# 4 S.C.R. 1042 ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE OF MAHARASHTRA & ORS

- **Citation:** [2010] 4 S.C.R. 1042
- **Court:** Supreme Court of India
- **Decided:** 2010-04-23
- **Case number:** Civil Appeal No. 1975-1977 of 2008
- **Bench:** R.V. Raveendran, Dr. Mukundakam Sharma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/4-s-c-r-1042-zameer-ahmed-latifur-rehman-sheikh-v-state-of-maharashtra-ors-26793
- **Pages:** 50

## Headnote

C
Maharashtra Control of Organised Crime Act, 1999: s.
2(1)(e).
Part of s. 2(1)(e) referring to "promoting insurgency" -
Constitutional validity of -
Legislative Competence of
0 Government of Maharashtra to enact such provision - Held:
It is within the legislative competence of the State of
Maharashtra to enact such a provision - Term "promoting
insurgency" u!s. 2(1)(e) comes within the concept of public
order - State Legislature is empowered to enact 1a·ws aimed
E at containing or preventing acts which tend to or actually affect
public order - Said part of MCOCA relates to maintenance
of public order which is essentially a State subject and only
incidentally trenches upon a matter falling under the Union
List - It cannot be held to be ultra vires in view of the doctrine
of pith and substance - Constitution of India, 1950 - Article
F 246, Entry 1 of List I, Entries 1 and 2 of List II rw Entries 1, 2
and 12 of List Ill of the Seventh Schedule - Doctrines.
Part of s. 2(1 )(e) referring to "promoting insurgency" -
Challenge to, on the ground of repugnancy with Central
G Statute-Unlawful Activities (Prevention) Amendment Act, 2004
- Held: B<Jth the acts operate in different fields and the ambit
and scope of each is distinct from the other - There is no clear
and direct inconsistency or conflict between the said
provisions of the two Acts - Under MCOCA, emphasis is on
H
1042
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1043
OF MAHARASHTRA
crime and pecuniary benefits arising therefrom - Essential A
element in UAPA is the challenge or threat or likely threat to
the sovereignty, security, integrity and unity of India - MCOCA
does not deal with the terrorist organisations which indulge in
terrorist activities and similarly, UAPA does not deal with
organised gangs or crime syndicate of the kind specifically
B
targeted by MCOCA - Offence of organised crime under
MCOCA and offence of terrorist act under UAPA operate in
different fields and are of different kinds and their essential
contents and ingredients are a/together different - Unlawful
Activities (Prevention) Amendment Act, 2004 - ss. 2(1 )(k) and c
15 - Unlawful Activities (Prevention) Act, 1967 - s. 2(1)(o)
Constitution of India, 1950.
Constitution of India, 1950: Articles 245 and 246 -
Legislative competence to enact a particular statute -
Doctrine of pith and substance - Applicability of - Held: This
D
Doctrine is applied when the legislative competence of the
legislature with regard to a particular enactment is challenged
with reference to the entries in various lists - In such cases,
Courts will try to ascertain the pith and substance of such
enactment on a scrutiny of the Act in question -Where
E
challenge is made to the constitutional validity of a particular
State Act with reference to a subject mentioned in any entry
in List I, the Court has to look to the substance of the State
Act and if ii is found in the pith and substance that subject
matter of State Legislation is covered by an entry in State list,
F
then any incidental encroachment upon an entry in Union List
would not render the State law ultra vires the Constitution.
Doctrines: Doctrine of pith and substance - Applicability
of - Explained.
Words and Phrases:
G
'Insurgency' - Meaning of - Held: Is a serious form of
internal disturbance which causes a grave threat to the life of
people, creates panic situation and also hampers the growth
H
1044
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A and economic prosperity of the State.
B
'Continuing unlawful activity' - Meaning of - In the
context of clause (d) of sub-section (1) of s. 2 of the
Maharashtra Control of Organised Crime Act, 1999.
'Organised crime' - Meaning of - In the context of
clause (e) of sub-section (1) of s. 2 of the Maharashtra Control
of Organised Crime Act, 1999.
'Organised Crime Syndicate' - Meaning of - In the
c context of clause (f) of sub-section (1) of s. 2 of the
Maharashtra Control of Organised Crime Act, 1999.
D
'Terrorist act' - Meaning of- In the

## Text

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A
B
[2010) 4 S.C.R. 1042
ZAMEER AHMED LATIFUR REHMAN SHEIKH
v.
STATE OF MAHARASHTRA & ORS.
(Civil Appeal No. 1975-1977 of 2008 and Crl Appeal No.
940 of 2008)
APRIL 23, 2010
[R.V. RAVEENDRAN AND DR. MUKUNDAKAM
SHARMA, JJ.]
C
Maharashtra Control of Organised Crime Act, 1999: s.
2(1)(e).
