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2004 DIGILAW 1049 (AP)

Syed Hameeduddin v. State Of A. P.

2004-09-21

T.CH.SURYA RAO

body2004
T. SURYA RAO, J. ( 1 ) THE petitioner, who seeks bail, has been arrayed as A - 19 in the crime, which is pending investigation, for the alleged offences punishable under Sections 120-B, 255, 258, 259, 260, 263 (A), 420, 471, 472, 474, 34 of the Indian Penal Code r/w sections 64 (c) and 69 (b) of the Indian Stamp act and Sections 3 (1) (ii), 3 (2), 3 (4), 3 (5) and 4 of Andhra Pradesh Control of Organized crime Act, 2001 (for short "apcoca" ). ( 2 ) THE Government of Andhra Pradesh have constituted a Stamps Investigation team (S. I. T.) for investigation of the fake stamps cases. Consequently, all the crimes that have been registered earlier at various police stations have been brought within the purview of S. I. T. Having regard to the magnitude of the crime and its area of operation having been spread over in different States in the country, the investigation in this case has been entrusted to Central Bureau of Investigation, pursuant to the orders passed by the Apex Court. ( 3 ) DURING the course of investigation, A-2 in the crime is said to have made a confession before the competent authority, which reveals the involvement of the petitioner in the crime. Inasmuch as confession made to police officer who is competent to record the same, is admissible under Section 18 of the APCOCA, the confession said to have been made by A-2 forms a basis of the case against the petitioner. The petitioner was arrested on 07-04-2004 and since then he has been in judicial custody. ( 4 ) IT is the contention of the learned senior Counsel for the petitioner that the petitioner has not been involved in any other case so far much less a cognizable offence punishable with imprisonment for three years or more preceding the period of 10 years from the date of offence in this case and therefore the provisions of Section 3 of apcoca cannot be invoked as against the petitioner. It is the further contention of the learned Senior Counsel for the petitioner that since the petitioner has been in judicial custody since 07-04-2004 onwards and as no charge sheet has been filed so far against the petitioner, although more than 90 days period has been elapsed, the petitioner is entitled to bail as matter of right. It is the further contention of the learned Senior Counsel for the petitioner that since the petitioner has been in judicial custody since 07-04-2004 onwards and as no charge sheet has been filed so far against the petitioner, although more than 90 days period has been elapsed, the petitioner is entitled to bail as matter of right. ( 5 ) INASMUCH as the offence alleged against the petitioner is punishable under section 3 of the APCOCA among various other offences under the Indian Penal Code, it is appropriate to consider the provisions of apcoca at the first instance. ( 6 ) FROM the scheme of the Act, it is obvious that a special Act has been passed for curbing effectively the menace of organised crime and its ramifications in the society and on the economy of the State. Section 2 of the Act, is an interpretation clause. Clause (d) thereof seeks to define the expression "continuing unlawful activity". Similarly clauses (e) and (f) seek to define the expressions "organised crime" and "organised crime syndicate" respectively clauses (d) (e) and (f) may be extracted here under thus :" (D) "continuing unlawful activity" means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either single or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge sheet have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence :"" (E) "organised crime" means any continuing unlawful activity by an individual, single 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 coercion, or other unlawful means. with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency :"" (F) organised crime syndicate" means a group of two or more persons who acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime :" ( 7 ) ALL the above three provisions shall have to be read together so as to understand what exactly UK; expression "organised crime" means. The quintessence of the above excerpted provisions is that two or more persons shall group together as a syndicate or a gang so as to indulge in activities of organised crime. They can act singly or collectively but as members of the syndicate or gang. If a member of the syndicate either singly or jointly either as a member of the crime syndicate or on its behalf indulges in continuing unlawful activity which activity is prohibited by law for the time being in force and is a cognizable offence punishable with imprisonment of three years or more, by use of violence or threat of violence or coercion, or other unlawful means with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency in respect of which more than one charge sheet have been filed within the preceding period of ten years and the competent Court has taken cognizance of the same, then it is said that he has committed the organised crime. ( 8 ) THE essential ingredients that constitute the offence of organised crime are discernible on a combined reading of theabove three provisions thus: In the first instance, the accused must be a member of an organised crime syndicate or a gang; the gang should indulge in the activities of an organised crime; the accused shall commit an unlawful activity which is ?. cognizable offence punishable with imprisonment for three years or more; the accused shall continue to commit such unlawful activities either singly or jointly but as a member of an organised crime syndicate or on its behalf; the accused shall resort to use of violence or threat of violence or intimidation or coercion or other unlawful means with