Delhi High Court
Mohd. Irfan vs State Of Nct Of Delhi & Anr on 23 July, 2018
$~1.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23.07.2018
%
+ W.P.(CRL) 2093/2018 & Crl.M.B. No. 1123/2018, Crl.M.A.
No. 12670/2018
MOHD. IRFAN ..... Petitioner
Through: Mr. Ajay Garg and Ms. Shilpa
Sharma, Advocates.
versus
STATE OF NCT OF DELHI & ANR ..... Respondents
Through: Mr. Rahul Mehra, Standing
Counsel, GNCTD with Mr.
Chaitanya Gosain, Adv for R-1
Mr. Anil Soni, CGSC with Mr.
Abhinav Tyagi, Advocate for
R-2/UOI
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE I. S. MEHTA
VIPIN SANGHI, J. (ORAL)
1. The Petitioner has preferred the present writ petition to challenge
the constitutionality and vires of section 3(1)(ii) of the Maharashtra
Control of Organized Crime Act, 1999 (MCOCA, for short) which was
extended to National Capital Territory of Delhi by notification dated
02.01.2002; and to seek a writ of certiorari for quashing of the order on
sentence dated 11.04.2018 passed by Ld. ASJ-03 (South), Saket Court,
in SC No. 6989/2016, in so far as it has imposed a fine of rupees five
lakhs with default imprisonment of 2 years under section 3 (1)(ii) of the
MCOCA.
2. On 22.04.2010, FIR No. 111/2010 was registered at PS Vasant
Kunj, Delhi against the petitioner and others under section 3 of the
MCOCA. Post investigation, charge sheet was filed on 28.07.2010
against the petitioner herein and other accused persons for the offences
under Section 3 of the MCOCA. Charges were framed against the
petitioner and other accused Baldev Raj, Rafiq and Shabhuddin u/s 3(1)
of the MCOCA, and against accused Munesh Kumar and Paras u/s 3(2)
of the MCOCA vide order dated 5.12.2011. Petitioner pleaded "not
guilty" and thus the case went to trial. The Ld. ASJ, vide judgment
dated 28.03.2018 held the Petitioner and accused Irfan, Baldev, Rafiq
and Shahbuddin guilty for the offence punishable u/s 3(1)(ii) of the
MCOCA, while accused Munesh and Paras were acquitted. Vide order
on sentence dated 11.04.2018, the petitioner was sentenced to
imprisonment for the period already undergone (8 years and 4 months),
along with fine of Rs. Five lakhs and, in case of default of payment of
fine, to undergo simple imprisonment for two years. The petitioner
states that he continues to languish in jail as he is not in a position to
deposit the heavy fine of Rs.Five Lakhs upon him.
3. Before we proceed further, and to be able to appreciate the
submission of the petitioner, we may reproduce herein below Section 3
MCOCA, which reads as follows:
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‖. (emphasis supplied)
4. Ld. Counsel for Petitioner submits that Section 3 (1)(ii) of the
MCOCA, in so far as it prescribes mandatory imposition of minimum
fine of rupees five lakh, is ultra vires of the Constitution of India, as it
violates Article 14 and 21 of the Constitution, as well as the principle of
proportionality - which flows therefrom. Ld. counsel submits that
clause (i) of Section 3 (1) deals with a more grave and serious offence,
when compared to the offence dealt with in clause (ii). While clause (i)
prescribes the punishment for commission of an offence of organized
crime - which has resulted in the death of any person, clause (ii) deals
with other cases of commission of organized crime. Yet, the minimum
fine prescribed in respect of other offences of organized crime is Rs. 5
lakhs, whereas, in respect of the offence of organized crime which has
resulted in the death of any person, the minimum fine is only Rs.1
lakhs. Thus, for the more severe and grave offence dealt with in clause
(i) of Section 3 (1), the minimum fine is substantially lesser than the
minimum fine prescribed in clause (ii) of Section 3 (1) of MCOCA Act.
Learned counsel submits that there is no valid justification for the said
discrepancy. He submits that the prescription of minimum fine of Rs. 5
lakhs in clause (ii) of Section 3 (1) is arbitrary and discriminatory, apart
from being unreasonable and oppressive.
5. Ld. Counsel places reliance on the decision of the Supreme Court
in Shantilal Vs. State of M.P,. (2007) 11 SCC 243; the decision of
Patna High Court in the case of Shailesh Kumar Sinha Vs The State of
Bihar & Ors., Civil Writ Jurisdiction Case No. 6675 of 2016; the
decision of the Supreme Court of Pennsylvania, USA in
Commonwealth of Pennsylvania V. Matthew Steven Eisenberg in
Appeal No. 34 WAP 2012 decided on 19.08.2014; the Forty Seventh
Report of the Law Commission on Trial And Punishment Of Social
And Economic Offences, the decision of the High Court of Bombay in
the case of Amit R. Saurabh Vs. The State of Maharashtra, Criminal
Appeal No. 1167 of 201 decided on 29.03.2012, the decision of the
Supreme Court in Palaniappa Gounder V. State of Tamil Nadu And
Others (1977) 2 SCC 634; the decision of the Supreme Court in Excel
Crop Care Ltd. v. Competition Commission of India & Ors., (2017) 8
SCC 47; the decision of the Bombay High Court in Santosh Rajesh
Sinha @ Rakesh Mandal v. The State of Maharashtra in Criminal
Appeal No. 1167 of 2011, the decision of the Supreme Court in
Shahejad Khan Mahebubkhan Pathan v. State of Gujarat (2013) 1
SCC 570 , and, the judgment of this Court in Issa @ Raj (Mohd.) V.
