1. By these petitions, the petitioners have challenged the constitutional validity of the State Legislature called Maharashtra Control of Organized Crime Act 1999 (hereinafter referred to as M.C.O.C.A. for the purposes of brevity).
2. Taking into consideration the growing menace of organized crime within the State of Maharashtra and finding it extremely difficult to deal with it effectively within the laws available, it was considered necessary by the State of Maharashtra to enact a comprehensive legislation for the purposes of providing adequate provisions of law to deal with this menace of organized crime. It was also thought necessary that the present provisions of law are not adequate in respect of certain aspect which will have to be controlled, if there has to be effective preventive control on organized crime.
3. Therefore, the Governor of Maharashtra promulgated the Maharashtra Control of Organized Crime Ordinance 1999 being Ordinance No. 3 of 1999 on 21-2-1999. This Ordinance was almost identical with the enactment called MCOCA.In fact the law requires that the Ordinance be placed before the legislature within the stipulated period and therefore it was so placed and the bill was passed converting the Ordinance into an Act of Maharashtra. It came into force from 24-2-1999, and received the assent of the President of India on 24-4-1999. This enactment is challenged before us in these petitions basically on two grounds. Firstly on the ground of lack of legislative competence of the State Legislature. That is to say the legislation (MCOCA) is made to effectively control organized crime within the State of Maharashtra and to facilitate collection of evidence by interception of the wireless or telegraphic messages. This being the object of the Act, the various entries in the list II of the 7th schedule of the Constitution, do not provide for any such field of legislation available to the State by recourse to which legislation could be made by the State under Articles 245 and 246 of the Constitution of India.
4. According to the petitioners one of the main objects of the enactment is to prevent organized crime by taking recourse to interception of wireless or other messages, so that on acquisition of such knowledge proper steps to prevent crime or to prevent growth of organized crime in the State can be taken. It is therefore a legislation made for the purpose of interception of telecommunication. The interception of such messages according to the petitioners is a subject covered by entry 31 of list I which is already occupied by the Indian Telegraphic Act 1885, which deals with such interceptions and to cover that the Act and Rules thereunder are in force even today. Consequently the State of Maharashtra could not legislate on the subject being incompetent to do so with reference to the various entries in list I and List II.
5. The second aspect of the challenge is that assuming existence of legislative competence in Maharashtra Legislature, the provisions make serious inroads on fundamental rights of the citizens and therefore those provisions are void as they invade the fundamental rights of the petitioner. The argument is therefore that several provisions of the Act make serious inroads on the fundamental rights and therefore the legislation is unconstitutional. As Article 13 prohibits making of such legislation it is contended that it is ultra wires for the legislature to do so. In other words the argument is that certain provisions of this Act are liable to be declared ultra wires part III of the Constitution.
6. The learned counsel for the petitioner Mr. V.R. Manohar made elaborate submissions on these issues and contentions, which we will notice later on. Mr. S.G. Aney special counsel representing the respondent State submitted that certain presumptions do exist for interception of legislation as intravires and ultra wires the constitution and those principles be kept in mind before analyzing the provisions of MCOCA for the purposes of determining its constitutional validity. There is no dispute between the contesting parties regarding existence and importance of the basic principles of interpretation of the constitution for the purposes of determining the constitutional validity of any enactment by any court of law. In fact over last 50 years several statutes have been challenged on the ground of legislative competence or on the ground of violating the fundamental rights of the citizens. The principles have been now well settled by several authorities of the Supreme Court of India. In our opinion there can be no dispute regarding the existence of certain established cannons of interpretation of a statute for the purpose of examining its constitutional validity. As submitted by the learned counsel appearing for the contesting parties consideration of the several submissions made at the bar should proceed on the basis of these accepted principles of interpretation.
7. There can be no dispute about this position in law. There also can be no dispute about the existing cannons of interpretation for considering the statutory validity of the enactment in relation to the constitutional provisions in that regard. We have carefully gone through the various rulings cited before us by both the sides on this issue of principles of interpretation. In our opinion the established principles of law on the basis of which and in accordance with which the statutory validity of MCOCA is to be determined enumerated briefly are as under:
1) There shall always be a presumption of constitutionality in favour of a statute and while construing such statute every legally permissible effort should be made to keep the statute within the competence of the legislature.
2) While considering the constitutionality of a statute the court must lean heavily on the presumption of it being constitutional, unless the contrary is proved with substantial correctness, and in so doing the words or phrases used in the impugned statute should be liberally construed and efforts must be made to avoid attributing futility to any such phrases or sentences or clauses used in the section.
3) In the event of a contention being raised that the State statute is conflicting with the Central statute for whatever reasons, the court should interpret both the statutes harmoniously and as far as possible in a manner so as to avoid rendering any or either of them illegal or unconstitutional.
4) The power to legislate is derived by the legislature via Articles 245 and 246 of the Constitution of India and its exercise is subject to the provisions of part III of the Constitution. This power to legislate is to be exercised strictly as per Articles 245 and 246 read with Schedule VII of the Constitution.
5) The court should adopt the doctrine of pith and substance in coming to the conclusion of what is true nature and character of the subject covered by the principle legislation impugned before the court. Peripheral overlapping of minimal nature should be ignored, if in pith and substance the legislation is within the competence of the legislature making it.
(See 1) A.I.R. 1962 S.C. page 995, 2) , 3)
and several other decisions).
8. It is in the light of these undisputed principles of law regarding the validity of statutes framed by the legislature in India that we would now proceed to consider the constitutional validity of the provisions of MCOCA.
9. The first challenge is to the entire enactment called MCOCA. The submission of Mr. V.R. Manohar, stated in a nutshell, is that the entire Act is intended to prevent the commission of organized crime and increase in the commission of such crime and for that purpose the provisions are enacted. All these provisions in Pith and substance, are therefore provisions made for the purpose of preventing organized crime, making it penal in itself and providing for the machinery for doing it. The Act has defined what is an organized crime syndicate. It has defined what is organized crime and it has defined what is continuing unlawful activity. According to the learned counsel the entire enactment revolves around what is meant by continuing unlawful activity and organized crime and organized crime syndicate. These three definitions contained in Section 2(1)(d)(e) and (f) are so interwoven and interdependent that they are unconstitutional taken together as they violate the requirement of Article 13(2) of the Constitution, they make serious inroads into fundamental rights, by treating unequals as equals and are unsustainably vague. If these three definitions are held unconstitutional and therefore struck down as submitted by the leaned counsel, his further submission is that the entire enactment must go because it is an enactment for the purpose of preventing organized crime by a syndicate and the provisions cannot be read without the definition. This argument is countered by Mr. Aney by submitting that there is no vagueness in any of the definitions as alleged by the petitioner. The definitions have to be construed harmoniously and there is no ground for striking down the enactment as unconstitutional and even if the definitions are struck down, if they are found violating the fundamental right, there is enough guidance in the preamble of Act itself to carry out the purpose of the Act and on this ground the entire statute need not be struck down.
10. Heavy reliance was placed by Mr. V.R. Manohar on a judgment of Supreme Court in Amarnath Omprakash v. State of Punjab , to contend that the courts while interpreting the provisions of law may explain what is meant by a particular provision, it cannot substitute the words used in the enactment by their own words or explanation so as to give the proper meaning of the legislation.
"A case is only an authority for what is actually decides and not for what may seem to follow logically from it. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute it may become necessary for judges to embark into lengthy discussions, but the discussion in meant to explain and not to define. Judges interpret statutes and they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes."
11. Relying on the above dicta of the Supreme Court in the above mentioned case Mr. Manohar contended that the provisions of Section 2(1)(d)(e) and (f) should be meaningful without any additional of words thereto or explanation. Therefore, keeping in mind this contention and various other authorities cited at the bar we will now consider the provisions impugned before us.
