# [2008] 12 S.C.R. 1083

- **Citation:** [2008] 12 S.C.R. 1083
- **Court:** Supreme Court of India
- **Decided:** 2008-09-01
- **Case number:** Criminal Appeal Nos. 1376-1379 of 2008
- **Bench:** K.G. Balakrishnan, R.V. Raveendran, Dr. Mukundakam Sharma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2008-12-s-c-r-1083-23489
- **Pages:** 36

## Headnote

Constitution of India, 1950:
Article 254 - Seventh Schedule - List I - Entry 31 - List c
..
II Entries 1 and 2, List Ill - Entries 1,2 and 12 - Provisions of
Maharashtra Control of Organised Crime Act, 1999 authorising
interception of wire, electronic and oral communication in order
to prevent commission of organized crime or to collect
evidence to commission of such an organized crime - HELD:
D
,.._
Are constitutionally valid - Grounds for interception of wire,
...
electronic and ·oral communication under the provisions of
MCOCA are distinct and different from those covered bys. 5(2)
of Telegraph Act - The subjects and areas covered by two
Acts cannot be said to be identical and common -
Even
E
otherwise, when the area and subject of legislation is also
~
covered within purview of the Entry of State List, and Concurrent
List, incidental encroachment to an entry in the Union List will
not, in view of doctrine of pith and substance, make a law
~
invalid and such an incidental encroachment will not make
"
F
the legislation ultra vires the Constitution - Doctrine of Pith
and Substance - Telegraph Act, 1885- s.5(2) - Maharashtra
Control of Organised Crime Act, 1999 -
Interpretation of
Constitution.
-~-{
Maharashtra Control of Organised Crime Act, 1999:
Gl
ss. 13 to 16- Constitutional validity of- HELD: Provisions
are constitutionally valid - The Act is covered under Entries
1 and 2 of List II and is also relatable to Entries 1,2 and 12 of
1083
H
1084
SUPREME COURT REPORTS
[2008] 12 S.C.R.
A
List Ill of the Seventh Schedule to the Constitution-Provisions
)---
are not violative of Article 21 of the Constitution - Constitution
of India, 1950-Articles 21 and 254 - Seventh Schedule, List
II Entries 1 and 2 - List Ill - Entries 1,2 and 12 - Telegraph
Act, 1885 - s. 5(2).
B
s.21(5) - Restriction on granting bail - HELD: Decision
*
of the High Court striking down the words "or under any other
Act" occurring in sub-s. (5) of s. 21 is upheld - Provision of
denying a person right to seek bail under MCOCA if he was
on bail earlier for commission of an offence under any other
c Act suffers from vice of unreasonable classification -
Constitution of India, 1950 - Article 14.
ss. 2(d), (e) and (f) -
"Continuing unlawful activity",
"organized crime", and "organized crime syndicate" - Definition
D of -
HELD: There is no vagMeness in the definitions -
Provisions do not suffer from class legislation and are not
-i
viola~ive of Article 14 of the Constitution -
Constitution of
...
India, 1950 - Article 14.
ss. 3(3) and (5) - HELD: High Court has rightly observed
E· that in such penal provisions mens rea is always presumed as
.I,..
integral part unless excluded expressly or by necessary
intendment- Sub-sectionsf3)and (5) are to be read in the manner
as mentioned in the judgment - Criminal Law - Mens rea.
F
s. 4 - Words "at any time" - Connotation of - HELD:
~
High Court has rightly held that 1hese words should be read
to mean at any time after coming into force of the Act and the
enactment is prospective in operation and not retrospective
-
Interpretation of Statute -
Prospective operation of
enactment.
G
Interpretation of Constitution:
).-~·
Entries in the Lists of Seventh Schedule to the
Constitution of India - HELD: Must receive liberal construction
inspired by a broad and general spirit and not in a narrow
H pedantic sense.
-STATE OF MAHARASHTRA v. BHARAT SHANTI
1085
LAL SHAH & ORS.
~
Interpretation of statutes:
A
Presumption as to constitutionality of a statute - HELD:
There is always a presumption of constitutionality in favour of
a statute and while construing the same, every legally
permissible effort should be made to keep the statute within B
the competence of State legislature.
Respondent nos. 2 and 3 were arrested under the
provisions of the Maharashtra Control of Organised Crime
Act, 1999 (MCOCA). They filed writ petitions before the
High Court challenging the provisions of the Act. The c
High Court struck down ss. 13 to 16 of the Act as b

## Text

_Characters 0–39,837 of 70,868. This is a partial read: ask again with offset=39837 for what follows._

0
[2008] 12 S.C.R. 1083
·---f
STATE OF MAHARASHTRA
A
II.
BHARAT SHANTI LAL SHAH & ORS.
(Criminal Appeal Nos. 1376-1379 of 2008)
SEPTEMBER 1, 2008
B
'
-*
[K.G. BALAKRISHNAN, CJI, R.V. RAVEENDRAN AND
DR. MUKUNDAKAM SHARMA, JJ]
Constitution of India, 1950:
Article 254 - Seventh Schedule - List I - Entry 31 - List c
..