State 2013 IV AD (Delhi) 608 in support of his submissions that:
(i) Punishment has to be fair and not draconian, for, that
would be violative of Article 21 of the Constitution. The
punishment cannot be disproportionate to the offence.
(ii) The general principle of law reflected in Sections 63 to 70
IPC is that the amount of fine should not be harsh or excessive.
(iii) The fine, when measured against the conduct triggering
the punishment, and the lack of discretion afforded to the trial
court, is constitutionally excessive.
(iv) The majority opinion - as reported by the Law
Commission, is in favour of not laying down a minimum
punishment. Members of the judiciary at all levels regarded any
such amendment (to prescribe a minimum punishment) totally
unnecessary;
(v) The Law Commission is of the view that the discretion of the
court to award a sentence below the minimum should not be
totally abolished.
(vi) The State of Maharashtra has gone on record to concede that
the prescription of minimum fine of Rs.Five Lakhs under clause
(ii) of Section 3(1) of MCOCA is an inconsistency which has
crept in at the time of drafting of the Act. It was stated on behalf
of the State of Mahrashtra before the High Court that the
Government intends to make suitable amends in the MCOCA,
inter alia, in respect of this discrepancy.
6. Ld. Counsel further submits that the prescription of the amount
of minimum fine in different sub- sections of Section 3 and Section 4
have no correlation with the aims and object of the said Act. He submits
that the statement of purpose of the MCOCA does not justify such
heavy fine which may be impossible for the convict to pay, resulting in
further deprivation of his liberty. He submits that in Zameer Ahmed
Latifur Rehman Sheikh v. State of Maharashtra & Ors. (2010) 5 SCC
246, though the aspect of legislative competence of the State
Legislature to enact the MCOCA was upheld, but there was no specific
challenge to the constitutional validity of Section 3(1)(ii). Thus, this
issue is still open.
7. Ld. Counsel submits that Section 3(1)(ii) of the Act robs the
courts of their discretion to reduce the fine in deserving cases with
mitigating circumstances and factors and, therefore, the same is
arbitrary and discriminatory.. He submits that it is settled principle of
law that the court imposes fine keeping in view the aggravating and
mitigating factors. He submits that mandatory minimum fine is
automatic, indiscriminate, and denies the Trial Courts of their discretion
to calibrate the punishment corresponding with the convicts actual
criminal conduct and circumstances. Ld. Counsel submits that
economic sanctions are insidious in part, because they are often
assessed with little or no attention paid to the convict's circumstances,
including the extraordinarily severe consequences that such heavy fines
often result in for the individuals, their families, and the society at
large.
8. Ld. Counsel further submits that Section 400 of IPC does not
provide for any minimum fine, although it deals with punishment for
offences similar to the offences under the MCOCA. Ld. Counsel
submits that the MCOCA is a codified law on socio-economic offences,
much like the Narcotic Drugs and Psychotropic Substances Act, 1985
(NDPS Act) and Section 21 of NDPS Act prescribed graded approach
to fines, as per the gravity of the offence.
9. Ld. Counsel submits that "punishments" have been discussed in
Section 53 IPC, which covers both imprisonment and fine. He submits
that in the case of the offences punishable under Section 376(1) and (2)
IPC, the statute prescribes minimum sentences, and the court may, for
adequate and special reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term less than the mandatory minimum
sentence.
10. On the other hand, Mr. Rahul Mehra, Ld. Standing Counsel (Crl.)
submits that the MCOCA being a special Act on the subject of
organized crime, will have overriding effect on the provisions of IPC,
which are in the nature of general law. He relies on the maxim
"generalia specialibus non derogant‖ and submits that the provisions
of IPC cannot be looked at for the purpose of examining the validity of
the provisions of the MCOCA. He further submits that the provisions of
the MCOCA are comparable to the provisions of NDPS Act, 1985. The
provisions of NDPS Act have already been upheld by the Supreme
Court in Basheer V. State of Kerala, (2004) 3 SCC 609. Minimum
fines prescribed under section 16 and onwards under the NDPS Act are
comparable to the minimum fine imposed under the impugned section.
He refers specifically to section 19 of the NDPS Act, which too
prescribes the minimum mandatory fine of rupees one lakh, which may
extend to two lakh rupees; and the proviso states that the fine imposed
can be even higher than two lakhs for reasons to be recorded in the
judgment, if the Court may think fit.
11. Mr. Mehra further submits that the petitioner and his associates
were indulging in organized crimes, and involved in 17 criminal cases
of kidnapping with murder, robbery, dacoity, Arms Act, night burglary
and theft etc. with the only object of gaining pecuniary benefits. He,
thus, submits that keeping this fact in mind, the imposed fine - of
rupees five lakhs, is neither exorbitant, nor discriminatory.