Part of s. 2(1)(e) referring to "promoting insurgency" -
Constitutional validity of -
Legislative Competence of
0 Government of Maharashtra to enact such provision - Held:
It is within the legislative competence of the State of
Maharashtra to enact such a provision - Term "promoting
insurgency" u!s. 2(1)(e) comes within the concept of public
order - State Legislature is empowered to enact 1a·ws aimed
E at containing or preventing acts which tend to or actually affect
public order - Said part of MCOCA relates to maintenance
of public order which is essentially a State subject and only
incidentally trenches upon a matter falling under the Union
List - It cannot be held to be ultra vires in view of the doctrine
of pith and substance - Constitution of India, 1950 - Article
F 246, Entry 1 of List I, Entries 1 and 2 of List II rw Entries 1, 2
and 12 of List Ill of the Seventh Schedule - Doctrines.
Part of s. 2(1 )(e) referring to "promoting insurgency" -
Challenge to, on the ground of repugnancy with Central
G Statute-Unlawful Activities (Prevention) Amendment Act, 2004
- Held: B<Jth the acts operate in different fields and the ambit
and scope of each is distinct from the other - There is no clear
and direct inconsistency or conflict between the said
provisions of the two Acts - Under MCOCA, emphasis is on
H
1042
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1043
OF MAHARASHTRA
crime and pecuniary benefits arising therefrom - Essential A
element in UAPA is the challenge or threat or likely threat to
the sovereignty, security, integrity and unity of India - MCOCA
does not deal with the terrorist organisations which indulge in
terrorist activities and similarly, UAPA does not deal with
organised gangs or crime syndicate of the kind specifically
B
targeted by MCOCA - Offence of organised crime under
MCOCA and offence of terrorist act under UAPA operate in
different fields and are of different kinds and their essential
contents and ingredients are a/together different - Unlawful
Activities (Prevention) Amendment Act, 2004 - ss. 2(1 )(k) and c
15 - Unlawful Activities (Prevention) Act, 1967 - s. 2(1)(o)
Constitution of India, 1950.
Constitution of India, 1950: Articles 245 and 246 -
Legislative competence to enact a particular statute -
Doctrine of pith and substance - Applicability of - Held: This
D
Doctrine is applied when the legislative competence of the
legislature with regard to a particular enactment is challenged
with reference to the entries in various lists - In such cases,
Courts will try to ascertain the pith and substance of such
enactment on a scrutiny of the Act in question -Where
E
challenge is made to the constitutional validity of a particular
State Act with reference to a subject mentioned in any entry
in List I, the Court has to look to the substance of the State
Act and if ii is found in the pith and substance that subject
matter of State Legislation is covered by an entry in State list,
F
then any incidental encroachment upon an entry in Union List
would not render the State law ultra vires the Constitution.
Doctrines: Doctrine of pith and substance - Applicability
of - Explained.
Words and Phrases:
G
'Insurgency' - Meaning of - Held: Is a serious form of
internal disturbance which causes a grave threat to the life of
people, creates panic situation and also hampers the growth
H
1044
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A and economic prosperity of the State.
B
'Continuing unlawful activity' - Meaning of - In the
context of clause (d) of sub-section (1) of s. 2 of the
Maharashtra Control of Organised Crime Act, 1999.
'Organised crime' - Meaning of - In the context of
clause (e) of sub-section (1) of s. 2 of the Maharashtra Control
of Organised Crime Act, 1999.
'Organised Crime Syndicate' - Meaning of - In the
c context of clause (f) of sub-section (1) of s. 2 of the
Maharashtra Control of Organised Crime Act, 1999.
D
'Terrorist act' - Meaning of- In the context of ss. 2(1 )(k)
and 15 of the Unlawful Activities (Prevention) Amendment Act,
2004.
'Unlawful activity' - Meaning of - In the context of s.
2(1)(o) of the Unlawful Activities (Prevention) Act, 1967.
In the instant appeals, the appellants have challenged
E that constitutional validity of that part of s. 2(1)(e) of the
Maharashtra Control of Organised Crime Act, 1999, which
relates to 'promoting insurgency' on the grounds that the
Maharashtra State legislature did not have legislative
competence to enact such a provision; and that the said
F part of s. 2(1)(e) of MCOCA, is repugnant and has become
void by enactment of the Unlawful Activities (Prevention)
Amendment Act, 2004, amending the Unlawful Activities
(Prevention) Act, 1967.
Dismissing the civil appeals and disposing of the
G Connected criminal appeal, the Court
H
HELD: Legislative Competence of Government of
Maharashtra:
1.
The
term
"promoting
insurgency"
as
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1045
OF MAHARASHTRA
contemplated u/s. 2(1 )(e) of the Maharashtra Control of A
Organised Crime Act, 1999 comes within the concept df
public order. Anything that affects public peace or
tranquility within the State or the Province would also
affect public order and the State Legislature is
empowered to enact laws aimed at containing or B
preventing acts which tend to or actually affec~ public
order. Even if the part of s. 2(1)(e) of the MCOCA
incidentally encroaches upon a field under Entry 1 of the
Union list, the same cannot be held to be ultra vires in
view of the doctrine of pith and substance as in essence c
the said part relates to maintenance of Publ!.c Order,}'lfhich
is essentially a State subject and onlY,: incidentally
trenches upon a matter falling under th·e Union List.