II Entries 1 and 2, List Ill - Entries 1,2 and 12 - Provisions of
Maharashtra Control of Organised Crime Act, 1999 authorising
interception of wire, electronic and oral communication in order
to prevent commission of organized crime or to collect
evidence to commission of such an organized crime - HELD:
D
,.._
Are constitutionally valid - Grounds for interception of wire,
...
electronic and ·oral communication under the provisions of
MCOCA are distinct and different from those covered bys. 5(2)
of Telegraph Act - The subjects and areas covered by two
Acts cannot be said to be identical and common -
Even
E
otherwise, when the area and subject of legislation is also
~
covered within purview of the Entry of State List, and Concurrent
List, incidental encroachment to an entry in the Union List will
not, in view of doctrine of pith and substance, make a law
~
invalid and such an incidental encroachment will not make
"
F
the legislation ultra vires the Constitution - Doctrine of Pith
and Substance - Telegraph Act, 1885- s.5(2) - Maharashtra
Control of Organised Crime Act, 1999 -
Interpretation of
Constitution.
-~-{
Maharashtra Control of Organised Crime Act, 1999:
Gl
ss. 13 to 16- Constitutional validity of- HELD: Provisions
are constitutionally valid - The Act is covered under Entries
1 and 2 of List II and is also relatable to Entries 1,2 and 12 of
1083
H
1084
SUPREME COURT REPORTS
[2008] 12 S.C.R.
A
List Ill of the Seventh Schedule to the Constitution-Provisions
)---
are not violative of Article 21 of the Constitution - Constitution
of India, 1950-Articles 21 and 254 - Seventh Schedule, List
II Entries 1 and 2 - List Ill - Entries 1,2 and 12 - Telegraph
Act, 1885 - s. 5(2).
B
s.21(5) - Restriction on granting bail - HELD: Decision
*
of the High Court striking down the words "or under any other
Act" occurring in sub-s. (5) of s. 21 is upheld - Provision of
denying a person right to seek bail under MCOCA if he was
on bail earlier for commission of an offence under any other
c Act suffers from vice of unreasonable classification -
Constitution of India, 1950 - Article 14.
ss. 2(d), (e) and (f) -
"Continuing unlawful activity",
"organized crime", and "organized crime syndicate" - Definition
D of -
HELD: There is no vagMeness in the definitions -
Provisions do not suffer from class legislation and are not
-i
viola~ive of Article 14 of the Constitution -
Constitution of
...
India, 1950 - Article 14.
ss. 3(3) and (5) - HELD: High Court has rightly observed
E· that in such penal provisions mens rea is always presumed as
.I,..
integral part unless excluded expressly or by necessary
intendment- Sub-sectionsf3)and (5) are to be read in the manner
as mentioned in the judgment - Criminal Law - Mens rea.
F
s. 4 - Words "at any time" - Connotation of - HELD:
~
High Court has rightly held that 1hese words should be read
to mean at any time after coming into force of the Act and the
enactment is prospective in operation and not retrospective
-
Interpretation of Statute -
Prospective operation of
enactment.
G
Interpretation of Constitution:
).-~·
Entries in the Lists of Seventh Schedule to the
Constitution of India - HELD: Must receive liberal construction
inspired by a broad and general spirit and not in a narrow
H pedantic sense.
-STATE OF MAHARASHTRA v. BHARAT SHANTI
1085
LAL SHAH & ORS.
~
Interpretation of statutes:
A
Presumption as to constitutionality of a statute - HELD:
There is always a presumption of constitutionality in favour of
a statute and while construing the same, every legally
permissible effort should be made to keep the statute within B
the competence of State legislature.
Respondent nos. 2 and 3 were arrested under the
provisions of the Maharashtra Control of Organised Crime
Act, 1999 (MCOCA). They filed writ petitions before the
High Court challenging the provisions of the Act. The c
High Court struck down ss. 13 to 16 of the Act as being
beyond the legislative competence of the State
Legislature; it also struck down sub-section (5) of s.21 of
the Act, holding the same as violative of provisions of
Article 14 of the Constitution of India. Aggrieved, the State D
>--
Government filed the instant appeals.
.;.
Allowing the appeals in part, the Court
HELD: 1.1 Though it is true that the State Legislature
would not have power tolegislate upon any of the matters E
enumerated in the Union List but as per the doctrine of
Pith and Substance there could not be any dispute with
regard to the fact that if it could be shown that the area
and subject of the legislation is also covered within the
purview of the entry of the State List and the Concurrent
F
~
List, in that event incidental encroachment to an entry in.
the Union List will not make a law invalid and such an
incidental encroachment will not make the legislation ultra
vires the Constitution. [para 30] [1108,B-C]
A. S. Krishna v. State of Madras 1957 SCR 399; Kartar G
~
Singh v. State of Punjab (1994) 3 SCC 569; and Bharat Hydro
Power Corpn. Ltd. v. State of Assam (2004) 2 SCC 553 -
relied on.