the objective of gaining pecuniary benefit or gaining undue economic or other advantage for himself or any other person or promoting insurgency by indulging in such continuing unlawful activity either single or jointly but as a member of an organised crime syndicate or on its behalf; more than one charge sheet must have been filed against him before a competent Court within the preceding period of ten years; and the Court should have taken cognizance of the same. All the above ingredients shall have to be satisfied so as to constitute the offence of organised crime. All the above ingredients shall have to be satisfied so as to constitute the offence of organised crime. ( 9 ) SECTION 3 of the APCOCA prescribes punishment for committing the offence of organised crime under sub-section (1) thereof. Under sub-section (2) conspirators, abettors, facilitators with necessary knowledge of the crime and the persons who advocate the commission of the crime or make an attempt to commit the said crime are punishable. Under sub-section (3) the person who harbours or conceals any member of an organised crime syndicate is punishable. Sub-section (4) thereof prescribes punishment qua the person who is a member o! an organised crime syndicate. Under sub-section (5) the person who holds the property having been derived or obtained from commission of an organised crime is also punishable. Section 4 is residuary provision under which a person who possesses unaccountable wealth on behalf of a member of an organised crime syndicate and who cannot satisfactorily account for the same is punishable. ( 10 ) IT is obvious thus from various clauses of Section 3, that not only the person who commits the organised crime, nay, a person who is a member of an organised crime syndicate besides a conspirator, abettor, facilitator, or who advocates or attempts to commit the offence, who harbours or conceals the offender of an organised crime and who holds any property derived or obtained or has been acquired through organised crime syndicate is liable under the Act. ( 11 ) A piquant question arises at this juncture as to when it is said that a person is a member of an organised crime syndicate means a group of two or more person acting as a syndicate or a gang indulging in the activities of organised crime whether acting either singly or collectively. To know whether a person is a member of an organised crime syndicate it is necessary to understand the definition of organised crime syndicate. It goes without saying that unless there is an organised crime syndicate, there can be no member of such syndicate. A person by virtue of enrolling himself as a member of a group will not and cannot in my considered view automatically become a member of an organised crime syndicate. To be called as a member of an organised crime syndicate, he must satisfy the definition of an organised crime syndicate as enjoined under clause (f ). A person by virtue of enrolling himself as a member of a group will not and cannot in my considered view automatically become a member of an organised crime syndicate. To be called as a member of an organised crime syndicate, he must satisfy the definition of an organised crime syndicate as enjoined under clause (f ). The members of a group or gang who act collectively or individually in perpetrating the organised crime must also satisfy the other test of organised crime. Unless the organised crime syndicate indulges in activities of organised crime the group of persons or gang cannot become an organised crime syndicate. To call a particular group of persons or a gang as organised crime syndicate that group or gang must engage in the activities of organised crime. Therefore, it becomes imperative; to understand what exactly the organised crime means; to consider the meaning of the expression continuing unlawful activity as defined under clause (d ). Even to know whether or not a person is a member of an organised crime syndicate in my considered view it is a sine qua non that there shall be an organised crime syndicate and that crime syndicate shall indulge in activities of organised crime. A combined reading of Clauses (d) (e) and (f) of Sec. 2 and Section 3 would further elucidate the complex provisions of the Act. To call a person as a member of an organised crime syndicate he must indulge in the organised crime either singly or conjointly either as member of an organised crime syndicate or on behalf of such syndicate. Unless the tests enjoined under clauses (d), (e) of Section 2 of APCOCA are satisfied a person individually de hors the above test cannot be considered as a member of an organised crime syndicate. ( 12 ) SECTIONS 3, 4 and 24 of the Act are the penal provisions which prescribe punishment for various categories of offences perpetrated by the persons. Under sub-section (1) of Section 3 the person who commits an ordinary crime shall be liable for punishment. Under sub-section (2) thereof, a conspirator, an abettor, a facilitator with the necessary knowledge of the commission of organised crime and a person who advocates the commission of an organised crime are liable for punishment. Under sub-section (1) of Section 3 the person who commits an ordinary crime shall be liable for punishment. Under sub-section (2) thereof, a conspirator, an abettor, a facilitator with the necessary knowledge of the commission of organised crime and a person who advocates the commission of an organised crime are liable for punishment. Sub-section (3) thereof prescribes punishment to the persons who harbour or conceal any member of an organised crime syndicate Sub-section (4) thereof, however, prescribes punishment to a person who is a member of an organised crime syndicate. Lastly, under sub-section (5) whoever holds any property derived or obtained from commission of