Therefore, it is within the legislative competence of the
State of Maharashtra to enact such a provision under 0
Entries 1 and 2 of List ii read with Entries 1, 2 and 12 of
List Ill of the Seventh Schedule of the Constitution. [Paras
42 and 43) [1072-G-H; 1073-A-O)
Ramesh Thappar v. State of Madras 1.950 SCR 594;
Superintendent, Central Prision v. Ram Manohar Lohia
E
(1960) 2 SCR 821; Dr. Ram Manohar Lohia v. State of Bihar
(1966) 1 SCR 709; Madhu Limaye v. Sub-Divisional
Magistrate (1970) 3 SCC 7 46; Kanu Biswas v. State of West
Bengal (1972) 3 SCC 831, relied on.
Lakhi Narayan Das v. Province of Bihar AIR 1950 FC 59,
referred to.
F
2.1. The term 'insurgency' has not been defined either
under the MCOCA or any other statute. The word
'insurgency' does not find mention in the Unlawful G
Activities (Prevention) Act, 1967 even after the 2004 and
2008 amendments. Insurgency is undoubtedly a serious
form of internal disturbance which causes a grave threat
to the life of people, creates panic situation and also
hampers the growth and economic prosperity of the
H
1046
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A State. Although the term 'insurgency' defies a precise
definition, yet, it could be understood to mean and cover
breakdown of peace and tranquility as also a grave
disturbance of public order so as to endanger the
security of the State and its sovereignty. [Paras 23, 24 and
B 26] [1063-C-H]
Sarbananda Sonowa/ v. Union of India (2005) 5 SCC
~65, relied on.
2.2. It is a well-established rule of interpretation that
C the entries in the List being fields of legislation must
receive liberal construction inspired by a broad and
generous spirit and not a narrow or pedantic approach.
Each general word should extend to all ancillary and
subsidiary matters which can fairly and reasonably be
D comprehended within it. It is also a cardinal rule of
interpretation that there shall always be a presumption of
constitutionality in favour of a statute and while
construing such statute every legally permissible effort
should be made to keep the statute within the
E competence of the State Legislature. [Para 34] [1066-H;
1067-A-D]
Navinchandra Mafatlal v. Commr. of I. T. AIR 1955 SC
58; State of Maharashtra v. Bharat Shanti Lal Shah (2008)
F 13 SCC 5; Charanjit Lal Choudhary v. Union of India AIR
1951 SC 41; T. M.A. Pai Foundation v. State of Karnataka
(2002) 8 SCC 481; Karnataka Bank Ltd. State of AP (2008)
2 sec 254, referred to.
2.3. One of the proven methods of examining the
G legislative competence of a legislature with regard to an
enactment is by the application of the doctrine of pith and
substance. This doctrine is applied when the legislative
competence of the legislature with regard to a particular
enactment is challenged with reference to the entries in
H various lists. ·1f there is a challenge to the legislative
ZAMEERAHMED LATIFUR REHMAN SHEIKH v. STATE 1047
OF MAHARASHTRA
competence, the courts will try to ascertain the pith and
A
substance of such enactment on a scrutiny of the Act in
question. In this process, it is necessary for the courts
to go into and examine the true character of the
enactment, its object, its scope and effect to find out
whether the enactment in question is genuinely referable
to a field of the legislation allotted to the respective
legislature under the constitutional scheme. This doctrine
B
is an established principle of law in India recognized not
only by this Court, but also by various High Courts.
Where a challenge is made to the constitutional validity c
of a particular State Act with reference to a subject
mentioned in any entry in List I, the Court has to look to
the substance of the State Act and on such analysis and
examination, if it is found that in the pith and substance,
it falls under an Entry in the State List but there is only 0
an incidental encroachment on any of the matters
enumerated in the Union List, the State Act would not
become invalid merely because there is incidental
encroachment on any of the matters in the Union List.
[Para 35] [1067-D-H; 1068-A-B]
E
AS. Krishna v. State of Madras AIR 1957 SC 297; Kartar
Singh v. State of Punjab (1994) 3 SCC 569, referred to.
2.4. The State Legislature does not have power to
legislate upon any of the matters enumerated in the Union
F
List. However, if it could be shown that the core area and
the subject-matter of the legislation is covered by an entry
in the State List, then any incidental encroachment upon
an entry in the Union List would riot be enough so as to
render the State law invalid, and such an incidental
G
encroachment will not make the legislation ultra vires the
Constitution. [Para 38] [1069-F-G]
Bharat Hydro Power Corpn. Ltd. v. State of Assam (2004)
2 sec 553, referred to.