1.2The question of repugnancy under Article 254 of
the Constitution arises only in connection with subjects H
1086
SUPREME COURT REPORTS
[2008] 12 S.C.R.
A enumerated in Concurrent List. However, mere possibility
of repugnancy will not make a State law invalid, for
repugnancy has to exist in fact and it must be shown
clearly and sufficiently that State law is repugnant to
Union law. [para 32] [1109,F-G]
B
1.3 A perusal of the relevant provisions of the
jMaharashtra Control of Organised Crime Act, 1999 would
indicate that the said law authorizes interception of wire,
electronic and oral communication only if it is intended
c
to prevent commission of an organized crime or if it is
intended to collect evidence to commission of such an
organized crime. Interception of wire, electronic and oral
communication with the said intent in case of urgency is
also permitted under the State Act in which case it is to
be approved by an officer not below the rank of Additional
D Director General of Police within 48 hours of occurrence
of the interception. [para 34) [1110-C-D]
-i
....
1.4 The objects and reasons read with the contents
of the MCOCA would indicate that the subject matter
E· thereof is maintaining public order and prevention by
police of commission of serious offences affecting public
order and, therefore, it will be relatable to Entry 1 and 2 of
List II. The provisions of the MCOCA when read with the
Statement of Objects and Reasons, would make it
F
apP,arent and establish that the grounds for interception
,..
of the communication under MCOCA are distinct and
different from the ground covered by Section 5(2) of the
. Telegraph Act, 1885. A comparative reading of the
provisions of the Telegraph Act and the MCOCA would
establish that both the Acts deal with the subjects and
G areas which cannot be said to be identical and common.
).<:
[para 35 and 38] [1113,G-H; 1110,E-F]
Gujarat v. Mirzapur Moti Kureshi Kassab Jamat 2005
(4) Suppl. SCR 582 =(2005) 8 SCC 534 - followed.
H
1.5 The source of power to legislate the Maharashtra
STATE OF MAHARASHTRA v. BHARAT SHANTI
1087
LAL SHAH & ORS.
--4
Control of Organised Crime Act, 1999 can be derived from
A
Entries 1,2 of the State List and Entries 1,2 and 12 the
Concurrent List and while enacting the MCOCA the assent
of the President was also taken. Therefore, the Act cannot
be said to be beyond the legislative competence of the
~
State Legislature. The content of the Act might have B
Ji·
encroached upon the scope of Entry 31 of List I, but the
same is only an incidental encroachment. As the main
purpose of the Act is within the parameter of Entries 1
and 2 of the State List the provisions of Sections 13 to 16
cannot be said to be constitutionally invalid because of c
lack of legislative competence. [para 39] [1114,C-E]
2.1 It is a well established rule of interpretation that
the Entries in the Lists of Seventh Schedule to the
Constitution of India being fields of legislation must
receive liberal construction inspired by a broad and D
rgenerous spirit and not in a narrow pedantic sense. Each
~
general word should extend to all ancillary and subsidiary
matters which can fairly and reasonably be comprehended
within it. [para 24] [1103,B]
Navinchandra Mafatlal v. CIT 1955 (1) SCR 829
E
=AIR 1955 SC 58; Godfrey Phillips India Ltd. v. State of UP.
(2005) 2 sec - relied on.
2.2 It is also a cardinal rule of interpretation that there
-{
shall always be a presumption of constitutionality in
F
favour of a statue and while construing such statue every
legally permissible effort should be made to keep the
statue within the competence of State legislature. [para
25] [1104,C]
>4
Burrakur Coal Co. Ltd. v. ·The Union of India and others G
1962 1) SCR 44; CST v. Radhakrishnan (1979) 2 SCC 249;
Greater Bombay Cooperative Bank Ltd. v. United Yam Tex
(P) Ltd. & Others 2007 (4) SCR 823=(2007) 6 SCC 236; State
of Bihar v. Bihar Distillaries Limited 1996 (9) Suppl. SCR
479 =(1997) 2 sec 453 - relied on.
H
1088
SUPREME COURT REPORTS
[2008] 12 S.C.R.
A
3.1 The interception of conversation though
constitutes an invasion of an individual right to privacy
but the said right can be curtailed in-accordance with the
procedure validly established by law. Thus, what the
Court is required to see is that the procedure itself must
s be fair, just and reasonable and non-orbitrary, fanciful or
oppressive. [para 44] [1116,F]
3.2 The object of the MCOCA is to prevent the organised
crime and its provisions authorize interception of wire,
electronic or oral communication only if it is intended to
C prevent commission of an organised crime or if it is intended
to colle.ct evidence to commission of such an organized
crime. The procedure authorizing such interception is also
provided therein with enough procedural safeguards. In
addition, u/s 16 of the MCOCA, provision for prohibiting and v
D punishing the unauthorized user of information acquired
by interception of wire, electronic or oral com111t1nication
has been made. Thus, as the Act contains sufficient
safeguards and also satisfies the constitutional mandate, it
cannot be said that provisions of Section 13 to 16 are
E violative of Article 21 of the Constitution. Constitutional
validity of Sections 13 to 16 of the MCOCA is upheld. [para
45 and 50][1116,G-H; 1117,A-B; 1118,E]
Gobind v. State of M.P (1975) 2 SCC 148; People's
Union for Civil Liberties (PUCL) v. Union of India 1996 (10)
F Suppl. SCR 321 =(1997) 1 SCC 301; and R. M. Malkani v.