12. The petitioners have challenged the provisions of Section 2(1)(a)(d)(e) and (f). We will consider the challenges one by one as they are made, and at the same time we will also consider the defence raised by the State in respect of these clauses. It is necessary to reproduce these provisions verbatim.
"2. Definitions....(1) In this Act, unless the context otherwise requires--
(a) "abet", with its grammatical variations and cognate expressions, include, ....
(i) the communication or association with any person with the actual knowledge or having reason to believe that such person is engaged in assisting in any manner, an organized crime syndicate.
(ii) the passing on or publication of, without any lawful authority, any information likely to assist the organized crime syndicate and the passing on or the publication of or distribution of any document or matter obtained from organized crime syndicate; and
(iii) the rendering of any assistance, whether financial or otherwise, to the organized crime syndicate;
(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 of jointly, as a member of an organized crime syndicate in respect of which more than one charge sheets have been filed before a competent court within the preceding period of ten years, and that court has taken cognizance of such offence.
(e) "organized crime" means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organized 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 other person or promoting insurgency.
(f) "Organized crime syndicate" means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organized crime."
13. According to the petitioner as already submitted, these definitions are vague, discriminatory and arbitrary and therefore violative of the Constitution. Mr. Aney the learned counsel for the State referred to the provisions and pointed out that there is nothing vague in all these provisions and submitted that while interpreting an enactment the court should have regard to the meaning of the words used and the context in which they are enacted, as was done, according to him in the case of Kartar Singh.
14. Shri Manohar, learned counsel appearing on behalf of the petitioner submitted that the definition of the word 'Abet' in MCOC Act is very confusing and vague. Going to the provisions as quoted above of the word 'Abet'; it will be seen that for the purposes of this act. The word 'Abet' itself is not defined and only that is defined which by this enactment includes within the definition of the word 'Abet'. It is an inclusive definition without defining what the word "Abet" means. The challenge therefore is that any communication or association whatsoever, with any person known to be or believed to be a person engaged in organized crime or assisting any organized crime syndicate would be abetting an offence mentioned in the MCOC Act. As an illustration, since any communication or association with member of the organized crime syndicate by any person is regarded as abetment, take the case of a communication by a Chartered Accountant with his client in relation to the client's legitimate business connections, knowing that there are certain illegal activities also undertaken by such person; even if the communication has nothing to do with the illegal activities of that man or his association with organized crime syndicate and yet he, the Chartered Accountant in view of this definition would be taken to have abetted the activities etc. of the person alleged to be a member of organized crime syndicate. According to the learned counsel therefore such definition has no reasonable nexus with the object of the act which is to control and prevent commission of organized crime activity either of a gang or a group or otherwise. Therefore according to the learned counsel the definition is liable to be struck down. Mr. Aney, learned counsel appearing for the State submitted that these definitions are inclusive and it only takes in such communications or associations that are connected with organized crime. The definition is inclusive and therefore there is no unconstitutionality attracted to it.
15. It is true that the word 'Abet' is not defined in the Prevention of Terrorism Act, 2002 and it adopts the definition of that word in Indian Penal Code. In our opinion, similar is the position in the MCOC Act. The definition of word abet in Section 2(1)(a) is an inclusive definition and it includes within the definition of that word three more items mentioned as i), ii) and iii). Of necessity and according to the established principles of interpretation the word Abet means what it means in the provisions of the Indian Penal Code Sections 107 to 109 and includes what is quoted as items 1, 2 and 3 in Section 2(1)(a) of MCOC Act.
16. That takes us to the provisions of Indian Penal Code in relation to abetment. They are contained in Chapter V of Indian Penal Code. Section 107 defines word abetment of a thing, Section 108 defines word abettor and according to that section a person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention and knowledge as that of an abettor. Section 109 provides for punishment for abetment. Presently we are not concerned with the punishment. From the definition contained in Section 107 and 108 of the Indian Penal Code a person abets doing of a thing who instigates any person to do anything which is prohibited by law or otherwise assists him in doing that which is prohibited by law, which must always include an offence. It does speak of intention as will be seen from very definition of abetment in Section 107. It speaks firstly of instigating any person to do a particular thing, instigation always postulates intention. Any such activity in collusion with or in furtherance of any illegal act or omissions sought to be done by some else. That again postulates intention. Thirdly it specifically provides that intentionally aids any act or illegal omission, the doing of that act. Here though the word illegal act is not used it is always presumed to be there because it is only aiding an illegal act or omission which is made punishable as abetment of crime. It will therefore have to be seen that abetment as inciting or aiding the commission of an offence is already defined by Indian Penal Code. What has been done by defining the word "abet" in Section 2(1)(a) of MCOC Act is to make that definition wider by saying that it will include in it above mentioned three acts described in i), ii) and iii). Whenever therefore a reference is to be made under the provisions of MCOC Act to abetment or abetting it will have to be a reference to Section 107 and 108 of Indian Penal Code and Section 2(1)(a) of MCOC Act. So read, there is no ambiguity. There is no vagueness in this definition. The words communication or association occurring in item (i) of Section 2(1)(a) must therefore necessarily be read to mean communication or association in aid or assistance to anything done by organized crime syndicate as an organized crime. Similar is the case of rendering any assistance whether financial or otherwise to organized crime syndicate for the purpose of organized crime. It will be far fetched and therefore incorrect reading of the provision to say that even rendering of medical assistance to a member of crime syndicate or contributing for the welfare of his children, who may suffer because of criminal activities of that person would amount to an abetment as suggested on behalf of the Petitioner. Rendering any assistance whether financial or otherwise must therefore be read to mean as assistance to organized crime or syndicate or to a person who is doing any one of the two things. The preamble of the act itself says that this enactment being made for prevention and control of organized crime. The definitions must always be interpreted with reference to the objects for which they are made. A provision making a communication or association with any person or rendering any assistance whether financial or otherwise to any person without reference to the activity itself would be doing great violence to the language of section. Such interpretation is not permissible. Communication or rendering of any assistance in any manner has to be read keeping in mind the object for which it is made viz. prevention and control of organized crime or organized crime syndicate. In our opinion, therefore, there is no illegality in this provision. It does not suffer from violation of fundamental right, it does not rope in persons who do not act in furtherance of organized crime or organized crime syndicate, it does not touch and it cannot touch persons who render such communication or association or assistance with benevolent purpose unconnected with the criminal activities of the person to whom it is rendered even if it is with the knowledge that he is a criminal. The Legislature never intended, and the provision cannot be interpreted to mean that a criminal should be segregated from a society for all the times to come and for all purposes to come i.e. he would have no innocent and legal transaction related to daily living. Therefore if innocent people have transactions with such a person for lawful purposes they must not be taken to have abetted such a person in criminal activities. This is not the intention of the legislation, it is not made for taking away basic human rights of even a criminal. Right to medical assistance. Right to religious attendance and such similar fundamental rights are basic rights of human beings and those will not be and cannot be curtailed by any legislation or interpretation of legislation. They would amount to abetment only if they are connected with commission of organized crime or organized crime syndicate. A communication to crime syndicate or person belonging thereto of a nature which will further the object or activity of crime syndicate, that person is certainly covered by provisions to be used as such. But a prayer made by a Priest for giving mental solace to a known criminal cannot be by any stretch of imagination called a communication or association which is culpable under the act. It must be for aiding or abetting organized crime. To read the definition as such is the only legal way it should be read. To do anything else will be contrary to the established principles regarding statutory interpretation.
17. In our opinion, therefore the definition of the word abet occurring in Section 2(1)(a) of the act must always be read in addition to the definition of these words occurring in Sections 107 and 108 of Indian Penal Code because the definition is only inclusive. It says abet means what it means in the Indian Penal Code and it includes what it is as by Clauses 1, 2 and 3 mentioned in 2(1)(a). The principle of cohesive interpretation of statute requires such interpretation and if so made there is no constitutional infirmity in the provisions of Section 2(1)(a).