H
1048
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A
2.5. The definition of "organized crime" contained in
s. 2(1)(e) of the MCOCA makes it clear that the phrase
"promoting insurgency" is used to denote a possible
driving force for "organized crime". It is evident that the
MCOCA does not punish "insurgency" per se, but
B punishes those who are guilty of running a crime
organization, one of the moti•1es of which may be the
promotion of insurgency. It cannot be said that the
MCOCA, in any way, deals with punishing insurgency
directly. The legislation only deals with "insurgency"
c indirectly only to bolster the definition of "organized
crime". [Paras 40 and 41) [1071-F-G; 1072-F]
2.6 Regarding the question of legislative competence
of the Maharashtra State legislature to enact a law like
MCOCA, the finding of High Court in the impugned
D judgment that MCOCA in pith and substance falls in Entry
No. 1 of List Ill which refers to the criminal law, cannot
be accepted. [Para 20) [1062-C-E]
State of Maharashtra v. Bharat Shanti Lal Shah and Ors.
E (2008) 13 SCC 5, referred to.
Repugnance with Central Statute:
3. The analysis relating to the essential elements of
offence of 'promoting insurgency' u/s. 2 (1)(e) of the
F MCOCA and the offence of terrorist act and unlawful
activity u/s. 15 and s. 2(1)(o) of the UAPA respectively,
clearly establishes that the UAPA occupies a field
different than that occupied by the MCOCA. There is no
clear and direct inconsistency or conflict between the
G said provisions of the two Acts. Therefore, the final
decision reached by the High Court in the impugned
judgment that both the enactments can stand together as
there is no conflict between the two, is concurred with.
[Paras 64 and 65] [1090-G-H; 1091-A-B]
H
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1049
OF MAHARASHTRA
4.1. Section 2 of the MCOCA is the interpretation
A
clause. Clause (d) of sub-section (1) of s. 2 of the MCOCA,
defines the expression "continuing unlawful activity" to
mean 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
B
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 filed
before a competent court within the preceding period of
ten years and that court has taken cognizance of such c
offence. Clause (e) defines the expression "organised
crime" to mean any continuing unlawful activity by an
individual, singly or jointly, either as a member of an
organised crime syndicate or on behalf of such syndicate,
by use of violence or threat of violence or intimidation or 0
coercion, or other unlawful means, with the objective of
gaining pecuniary benefits, or gaining undue economic
or other advantage for himself or any other person or
promoting insurgency. Clause (f), defines "organised
crime syndicate" to mean a group of two or more
persons who, acting either singly or collectively, as a
E
syndicate or gang indulge in activities of organised
crime. The said definitions are interrelated; the
"organised crime syndicate" ~efers to an "organised
crime" which in turn refers to "continuing unlawful
activity". MCOCA, in the subsequent provisions lays
down the punishment for organised crime and has
created special machinery for the trial of a series of
offences created by it. [Para 54] [1080-F-H; 1081-A-D]
F
4.2. Prior to the 2004 amendment, the UAPA did not G
contain the provisions to deal with terrorism and terrorist
activities. By the 2004 amendment, new provisions were .·
inserted in the UAPA to deal with terrorism and terrorist
aCtivities. The Preamble of the UAPA was also amended
to state that the said Act is enacted to provide for the
H
1050
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A more effective prevention of certain unlawful activities of
individuals and associations, and dealing with terrorist
activities and for matters connected therewith. In 2008
amendment, the Preamble was again amended and the
amended Preamble now also contains a reference to the
B resolution adopted by the Security Council of the UnitP.d
Nations on· 28.09.2001 and also makes reference to the
other resolutions passed by the Security Council
requiring the States (Nations which are member of the
United Nations) to take action against certain terrorist and
c terrorist organizations. It also makes reference to the
order issued by the Central Government in exercise of
power u/s. 2 of the United Nations (Security Council) Act,
1947 which is known as the Prevention and Suppression
of Terrorism (Implementation of Security Council
0 Resolutions) Order, 2007. [Para 55) (1081-E-H; 1082-A-B]
4.3. Section 2 (1)(k) and s.15 of the UAPA, 1967which
were inserted by the 2004 amendment and define and
deal with the term 'terrorist act'. From a perusal of s. 15
before and after amendment of the UAPA, it comes to l~ght
E that though after amendment there have been certain
additions to the provision but in substance the provision
remains the same. Sub-Clauses (I) and (m) of sub section
(1) of s. 2 of the UAPA, define the term 'terrorist gang' and
'terrorist organisation' respectively. Section 2 (1 )(o) of the
F UAPA defines the term 'unlawful activity'.(Paras 56, 57
and 58) (1083-A-B; 1085-C-D; 1087-G-H]
4.4. A careful look of the exhaustive list of terrorist
organisations in the First Schedule to the UAPA would
G indicate that all the organisations mentioned therein have
as their aims and objects undermining and prejudicially
affecting the integrity and sovereignty of India, which
certainly stand on a different footing when compared to
the activities carried out by the forces like the appellant.
