

to which we have referred to above, clearly refers to a continuing
unlawful activity undertaken by a group of two or more persons
either acting singly or collectively either syndicate or gang of an
organised crime. Organised crime for the purpose of the
enactment means any continuing unlawful activity by an
individual, singly or jointly, either as a member of an organised
crime syndicate or on behalf of such syndicate, by use of violence
or threat of violence or intimidation or coercion, or other
unlawful means, with the objective of gaining pecuniary benefits,
or gaining undue economic or other advantage for himself or any
person or promoting insurgency. Perusal of the scheme of the
enactment with the specific meaning assigned to the term used in
Section 3 would create no doubt in one’s mind that before
invoking and applying the offences under the said enactment,
mens rea is a necessary ingredient for charging a person with an
offence under the MCOCA. In Ranjitsingh Brahmajeetsing
Sharma v. State of Maharashtra & Ors. reported in AIR 2005
SC 2277, while dealing with an appeal filed by a former
Commissioner of Police posted in the City of Pune, who was
charged with the offence under Section 3 of the MCOCA, the
provisions of the MCOCA were invoked against the accused
persons, who were found with the huge quantity of stamps,
printing machinery and the allegations against the Appellant were
the Applicant knew the adverse antecedents of the Accused
persons. Certain sequence of events were relied upon by the

prosecution.
While dealing with the said appeal, the Apex Court has
observed that the allegations against the Appellant was abetting
the two public servants and they may or may not have any direct
role to play as regard to commission of an organised crime but
unless and untill a nexus with the accused, who is a member of
the organised crime syndicate or an offence in the nature of
organised crime is established, the Apex Court concluded that the
Appellant cannot be said to have abetted commission of an
organised crime and, therefore, held that Section 3(2) of MCOCA
is not attracted.
17. In the case of Bharat Shantilal Shah & Ors. v. State of
Maharashtra reported in 2003 Bom.C.R. (Cri.) 947, which
decided the constitutional validity of the MCOCA, the Division
Bench of this Court while upholding the validity pronounced that
the provisions of Sections 3 and 4 of the MCOCA contemplate
the existence of mens rea inherently and shall always be read
therein as a necessary ingredient of the offence. The said
judgment was subsequently upheld by the Hon’ble Apex Court in
the case of State of Maharashtra v. Bharat Shantilal Shah
reported in 2009 (1) ACR 924 (SC). As regards the argument of
mens rea, the Apex Court observed thus:
19.Even otherwise when the said definitions as
existing in Section 2 (d), (e) and (f) of the

MCOCA are read and understood with the object
and purpose of the Act which is to make special
provisions for prevention and control of
organised crime it is clear that they are worded to
subserve and achieve the said object and purpose
of the Act. There is no vagueness as the
definitions defined with clarity what it meant by
continuing unlawful activity, organised crime and
also organised crime syndicate. As the provisions
treat all those covered by it in a like manner and
does not suffer from the vice of class legislation
they cannot be said to be violative of Article 14 of
the Constitution.
With respect to Section 3 of MCOCA, even
before the High Court the attack was in particular
in respect of the provisions of Section 3 (3) and
(5) on the ground that the requirement of mens
rea is done away with, thus automatically
rendering a person without any intention or
knowledge liable for punishment. It is a well
settled position of law insofar as criminal law is
concerned that in such provisions mens rea is
always presumed as integral part of penal offence
or section unless it is specifically and expressly or
by necessary intendment excluded by the
legislature. No such exclusion is found in subsections
(3) and (5) of Section 3. As held by the
High Court, if the provisions are read in the
following manner no injury, as alleged, would be
caused:
(3). Whoever (intentionally) harbours or conceals
or attempts to harbor or conceal any member of
an organized crime syndicate shall be punishable
with imprisonment for a term which shall not be

less than five years but which may extend to
imprisonment for life and shall also be liable to a
fine, subject to a minimum fine of rupees five
lacs.
(5). Whoever (knowingly) holds any property
derived or obtained from commission of an
organized crime or which has been acquired
through the organized crime syndicate funds shall
be punishable with a term which shall not be less
than three years but which may extent to
imprisonment for life and shall also be liable to
fine, subject to a minimum fine of rupees two
lacs."
18. It is thus by now a settled proposition that the offence
under MCOCA would necessarily require establishment of mens
rea.
19. On marshaling the evidence collected by the Respondents
during the course of investigation, we find that the said mens rea
is conspicuously absent. The Petitioner, who was allotted a
canteen in the year 2013 pursuant to a tender notice which was to
operate for a period of one year is roped in with an allegation that
he continues to control the affairs of the canteen of the Civil
Hospital in the month of February, 2017 when the incident took
place. There is no material brought on record to establish that the
Petitioner had any knowledge of the activities which was being
undertaken in the canteen at the instance of the persons who were

running and managing the canteen. On the contrary, the evidene
collected during the investigation reflect to the contrary that, one
Zakir Shaikh was running the canteen and it can be conclusively
said so since he was the one who was paying the municipal taxes,
water/electicity bills and even the shop and establishment
registration is in his name.
20. The element of mens rea and intention must accompany
the culpable act and conduct of the accused and to attribute a
person a criminal act, it must be established that he possessed the
mental state or degree of fault at the relevant time. The burden
lies on the prosecution to prove that the accused satisfied the
definition of actus reus of a particular crime which is coupled with
mens rea which would vary depending on the nature of the crime
and also would vary in the matter of degree. It would be
appropriate to refer to the proposition of law put in by J.C. Smith
and Brian Hogan in the following words:
“It is a general principle of criminal law that a
person may not be convicted of a crime unless the
prosecution have proved beyond reasonable
doubt both (a) that he caused a certain event or
that responsibility is to be attributed to him for
the existence of a certain state of affairs, which is
forbidden by criminal law, and (b) that he had a
defined state of mind in relation to the causing
of the event or the existence of the state of
affairs. The event, or state of affairs, is called the