18. It will be seen that an inclusive definition is resorted to when something already well defined exists and Legislature desires to add something more to it. The definition to abet or abetment or abettor is existing for the last more than 100 years in the Indian Penal Code Sections 107 and 108. Judicial notice of such existence has to be taken and has been taken by the Legislature and therefore it framed definition in Section 2(1)(a) of the word abet in an inclusive manner. It therefore says words abet or abetment or abettor mean what they mean in the Indian Penal Code and will include for the purposes of this enactment the three activities mentioned in Section 2(1)(a). In our opinion, therefore, so read the definition is neither unconstitutional nor vague and there is therefore no reason to strike it down. All that has been done by this definition clause is to include certain specified items in the definition of the word abet or abetment already existing in the definition in I.P.C. It always contemplates intention on the part of person alleged to have abetted any offence. The entries added to it by three Clauses in 2(1)(a) of the act have to be read therefore in consonance with the provisions of Sections 107 and 108 in the Indian Penal Code which as aforesaid always contemplate intention to aid or assist or instigate commission of criminal offence. It is not intended to cover innocuous communications as described above. Several illustrations can be given and were given at the Bar either way and we need not repeat the same here as in our opinion intention of the Legislature is obvious, i.e. to cover instigation to commit or assist commission of a crime by doing any of those mentioned in definition in addition to what has been already provided for by Sections 107 and 108 of the Indian Penal Code. It cannot be said or even argued that anything done for facilitating commission of a crime not covered by these three clauses will not be an abetment of such offence in view of the definition as it stands. Doing anything else or otherwise than what is mentioned in three items shall also continue to be abetment of crime, organized crime or crime as defined in the act committed individually or by syndicate or by a gang. We are fortified in the view that we are taking by a judgment of this Court reported in the case of A.C. Patel v. Vishwanath where this Court was
considering constitutional validity of the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 in its application to cantonments area. This Court has in that case observed that it is permissible to rely on corresponding entries in the constitution or other statutes for the purposes of proper and liberal construction of the statute. We may with respect quote the observations of this Court in this regard:
"The well established canon of construction with regard to various entries in Schedule 7, Government of India Act is that these entries must not be construed in a narrow and restricted sense. They must be construed liberally and it must be assumed that Parliament intended by using a comprehensive expression to give to the Legislature all subsidiary and ancillary powers.
It is permissible to rely on a corresponding entry in the Constitution of India to show what was the intention of the Constitution makers, because it is well known that the Constitution was based upon the Government of India Act and the Court must look at the Constitutional history in order to construe expressions used in the Government of India Act and in the Constitution."
This judgment also holds that the word 'including' or 'includes' is a term of extension and it imports addition. It adds to the subject matter already comprised in the definition. Therefore the definition of abet in MCOC Act is an inclusive definition and it includes the three clauses mentioned therein to the original definition of abet and abetment in Indian Penal Code. It is also provided in General Clauses Act, 1897, by Section 3 thereof that in the General Clauses Act and in all other Central Acts, Regulations made after the commencement of the Act unless there is anything repugnant to the subject or context "abet" with its grammatical variations and cognate expressions shall have the same meaning as in the Indian Penal Code. Same is the case in relation to the definition of abetment and therefore the definition of the word "abet", "abetment" etc. occurring in Sections 107 and 108 of Indian Penal Code. It will be seen that it is statutorily necessary when we are interpreting the inclusive definition to read it as including something to what has already been defined by provisions of the Indian Penal Code. We therefore reject the contention that the definition of Section 2(1)(a) is liable to be struck down.
19. Dealing with the next definition in Section 2(1)(d) of 'continuing unlawful activity' it was submitted that it suffers from violation of Article 14 as it treats unequals as equals. It makes an activity continuing unlawful activity if more than one charges of cognizable offence punishable with imprisonment of three years or more are filed in competent court. It does not touch an activity as 'continuing unlawful activity' if undertaking by a person who is known to be a criminal but more than one charge sheets have not been filed against him. A person charged ten times of an offence though acquitted on every occasion may yet be roped in as a person engaged in continuing unlawful activity. Whereas a person who is convicted for an offence for three years punishment cannot be touched by this definition if he is not charged with more than two of such offences. The definition therefore treats as equal persons who are hopelessly unequal that is to say a person who is a known criminal but chargesheeted and convicted not more than once and another who has been falsely charged with 10 fabricated charges and acquitted of all the 10 charges with a finding that the charges were fabricated yet merely because cognizance has been taken of that charge are treated as person engaged in continuous unlawful activity. The definition is therefore arbitrary and liable to be struck down as violative of Article 14. The arguments appear to be attractive at the first blush, but deeper scrutiny reveals the hollowness of the argument.
20. For this purpose also we have to go by the basic principle of interpretation of statutes. A statute must always be interpreted with reference to the objects for which it is enacted, with reference to the preamble of the enactment. In the present case also therefore we must remember that this enactment of MCOC Act is enacted by the Legislature for the purposes of making special provisions for the prevention and control of criminal activity by a person or a gang and for matters connected therewith or incidental thereto meaning thereby connected and incidental to organized crime and organized crime syndicate. We have therefore scrutinized the definition clause in Section 2(1)(d) with this object of enactment mentioned in the preamble itself.
21. Our attention was drawn by Shri Aney to a judgment of Supreme Court of India in the case of V.C. Shukla v. State (Delhi Admn.) 1980 Supp. SCC 249 where it has been laid down by the Supreme Court as under:
"We are, therefore, satisfied that the term 'persons holding high public or political officers' is self-explanatory and admits of no difficulty and that mere absence of definition of the expression would not vitiate the classification made by the Act."
22. Relying on this observation Shri Aney contended that in this case also reference be made to the preamble and the definition be understood inter alia with reference to what has been said to be aims and objects of this enactment in the preamble. So read, according to him, the definition would be outside the charge of unconstitutionality. Very heavy reliance was placed by Shri Manohar on a judgment of the Supreme Court of India in the case of Kartar Singh v. State of Punjab . There a Constitution Bench of the Supreme Court was considering the constitutional validity of the provisions of the Terrorism Disruptive Activities (Prevention) Act, 1987. Several provisions of that enactment are similar to the provisions of MCOC Act. By that judgment the Supreme Court of India considered constitutional validity of all the provisions of that act as were alleged to be unconstitutional. Reliance was placed on the observations of the Supreme Court in para 130 of the said judgment which reads as under:
"130. It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasized that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to "steer far wider of the unlawful zone..... than if the boundaries of the forbidden areas were clearly marked."
23. From the above it will be seen that an enactment would be void for vagueness if the provisions contained therein are not clearly defined or as alleged in the present case the definition itself is completely vague. The argument of Shri Manohar therefore is that this definition of continuing unlawful activity is vague, it does not state with any certainty as to who and when shall be said to have engaged in continuing unlawful activity. He therefore claims that this part of section is liable to be struck down for vagueness. We are unable to accept this argument of vagueness for two reasons. Firstly, in our opinion, it is not vague and secondly, the Supreme Court has laid down in very clear terms that a Legislation cannot be struck down on the ground of vagueness. We would like to note the observations of the Supreme Court of India in this behalf in the case of Amritsar Municipality v. State of Punjab, . A three Judge Bench of the Supreme Court was considering the constitutional validity of the provisions of Punjab Cattle Fair Regulations Act, 1968. A submission was made before the Supreme Court that the statute is liable to be struck down on the ground of vagueness and it was canvassed that the expression Cattle Fair was not defined in the Act and consequently provisions of the act are vague. Reliance was placed for the other proposition on the judgment of the Punjab High Court wherein Punjab High Court struck down the provisions of the Cattle Fair Regulation Act on the ground of vagueness. Considering these submissions the Supreme Court observed as under:
"But the rule that an Act of a competent legislature may be "struck down" by the Courts on the ground of vagueness is alien to our Constitutional system. The Legislature of the State of Punjab was competent to enact legislation in respect of "fairs", vide Entry 28 of List II of the Seventh Schedule to the Constitution. A law may be declared invalid by the Superior Courts in India if the Legislature has no power to enact the law or that the law violates any of the fundamental rights as guaranteed in Part III of the Constitution or is inconsistent with any constitutional provision, but not on the ground that it is vague."