12. We have heard the Ld. Counsels and given our thoughtful
consideration to the rival submissions.
13. The issue that arises for our consideration is whether the
impugned section 3(1)(ii) is arbitrary, discriminatory or harsh, since it
imposes mandatory minimum fine of Rs.5 lakhs.
14. The Indian Penal Code was enacted in 1860, whereas the
MCOCA was enacted in 1999, and was subsequently extended to Delhi
on 02.01.2002. The MCOCA is, undoubtedly, a special law, enacted "to
make special provisions for prevention and control of, and for coping
with, criminal activity by organized crime syndicate or gang, and for
matters connected therewith or incidental thereto". The need for
enactment of the MCOCA arose, because the existing laws - including
the IPC, were not found sufficient to cope up with criminal activity of
organized crime syndicates or gangs. The MCOCA aims to strike at the
root of "organized crime" as defined in Section 2(1)(c) of the said Act,
by making the same punishable under Section 3 thereof. It seeks to
cover all those directly or indirectly involved in organized crime - as
offenders/ perpetrators of organized crime; as conspirators; as abettors;
as facilitators, as propagators (Advocates); as harbourers or concealers/
protectors of members of an organized crime syndicate.
15. It is a settled principle of law that a special statute prevails over a
general one, and the same flows from the maxim "generalia specialibus
non derogant‖ which literally means that the general does not detract
from the specific. We may only refer to one judgment of the Supreme
Court on this aspect. The Supreme Court in Yakub Abdul Memon Vs
State Of Maharashtra (2013) 13 SCC 1, held:
"1517. Where two statutes provide for overriding effect on the
other law for the time being in force and the court has to
examine which one of them must prevail, the court has to
examine the issue considering the following two basic
principles of statutory interpretation:
1. Leges posteriores priores contrarias
abrogant (later laws abrogate earlier contrary laws).
2. Generalia specialibus non derogant (a general
provision does not derogate from a special one.)
xxx xxx xxx xxx
1519. The basic rule that a general provisions should yield
to the specific provisions is based on the principle that if
two directions are issued by the competent authority, one
covering a large number of matters in general and another
to only some of them, his intention is that these latter
directions should prevail as regards these while as regards
all the rest the earlier directions must be given effect to.
xxx xxx xxx xxx
1521. In order to determine whether a statute is special or
general one, the court has to take into consideration the
principal subject-matter of the statute and the particular
perspective for the reason that for certain purposes an Act
may be general and for certain other purposes it may be
special and such a distinction cannot be blurred.
(emphasis supplied)
16. Thus, reliance placed by learned counsel for the petitioner on the
provisions of the IPC and other penal statutes may not be apposite
while examining the issue of legality or constitutionality of Section 3 of
the MCOCA. Provisions of the IPC and other penal statutes cannot be
used for the purpose of undertaking a comparative study - to advance
the submission that the IPC or the other penal enactments deal with
similar situations in a more lenient manner.
17. Learned counsel for the petitioner has placed reliance on
Palaniappa Gounder (supra). The same is of no relevance to the
present discussion, considering the fact that the fine imposed, in the
present case, is not under the Criminal Procedure Code but by resort to
Section 3 (1)(ii) of the MCOCA. The decision in Palaniappa Gounder
(supra), on the other hand, was only concerned with the aspect of
imposition of fine under the IPC. Pertinently, even in this decision, the
Supreme Court noticed that ―Economic offences are generally visited
with heavy fines because an offender who has enriched himself
unconscionably or unjustifiably by violating economic laws can be
assumed legitimately to possess the means to pay that fine. He must
disgorge his ill-gotten wealth."
18. The petitioner seeks to place reliance on Shailesh Kumar Sinha
(supra), wherein the Division Bench of the Patna High Court dealt with
the challenge to the validity of Section 19(4) of the Bihar Excise Act,
1915 as amended on 31.03.2016 and the consequential notification
issued by the State thereunder dated 05.04.2016, imposing a complete
ban on wholesale trade and retail trade, and consumption of foreign
liquor in the State of Bihar with immediate effect. N.P. Singh, J dealt
with all the issues, including the issue whether the punishments
provided under the amended provisions of the Act were draconian and
grossly disproportionate to the delinquency sought to be punished.
19. N.P. Singh J, while dealing with the issue whether the
punishments provided under the amended provisions were draconian
and grossly disproportionate to the offence, referred to the 47th Report
of the Law Commission of India on the Trial and Punishment of Social
and Economic Offences. N.P. Singh J, referred to the provisions of the
NDPS Act and went on to observe:
"89.07. The provisions would show that, except for
commercial quantity, there is ample discretion on the
Court. It is not that any quantity is found, the punishment
of imprisonment would be mandatory and, that too, like
in the Bihar Excise Act, minimum of 10 years.
xxxxxxxxxxxxx
89.10. On behalf of the petitioners, apart from the
judgment, which I would refer to, the 47th report of the
Law Commission of India, on the Trial and Punishment
of Social and Economic Offences, has been referred. The
relevant parts are summarized as hereunder.
"In its detailed report vide Clauses 4.12,
4.14 & 4.25 has clearly recommended
against providing for absolute liability in
form of a minimum sentence.