State of Maharashtra 1973 (2) SCR 417=(1973) 1 SCC 471
- relied on.
4. The object of MCOCA is to prevent organised crime
G and, therefore, there could be reason to deny
consideration of grant of bail if one has committed a
similar offence once again after being released on bail;
buLthe same consideration cannot be extended to a
person who <;ommits an offence under some other Act,
for commission of an offence under some other Act would
H
.,
r
)
(
STATE OF MAHARASHTRA v. BHARAT SHANTI
1089
LAL SHAH & ORS.
--4
not be, in any case, in consonance with the object of A
MCOCA. Therefore, a person who is on bail after being
arrested for violation of law unconnected with MCOCA,
should not be denied his right to seek bail if he is arrested
under the MCOCA, for it cannot be said that he is a habitual
offender. The provision of denying a person right to seek B
··-~
bail under MCOCA, if he was arrested earlier and was on
bail for commission of an offence under any other Act, 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 d
denying consideration of bail. The said expression and
restriction on the right of seeking bail is not even in
consonance with the object sought to be achieved by the
MCOCA and, therefore, on the face of the provisions this is
an excessive restriction. Therefore, The decision of the High
D
~
Court striking down the words "or under any other Act"
from sub-Section (5) of Section 21 of the Act is upheld. [para
~
47, 48 and 50] [1117,E-F; 1117,G-H; 1118,A-C]
5.1 Though constitutional validity of provisions of
ss. 2(d), (e) and (f) and ss. 3 and 4 of MCOCA was assailed
E
but no cross-appeal was filed by any of the respondents
against the order of the High Court upholding the
constitutional validity of these provisions. Even
I
otherwise, as regards ss.2(d), (e) and (f), when the
!
definitions as existing in these sub.:sections are read and
~
F
understood with the object and purpose of the MCOCA
which is to make special provisions for prevention and
control of organised crime, it is clear that they are worded
to sub-serv.e and achieve the said object and purpose of
the Act. There is no vagueness in the definitions. As the G
··>J;
provisions treat all those covered by it in a like manner
and do not suffer from the vice of class legislation, they
cannot be said to be violative of Article 14 of the Constitution.
[para 18 and 19] [1100,A; 1100,D-F]
5.2 With respect to s.3 of MCOCA, even before the
H
1090
SUPREME COURT REPORTS
[2008] 12 S.C.R.
A High Court the attack was in particular in respect of the
provisions of sub-sections 3 (3) and (5) of s.3 on the
ground that the requirement of mens rea is done away
with, thus automatically rendering a person without any
intention or knowledge liable for punishment. It is well
B settled, insofar as criminal law is concerned, that in such
provisions mens rea is always presumed ~s integral part
of penal offence or the section unless it is specifically
and expressly or by necessary intendment excluded by
the legislature. No such exclusion is found in sub-sections
c (3) and (5) of s. 3. As held by the High Court, if the
provisions are read as shown in the judgment, no injury
would be caused. [para 19] [1100,F-H; 1101,A]
5.3 As far as section 4 of MCOCA is concerned, a
perusal of the enactment along with the object and
D purpose reveals that it is only prospective in operation
and not retrospective and, as rightly held by the High
Court, the words "at any time" occurring in the section
should be read to mean at any time after coming into
E
F
G
H
force of MCOCA. [para 19] [1101,E-F]
5.4 It is, therefore, clear that the High Court rightly
arrived at the findings that provisions of ss. 2(d), (e) and
(f) and ss. 3 and 4 of MCOCA cannot be said to be ultra
vires the Constitution. Validity of the said provisions is
upheld. [para 20] [1102,B]
Case Law Reference
1955 (1) SCR 829
(2005) 2 sec
1962 (1) SCR 44
1979 (2) sec 249
2007 (4) SCR 823
relied on
relied on
relied on
relied on
relied on
1996 (9) Suppl. SCR 479 relied on
1957 SCR 399
followed
para 24
para 24
para 25
para 26
para 27
para 27
para 29
t
STATE OF MAHARASHTRA v. BHARAT SHANTI
1091
LAL SHAH & ORS. [DR. MUK,UNDAKAM SHARMA, J.]
1994 (2) SCR 375
followed
para 29
A
2004 (2) sec 553
relied on
para 31
2005 (4) Suppl. SCR 582
relied on
para 37
1975 (3) SCR 946
relied on
para 41
1996 (10) Suppl. SCR 321 relied on
para 41
B
.J·
1973 (2) SCR 417
relied on
para 42
CRIMINALAPPELLATE JURISDICTION : Criminal Appeal
Nos. 1376-1379 of 2008
From the final Judgment and Order dated 5.3.2003 of the c
High Court of Judicature at Bombay in Criminal Writ Petition
,
Nos. 27 of 2003, 1738 of 2002 & 110 of 2003 with Crl.