24. The Supreme Court specifically over ruled the decision of the Punjab High Court holding the Act invalid
for vagueness. The argument that because of the definition of continued criminal activity as made in the MCOC Act is vague, the Act is liable to be struck down, must be rejected and is accordingly rejected.
25. Then we would consider the submission of Shri Manohar that the definition of continuing unlawful activity violates the mandate of Article 14 and is therefore liable to be struck down. According to the learned counsel unequal are being treated as equals. Persons charge only once are not brought within the purview of the act but a person with several charges framed and cognizance taken by competent court who later on are acquitted a recovered by the definition. According to him therefore a person is acquitted of ten. charges cannot be treated as equal to a person who is charged and convicted of only one offence. In our opinion, there is no violation of Article 14 by this definition. If we read the definition again, what has been defined as continuing unlawful activity is a member of organized crime syndicate in respect of which any activity prohibited by law and done repeatedly i.e. more than one for which charge sheet has been filed in the court of competent jurisdiction in the part ten years. The purpose of definition is to define what continuing unlawful activity is and it is for the purposes of defining what is continued unlawful activity that those charges are to be taken into consideration. Mere taking into consideration of such charges cannot result in discrimination of the kind alleged by Shri Manohar. The activity must be continuing unlawful activity and to define it with clarity it is provided that any person who in the past was charge sheeted for more than one charge of such activity or crime the cognizance of which has been taken and imprisonment for which is more than three years should be taken into account. The fact of the person having been charge sheeted in such cognizable offences in the past makes the unlawful activity, continuing unlawful activity. This section only defines what the activity is. It does not itself provide for any punishment for that activity. Had punishment been provided the submission that it treats while punishing unequal as equals may carry weightage. That being not the case in the challenge to Section 2(1)(d) of the Act we see no vagueness or violation of Article 14 by the definition. We find that the provision treats all those covered by it in a like manner and does not suffer from the vide of class legislation.
26. In C.I. Emden v. State of Uttar Pradesh the
Supreme Court rejected a challenge to Section 4(1) of the Prevention of Corruption Act (1947) as being violative of Article 14 in the following words:
"The scope and effect of the fundamental right guaranteed by Article 14 has been considered by this Court on several occasions; as a result of the decisions of this Court, it is well-established that Article 14 does not forbid reasonable classification for the purposes of legislation; no doubt it forbids class legislation; but if it appears that the impugned legislation is based on a reasonable classification founded on intelligible differentia & that the said differentia have a rational relation to the object sought to be achieved by it, its validity cannot be successfully challenged under Article 14 (Vide Shri Ram Krishna Dalmia v. S.R. Tendolkar, . In the present case there can be no doubt that
the basis adopted by the Legislature in classifying one class of public servants who are brought within the mischief of Section 4(1) is a perfectly rational basis. It is based on an intelligible differentia and there can be no difficulty in distinguishing the class of persons covered by the impugned section from other classes of persons who are accused of committing other offences."
27. We also do not find substance in the challenge that the equality clause in the Constitution is violated because the definition ropes in anyone charged more than once, irrespective of whether the charge resulted in an acquittal or conviction. The circumstances that followed the charge are not material. The provision only defines what is continued unlawful activities and refers to whether a person has been charged over a period of ten years for the purpose of seeing whether the person is charged for the first time or has been charged often. The circumstance of conviction or acquittal that followed the charge are not material. The limited purpose is to see antecedents of the person. Not to convict. In P. Rathinam v. Union of India the Supreme Court repelled a some what similar challenge to the validity of Section 309 of the IPC as follows:
"18. In so far as treating of different attempts to commit suicide by the same measure is concerned, the same also cannot be regarded as violative of Article 14, inasmuch as the nature, gravity and extent of attempt may be taken care of by tailoring the sentence appropriately. It is worth pointing out that Section 309 has only provided the maximum sentence which is up to one year. It provides for imposition of fine only as a punishment."
28. Section 2(1)(d) defines what the continuing unlawful activity is and the enactment is intended to prevent and control organized crime. Organized crime is something which is continued unlawful activity and that continuing unlawful activity is repeatedly indulging or facing charge of indulgence in crimes punishable with three years or more. The definition therefore thus defines with clarity what is meant by continuing unlawful activity for the purpose of achieving the object of the Act. There is therefore no vagueness nor any violation of Article 14 of the Constitution. We therefore hold the definition in Section 2(1)(d) as constitutionally valid. We reject the submission of the petitioners and it is liable to be struck down for any of the two grounds dealt with by us in the foregoing paragraphs.
29. We therefore hold that there is no ambiguity or vagueness of any kind in the definitions of the organized crime and organized crime syndicate occurring in Section 3(e) and (f). It is true that these sections are interconnected and dependent on each other for their construction. Once we read Section 2(1)(d) to mean unlawful activity as quoted above the definition of organized crime as contained in Section 2(1)(e) does not suffer from any flaw. There is no vagueness in any other part of this section and in our opinion therefore Section 2(1)(e) is also valid and constitutional. For the same reasons we also hold that the provisions of Section 2(1)(f) defining organized crime syndicate are also clear and unambiguous and therefore constitutionally valid.
30. That takes us to consider the provisions of Section 3 of MCOC Act. The provisions of Sections 3 and 4 are attacked on the ground of arbitrariness and on the ground that they cover persons unconnected with crime and therefore sections suffer from arbitrariness and is liable to be struck down. In particular the attack is on the provisions of Section 3(3) & (5) and Section 4 of the MCOC Act.
"3. Punishment for organized crime.--(1) Whoever commits an offence of organized 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 extent 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 organized crime or any act preparatory to organized crime, shall be punishable with imprisonment for a term which shall be not less than five years but which may extent to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.
(3) Whoever 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.
(4) Any person who is a 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 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.
4. Punishment for possessing unaccountable wealth on behalf of member of organized syndicate.--If any person on behalf of a member of an organized crime syndicate is, or, at any time has been, in possession of movable or immovable property which he cannot satisfactorily account for, he shall be punishable with imprisonment for a term which shall not be less than three years which may extent to ten years and shall also be liable to fine, subject to a minimum fine of rupees one lac and such property shall also be liable for attachment and forfeiture, as provided by Section 20."
31. The challenge is that unintentionally harboring or attempt, unintentional concealing or attempt to conceal is also made penal. It is possible that a person may give shelter to another person whom he feels deserves grant of such shelter, and though he has no knowledge about his criminal activity or his being a member of organized crime syndicate yet he would be liable for punishment. In effect the argument is that requirement of mens rea for the purposes of harboring, concealing or attempt to harbor or conceal is done away with by this provision. Any person who unknowingly gives shelter, harbours or conceals not knowing the fact that that person is a criminal or is a member of organized crime or syndicate would automatically be rendered liable for punishment.
32. Section or provision of Section 3(3) can not be rendered unconstitutional on this submission. In our opinion, the position in law is settled in so far 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. This is not done in this case. No injury of such kind would be caused if section is read as follows:
"3(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."
Intention or mens rea being integral part of requirement of harboring or concealing it will be always read in Section 3(3). So read, the mischief as contended by the petitioners can not occur.