The law Commission in Clauses 7.42, 7.43, 7.44, 7.45,
7.46 & 7.47 of its Report has laid down the prime
considerations which are relevant in proper sentencing
and has held that sentences which are merely
mathematically identical for violation of the same
statute are improper, unfair and undesirable.
Mathematically identical sentences indeed may in
substance themselves be disparate.
In Clause 7.52, the Law Commission has opined that if
the punishable act has caused no harmful effects, the
punishment may be mild; if the act has caused some
harm but the offender can repair the damage done to
society, probation would be appropriate; if the harm is
serious, imprisonment would of course be required."
89.11. Now, I may come to Section 47 of the Bihar Excise
Act, 1915. A reference to the provision would show that
for the acts mentioned therein, the punishment is
straightway 10 years of imprisonment extending to life. It
takes away the power of the Court or the discretion of the
Court in the matter and further it has to be accompanied
with a fine of Rs. one lakh minimum. Thus, a humble
rickshaw-puller found with only a bottle or a pouch of
country liquor would, now, be exposed to minimum of 10
years of imprisonment with a fine of Rs. one lakh, an
amount, which he had ever never possessed or seen. This
has to be seen in juxtaposition of presumption clause as
contained in Section 48 of the Act". (emphasis supplied)
20. In our view, reliance placed by learned counsel for the petitioner
on Shailesh Kumar Sinha (supra) is misplaced and out of context in
the present setting. The opinion of the Law Commission was premised
on the foundation that if the punishable act has caused no harmful
effect, the punishment may be mild, and if the act causes some harm-
but if the offender can repair the damage done to society, probation
would be appropriate. However, if the harm is serious, imprisonment
would, of course, be required.
21. N.P. Singh J examined the legality of the amended provisions of
the Bihar Excise Act, 1915- which had the effect of imposing a blanket
ban on wholesale and retail trade and consumption of foreign liquor in
the State of Bihar, in the context of the opinion of the Law Commission
and, thus, gave an example: that a humble rickshaw puller who is found
with only a bottle or a pouch of country liquor would be liable to be
given a minimum of ten years imprisonment with fine of Rs.One Lakh.
Pertinently, the Ld. Judge noticed the fact that in respect of offences
involving commercial quantities of drugs/ substances, the NDPS Act
prescribes the minimum sentence/ fines and takes away the discretion
of the Court in the matter of award of punishment. In the context of
MCOCA, in our view, neither the opinion of the Law Commission
above referred to, nor the view taken by N.P. Singh J are apposite.
22. We may, at this stage, notice the nature of criminal activity and
the characteristics of the crime perpetrator, which the MCOCA seeks to
deal with. It is a special law making a special provision for preventing
and control of, and for coping with criminal activity by organized crime
syndicates or gangs. The statement of objects and reasons for
enactment of the MCOCA read as follows:
―Organised crime has for quite some years now come
up as a very serious threat to our society. It knows no
national boundaries and is fuelled by illegal wealth
generated by contract killings, extortion, smuggling in
contrabands, illegal trade in narcotics, kidnappings
for ransom, collection of protection money and money
laundering, etc. The illegal wealth and black money
generated by the organised crime is very huge and has
serious adverse effect on our economy. It is seen that
the organised criminal syndicates make a common
cause with terrorist gangs and foster narcoterrorism
which extends beyond the national boundaries. There is
reason to believe that organised criminal gangs are
operating in the State and thus, there is immediate need
to curb their activities.
It is also noticed that the organised criminals make
extensive use of wire and oral communications in their
criminal activities. The interception of such
communications to obtain evidence of the commission
of crimes or to prevent their commission is an
indispensable aid to law enforcement and the
administration of justice.
2. The existing legal framework i.e. the penal and
procedural laws and the adjudicatory system are found
to be rather inadequate to curb or control the menace
of organised crime. The Government has, therefore,
decided to enact a special law with stringent and
deterrent provisions including in certain circumstances
power to intercept wire, electronic or oral
communication to control the menace of the organised
crime.‖ (emphasis supplied)
23. 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 organised crime. Organized crime means any
continuing unlawful activity by an individual, singly or jointly, either as
a member of the 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 other person for promoting insurgency. 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.
24. In Zameer Ahmed Latifur Rehman Sheikh (supra), the Supreme
Court examined the constitutionality of Section 2(1)(e) of the MCOCA
on the ground of legislative competence of the State Legislature in
dealing with the subject of "insurgency". It was argued on behalf of the
appellant that the subject of "insurgency" does not fall within the
legislative competence of the State Legislature. The Supreme Court
observed in its decision that the MCOCA "principally deals with
prevention and control of criminal activity by organized crime
syndicate or gang within India and its purpose is to curb a wide range
of criminal activities indulged in by organized syndicate or gang.".