-
Application No. 1504 of 2002
Shekhar Nafade, Ravindra Keshavrao Adsure and D
tGautam Godara for the Appellant.
J.
D.A. Dave, U.A. Rana, Nitesh Jain (for Mis. Gagrat &
Co.), Manoj Goel, Shuvodeep Roy, Wajih Shafiq, Gopal Verma
(for Brij Bhusan) and Dr. NafisA. Siddiqui forthe Respondents.
E
The Judgment of the Court was delivered by
DR. MUKUNDAKAM SHARMA, J. 1. Leave gra·nted.
2. In all these appeals the issue that falls for our
,
consideration is the constitutional validity of the Maharashtra
F
-
~ Control of Organised Crime Act, 1999 (for short the 'MCOCA'
.,.
or the 'Act') on the ground that the State Legislature did not
t
have the legislative competence to enact such a law and also
that the aforesaid law is unreasonable and is violative of the
provisions of Article 14 of the Constitution of India.
G
->.\;
3. Respondent Nos. 2 and 3 were arrested under the
provisions of the MCOCA and cases were registered against
them. Being aggrieved by .the aforesaid arrest and registration
of cases both of them filed separate writ petitions being Criminal
Writ Petition No. 1738/2002 and Criminal Writ Petition No.
H
1092
SUPREME COURT REPORTS
[2008] 12 S.C.R.
A
110/2003 respectively in the Bombay High Court challenging
}.---·
the constitutional validity of the MCOCA, particularly the
provisions of Section 2(d), (e) and (f) and that of Sections 3, 4
and 13 to 16 and Section 21(5) of the MCOCA. Respondent
no. 1 also filed a writ petition of similar nature being Criminal
B Writ Petition No. 27/2003.
The Bombay High Court heard the above mentioned writ
*-·
'
petitions together and passed a commonjudgment and order
on 05.03.2003 whereby it upheld the constitutional validity of
Section 2(d), (e) and (f) and also the provisions of Sections 3
c and 4 but struck 'down Sections 13 to 16 as unconstitutional as
being beyond the legislative competence of the State
Legislature. The High Court held that the Parliament alone has
;)
the power to make law in that regard as provided for under
Entry 31 of List I of Seventh Schedule to the Constitution and
D that already the Indian Telegraph Act, 1885, a Central Act was
holding the field. The High Court also ~truck down sub-section
-+
(5) of Section 21 of the MCOCA holding that the same was
..
violative of provisions of Article 14 of the Constitution of India.
Being aggrieved by the aforesaid common order the State of
E
Maharashtra has filed the present appeals.
4. Learned senior counsel appearing for the parties
advanced elaborate arguments on the aforesaid issues, but
before we deal with and discuss the same, it would be necessary
for us to refer to the relevant provisions of the concerned Central
~~
F and the State Legislations. ·
~
~
5. The Indian Telegraph Act, 1885 (for short the 'Telegraph
Act') was passed as a Central Act in 1885 and the said Act
came into force on 1st October, 1885. The word 'telegraph' in
G the said Act is defined to mean any appliance, instrument,
material or apparatus used or capable of use for transmission
reor reception of signs, signals, writing, images, and sounds or
intelligence of any nature by wire, visual or other electormagnetic emissions. By enacting Section 4 iri the said Act the
H
Central Government has been given exclusive privilege in·
-
..
STATE OF MAHARASHTRA v. BHARAT SHANTI
1093
LAL SHAH & ORS. [DR. MUKUNDAKAM SHARMA, J.]
' ~
establishing, maintaining and working telegraphs. The power A
to grant a licence on such conditions and in considerations of
such payments as it thinks fit, to any person to establish, maintain
or work a telegraph in any part within India is also vested with
the Central Government. Section 5 of the said Act gives power
to the Central Government as well as to the State Government B
--;it,
or any officer specifically authorized in that behalf by the Central
or the State Government to take temporary possession of any
telegrap_h established, maintained or worked by any person,
licensed under the Act, provided there is an occurrence of any
public emergency or there is a case of public safety and when
such authority is satisfied that one such pre-condition arises c
and that it is necessary to act in a case of public emergency or
:, /
maintaining of public safety. Section 5(2) of the Act provides
that on the occurrence of any public emergency, or in the interest
of public safety the Central or the State Government or any D
+--
officer specially authorized in that behalf by the Central or the
State Government may, if satisfied that it is necessary or
j
expedient to do so in the interest of !he sovereignty and integrity
of India, the security of the State, friendly relations with foreign
states or public order or for preventing incitement to the
E
commission of offence and for the reasons to be recorded in
writing by order, direct that any message or class of messages
to or from any person or class of persons, or relating to any
particular subject, brought for transmission by or transmitted or
received by any telegraphs, shall not be transmitted, or shall be
""'·
intercepted or detained, or shall be disclosed to the Government
F
making the order or an officer thereof mentioned in the order.