33. Same challenge is raised to Section 3 Sub-section (5). There also the question of mens reas arises. Holding of any property derived from or obtained from commission of organized crime is an offence but the holder must know that the property is so tainted. For the reasons mentioned in relation to Section 3(3) above this section also has to be always read as under:
"3(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."
So read the mischief as submitted by the petitioners will not occur.
34. Then provisions of Section 4 of MCOC Act are challenged. The section reads thus:
"4. Punishment for possessing unaccountable wealth on behalf of member of organized syndicate.--If any person on behalf of a member of an organized crime syndicate is, or, at any time has been, in possession of movable or immovable property which he can not satisfactorily account for, he shall be punishable with imprisonment for a term which shall not be less than three years which may extent to ten years and shall also be liable to fine, subject to a minimum fine of rupees one lac and such property shall also be liable for attachment and forfeiture, as provided by Section 20."
35. The agreement is that these provisions make holding of any property or possession of any property on behalf of a member of organized crime syndicate is liable to punishment mentioned therein. The argument is that the section makes holding of property for and on behalf of member of organized crime at any time a crime. According to the petitioners therefore a man holding property of a criminal acquired by him by way of theft would be guilty of being in possession of stolen property under Section 410 of the Indian Penal Code. The person i.e. holder of the stolen property knew that it is stolen property and was therefore aware of the consequence of so holding it. In the present case, the person would be guilty of doing something which was an offence under Section 410 of Indian Penal Code and for which he has already suffered the punishment would again be liable under this section because he has at a time in the previous years held the property for and on behalf of organized crime syndicate. It will be attracting the provisions of Article 20 of the Constitution of India as he will be punished twice for the same action.
36. Another submission is that this section makes an act which was not a crime prior to coming into force of this Act, a crime. As required by Article 20 therefore such an action can not be made a crime with retrospective effect. However in our opinion, this mischief also can be remedied by reading the section as under:
"4. Punishment for possessing unaccountable wealth on behalf of member of organized syndicate.--If any person on behalf of a member of an organized crime syndicate is, or, at any time (after coming into force of this Act) has been, in possession of movable or immovable property which he can not satisfactorily account for, he shall be punishable with imprisonment for a term which shall not be less than three years which may extent to ten years and shall also be liable to fine, subject to a minimum fine of rupees one lac and such property shall also be liable for attachment and forfeiture, as provided by Section 20."
37. There is another reason for so reading it. Perusal of the complete enactment will disclosed that it is only prospective and not retrospective in any place. Therefore the words "at any time" must be read prospectively to mean at any time after coming into force of this Act. So read there will be no error or vagueness or infirmity in Section 4. We therefore hold that it be read as stated above and so read we hold that it is constitutionally valid.
38. That takes us to a serious challenge to the legislative competence of the State of Maharashtra in relation to provisions of Sections 13 to
16. The argument is that this part of subject to legislation is squarely covered by entry 31 of list I and therefore Maharashtra Government could not legislate on that subject by taking recourse to entry 1 list II.
39. The learned counsel for the petitioner has further stated at the bar that the provisions of Sections 13 to 16 though unconstitutional are severable from the Act and the Act can still be upheld even if the provisions of Sections 13 to 16 are unable to survive for want of legislative competence. The challenges put in nutshell are as under:
1. The legislation MCOCA is outside the legislative competence of the State Legislation and therefore liable to be struck down.
2. Even if incidental and minimal encroachment of central legislation in certain circumstances is permissible, what has been done by the State legislation in MCOCA, is serious and substantial aversion and therefore in violation of fundamental rights and therefore the provisions cannot be sustained.
3. The right of privacy, which is recognised as a fundamental right of the citizen, is seriously invaded by the provisions of permitting interception of wire electronic or oral communication and therefore violative of Article 21.
4. Even if it is assumed that such restrictions of the fundamental right of the citizens namely right to privacy can be reasonably restricted for achieving the character and better object of provisions so made, must necessarily rest on reasonability of restrictions as enacted by the Constitution of India itself. The provisions as they stand i.e. Sections 13 to 16 do not indicate in any manner such reasonableness, they are wholly unreasonable and therefore unconstitutional.
40. Adverting to the first submission mentioned above, it must be seen that the legislation i.e. MCOCA in pith and substance is a legislation enacted to prevent and control of criminal activities by organized crime syndicate and for matters connected therewith. In the aims and objects of this Act it is stated that organized criminals make extensive use of wire and oral communications in their criminal activity. It is therefore necessary that interception of such communications to obtain evidence of commission of crimes and to prevent their commission is necessary for law enforcement. It has been observed by the State Legislature that the existing legal structure both penal and procedural are found to be inadequate to control the menace of organized crime and therefore Government has decided to enact a special law for deterrent provisions including in certain circumstances the powers to intercept wire electronic or oral communications to control the menace of the organized crime.
41. Section 13 of the Act provides for appointment of Competent Authority for granting permissions, approvals or sanction etc. under Section 14 of the Act. Section 14 deals with authorization of interception of wire, electronic or oral communication. It exhaustively enumerates the manner in which it can be done. Section 15 deals with constitution of Review Committee for review of authorization issued under Section 14. It thus provides the supervisory or reviewing authority over the decision of the competent authority under Section 14 of the Act. The procedure to be adopted by the Review Committee is provided by Section 15. Section 16 deals with unauthorized use of interception and disclosure of wire, electronic or oral communication not except in the circumstances mentioned. It therefore enacts prohibition and punishment of unauthorized user of information acquired by interception of wire electronic or oral communication. Such violation of the prohibition contained in Section 16 is made penal, as mentioned in the section. These sections read together therefore create a scheme following which interception of oral, wire and telecommunications can be undertaken by the State for the purposes of collecting evidence for controlling and/or preventing organized crime. We would repeat here that it is specifically mentioned in the statement of objects that having noticed inadequacy of the present legal provisions for the purposes of interception of communication by organized crime, it is necessary to make that enactment with stringent and deterrent provisions including interception of wire or oral communication to control the menace of organized crime. The State Government claims its legislative competence or power to legislate under entry 1 of list Ii, which reads as under:
"1. Public order (but not including the use of any naval, military or air force or any other armed force of Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of the civil power).
42. The contention of the State is that in order to maintain public order by preventing and/or containing and/or controlling organized crime and for maintenance of public order, exercise of such control is necessary and therefore the State can make the legislation like MCOC Act validly under entry 1 List II.
43. There can be no dispute with the proposition that a legislation substantially meant for maintenance of public order, can be enacted by the State Legislature under list II entry 1. The only question that falls for consideration in the circumstances is, can such legislation, however comprehensive in its effect may be make provision for items or subjects or aspects not even remotely relatable to the public order. The real question is whether this entry 1 in list II can encompass in its width, the interception of wire, electronic or oral communication for the purposes of controlling the menace of organized crime. The argument of the petitioners is that this aspect of interception of communication is squarely covered by entry 31 of list I, which reads as under:
"Post and telegraph, telephones, wireless, broadcasting and other like forms of communication."
44. The words "other like forms of communication" would cover communications by means other than post, telegraph, telephone and wireless and broadcasting. It can cover communications via satellite, it can cover communication via television or similar such scientific device and therefore the State legislature could not by recourse to entry of public order (item 1 list II) make a legislation traversing the field exclusively reserved for Union Legislation by entry No. 31 in List I. According to the petitioners it cannot be done at all as noted above; even if it is assumed that it can be done it should be only peripheral and minimal. It cannot make serious inroads into entry reserved exclusively for the Union legislation and in any even it cannot be done if it violates the provisions of part III of the Constitution of India.