The Supreme Court further observed "Under MCOCA the emphasis is
on crime and pecuniary benefits arising therefrom. In the wisdom of
the legislature these are activities which are committed with the
objective of gaining pecuniary benefits or economic advantages and
which over a period of time have extended to promoting
insurgency."(emphasis supplied)
25. Thus, the MCOCA seeks to deal with offenders who are
members of a crime syndicate, or a gang, and who are primarily driven
with the object of gaining pecuniary benefit, or gaining undue
economic or other advantage-either for themselves, or for any other
person, or for promoting insurgency. The offenders covered by the
MCOCA operate as an organized crime syndicate or a gang i.e. in a
group of two or more persons, either singly or collectively as a part of a
syndicate or gang, to indulge in activity of organized crime. An
offender involved in only one offence of the kind dealt with under the
MCOCA, would not bring the crime, or the offender, within the realm
of the MCOCA. The unlawful activity has to be continuing. Unlawful
activity is defined in the Act to be a cognizable offence punishable with
imprisonment of three years or more. Moreover, mere registration of
the FIR is not the benchmark set by the Act, since multiple charge
sheets should have been filed before the competent Court within the
preceding period of ten years, in respect whereof the Court has taken
cognizance of the offence. Thus, the offender sought to be covered by
the MCOCA would, of necessity, be highly motivated and driven, who
is part of a crime syndicate or a gang, and who is driven - not by
passion; not by vengeance and; not by his/her circumstances alone, but
by his objective of gaining pecuniary benefit, or gaining undue
economic or other advantage for himself/ herself, or for other persons,
or for promoting insurgency. This offender would be involved in
multiple cases (at least two). As pointed out by Mr. Mehra, in the
present case, the petitioner is found to be involved in 17 criminal cases
of kidnapping with murder, robbery, dacoity, Arms Act, night burglary
and theft etc.
26. The objective of both- Section 3(1)(i) and 3(1)(ii) in prescribing
the minimum fine of Rs. One Lakh and Rs. Five Lakh respectively,
clearly appears to be to disincentivise the motivation and drive of the
offenders- which is to gain pecuniary benefits, or gain undue economic
or other advantage for oneself or for other persons, or for promoting
insurgency. The purpose of prescribing the minimum fine in both such
clauses (i) & (ii) of Section 3 (1) is to create deterrence in the mind of
the offenders, that they would not be able to get away with their
unlawful pecuniary gains which are made by resort to continuing
unlawful activity as a part of an organized prime syndicate. The
endeavour of the law clearly appears to be to catch up with the
criminals found guilty under the MCOCA, so that they are not able to
enjoy the benefits, gains and accretions made by resort to such unlawful
activity.
27. Reliance placed on the aforesaid report of the Law Commission
is, even otherwise, inapposite. The said report was made on the subject
of trial and punishment of social and economic offences. Offences
under the MCOCA can hardly be classified as socio-economic offences.
In the introductory Chapter No.1, the Commission has set out the broad
question referred to it by the Government. A perusal of the same shows
that the Government sought the opinion of the Commission on the
question of effectively dealing with certain anti-social and economic
offences. Specific reference was made to Essential Commodities Act,
Prevention of Food Adulteration Act, Drugs (Control) Act, Import and
Export (Control) Act, Foreign Exchange Regulation Act etc. The
discussion in this report is in the context of white collar crimes under
enactments earlier referred to in the introductory chapter of the Report.
The scope of the opinion sought by the Government from the
Commission did not cover offences and offenders under the MCOCA.
The offences covered by the MCOCA, which are not capable of being
dealt with under the ordinary law such as the Penal Code, were not the
subject matter of discussion before the Commission. Thus, reliance
placed on the said report of the Law Commission, in our view, is
misplaced while examining the legality and constitutionality of Section
3 of the MCOCA.
28. Reliance placed on Shantilal (supra) by the petitioner is also of
no avail, since the minimum fine is prescribed by the MCOCA itself.
Shantilal (supra) deals with the situation where the Courts are left with
discretion in the matter of imposition of minimum fine. In those
situations, the Courts could take into consideration the aspects noticed
by the Supreme Court in Shantilal (supra). The legislature, while
prescribing the minimum fine in Section 3 of the MCOCA, was
conscious of the nature of criminal activity of the offenders dealt with,
and in that light the minimum fines have been prescribed. Pertinently,
in Shantilal (supra), the Supreme Court extracted, inter alia, the
following passage penned down by the authors of the Code;
―It appears to us that the punishment of fine is a
peculiarly appropriate punishment for all offences to
which men are prompted by cupidity; for it is a
punishment which operates directly on the very feeling
which impels men to such offences. A man who has been
guilty of great offences arising from cupidity, of forging
a bill of exchange, for example, of keeping a receptacle
for stolen goods, or of extensive embezzlement, ought, we
conceive, to be so fined as to reduce him to poverty. That
such a man should, when his imprisonment is over,
return to the enjoyment of three-fourths of his property, a
property which may be very large and which may have
been accumulated by his offences, appears to us highly
objectionable. Those persons who are most likely to
commit such offences would often be less deterred by
knowing that the offender had passed several years in
imprisonment, than encouraged by seeing him, after his
liberation, enjoying the far larger part of his wealth.‖
[See Ratanlal & Dhirajlal's Law of Crimes, 26th Edn.,
(2007), pp. 221-22.]‖ (emphasis supplied)
29. The aforesaid principle provides a complete justification for
imposition of minimum fine under Section 3(1)(i) and 3(1)(ii) of the
MCOCA. Pertinently, in Shantilal (supra), Supreme Court maintained
the amount of fine of Rs.One Lakh-which was the minimum specified
in Section 18 of the NDPS Act, by observing that the same could not be
reduced in view of the legislative mandate. The Supreme Court,
however, reduced the default period of imprisonment- in the event of
non-payment of fine, from 3 years rigorous imprisonment to 6 months
rigorous imprisonment.