H [Para 57) [1087-F-H]
ZAMEERAHMED LATIFUR REHMAN SHEIKH v. STATE 1051
OF MAHARASHTRA
4.5. No provision or word in a statute is to be read in
A
isolation. In fact, the statute has to be read as a whole and
in its entirety. A perusal of the Preamble, the Statement
of Objects and Reasons and the Interpretation clauses of
the MCOCA and the UAPA would show that both the acts
operate in different fields and the ambit and scope of B
each is distinct from the other. The MCOCA principally
deals with prevention and control of criminal activity by
organised crime syndicate or gang within India and its
purpose is to curb a wide range of criminal activities
indulged in by organised syndicate or gang. The aim of c
the UAPA, on the other hand, is to deal with terrorist and
certain unlawful activities, which are committed with the
intent to threaten the unity, integrity, security or
sovereignty of India or with the intent to strike terror in
the people br any section of the people in India or in any
0
foreign country or relate to cessation or secession of the
territory of India. [Paras 59 and 60] [1088-E; 1089-C-EJ
Reserve Bank of India v. Peerless General Finance &
Investment Co. Ltd. (1987) 1 SCC 424, referred to.
4.6. Under the MCOCA the emphasis is on crime and
pecuniary benefits arising therefrom. In the wisdom of the
legislature these are activities which are committed with
E
the objective of gaining pecuniary benefits or economic
advantages and which over a period of time have
extended to promoting insurgency. The concept of the
offence of 'terrorist act' u/s. 15 of the UAPA essentially
postulates a threat or likely threat to unity, integrity,
security and sovereignty of India or striking terror
amongst people in India or in foreign country or to G
compel the Government of India or the Government of a
foreign country or any other person to do or abstain from
doing any act. The offence of terrorist act u/s. 15 and the
offence of unlawful activity u/s. 2 (1) (o) of the UAPA have
some elements in commonality. The essential element in
F
H
1052
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A both is the challenge or threat or likely threat to the
sovereignty, security, integrity and unity of India. While
s. 15 requires some physical act like use of bombs and
other weapons etc., s. 2 (1)(o) takes in its compass even
a written or spoken words or any other visible
s representation intended or which supports a challenge
to the unity, sovereignty, integrity and security of India.
The said offences are related to the Defence of India and
are covered by Entry 1 of the Union List. [Para 61) [1089F-H; 1090-A-B]
c
4.7. The meaning of the term 'Unlawful Activity' in the
MCOCA is altogether different from the meaning of the
term 'Unlawful Activity' in the UAPA. The MCOCA does
not deal with the terrorist organisations which indulge in
terrorist activities and similarly, the UAPA does not deal
D with organised gangs or crime syndicate of the kind
specifically targeted by the MCOCA. Thus, the offence of
organised crime under the MCOCA and the offence of
terrorist act under the UAPA operate in different fields and
are of different kinds and their essential contents and
E ingredients are altogether different. [Para 62) [1090-C-E]
4.8. The concept of insurgency u/s. 2(1)(e) of the
MCOCA, if seen and understood in the context of the Act,
is a grave disturbance of the public order within the state.
F The disturbance of the public order, in each and every
case, cannot be said to be identical or similar to the
concepts of terrorist activity as contemplated respectively
u/s. 2(1)(o) and s. 15 of the UAPA. Moreover, what is
punishable under the MCOCA is promoting insurgency
G and not insurgency per se. [Para 63] [1090-F-G]
H
Saiyada Mossarrat v. Hindustan Steel Ltd., Bhilai Steel
Plant, Bhilai (M.P.) and Ors. (1989) 1 SCC 272; Kesho Ram
and Co. v. Union of India (1989) 3 SCC 151; M. Karunanidhi
v. Union of India (1979) 3 SCC 431; Govt. of A.P. v. J.B.
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1053
OF MAHARASHTRA
Educational Society (2005) 3 SCC 212; National Engg.
A
Industries Ltd. v. Shri Kishan Bhageria (1988) Supp SCC 82,
referred to.
Crl A1meal No. 940 of 2008
5. The Criminal Appeal is disposed of with a direction
B
that the Special Court constituted under the MCOCA shall
consider the issue raised under the Misc Application in
MCOCA Special Case on its own merits in light of the
findings given by this Court in the said connected c
appeals, in case a fresh application is moved by the
appellant before the Special Court. [Para 2] [1091-F-G]
Case Law Reference:
(2008) 13 sec 5
Referred to.
Paras 5,
21, 34
D
(1989) 1 sec 212
Referred to.
Para 6
(1989) 3 sec 151
Referred to.
Para 7
(2005) 5 sec 665
~
Relied on.
Para 24
E
/
1950 SCR 594
Relied on.
Para 28
(1960) 2 SCR 821
Relied on.
Para 29
(1966) 1 SCR 709
Relied on.
Para 29
F
(1970) 3 sec 746
Relied on.
Para 30
(1972) 3 sec 831
Relied on.
Para 31
AIR 1950 FC 59
Referred to.
Para 33
AIR 1955 SC 58
Referred to.
Para 34
G
AIR 1951 SC 41
Referred to.
Para 34
(2002) 8 sec 481
Referred to.
Para 34
(2008) 2 sec 254
Referred to.
Para 34
H
1054
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A
AIR 1957 SC 297
Referred to.
Para 36
(1994) 3 sec 569
Referred to.
Para 37
(2004) 2 sec 553
Referred to.
Para 39
B
(1979) 3 sec 431
Referred to.
Para 49
(2005) 3 sec 212
Referred to.
Para 50
(1988) Supp sec s2
Referred to.