45. This aspect was considered way back in 1943 by the Privy Council. The decision of the Privy Council is reported in AIR 1943 PC page 76. There the Privy Council considered the question of the scope and extent of entries defining legislative competence of the dominion parliament and provincial legislation under the British North America Act. The contention was that where any subject is enumerated in the head exclusively reserved for Dominion Parliament, legislation by the Provincial Legislature was incompetent under any circumstances. It would be worthwhile to consider verbatim the observations of the Privy Council in this regard.
"It follows that legislation coming in pith and substance within one of the classes specially enumerated in Section 91 is beyond the legislative competence of the Provincial Legislatures under Section
92. In such a case it is immaterial whether the Dominion has or has not dealt with the subject by legislation, or to use other well-known words, whether that legislative field has or has not been occupied by the legislation of the Dominion Parliament. The Dominion has been given exclusive legislative authority or to "all matters coming within the classes of subjects" enumerated under 29 heads, and the contention that, unless and untill the Dominion Parliament legislates on any such matter the Provinces are competent to legislate, is therefore unsound."
The Privy Council have with reference to the British North America Act examined the challenge and found that the Provincial Legislature cannot legislate on the subject reserved for dominion parliament. The Privy Council in the above referred case were dealing with British North America Act.
46. The matter was also considered by the Federal Court in Subrahmanyan v. Muttuswami Goundan There the Federal
Court was dealing with the provisions of Government of India Act 1935. The scheme of distribution of Legislative powers. It is almost identical to the provisions of the Constitution in so far as Articles 245 and 246 are concerned. We would like to note the observations of the Federal Court in this regard.
"Indian section - Now although the object of Section 100 Government of India Act, is the same, the language is not identical. Taking Section 100 strictly literally, it would certainly follow from the double restriction imposed on a Provincial Legislature that its exclusive power is limited so as to ensure that Federal laws must dominate in the fields of Lists I and III. While the Federal Legislature is given power, it is expressly provided that "a Provincial Legislature has not power to make laws with respect to any of the matters enumerated in List I." And this exclusion of power is "notwithstanding anything in the two next succeeding sub-sections," Again, in Sub-section (2) while both the Federal Legislature and a Provincial Legislature have power to make laws with respect to any of the matters enumerated in List III, this is "notwithstanding anything in the next succeeding sub-section." The exclusive power of a Provincial Legislature with regard to matters in List II is provided for in Sub-section (3), but it is again emphasized that this last sub-section is "subject to the two preceding sub-sections." On a very strict interpretation of Section 100, it would necessarily follow that from all matters in List II which are exclusively assigned to Provincial Legislatures, all portions which fall in List I or List II must be excluded. Similarly, from all matters falling in List III, all portions which all in List I must be excluded. The section would then mean that the federal Legislature has full and exclusive power to legislate with respect to matters in List I, and has also power to legislate with respect to matters in List III. A Provincial Legislature has exclusive power to legislate with respect to List II, minus matters falling in List I or List III; has concurrent power to legislate with respect to matters in List III, minus matters falling in List I. In its fullest scope Section 100 would then mean that if it happens that there is any subject in List II which also falls in List I or List III, it must be taken as cut out from List II. On this strict interpretation there would be no question of any real overlapping at all. If a subject falls exclusively in List II and no other list, then the power of the Provincial Legislatures is supreme. But if it does also fall within List I, then it must be deemed as if it is not included in List II at all. Similarly, if it also falls in List III, it must be deemed to have been excluded from List II. The dominant position of the Central Legislature with regard to matters in List I and List III is thus established. But the rigour of the literal interpretation is relaxed by the use of the words "with respect to" which as already pointed out only signify "pith and substance", and do not forbid a mere incidental encroachment. But, even if such an incidental encroachment may be ordinarily permissible, the field may not be clear. There may be competency and yet repugnancy also. The question is how to prevent a clash if the trespass is on a field already occupied by a Central Legislation."
47. We will have to see the entries in the constitution, the provisions of 7th schedule in this regard, and in the light of these legislative relations defined in the constitution in part II Chapter I. Article 245 provides the extent of laws made by the Parliament. Article 245 provides that the parliament made from the laws for the whole and any part of the territory of India and the State may make laws in the whole or any part of the State. Article 246 then gives the power and mentions the subject on which the legislation can be made by the parliament or the State legislature. It provides that the parliament has exclusive power to make laws with respect to any of the matters enumerated in list I. Similar provision is made in relation to list 2 giving exclusive power to the State legislature. The extent and import of these provisions of Article 246 is almost identical to that of entries under the British-North America Act. Entry 31 of list I pertains to Post and Telegraph, telephone, wireless, broadcasting and other like forms of communication. The learned counsel for the State did not rely on entry 13 of list II. But we would like to make a reference to it to enable the State legislature to legislate on the subject of communications i.e. to say roads, bridges, ferries and other means of communication not specified in list I; municipal tramways; ropeways; inland waterways and traffic thereon subject to the provisions of list I and List III with regard to such waterways, vehicles other than mechanically propelled vehicles. Therefore communications mentioned or specified in list I are specifically excluded from entry 13 of List II, indicate that the only communication on which the State can address itself by legislation is surface communication and telecommunication and the lack of which is specifically excluded. Applying the principle which according to the Privy Council is well settled, it would not be possible for the State legislature to legislate on the subject of telecommunication while taking recourse for entry 1 in list II.
48. We would consider these submissions in detail. The State has specifically contended that right to legislate on this topic is available to them with reference to entry 1 in list II only. The contention can be better understood if we make a reference to the comparative chart given by the petitioners between Indian Telegraph Act 1885 and MCOC Act. This chart was relied upon very heavily by the petitioners to point out that the inroads made on the exclusive legislation and legislative power of the Union of India are grave and therefore unsustainable in any case.
COMPARATIVE CHART OF TELEGRAPH ACT AND MCOCA
TELEGRAPH ACT MCOCA.
A. Occurrence of public emergency and interest of public safety is the condition precedent.
B. Rule 419A (1) of the Telegraphic Rules provides interception without authorization subject to confirmation by the concerned competent officer within a period of fifteen days.
B. Section 14(4) does not provide for any period for such confirmation or approval or rejection could be at any point of infinite time. __________________________________________________________________
C.The Telegraph Rule 419A (1) provides for an alternate competent authority in case of emergency.
C. No such provision in MCOCA and directly an authorization :Could be obtained from a superior police officer under section 14(10) and the circumstances mentioned therein are absent in the Telegraph Act/Rules. __________________________________________________________________
D. Total period of : interception under Rules 419A(5.) is 180 days beyond which the interception, cannot be continued.
D. Under Section 14(8) there is no outer limit to the period of interception which could be permanent with a caveat that authoriatlon.. could be renewed after every 60 days.
E. No provisions.
E. Section 14(12)(1)(b) are absolutely new provisions not to be found in the Telegraph Rules or the Act, and are pieces of legislation under Entry 31 of oR Union List - List I.
F. No provision corresponding to Section 14(13) of the MCOCA.
F. Section 14(13) of the MCOCA overrides the Criminal Procedure Code or any law for the time being in force, which will Include the Indian Telegraph Act to make evidence admissible, even-if the position was otherwise under the Indian
G. No Provision
G. Section 25 overrides the MCOCA anything inconsistent contained in any other law for the time being in force namely an order passed under the MCOCA in the scheme of Sections 13-16 conflicting with the order passed under the Indian Telegraph Act would prevail. __________________________________________________________________
49. A perusal of the chart will show that several provisions made in the Telegraph Act do not find place in the MCOCA. Section 25 of MCOCA enables overriding of the provisions in the Telegraph Act for the purposes of this Act. Thus provisions of MCOCA therefore make severe and substantial inroads on the subject of telecommunications which is an exclusive domain of the Union Legislature. Even on the touch-stone of peripheral and minimal interference the provisions of MCOCA cannot be saved. The inroads as will be seen from the chart above are substantial. They specifically empower the State to do certain things which the Central Legislation i.e. the Telegraph Act specifically prohibited. Such provisions cannot be called minimal or peripheral. It has substantial and overriding effect over Central Legislature which cannot be done.