30. Learned counsel for the petitioner has placed reliance on the
judgment of the Supreme Court of Pennsylvania in Commonwealth of
Pennsylvania (supra). The following extract from this decision has
been relied upon by the counsel for the petitioner.
―Mandatory fines are not unheard of in Pennsylvania's
statutory scheme, but they are unusual. Appellant logically
adverts to the fines construct in the Crimes Code, which
governs the vast majority of Pennsylvania criminal cases,
including non-Gaming Act theft offenses. The Crimes Code
generally reposes a considerable amount of discretion in
the sentencing judge. Typically, the court is authorized to
impose a fine up to a maximum set by statute. Thus, for
example, if appellant had been charged with theft under
Chapter 39 of the Crimes Code, he would have faced the
prospect of a fine up to $10,000, in the discretion of the
trial judge. See 18 Pa.C.S. §§ 3903 & 1101(4). Indeed, as
appellant notes, even the most serious of offenses in
Pennsylvania, murder in the first degree, affords the
sentencing court discretion in determining the appropriate
fine, and the maximum fine imposable is $50,000. 18
Pa.C.S. § 1101(1). The same general construct is found
with respect to drug offenses, which are set forth in Title
35. See 35 P.S. § 780-113 (subsection (a) enumerates
thirty-nine prohibited acts related to various narcotics;
subsections (b) through (o) grade each of thirty-nine
offenses and directs court to impose fines ―not exceeding‖
certain amounts).
On the other hand, there are indeed some offenses where
the General Assembly has determined that mandatory
fines are appropriate. For example, in the realm of drug
trafficking, Section 7508(a)(3)(iii) of Title 18 requires
that when a person is convicted of possessing at least 100
grams of cocaine, the court must impose, at a minimum,
"four years in prison and a fine of $25,000 or such larger
amount as is sufficient to exhaust the assets utilized in
and the proceeds from the illegal activity[.]" 18 Pa.C.S. §
7508(a)(3)(iii). Notably, the qualifier "as is sufficient to
exhaust the assets" employed in Section 7508 reflects a
proportionality approach (at least insofar as the fine will
exceed $25,000), that is not present in the provision
subject to challenge in the case sub judice.
In our view, the fine here, when measured against the
conduct triggering the punishment, and the lack of
discretion afforded the trial court, is constitutionally
excessive. Simply put, appellant, who had no prior record,
stole $200 from his employer, which happened to be a
casino. There was no violence involved; there was
apparently no grand scheme involved to defraud either the
casino or its patrons. Employee thefts are unfortunately
common; as noted, appellant's conduct, if charged under
the Crimes Code, exposed him to a maximum possible fine
of $10,000. Instead, because appellant's theft occurred at a
casino, the trial court had no discretion, under the Gaming
Act, but to impose a minimum fine of $75,000--an amount
that was 375 times the amount of the theft.
In addition to the sheer disproportion of the fine to the
amount stolen is the fact that $75,000, by any common
measure, is a considerable amount of money. As
illustration, the minimum wage in Pennsylvania is
currently $7.25 per hour, and the average Pennsylvania
household earns approximately $51,000 per year. The fine
imposed here would exhaust approximately five years of
pre-tax income of a minimum wage worker, and the
average family would not fare much better. In other words,
the mandatory nature of the provision could act to
effectively pauperize a defendant for a single act. It is not
a measure targeted solely at high rollers, at the casino
itself, or even at thefts from patrons, which might implicate
the integrity of the gaming business. Rather, the statute
affords the trial court no discretion to inquire into the
specific facts or the individual circumstances of a case,
which, in this instance, happens to include a twenty-six
year old defendant with no prior record who was, at the
time of sentencing, enrolled full-time as a student, living
with his fiancée, expecting his first child, and did not own
a house.‖ (emphasis supplied)
31. The aforesaid extract, itself, contains a complete answer to the
petitioner's submission that the minimum fine of Rs. Five Lakhs
prescribed in Section 3 (1)(ii) is excessive and arbitrary. The
highlighted text quoted above may be referred to Mandatory minimum
fines are prescribed, for example, in relation to drug trafficking
offences where the quantity involved is, at least, 100 gms. of cocaine
(like under the NDPS Act). The spirit of such a law is to prescribe fines
which are sufficient to exhaust the assets utilized in, and the proceeds
accumulated from the illegal activity.
32. The NDPS Act was amended, whereby, inter alia, section 21 was
amended, and a gradation of punishment was made. The Statement of
Objects and Reasons for the said Amendment reads as follows:
"Amendment Act 9 of 2001--The Narcotic Drugs and
Psychotropic Substances Act, 1985 provides deterrent
punishment for various offences relating to illicit
trafficking in narcotic drugs and psychotropic substances.