Para 51
(1987) 1 sec 424
Referred to.
Para 59
c
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1975 of 208.
From the Judgment & Order dated 19.7.2007 of the High
Court of Judicature at Bombay in Writ Petition No. 1136 of
D 2007.
WITH
C.A. Nos. 1976, 1977 of 2008
E
Mohan Jain, ASG, Sushil Kumar, Shanti Bhushan, Harish
N. Salve, Shekhar Naphade, Shakil Ahmed Syed, Shanid
Azmi, Nitya Ramakrishnan, Trideep Pais, Ashwath Sitaraman
(for K.J. John & Co.), Sanjay V. Kharde, Asha G. Nair, Ravindra
Keshavrao Adsure, Dinesh Thakur, Rohini Mukherjee, Jaspreet
Aulakh, Vibhav t Misra, Subhash Kaushik, T.A, Khan, Arvind
F Kumar Sharma, P.K. Dey, P. Parmeswaran for the appearing
parties.
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Dr. MUKUNDAKAM SHARMA, J.
INTRODUCTION
1. This matter concerns an assortment of questions
regarding the interpretation and constitutionality of certain
provisions of the Maharashtra Control of Organized Crime Act,
1999, and as such calls for our utmost attention, particularly in
H view of the fact that, this legislation, although widely used for
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1055
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA. J.]
maintaining law and order, has also generated some
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controversy alleging its sweeping powers.
2. Since its enactment in 1999, it has found favour with the
law enforcement officials and has been enthusiastically applied
wherever possible by the law enforcement agencies and the
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concerned Government.
3. These three appeals have been filed by the appellants
herein to assail the common judgment and order dated
19.07.2007 rendered by the High Court of Judicature at
Bombay in Writ Petition No. 1136 of 2007, whereby the High
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Court dismissed the Writ Petition filed by the appellants herein.
4. The appellants herein challenged before the High Court
of Bombay, the constitutional validity of that part of Section
2(1)(e) of the Maharashtra Control of Organised Crime Act,
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1999 ("MCOCA" hereinafter) which refers to 'insurgency'.
5. Before we proceed to discuss and deal with the issue
at hand, it will be prudent to address an issue that goes to the
very root of the jurisdiction of :this Court to entertain the present
appeal. The constitutional validity of the said provision of the
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MCOCA had earlier been under the scrutiny of this Court in the
case of State of Maharashtra v. Bharat Shanti Lal Shah and
Ors (2008) 13 sec 5. The aforesaid case arose against the
judgment of the High Court of Bombay dated 05.03.2003 in Crl.
WP Nos. 27 of 2003, 1738 of 2002 and 110 of 2003, whereby
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the High Court negated the contention of the petitioners therein
that Section 2 (1 )(e) was violative of Article 13 (2) and Article
14 of the Constitution of India. In the said case, no appeal was
filed against the said finding of the High Court upholding the
constitutional validity of Section 2 (1 )(e) of the MCOCA.
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However, since the said issue was raised before this Court
during the course of arguments in the said case, this Court on
a conjoint reading of the said prov~n with the object and
purpose of the MCOCA held that there~is no vagueness in the
provision and the same also does not suffer"from the vice of
H
1056
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A class legislation. The said finding of this Court in the said case
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as enumerated, in paras 29 and 30, is as follows:-
"29. In addition, Mr. Manoj Goel Counsel for the
Respondent No. 3 submitted that Section 2 (d), (e) and (f)
and Sections 3 and 4 of the MCOCA are constitutionally
invalid as they are ultra virus being violative of the
provisions of Article 14 of the Constitution. But we find that
no cross appeal was filed by any of 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 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 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 filed by the respondent No. 3, it is not
necessary for us to examine the said issue as it was
sought to be raised more specifically in the argument
stage only.
30. Even otherwise when the said definitions as existing
in Section 2(d), (e) and (f) of the MCOCA are read and
understood with the object and purpose of the Act which
is to make special provisions for prevention and control
of organised crime it is clear that they are worded to
subserve and achieve the said object and purpose of the
Act. There is no vagueness as the definitions defined with
clarity what it meant by continuing unlawful activity,
organised crime and also organised crime syndicate. As
the provisions treat all those covered by it in a like manner
ZAMEERAHMED LATIFUR REHMAN SHEIKH v. STATE 1057
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
and does not suffer from the vice of class legislation they
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cannot be said to be violative of Article 14 of the
Constitution."
Thus, in the said case there was no specific challenge to the
constitutional validity of Section 2(1 )(e) of the MCOCA.
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Moreover, even in its observations, this Court had not gone into
the question of constitutional validity of the said provision, so
far as it relates to insurgency on the ground of lack of legislative
competence.
6. We may also refer to the findings of this Court in a
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situation of this nature, where once the constitutional validity of
a provision has been upheld and the '~ame is again challenged
on a ground which is altogether different from the earHer one.