,s. The Telegraph Act is an existing law (as defined in
Article 366 (10) of the Constitution) with respect to the matters
enumerated in Entry 31 of List I of the Seventh Schedule to the G
--::....\-
Constitution. Entry 31 empowers the Central Legislature to enact
a law in respect of posts and telegraph, telephones, wireless,
broadcasting and other like forms of communication. The
Telegraph Act, which is an enactment passed before the
commencement of the Constitution, deals with the aforesaid
subjects enumerated in Entry 31 of List I.
H
_L_
A
B
c
D
E
1094
SUPREME COURT REPORTS
[2008] 12 S.C.R.
7. The Maharashtra State Legislature enacted a State
legislation under the name of Maharashtra Control of Organised
Crime Act, 1999 which came into force on 24th February,
1999.The Statement of Objects and Reasons for enacting the
said Act reads as under:
"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 fueled by illegal wealth generated by
contract killings, extortion, smuggling in contrabands, illegal
trade in narcotics, kidnapping 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 narco terrorism which
extend 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
F
inadequate to curb or control the menace of organised crime.
G
H
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."
According to its preamble, the said Act was enacted to
make specific provisions for prevention and control of, and for
coping with, criminal activity by organised crime syndicate or
gang and for matters connected therewith or incidental thereto.
8. Section 2 of the MCOCA contains the definitions. The
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STATE OF MAHARASHTRA v. BHARAT SHANTI
1095
LAL SHAH & ORS. [DR. MUKUNDAKAM SHARMA, J.]
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1096 .
,sUPREME COURT REPORTS
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[2008] 12 S.C.R.
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A
m~mber of an organised crime syndicate, (iv) any person who
fs a member of an organised crime syndicate and (v) whoever
-1
holds any property derived or .obtained from commission of an
organised crime, shall be punished as provided in the said
section. Section 4 provides punishment 'for possessing
8
unaccountable wealth on behalf of a member of organised crime
},,
syndicate.
1 O. Sectio.n 13 of the MCOCA deals with the power of the
State Government to appoint the competent authority. As per
the said section the State Government may appoint any of its
c officer, in Home Department, not below the rank of Secretary
to the Government, to be the competent authority for the
purposes of Section 14. Section 14 empowers a police officer
not below the rank of the Superintendent.of Police supervising
the investigation of an organised crime under the aforesaid Act
D to submit an application in writing to the competent authority for
an order authorizing .9r approving the interception of wire,
1electronic or oral communication by the investigating officer,
when such interception may provide or has provided evidence
of any offence involving an organised crime. Sub-Sections (2)
E to (13) of Section 14 lay down the detailed procedure therefore
as also the requirements to be fulfilled before approval is
granted. Section 14, therefore, authorizes the interception of
wire,· electronic or oral communication, subject to certain
conditions and safeguards laid down therein. Section 15
F requires constitution of a review committee to review every
~
order passed by the competent authority under Section 14.
Section 16 imposes certain restrictions regarding interception
and disclosure of wire, electronic or oral communication. It
prohibits the interception and also disclosure of wire, electronic
G or oral communication by any police officer except as otherwise
L.t
specifically provided, and makes any violation of the provision
punishable.
11. There is a power of forfeiture and attachment of property
of the person convicted under MCOCA under Section 20. SubH section (1) of Section 21 of the MCOCA lays down that
STATE OF MAHARASHTRA v. BHARAT SHANTI
1097
..(
LAL SHAH & ORS. [DR. MUKUNDAKAM SHARMA, J.]
~
notwithstanding anything contained in the Code of Criminal
A
Procedure, 1973 (for short "the Code") or in any other law,
every offence punishable under MCOCA shall be deemed to
be a cognizable offence within the meaning of clause (c) of
Section 2 of the Code and "cognizable case" as defined in that
~
clause would be construed accordingly. Sub-section (2) of B
Section 21 provides that Section 167 of the Code shall apply
in relation to a case involving an offence punishable under the
Act subject to certain modifications. Sub-section (5) of Section
21 provides that notwithstanding anything contained in the Code,
the accused would not be granted bail if it is noticed by the c
Court that he was on bail in an offence under the Act, or under
any other Act, on the date of the offence in question.
12. Mr. Shekhar Nafade, learned senior counsel appearing
for the appellant -State of Maharashtra drew our attention to the
........
abovementioned provisions of the Telegraph Act as also to the 0
I
abovementioned provisions of the MCOCA in support of his
..
submission that all the provisions of MCOCA, the constitutional
validity of which is challenged are valid. It was submitted by him
that the aforesaid provisions, namely, Section 2(d), (e) and (f)
and Sections 13 to 16 and sub-Section (5) of Section 21
E
constitutional validity of which was challenged are legal and
valid as they are covered by Entry 1 and 2 of List II of the
Seventh Schedule and also under Entry 1, 2 and 3 of List Ill of
the Seventh Schedule, which read as under:
·~
Entry 1 List II: Public order (but not including tile use of any F
naval, military or air force or any other armed force of the
Union of any other force subject to the control of the Union
or of any contingent or unit thereof in aid of the civil power).
-~
Entry 2 List II: Police (including railway and village police)
G
subject to the provisions of entry 2A of List I.