Most of the offences invite uniform punishment of
minimum ten years rigorous imprisonment which may
extend up to twenty years. While the Act envisages severe
punishments for drug traffickers, it envisages reformative
approach towards addicts. In view of the general delay in
trial it has been found that the addicts prefer not to invoke
the provisions of the Act. The strict bail provisions under
the Act add to their misery. Therefore, it is proposed to
rationalise the sentence structure so as to ensure that
while drug traffickers who traffic in significant
quantities of drugs are punished with deterrent
sentences, the addicts and those who commit less serious
offences are sentenced to less severe punishment. This
requires rationalisation of the sentence structure provided
under the Act. It is also proposed to restrict the
application of strict bail provisions to those offenders who
indulge in serious offences.‖ (emphasis supplied)
33. The amended section 21 of the NDPS Act reads as follows:
"21. Punishment for contravention in relation to
manufactured drugs and preparations.--
Whoever, in contravention of any provision of this Act or
any rule or order made or condition of licence granted
thereunder, manufactures, possesses, sells, purchases,
transports, imports inter-State, exports inter-State or
uses any manufactured drug or any preparation
containing any manufactured drug shall be punishable,--
(a) where the contravention involves small quantity, with
rigorous imprisonment for a term which may extend to
[one year], or with fine which may extend to ten
thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than
commercial quantity but greater than small quantity,
with rigorous imprisonment for a term which may extend
to ten years and with fine which may extend to one lakh
rupees;
(c) where the contravention involves commercial
quantity, with rigorous imprisonment for a term which
shall not be less than ten years but which may extend to
twenty years, and shall also be liable to fine which shall
not be less than one lakh rupees but which may extend
to two lakh rupees: Provided that the court may, for
reasons to be recorded in the judgment, impose a fine
exceeding two lakh rupees." (emphasis supplied)
34. In Basheer V. State of Kerala, (2004) 3 SCC 609 , the Supreme
Court observed:
―5. As a consequence of the amending Act coming into
force on 2-10-2001, the sentencing structure underwent a
drastic change. The Act introduced the concept of
―commercial quantity‖ in relation to narcotic drugs or
psychotropic substances by adding clause (vii-a) in
Section 2, which defines this term as any quantity greater
than a quantity specified by the Central Government by
notification in the Official Gazette. Further, the
expression ―small quantity‖ is defined in Section 2,
clause (xxiii-a), as any quantity lesser than the quantity
specified in the notification. Under the rationalised
sentencing structure, the punishment would vary
depending on whether the quantity of offending
material was "small quantity", "commercial quantity"
or something in between. This is the effect of the
rationalisation of sentencing structure carried out by the
amending Act 9 of 2001, in Section 27. A notification was
issued on 9-10-2001, specifying in respect of 239
narcotic drugs and psychotropic substances, as to what
would be ―small quantity‖ and ―commercial quantity‖.
(emphasis supplied)
35. Thus, a gradation of the prescribed punishments was introduced,
to deal with offences depending on the gravity of the offence i.e. the
quantity of drug/ substance involved. Pertinently, in respect of the
severe nature of offences, minimum sentence and minimum fine was
also prescribed.
36. Thus, Section 3 of the MCOCA is not an isolated instance where
minimum sentence and minimum fine have been prescribed by the
Legislature. By prescribing the minimum sentence and minimum fine,
the Legislature - keeping in view the object with which the law is
framed, seeks to emphasise the seriousness with which the offence
deserves to be dealt with. The prescription of the minimum sentence
and minimum fine in Section 3 is a conscious endeavour of the
Legislature to deal with all the offenders under the MCOCA, who are
engaged in continuous unlawful activity as members of an organized
crime syndicate or gang driven by their motivation of making illegal
monetary gains.
37. Reliance placed by the learned counsel for the petitioner on
Santosh Rajesh Sinha @ Rakesh Mandal is misplaced. The same is a
short order passed by the learned Single Judge of the Bombay High
Court, wherein the learned Single Judge, prima facie, observed that
there was an inconsistency in Section 3 of the MCOCA in as, much, as,
the minimum fine prescribed in Section 3(1)(ii) was Rs.Five Lakhs,
whereas, the minimum fine prescribed under Section 3 (1)(i) - which
was a more severe offence, was only Rs. One Lakh. The learned Single
Judge also took note of the stand taken by the Government of
Maharashtra that there was a discrepancy in the law.
38. Firstly, the said order does not contain any ratio. Secondly, the
view expressed by the learned Single Judge is only a prima facie view.
Thirdly, the concession made by the State Government before the Court
in relation to Section 3 of the MCOCA does not bind the State
Legislature. Fourthly, what has been missed out is that Clause (i) of
Section 3(1) of the MCOCA prescribes a minimum sentence of
imprisonment for life, as opposed to a minimum sentence of
imprisonment of 5 years for an offence covered by Section 3(1)(ii).
Whereas in respect of an offence covered by Section 3(1)(i), the
personal liberty of the offender is taken away for his entire life, the
curtailment of the personal liberty of an offender covered by Section
3(1)(ii) would be, at least 5 years, but which may extend to his life.