50. The provisions of Indian Telegraph Act being exclusive Legislation made by the Union in List I Entry 31 must prevail and even if there is any area unoccupied by Legislation by the Central Parliament the State Legislature cannot have the jurisdiction or competence to legislate to occupy that unoccupied filed. A useful reference can also be made to the judgment of Federal Court in Subramanyam v. Muttuswami , where Their Lordships have observed as under:
"The principles laid down by their Lordships have gone only so far as to permit an incidental encroachment, provided the Dominion fields is unoccupied. In no case so far decided have their Lordships tolerated a trespass as well as a clash. If a clash with the Dominion legislation were also allowed, then a Provincial Legislature would be in a position, though indirectly, to nullify the Dominion legislation, even inside the field exclusively open to the Dominion, which would make the position intolerable."
51. Going back to the chart as pointed out by the learned counsel and quoted above by us, it will be seen that the provisions of Section 14(13) and 25 of the Act clearly bring out the clash between the Indian Telegraph Act and the MCOCA. By Section 14(13) MCOCA provides for overriding the provisions of the Cr.P.C. or any law for the time being in force which would include the Indian Telegraph Act. Similar effect given by Section 25 by laying down that anything inconsistent contained in any law for the time being in force with the provisions of MCOCA would be overridden by the provisions of Section 25. In effect the protection included in the provisions of Section 5(2) of the Indian Telegraph Act and Rule 419-A will be overridden by the provisions of MCOCA. This in our opinion amounts to a direct clash with the Central legislation which must be considered intolerable.
52. We would usefully quote the observations of the Federal Court in this regard from that judgment:
"To allow Provincial Legislatures to encroach upon the exclusive Federal field, even though in an indirect way, when there is a Central legislation already occupying the field, would be to give the former a free hand in nullifying Central Acts relating to matters in the Federal List. Such a carte blanche would hardly have been contemplated. The Scheme of Section 100 of the Act is to exclude completely from the authority of the Provincial Legislature the power to legislate with respect to subjects in List I. If in consequence of certain difficulties that Provincial Legislatures would experience by a rigid enforcement of such an exclusion we must in interpreting the words "with respect to" import the Canadian doctrine of permissibility of incidental encroachment, we must then at the same time import the other allied doctrine also that such an encroachment is permissible only when the field is actually unoccupied. It is only in this way that actual clash between the center and provinces can be avoided, which I think we must. This will also explain the apparent gap in Section 107(1) of the Act, that gap being filled in by the provisions of Section 100."
53. These judgments of the Privy Counsel and the Federal Court were considered by the Supreme Court of India in the matter of ITC Ltd. v. State of Karnataka reported in 1985 Supp. SCC page 476 and the Supreme Court having considered and approved all these cases went on to hold the provisions of the Karnataka legislation invalid as being in conflict with the Central legislation. The Supreme Court in that case went on to lay down the principles of interpretation in case of such encroachment of jurisdictional spheres.
"It is also not disputed that under Section 2 of the 1975 Act the entire tobacco industry was taken over by the Central Government. Having thus narrated the admitted facts, I would now proceed to the merits of the appeals. To begin with, I might indicate the cardinal principles justifying the competency of the respective Legislatures with respect of the entries concerned:
(1) Entries in each of the List must be given the most liberal and widest possible interpretation and no attempt should be made to narrow or whittle down the scope of the entries. This is a well settled principle of law and was reiterated in a recent decision of this Court in S.P. Mittal v. Union of India, where this Court observed thus: (SCC p. 80, para 64)
It may be pointed out at the very outset that the function of the Lists is not to confer powers. They merely demarcate the legislative fields. The entries in the three Lists are only legislative heads or fields of legislation and the power to legislate is given to appropriate Legislature by Articles 245 and 248 (sic 246) of the Constitution.
(2) The application of the doctrine of pith and substance really means that where a legislation falls entirely within the scope of an entry within the competence of a State Legislature then this doctrine will apply and the Act will not be struck down. The doctrine of pith and substance has been summarized in the case of Delhi Cloth & General Mills Co. Ltd. v. Union of India where Desai J. speaking for the Court made the following observations: (SCC p. 1982, para 33).
To resolve the controversy it becomes necessary to ascertain to which entry in the three Lists; the legislation is referable, the Court has evolved the doctrine of pith and substance. If in pith and substance, the legislation falls within one entry or the other but some portion of the subject-matter of the legislation incidentally trenches upon and might enter a field under another List, then it must be held to be valid in its entirety, even though it might incidentally trench on matters which are beyond its competence.
(3) The consideration of encroachment or entrenchment of one List in another and the extent thereof is also well established. If the entrenchment is minimal and does not affect the dominant part of some other entry, which is not within the competence of the State Legislature, the Act may be upheld as constitutionally valid.
(4) The nature of character of the scope of the entries having regard to the touchstone of the provisions of Articles 245 and 246.
(5) The doctrine of occupied field has a great place in the interpretation as to whether or not a particular Legislature is competent to legislate on a particular entry. This means that when the field is completely occupied by List I, as in this case, then the State Legislature is wholly incompetent to legislate and no entrenchment or encroachment, minimal or otherwise, by a State Legislature is permitted. In other words, where the field is not wholly occupied, then a mere minimal encroachment or entrenchment would not affect the validity of the State Legislation."
54. Earlier, a constitution bench of the Supreme Court deciding the matter of The State of Jammu and Kashmir v. M.S. Farooqi noted with approval the decision of the Privy Council and the Federal Court cited supra and having regard to certain other decisions of the Supreme Court came to the conclusion that where two statutory laws, one by the State Legislature encroached on a law enacted by Parliament, following the principles accepted in the aforesaid cases, it is impossible to escape from the conclusion that two cannot go together and the State legislation must give way to the Central legislation.
55. The next submission is that the power of interception as provided by the Telegraph Act is to be used only interest of public safety and in occurrence of public emergency. No such restriction is provided by MCOCA Act. It is a protection provided for individual fundamental rights, and in particular the right to privacy, held to be a part of Article 21. There is no such protection in the MCOCA is the submission. Interception of such telecommunication in the interest of public safety is contemplated by MCOC Act. The object of the Act being prevention and control of the organized crime within the State of Maharashtra, existence of organized crime in any State is adverse to the interest of public safety. The enire enactment being made for the protection of the interest of public safety, it cannot be said that the provision of the MCOC Act are not meant for the purposes of protecting interest of public safety.
56. There is however some force in the submissions that the MCOCA has eliminating safeguards provided for in the Telegraph Act, 1885, provisions of Telegraph Act, 1885 and the Rules made thereunder as aforesaid do provide for interception or occurrence on public emergency in the interest of public safety. The Supreme Court had occasion to consider this aspect in the matter of Hukam Chand v. Union of India, . The matter was decided by Constitution Bench of the Supreme Court of India. The Supreme Court also considered the safeguards provided by rules to prevent misuse of this power that inspite of such instructions the power has to be exercised only in the manner prescribed by the Legislature and not in other way.
"18. It is well settled that where a power is required to be exercised a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided, will be violative of the fundamental principles of natural justice. Now, in the present case, if the telephones of the appellants were to be disconnected on the ground of misuse, then they had to give, in consonance with the principles of natural justice, opportunity to the appellants to explain their conduct before taking action under Rule 427 read with Rules 416 and 421. Resort to the wrong and more drastic course provided in Rule 422; on a ground which was not germane to an action under that Rule, vitiates he impugned order, particularly when it is manifest that in making the impugned order, the General manager was influenced more by this ground and less, if at all, by the existence of public emergency certified by the Delhi Administrative."