Entry 1 List Ill: Criminal Law, including all matters included
in the Indian Penal code at the commencement of this
Constitution but excluding offences against laws with
respect to any of the matters specified in List I or List II
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1098
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[2008] 12 S.C.R.
A
and excluding the use of naval, military or air forces or any
other armed forces of the Union in aid of the civil power.
Entry 2 List Ill: Criminal procedure, including all matters
included· in the Code of Criminal Procedure at the
commencement of this Constitution.
/
B
Entry 12 List Ill: Evidence and oaths; recognition of laws,
public acts and records, and judicial proceedings.
13. It was submitted by him that the provisions of M COCA
create and define a new offence of organised crime under
c Section 2(1) (e)which· is made punishable, under Section 3 of
the MCOCA and that to aid detection and investigation of such
an offence and to provide evidence of any offence involving
organised crime, interception of wire, electronic and oral
communication is necessary. He submitted that' the provisions
o of Sections 13 to 16, fac;ilitate the detection and investigation
of the offence of organised crime, and the State's legislative
competence ·to enact such pJovisions ·was traceable to Entry 1
and 2 in List II and Entry ~, 2 and 12 in List Ill of Seventh
Schedule of the Constitution. He pointed out that the duty of "
E police officers is to. collect' intelligence regarding commission
of cognizable offences or plans/designs to commit su.ch
offences, to prevent the commission of offences, and to detect
a·nd apprehend offenders (See Section .23 of Police Act, 1861
and $ection 64 ofBombayJ~oliceAct, 1951). He also submitted,
F that the grounds for' interception of the communication under
the State Law are different from the grounds covered by Section
5(2) of the.Telegraph Act, inasmuch as th_e State law authorizes
the interception· as it is inten.ded . ..to prevent the .commission of
an Organised crlme Of ~'? _collect the evidence Of ·SUCh an
G organised crime'.He; thef,kfore, .contented that the cons.tituti_onal
validity cannot be questioned on the ground of want of legislative
competence oft~e.State Legislature to enact such a provision.
14. It was further submitted that Entries in List 1; II and Ill
must recei~e a b~oad arid~liberal construction. Reference to the
H doctrine: or pith and substance was. also ·made.
\.
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"
ST.ATE OF MAHARASHTRA v. BHARAT SHANTI
1099
LAL SHAH & ORS. [DR. MUKUNDAKAM SHARMA, J.]
·J.
15. It was also contended that the findings recorded by A
the High Court with regard to the repugnancy of provisions of
Sections 13 to 16 of the MCOCA have been arrived at by
misconstruing the provisions of the Central· Act as also the
State Act. The learned counsel for appellant drew our attention
to the findings recorded in paragraph 48 of the impugned 8
judgment of the High Court which contains a comparative chart
,A
on the basis of which the High Court has come to the conclusion
that there was repugnancy. It was pointed out that the chart
does not give a clear picture of the relevant statutory provisions
and contained several flaws·.
· ·
c
~ 6. Mr. Dushyant A. Dave, fparned ~enior counsel
appearing for Respondent No.1 and Mr. Manoj Goel, learned
counsel appearing for Respondent No.3, however, refuted the
aforesaid submissions while contending that the aforesaid
provisions, namely Sections 13 to 16 and sub-Section (5) of D
Section 21 are ultra vires Article 246 of the Constitution of
tIndia. It was submitted by them that the subject and ttie area
"
which is dealt by the MCOCA, enacted by the State Legislature
are governed and covered exclusively by Entry 31 of List I in
regard to which parliament alone has exclusive competence, E
and that being so, the said provisions enacted by a state
legislature are ultra vires the Constitution. It was also submitted
that the said provisions are not only beyond the legislative
competence of the state legislature butthey also infringe upon
the fundamental rights guaranteed under Part Ill of the
F
.&'\
Constitution as the said provisions are violative of Articles 14
and 21 of the Constitution and, therefore, the said provisions
are to be declared ultra vires the Const_itution on both the counts.
17. In addition, Mr. Manoj Goel Counsel for the Respondent
No. 3 submitted that Section 2 (d), (e) and (f) and Sections 3 G
and 4 of the MCOCA are constitutionally invalid as they are
ultra virus being violative of the provisions of Article 14 of the
Constitution.
18. But we find that no cross appeal was filed by any of
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1100
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[2008] 12 S.C.R.
A the respondents against the order of the High Court upholding
the constitutional validity of provisions of section 2(d), (e) and
(f) and also that of Sections 3 and 4 of the MCOCA. During the
course of hearing, Mr. Goel, the counsel appearing for one of
the respondents herein tried to contend that the aforesaid
B provisions of Section 2(d), (e) and (f) of the MCOCA are
unconstitutional on the ground that they violate the requirement
of Article 13 (2) of the Constitution and that they make serious
inroads into the fundamental rights by treating unequals as
equals and are unsustainably vague. Since such issues were
c 'not specifically raised by filing an appeal and since only a passing
reference is made on the said issue in the short three page
affidavit fi!ed by the respondent No. 3, it is not necessary for us
io examine the.said issue as it was sought to be raised more
specifically in the argument stage only.