actus reus and the state of mind the mens rea of
the crime.”
In the words of Glanville Williams in Criminal Law -
“Although thoughts are free, the uttering of
them is another matter. Speaking or writing
is an act, and is capable of being treason,
sedition, conspiracy or incitement; indeed,
almost any crime can be committed by
mere words, for it may be committed by the
accused ordering an innocent agent (e.g., a
child under eight) to do the act. But to
constitute a criminal act there must be (as
said already) something more than a mere
mental resolution. Apparent, but not real,
exceptions to this proposition are treason
and conspiracy. It is treason to compass the
King's death, but the law requires an overt
act manifesting the intention; and this act
must be something more than a confession
of the intention. It must be an act intended
to further the intention; perhaps, too, it
must actually do so....”
21. Keeping this proposition in mind, we do not find any
definite material contained in the Charge Sheet to prosecute the
Petitioner under the MCOCA. The Petitioner had approached
this Court seeking protection of his fundamental rights enshrined
under Article 21 of the Constitution and seek protection from
arrest. He had approached the Additional Sessions Judge seeking

Anticipatory Bail which came to be rejected on 17/01/2019 on
the ground of bar contained in the MCOCA. He has invoked the
writ jurisdiction of this court by filing a petition under Articles
226 and 227 of the Constitution and apart from praying for
striking down Section 21(3) of the MCOCA being arbitrary,
unconstitutional and violative of Article 14, 19 and 21 of the
Constitution, he also seeks a relief of quashing and setting aside
the Order passed by the Special Judge, Nashik in the Anticipatory
Bail Application, rejecting his bail on the ground of
maintainability. The grain of argument of the Petitioner is that in
absence of any prima facie evidence suggesting his involvement in
the alleged crime which has ultimately emerged in the Charge
Sheet filed by the Investigating Agency, the Petitioner seeks
protection of his fundamental rights enshrined in Article 21 of
the Constitution.
22. Though Mr. Ponda has placed heavy reliance on the
judgment in Ku. Hema Mishra’s case (supra), we are of the
opinion that the said judgment is not of any support to him for
the reason that the Apex Court was dealing with the exercise of
power by the High Court in the absence of an anticipatory
bail/pre arrest bail provision in existence in the State of Uttar
Pradesh and it is in the peculiar circumstances Their Lordships of
the Apex Court have held that an Accused can approach the High
Court under Article 226 of the Constitution for grant of relief of

anticipatory bail.
In absence of any provision similar to Section 438
applicable in the State of Uttar Pradesh, the Apex Court
examined the power of the High Court to entertain the petition
under Article 226 of the Constitution and reminded the Court of
being cautious in its approach and has expressed that the
provisions of Article 226 of the Constitution can be used as a
device to advance justice and not to frustrate it.
23. It is no doubt true that the High Court has wide powers
under Article 226 of the Constitution when a petition is filed
invoking the writ jurisdiction of this Court, seeking protection of
fundamental rights of the Petitioner. We have ascertained the
claim of the Petitioner from the facts placed before us. The
perusal of the overall material against the Petitioner taken at its
face value, does not disclose any sufficient or tangible material
which according to us would justify the invocation of the
provisions of the MCOCA against the Petitioner. There is no
material placed on record to establish him as a member of any
crime syndicate nor it is established that he was a participant in
the commission of an offence by establishing that he had the
knowledge of the happenings in the Civil Hospital’s canteen
which was allotted to him on paper but which he never physically
administered by him. The confessional statement attributes no
role to the Petitioner and the chargesheet is bereft of any material

to establish that the Petitioner was in control of the canteen since
the year 2013. In such circumstances, we are prima facie satisfied
that the order granting sanction to prosecute the Petitioner by the
Special Inspector General of Police, CID, Pune, suffers from nonapplication
of mind as no material is brought on record in the
form of Charge Sheet justifying invocation of the provisions of
MCOCA against the Petitioner. In absence of any mens rea,
knowledge or intention, if the Petitioner is subjected to the rigors
of trial and with the stringent provisions of being incarcerated in
the absence of a provision for anticipatory bail and the grant of
bail being subjected to stringent condition enumerated in Section
23 of the Act, in our considered view the Petitioner is entitled for
protection against his arrest in the said offence reserving the
question of determination of validity of Section 21(3), in
appropriate proceedings. In the result, in exercise of our writ
jurisdiction to protect the fundamental rights of the Petitioner
enshrined in Article 21 of the Constitution of India and to protect
him from being arrested under the relevant C.R in respect of
which a charge-sheet has been filed and the Petitioner has been
shown to be an absconding accused, we direct that the Petitioner
shall not be arrested in absence of any material being available
against the Petitioner in the charge-sheet establishing his
culpability under the provisions of the Maharashtra Control of
Organized Crime Act, 1999.

24. We make it clear that the observations made in the
judgment are restricted qua the allegation of culpability of the
Petitioner. We have not gone into the case of other accused nor
have commented upon their culpability.
25. The Petition is allowed in terms of prayer clause (a). No
order as to costs.
(SMT. BHARATI DANGRE, J.) (RANJIT MORE, J.)

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