57. From the above observations of the Supreme Court of India it will be seen that the existing provisions of the Indian Telegraph Act and Rules were considered severe by the Supreme Court but were not touched as the restrictions were reasonable and necessary for maintenance of public order. In the case of MCOCA these safeguards are done away with and therefore something which is provided by the Parliament of India is overridden by State Legislature in purported exercise of its competence under Entry 1 List II. In our opinion, therefore the provisions of Sections 13 to 16 of MCOCA are in clash with the Parliamentary Law are liable to struck down for want of Legislative competence.
58. It will be seen that the question of legislative competence in cases where exclusive powers of Legislation are conferred on different Legislatures by statute it has to be construed exclusively and one authority of Legislature cannot override the authority of another Legislature.
59. There are several judgments of the Supreme Court in this regard. The Supreme Court of India has tested various State legislations and Union legislation in the light of the provisions of Article 245 and
246. These decisions apply the doctrine of pith and substance and the theory of occupied field.
60. We would like to note the observations in Cooley's Constitutional Limitations Vol.I which reads as under:
"If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to the subject-matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers. Such transgression, may be patent, manifest on direct but it may also be disguised, covert and indirect and it is to this latter class of cases that the expression "colourable legislation" has been applied in certain judicial pronouncements. The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what, appears, on proper examination, to be a mere pretence or disguise."
61. There are several more judgments also which were cited at the bar. From over all consideration of all those decisions it is obvious that the legislative power or the legislative competence conferred on the State legislation and the Union legislation by the written constitution is definite. Article 246 makes it exclusive for each as per list I or II respectively. It is well established law as will be seen from the several judgments quoted above that when legislation can be made under the List I by the Union parliament, the State legislature cannot make any legislation on any aspect of the subject covered by list I. The State Government found the present law inadequate for meeting the menace of organized crime, but noted that the interception of telecommunications is necessary for the purpose of prevention and/or control of organized crime and therefore is legislated MCOCA. That being the above object of making this legislation the State legislature could not make such serious inroads on entry 31 of List I. From the perusal of several judgments of the Supreme Court of India and the provisions relating to Constitutional interpretation of the legislative entries in List I and II with provisions of Articles 245 and 246 of the Constitution of India, we deem it possible to escape from the conclusion that the State Legislation namely MCOCA cannot co-exist with the provisions of Indian Telegraph Act, 1885 namely Section 5 and the Rules 119 and 119-A of the Rules, with the provisions of Sections 13 to 16 of the MCOCA overriding the provisions of the Indian Telegraph Act and the Rules. As per the existing canon of the statutory interpretation, it is unwarranted intrusion in the realm of exclusive competence of the Union of India under List I. The field is occupied by the Parliamentary Legislation which was laid down the permissibility of the invasion of the right of privacy after providing safeguard of the same has found the approval from the Supreme Court of India in the judgment of PUCL case . It is obvious
that, that is the only manner in which the right of privacy could be reasonably curtailed. The field being thus occupied by the Central Legislation and the encroachment made by the State Legislature not being minimal or peripheral, we have no option but to strike down the provisions of Sections 13 to 16 of the MCOCA as beyond the competence of the State Legislature.
62. Having found that these sections are obviously separable from other provisions of the enactment, we strike down the provisions of Sections 13 to 16 of MCOCA for total lack of Legislative competence in the State of Maharashtra. Having held that the provisions lack competence and are therefore unconstitutional we need not dilate on or deal with the submissions made at the bar by the learned counsel for the petitioners regarding these very provision being unconstitutional for violation of fundamental rights of the petitioners. Whether they are so violative or not, they cannot remain in the statute book for want of legislative competence. That being the position in law we do not deem it necessary to extensively deal with the attack on these provisions on the ground of violation of fundamental rights.
63. That takes us to the next challenge raised by the petitioner to the provisions of Section 21(5) of the MCOCA. The Section reads as under:
"Notwithstanding anything contained in the code, the accused shall not be granted bail if it is noticed by the Court that he was on bail in an offence under this Act, or under any other Act, on the date of the offence in question."
64. The objection is that the words "or under any other Act" occurring in that section are unsustainable as they take away the power of judicial review of the Court. It is also challenged on the ground that it has no reasonable nexus with the object of the provision. doubt. According to the learned counsel the object appears to prevent grant of bail to a person prosecuted under MCOCA, if he is alleged to have committed that offence while he was on bail in an offence under this Act. There is no reason to deny considered of grant of bail to anybody merely because he is on bail for any other offence. The object of the Act being to prevent organized crime, the refusal of bail to an offender who commits an offence under the Act, while on bail for an offence already committed under the Act may be consistent wit the aims of the Act. But merely because the accused person is on bail for any other offence would take away his right of consideration for grant of bail irrationally and is arbitrarily. There is no nexus for the object of the Act and it is therefore excessive restriction on the jurisdiction of the Court to consider grant of bail under the provisions of the Criminal Procedure Code, 1972. In our opinion, the argument seems to be valid. Obviously there is no reason why the person being prosecuted for violation of Motor Vehicles Act and who is on bail, should be denied even a consideration of bail when he tries first for bail under MCOCA. Various illustrations can be given and were given at the bar to demonstrate arbitrariness resulting from such requirement. If first time the offender under the MCOCA would lose consideration for bail, if he is on bail under the Prohibition Act or under the violation of Criminal Procedure Code and the essential commodities of the Act or the Rules thereunder. Such a denial has no relationship with the object sought to be achieved to prevent occurrence of MCOCA by release on bail. The words put an unreasonable restriction on the right of an individual to claim bail. Under the provision of Criminal Procedure Code to be released on bail, in fact is a integral part of the right of liberty. Every man has a right of liberty which can be curtailed by the due process of law and the curtailment must remain within the due process of law. Such curtailment is there in the Criminal Procedure Code. The provisions of Section 21(5) say that notwithstanding anything contained in the code such persons shall not be granted bail. The refusal for consideration of grant of bail merely because the person is on bail for some other offence unconnected with the MCOCA, puts an unreasonable 0.restrictions and is therefore in violation of fundamental rights guaranteed by Article 14 and 21 of the Constitution of India. The provision suffers from the vice of unreasonable classification by placing in the same class offences which may have nothing in common with those under MCOCA, for the purpose of denying consideration of bail. We therefore strike down the words "or under any other Act" as being unconstitutional. The section would therefore read as under:
"Notwithstanding anything contained in the code, the accused shall not be granted bail if it is noticed by the Court that he was on bail in an offence under this Act, on the date of the offence in question."
65. I sincerely wish to put on record the intrinsic and substantial help rendered by my learned brother Judge Shri S.A. Bobde but for which it would not have been possible for us to deliver this judgment within two weeks. We wish to state that we are thankful to the learned Advocates appearing for both sides for their able and valuable assistance in analysing the various provisions of law and submissions made which obviously has taken substantial pains on the part of lawyers.
66. In view of the foregoing discussions and as a result thereof we make the rule absolute in the following terms only:
i) The enactment called Maharashtra Control Of Organized Crime Act is constitutionally valid except as otherwise specifically stated hereinafter:
ii) The provisions of Sections 3 and 4 contemplate the existence of mens rea inherently and shall always be read therein as a necessary ingredient of the offences:
iii) Provisions of Sections 13 to 16 of Maharashtra Control Of Organized Crime Act are liable to be struck down and are hereby struck down as beyond the Legislative competence of State Legislature.
iv) From the provisions of Section 21(5) of the Act the words "or under any other act on the date of offence in question" be deleted and are hereby deleted as unconstitutional for violation of Article 14 of the Constitution of India.
v) The Criminal Application No. 1504 of 2002 in Criminal Writ Petition No. 110 of 2003 is rejected with liberty to apply to the trial Court again after the charge sheet is put up.
vi) All Writ Petitions thus stand disposed of.