D
19. Even otherwis~ when the said definitions as existing
in Section 2 (d), (e) and (f) of the MCOCA are read and
understood with the object and purpose of the Act which is to
make special provisions for preven-tibn and control of organised
crime it is clear that they are worded to subserve and achieve
E the said object and purpose of the Act. There is no vagueness
as the definitions defined with clarity what it meant by continuing
unlawful activity, organised crime and also organised' crfme
·syndicate. As the provisions treat all t~ose covered by it in a
like manner and does not suffer tron:i the vice of class legisl~tion
F they cannot be said to be violati'.ie of. Article 14 of the
Constitution. With respect to Section 3 of MCOCA, even before
the High Court the attack was in particular in respect of the
provisions of Section 3 (3) and (5)· on the ground that tti~ ·
requirement of mens rea is done away with, thus automatically
G rendering a person without any intention or knowledge liable _
for punishment. It is a well.settled position of law insofar as· .
criminal law is concerned that in such provisions mens rea is
always presumed as integral part of penal offence or section
u.nless it is specifically and expressly or by necessary
intendment excluded by the legislature. No such exclusion is
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STATE OF MAHARASHTRA v. BHARAT SHANTI
1101
LAL SHAH & ORS. [DR. MUKUNDAKAM SHARMA, J.J
~
found in sub-sections (3) and (5) of Section 3. As held by the
A
High Court, if the provisions are read in the following man1_1er"
no injury, as alleged, would be caused:
/
"3(3). Whoever (intentionally) harbours or conceals or
attempts to harbor or conceal any member of ari organized
B
.
/
crime syndicate shall be punishable ~ith~ 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."
"3(5). Whoever (knowingly) holds any property derived or c
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 D
fine of rupees two lacs."
...
t
As far as section 4 of MCOCA is concerned the challenge
).
was made before the High Court on the ground that the words
"at any time" in Section 4 makes an act which was not a crime
prior to coming into force of the MCOCA, a crime, thus, making E
the provision retrospective, being violative of Article 20 of the
Constitution. A Perusal of the enactment along with the object
and purpose reveals that it is only prospective and not
retrospective and as held by the High Court the words "at any
time" should be read to mean at any time after coming in~o F
>i
force of MCOCA, the section should be read 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 G
:.....-<
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 lrl
1102
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[2008} 12 S.C.R.
rupees one lac and such property shall also be liable for
attachment and forfeiture, as provided by Section 20."
20. After examining the iri'lpugned judgment in depth on
the issue of cons.titutional validity of Section 2 (d), (e) and (f) -
and also Section 3 arid 4 of MCOCA we are in accord with the
B findings arrived at by the High Court that the aforesaid
provisions cannot be said to be ultra vires the Constitution and
f-,
we do not find any reason to take a different view that what is
taken by the High Court while upholding the validity of the
aforesaid provisions.
21. In the light of the aforesaid, we are required to answer
-the issues which are specifically raised before us, relating to
the constitutional validity of Sections 13 to 16 as also Section
21 (5) of MCOCA, -on the ground of lack of legislative
- 0 -_ competence and also being violative of the fundamental rights
guaranteed in Part Ill of the Constitution or of any other
constitutional provision.
·22. Before we proceed· to ·record our findings and
conclusions in relation to the contentions raised before us it
-E would be necessary to survey and notice some of the provisions
of Constitution and well established doctrine ~nd principle which
are relevant for the purpose of our decision.
23. Chapter 1 of part XI of the Constitution deals with the
subject of distribution of legislative powers of the Parliament
F
and the legislature of the States. Article 245 of the Constitution
provides that the Parliament may make laws for the whole or
any part of the territory of India, and the Legislature of a State
may make laws for the whole or any part of the State. Article
246 of the Constitution relates to the subject matter of laws
G _ made by the parliament and State Legislatures. It declares that
the Parlial'l}ent has the excrusive pow~r to make laws with
respect to any of the matter.s enumerated in List I in the Seve~th
Schedule. The Legislature of any State would have powers to
make laws with respect to any of the matters mentioned in List
H II, subject to the power of the parliament in regard to List I
..
STATE OF MAHARASHTRA v. BHARAT SHANTI
1103
LAL SHAH & ORS. [DR. MUKUNDAKAM SHARMA, J.]
~
matters and. the power of the Parliament and the State A
L~islature in respect of List Ill matters. List Ill enumerates the
matters in respect of which both Parliament and State
Legislatures h.ave power to enact laws.
24. It is a well established rule of interpretation 'that the
B
_entries in the list being fields of legislation must receive liberal
A
construction inspired by a broad and generous spirit and not in
a narrow pedantic sense. Each general word should extend to
all ancillary ·and subsidiary matters which can fairly and
reasonably be co.mprehended within it. In Navinchandra
Mafatlal v. CIT reported in AIR 1955 SC 58 this Court observed c
as under:
"6 .................... As pointed out by Gwyer, C.J. in United
Provinces v. Atiqa Begum (1940) FC R 110 at p.