The objective of the law appears to be to denude the offender covered
by Clause (ii) of Section 3(1) of his ill-gotten wealth while setting him
free by awarding him a sentence which, invariably, would be for a
shorter duration, than in respect of an offender covered by Clause (i) of
Section 3(1). Both the clauses (i) and (ii) of Section 3(1) of the
MCOCA deal with offenders who are guilty of offences of different
degree, and are accordingly dealt with in the two clauses (i) and (ii) by
providing a combination of sentence of imprisonment and fine.
Pertinently, in Palaniappa Gounder (supra) the Supreme Court
observed in relation to the power to impose fine under Section 302 IPC
(apart from the substantive sentence) "Though there is power to
combine a sentence of death with a sentence of fine that power is
sparingly exercised because the sentence of death is an extreme penalty
to impose and adding to that grave penalty a sentence of fine is hardly
calculated to serve any social purpose. In fact, the common trend of
sentencing is that even a sentence of life imprisonment is seldom
combined with a heavy sentence of fine." In our view, it cannot be
argued that, in respect of an offence covered by Clause (ii) of Section
3(1), the minimum fine should necessarily be less than the minimum
fine prescribed in respect of the serious offence covered by Clause (i) of
Section 3(1). For the aforesaid reasons, reliance placed by the
petitioner on the Division Bench judgment of the Bombay High Court
in Amit R. Saurabh (supra), also appears to be misplaced.
39. Counsel for the petitioner has also placed reliance on
Shahejadkhan Mahebubkhan Pathan (supra). In this case the
Supreme Court held that the sentence of fine and the default sentence
imposed upon the convict, on account of non-payment of fine, should
not be excessive or harsh. The appellants had been convicted and
sentenced to 15 years rigorous imprisonment and fine of Rs.1.5 lakhs,
and in default to undergo further imprisonment of 3 years rigorous
imprisonment. The Supreme Court reduced the sentence to the
minimum prescribed term of 10 years, and also reduced the default
sentence of 3 years rigorous imprisonment to 6 months rigorous
imprisonment. This decision has no bearing in the matter of
determination of the legal issue raised by the petitioner. If the
petitioner is aggrieved by the default sentence awarded to him, it is for
him to invoke his statutory remedy by way of an appeal. This Court
while exercising the extraordinary writ jurisdiction cannot deal with
either his conviction, or with the sentence awarded to him by the Trial
Court, including the default sentence. The said aspects can only be
assailed in a statutory appeal provided under the law. For the same
reason reliance placed on Issa @ (Raj Mohd.) (supra), is misplaced.
40. On the aspect of proportionality of the sentence/ fine imposed, to
the offence of the offender, the petitioner has placed reliance upon the
decision of the Supreme Court in Excel Corp. Care Limited Vs.
Competition Commission of India and Ors., AIR 2017 SC 2734,
wherein the following observations were made:
―111. It should be noted that any penal law imposing
punishment is made for general good of the society. As a part
of equitable consideration, we should strive to only punish
those who deserve it and to the extent of their guilt. Further,
it is well-established by this Court that the principle of
proportionality requires the fine imposed must not exceed
what is appropriate and necessary for attaining the object
pursued. In Coimbatore District Central Coop.
Bank v. Employees Assn.[Coimbatore District Central Coop.
Bank v. Employees Assn., (2007) 4 SCC 669 : (2007) 2 SCC
(L&S) 68] , this Court has explained the concept of
―proportionality‖ in the following manner: (SCC p. 678,
paras 18-19)
―18. "Proportionality" is a principle where the court is
concerned with the process, method or manner in which the
decision-maker has ordered his priorities, reached a
conclusion or arrived at a decision. The very essence of
decision-making consists in the attribution of relative
importance to the factors and considerations in the case. The
doctrine of proportionality thus steps in focus true nature of
exercise--the elaboration of a rule of permissible priorities.
19. De Smith states that ―proportionality‖ involves
―balancing test‖ and ―necessity test‖. Whereas the former
(―balancing test‖) permits scrutiny of excessive onerous
penalties or infringement of rights or interests and a manifest
imbalance of relevant considerations, the latter (―necessity
test‖) requires infringement of human rights to the least
restrictive alternative.‖ (emphasis supplied)
41. The principle laid down by the Supreme Court, no doubt, is of
universal application. However, in the context of the MCOCA, we are
not convinced that the prescription of minimum penalty per se, or the
amount of that minimum penalty, is excessive or arbitrary. The
offenders dealt with by Section 3 of the MCOCA would invariably be
repeat professional offenders, whose motivation for participating in
organized crime- as a part of a gang or a crime syndicate, is to make
pecuniary gains. To subject convicts under the said Act to minimum
fines appears to be completely justified, as the object appears to be to
deter such offenders and to denude them of their ill gotten wealth. The
quantum of minimum fine also does not appear to be excessive in
today's context.
42. For all the aforesaid reasons, we find absolutely no merit in the
challenge raised to the illegality and constitutionality of Section 3(1)(ii)
of the MCOCA. Accordingly, we dismiss this petition leaving the
parties to bear their respective costs.
(VIPIN SANGHI)
JUDGE
(I.S. MEHTA)
JUDGE
JULY 23, 2018