In Saiyada Mossarrat v. Hindustan Steel Ltd., Bhilai Steel
Plant, Bhilai (M.P.) and Ors. [(1989)1SCC272] notwithstanding
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the fact that the Constitution Bench of this Court had once
upheld the constitutionality of the Public Premises (Eviction of
Unauthorized Occupants) Act, 1971, the petitioner therein had
renewed his challenge on the ground that the Parliament did
not have the legislative competence to legislate on the subject
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of the said legislation. On the facts before it, this Court held that·
since that specific aspect had not been debated before the
Constitution Bench in the earlier case, it would not be
appropriate to shut out the petitioner from raising the plea by
recourse to the argument that the point had been concluded in
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the earlier case regardless of whether the matter had been
--debated or not.
7.ln the later judgment in Kesho Ram and Co. v. Union
of India, [(1989) 3 SCC 151], a larger Bench of this Court
emphasized the binding nature of the judgments of this Court
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in the light of Article 141 of the Constitution and has held that
the binding effect of a decision of this Court does not depend
upon whether a particular argument was considered or not,
provided the point with reference to which the argument is
subsequently advanced was actually decided in the earlier
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SUPREME COURT REPORTS
[2010] 4 S.C.R.
A decision.
8. However, since there was no specific challenge before
this Court to the constitutional validity of Section 2(1 )(e} of the
MCOCA and the point with reference to which the arguments
8 were advanced in the present appeal was actually not decided
in the earlier decision of this Court, we wish to proceed to
examine the same.
9. The appellants have challenged the constitutional
validity of Section 2(1 )(e) of the MCOCA, so far it relates, to
C 'promoting insurgency' on following two grounds:-
(a)
the Maharashtra State legislature did not have
legislative competence to enact such a provision;
and
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(b)
the part of Section 2(1)(e) of the MCOCA, so far
as it covers case of 'insurgency', is repugnant and
has become void by enactment of the Unlawful
Activities (Prevention) Amendment Act, 2004,
amending the Unlawful Activities (Prevention) Act,
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1967.
10. The learned senior counsel appearing for the parties
have advanced elaborate arguments before us on the aforesaid
issues.
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11. Mr. Sushil Kumar, learned senior counsel appearing
for the appellant in Civil Appeal No. 1975 of 2008 submitted
that 'insurgency' is an offence falling within the ambit of Defence
of India, Entry 1 of List I i.e., the Union List, as it threatens the
unity, integrity and sovereignty of India and, in any event, under
G the residuary power conferred on the Parliament under Article
248 read with Entry 97 of the Union List and, therefore, the
Maharashtra State legislature did not have legislative
competence to enact the latter part of Section 2 (1)(e) of the
MCOCA which relates to 'promoting insurgency'. Hence,
H according to him, that part of Section 2(1)(e) of the MCOCA
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1059
OF MAHARASHTRA [DR MUKUNDAKAM SHARMA, J.]
which refers to 'promoting insurgency' is ultra vires Article
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246(3) of the Constitution.
12. Mr. Shanti Bushan, learned senior counsel appearing
for the appellant in Civil Appeal No. 1977 of 2008, in addition
to the above noted submission, submitted that Section 2(1)(e)
of the MCOCA so far as it covers 'insurgency' is repugnant and
has become void by enactment of the Unlawful Activities
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. (Prevention) Amendment Act, 2004, amending the Unlawful
Activities (Prevention) Act, 1967 ("UAPA" hereinafter). He
'submitted that insurgency and terrorism are two sides of the
same coin and after the 2004 amendment, the UAPA
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exhaustively deals with the offence of terrorism and the meaning
of the term insurgency as contained in Section 2 (1 )(e) of the
MCOCA is very well included in the definition of 'terrorist act'
as contained in Section 15 of the UAPA. He further submitted
that due to the said anomaly, an act would constitute an offence
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under Section 2 (1 )(e) of the MCOCA as also under Section
15 of the UAPA and that while MCOCA lays down a different
procedure and envisages a different competent court to try that
offence, the UAPA provides for a different procedure and
different court for the trial of the same offence. He submitted
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that the MCOCA will be within the competence of the State
Legislature, but for the addition of the term 'insurgency' in
Section 2(1 )(e).
13. Mr. Bhushan submitted that although the UAPA does
not expressly repeal the impugned provision of the MCOCA,
yet the same cannot stand, for the case in hand is a case of
implied repeal. Mr. Bhushan submitted that if the subsequent
law enacted by the Parliament is repugnant (in direct conflict)
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to the State Law then the State Law will become void as soon G
as the subsequent law of Parliament is enacted. Thus,
according to him, in the present case, after the 2004
amendment to the UAPA there is an implied repeal of the
MCOCA, so far as it covers 'insurgency'.
14. As against this Mr. Shekhar Naphade and Mr. Harish
H
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SUPREME COURT REPORTS
[2010] 4 S.C.R.
