The Bombay High Court has provided protection from arrest in a case registered under the stringent Maharashtra Control of Organized Crime Act making it a very first instance.

The Court stated it as the fault of IG, CID who granted sanction to prosecute the petitioner under MCOCA . It pointed out that there was absence of mens rea.

What followed in the case was the fact that the petitioner was denied pre-arrest bail by the Sessions Court citing the fact that there is a specific bar to grant of anticipatory bail in a case registered under MCOCA as per Section 21 (3) of the Act. Following this, he filed a writ petition in the High Court to challenge the constitutionality of Section 21(3) of MCOCA, and seek protection from arrest.

In details of the case, the petitioner was allotted a tender to run a Canteen at Civil Hospital in Ahmednagar. On Feb12, 2017, at a dinner party hosted by winning candidates of panchayat Samiti and Zila Parishad elections, it was reported that liquor was served and 9 people died as a result of consuming it while 13 others became seriously ill.

It was revealed in Police investigation that the atrocity was a result of illicit liquor serving that was being manufactured at the civil hospital canteen.

Complainant's two brothers were amongst the attendees of that dinner party. Following the incident, FIR was registered under Sections 304, 328 read with Section 34 of the and Sections 65A, 65B, 65C, 65D, 65E, 68A and 68B and Section 18(1) and (2) of the Maharashtra Prohibition Act, 1949.

It was revealed in the investigation that the alcohol, which was supplied in the party was manufactured in Sai Bhushan canteen at the City Civil Hospital, District Ahmednagar. Police then investigated the said canteen for several times and the petitioner was termed as an accused after a link was established. Apart from the petitioner, 19 others were named as accused. A proposal was made to invoke MCOCA against the accused.

The Special Inspector General of Police, CID, Pune, granted approval to the proposal under Section 23(1)(a) of the MCOCA on July 13, 2017. The approval order brought out that Jagjitsingh Gambhir (petitioner's cousin) had formed an Organized Crime Syndicate and was engaged in unlawful activities with the object of gaining pecuniary benefits for himself and other members of the gang.

Further, subsequent sanction under sub-Section (2) of Section 23 of MCOCA was granted by the Additional Director General of Police, CID, Pune, by an order dated Aug 10, 2017.

The petitioner submitted that the High Court while exercising its writ jurisdiction should weigh and decide as to whether such proceedings are to be quashed or not and this is distinct from the grant of interim protection against arrest. The petitioner argued that there was clear absence of mens rea as far as petitioner's culpability was concerned.

He further submitted that it was because he was a successful bidder, he was awarded the tender to run the said canteen. However, he never complied with the condition in the tender document of depositing the security and Bank Guarantee and therefore the possession of the canteen was never made over to him, argued the petitioner.

It was also pointed out that during the course of the investigation it was revealed that rent for four months, was deposited by another accused Zakir Shaikh. The petitioner submitted that his client was not involved in the conduct of its day-to-day affairs.

The Court, after hearing the submissions and testing the material on record, submitted that,

"Perusal of the entire material relied upon by the prosecution disclose that the canteen was allotted by tender process to the petitioner but since the Petitioner did not complete the formalities, he was never physically placed in possession of the canteen and at the most, the case of the prosecution can be believed to the extent that though the canteen was allotted to the Petitioner, he had sublet it in the year 2013 itself and Jagjit Singh Gambhir, a distant cousin was running the canteen through Mohan Duggal who had made a statement that he had deposited an amount of ₹50,000/- with Jitu and was paying rent to Zakir Shaikh. The prosecution has not collected any evidence in form of any statement leading to a conclusion and establishing that in the year 2017 when the incident took place in the month of February, the Petitioner was in any way connected to the running of Sai Bhushan canteen of the Civil Hospital at Ahmednagar."

While bringing in discussions on mens rea essential for prosecuting the accused in the first place, Court observed-

"The essence of criminal law has been said to lie in the maxim - "actus non facit reum nisi mens sit rea". There can be no crime without an evil mind and therefore the essence of an offence be it under the IPC or any other law for the time being in force, is the wrongful intent, without which an offence cannot be established."
"In the case of Bharat Shantilal Shah & Ors. v. State of Maharashtra, which decided the constitutional validity of the MCOCA, the Division Bench of this Court while upholding the validity pronounced that the provisions of Sections 3 and 4 of the MCOCA contemplate the existence of mens rea inherently and shall always be read therein as a necessary ingredient of the offence."

The Court at last stated, 

"In such circumstances, we are prima facie satisfied that the order granting sanction to prosecute the Petitioner by the Special Inspector General of Police, CID, Pune, suffers from non-application of mind as no material is brought on record in the form of Charge Sheet justifying invocation of the provisions of MCOCA against the Petitioner. In absence of any mens rea, knowledge or intention, if the Petitioner is subjected to the rigors of trial and with the stringent provisions of being incarcerated in the absence of a provision for anticipatory bail and the grant of bail being subjected to stringent condition enumerated in Section 23 of the Act, in our considered view the Petitioner is entitled for protection against his arrest in the said offence reserving the question of determination of validity of Section 21(3), inappropriate proceedings."

 It thus accordingly allowed the petition.

The Judgement was delivered by Justice BHARATI DANGRE and Justice RANJIT MORE on 13-09-2019.

Read Judgement Here:

 

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