A N. Salve, learned senior counsel appearing for the respondent
State of Maharashtra submitted that the MCOCA deals with the
activities of the organized gangs and the criminal syndicate and
that no other law, including the UAPA, deals with the said
subject. They further submitted that the aim, objective and the
s area of operation of the MCOCA and the UAPA are entirely
different and that there is no overlapping in the working of the
two Acts. As per the submissions of learned senior counsel,
so far as the MCOCA is concerned, it deals with the prevention
and control of criminal activity by organized crime syndicate or
C gang within India, whereas the aim of the UAPA is to deal with
the terrorist activities both within and outside India. Hence, the
target of the MCOCA is the organised syndicate gangs
whereas the UAPA targets any person who indulges in terrorist
activity, be it an individual or a group. They further submitted
0 that the extension of the MCOCA to activities of organized
gangs or syndicate where they sought to promote insurgency
is a logical extension of the remedy provided under the
MCOCA to deal with the growing menace in the society.
15. While making a comparison between the two Acts, they
E submitted that the UAPA punishes the acts of insurgency per
se whereas under the MCOCA, it is not the act of insurgency
per se which is punishable, for under the MCOCA, 'insurgency'
is the motive for the act and not the act per se. They further
submitted that at the first blush, they may appear to be similar
F but a closer scrutiny would dispel any such notion and would
show a vast area of dissimilarity between the two.
16. While making their submissions on the issue of implied
repeal, they submitted that promoting insurgency as one of the
elements of the MCOCA may overlap in some cases in its
G application with the relevant provisions of the UAPA, but the
question of implied repeal would arise only where it overlaps
in its entirety. They further submitted that the law is settled on
the point that a given act can constitute more than one offence
under two or more statutes, but merely because an act also
H becomes an offence under a subsequent statute does not
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1061
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.)
automatically result in repugnancy or implied repeal of the
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offence defined in the earlier statue. The existing statute would
stand repealed only if the ingredients of the offence created by
the later statute are identical to the ingredients of the offence
in the earlier statute. It is only when the ingredients of both the
offences are identical which makes them irreconcilable that the
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statutes are held to be repugnant to each other.
17. Mr. Mohan Jain, learned ASG appearing for the Union
of India, respondent No. 2 herein, and Mr. Amarendra Sharan,
learned ASG appearing for the CBI, supported the co~tentioris C
made by Mr. Naphade and Mr. Salve. In addition, they
submitted that the MCOCA creates and defines a new offence
and even if it be assumed that the part of the MCOCA
containing the term 'promoting insurgency' incidentally trenches
upon a field under the Union list then the same cannot be held
to be ultra vires applying the doctrine of pith and substance,
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as in essence, the MCOCA deals with the subject on which the
State legislature has power to legislate under the Constitution.
18. Before we proceed further to deal with and answer the
issues that have been raised for our consideration, we wish to
make note of a minor development which took place during the
pendency of the present appeal. A further amendment was
made to the UAPA, namely, the Unlawful Activities (Prevention)
Amendment Act, 2008 and so the matter was again listed for
hearing in order to ascertain the impact, if any, of the said
amendment to the issue in hand. Mr. Shekhar Naphade,
learned senior counsel has, in detail, taken us through the
provisions of the 2008' amendment. At the time of hearing, the
counsel appearing for both the parties have fairly ·agreed that
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the 2008 amendment did not bring about any such change
which would affect the decision of this Court on the issues
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raised and urged. It is, therefore, not necessary for us to
elaborate on the said amendments.
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1062
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A Legislative Competence of Government of Maharashtra
19. The legislature of a State derives its legislative power
from the provisions of Article 246(3) of the Constitution of India.
Article 246(3) confers on a State legislature the exclusive
B power to enact laws for the whole or any part of the territory of
the State on any of the matters enumerated in List II in the
Seventh Schedule to the Constitution.
20. So far as the question of legislative competence of the
Maharashtra State legislature to enact a law like MCOCA is
C concerned, the Bombay High Court in the impugned judgment
has held that MCOCA in pith and substance falls in Entry No.
1 of List Ill which refers to the criminal law. Though the Bombay
High Court has noted the fact that the State of Maharashtra
could have relied upon Entry 1 of List II i.e. the State List which
o refers to 'public order' to contend that the term 'promoting
insurgency' is relatable to that entry, the Hi~h Court refrained
itself from analyzing the said aspect because the respondent
State had, before the High Court, taken a stand that 'promoting
insurgency' would be covered by Entry 1 of List Ill i.e. the
E Concurrent List.
21. Before proceeding further, it would be appropriate on
our part to mention that we do not concur with the said finding
of the High Court that the MCOCA in pith and substance falls
only in Entry No. 1 of List Ill. This Court in Bharat Shanti Lal
F Shah (supra) has already held that the subject-matter of the
MCOCA is maintaining public order and prevention by police
of commission of serious offences affecting public order, and
thus would be within the purview of and be relatable to Entries
1 and 2 of List II as also to Entries 1, 2 and 12 of List Ill of
G Schedule VII to the Constitution of India. The question that
needs to be determined in the present case is whether the said
finding in Bharat Shanti Lal Shah (supra) can be extended to
the term 'promoting insurgency', and also whether the term
'promoting insurgency', -would be within the purview and
H relatable to Entry 1 of List II.
ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE 1063
OF MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
22. Section 2(1)(e) of the MCOCA, which includes within
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its ambit the term 'promoting insurgency', reads as follows:-
"2.