an organised crime or has been acquired through an organised crime syndicate funds is liable for punishment. Section 4, however, deals with any person who is or has been in possession of any movable or immovable property on behalf of a member of an organised crime syndicate and who cannot satisfactorily account for the same. Section 24 prescribes punishment to a public servant when he (1) (i) renders any help or support in any manner in the commission of an organised crime; (ii) renders any help or support whether before or after commission of any offence by a member of an organised crime syndicate or (2) who abstains from taking lawful measures under the said Act or intentionally avoids to carry out the directions of the Court or superior police officers in that respect, is liable for punishment. Thus, a principal offender; a conspirator or an abettor or a facilitator or who advocates the commission of an offence; a harborer; a member of the organised crime syndicate, a person who holds any property obtained from commission of an organised crime, a person who is in possession or has been in possession of movable or immovable property on behalf of a member of an organised crime syndicate and who cannot satisfactorily account for the same and a public servant who renders any help or support in any manner in the commission of an organised crime, are the various categories of the perpetrators of crime under the Act. ( 13 ) UNDER Section 21, the Act ordains that every offence punishable under the said act shall be deemed to be a cognizable offence. ( 13 ) UNDER Section 21, the Act ordains that every offence punishable under the said act shall be deemed to be a cognizable offence. Sub-section (2) of Section 21, modifies the provisions of Section 167 of the code by enhancing the periods of 15 days and 60 days to 30 days and 90 days respectively. It further provides for the extension of remand period of 90 days to 180 days by the Court by mentioning specific reasons in support thereof. Sub-section (3) thereof mandates that the provisions of section 438 of the Code for granting anticipatory bail shall have no application in relation to any offence said to have been committed under the Act. Sub-section (4) is a provision which limits the discretion of the court in granting bail. As per this provision, no person accused of an offence under the act shall be released on bail unless the public Prosecutor of the Court has been notified and if the Public Prosecutor opposes the application for bail, unless the Court is satisfied that (1) there are reasonable grounds for believing that the accused is not guilty of such offence and (2) he is not likely to commit any offence while on bail. Under sub-section (5) if the accused was on bail in an offence under the Act or under any other law on the date of the offence in question, he shall not be granted bail on that premise. However, the limitations enjoined under subsection (4) are in addition to the limitations contained under Section 437 of the Code. ( 14 ) CONSPIRATORS, Abettors, and facilitators with the knowledge of the commission of an organised crime are also liable for punishment under sub-section (2) of Section 3. The requirement that to be a member of an organised crime one shall indulge in the activities of organised crime is not necessary to become a conspirator, abettor or facilitator. Similarly a person who tries to harbour or conceal any member of an organised crime syndicate who is liable for punishment under sub-section (3) of Sec. 3, need not again be a member of an organised crime syndicate. Conspirators, abettors, facilitators or persons who advocate a commission of an organised crime need not necessarily be the members of an organised crime syndicate. Conspirators, abettors, facilitators or persons who advocate a commission of an organised crime need not necessarily be the members of an organised crime syndicate. ( 15 ) HAVING thus understood the objects and reasons of the Act and the scheme of the Act, the case of the petitioner who is seeking bail shall have to be considered. ( 16 ) HAVING regard to the allegations levelled against the petitioner in the absence of any information showing that he has involved himself in any other crime preceding the offence in question, for the reasons hereinabove discussed, it cannot prima facie be concluded at this stage that the petitioner is either a member of an organised crime syndicate or a perpetrator of the offence of any organised crime. However, it cannot be ignored that there has been an allegation of conspiracy in between himself and A- 1 / the principal offender or he has abetted the offence of organised crime in trying to sell fake stamp papers. Therefore, the facts do not warrant any conclusion that any of the provisions contained in Section 3 of the APCOCA are not attracted in this case. Merely because the facts do not attract the offence of organised crime the offence of being a member of an organised crime syndicate, he cannot escape from the mischief of the provisions under sub-section (2) of Section 3 of the APCOCA. Indeed sub-section (2) thereof, prescribes a more sever sentence to a conspirator or a bettor of an organised crime than the alternate sentence prescribed under sub-section (2) thereof qua the principal offender In view of the allegation that the petitioner having been conspired with A-1 trying to sell fake stamps thereby facilitating the commission of an organised crime by the principal offender in this case, at this stage he cannot escape a prima facie conclusion that sub-section (2) of Section 3 of the APCOCA is attracted in the case of the petitioner. ( 17 ) THE learned senior counsel appearing for the petitioner at this stage seeks to rely upon an order dt. 11- 08 - 2004 passed by this Court in Criminal Petition no. 2699 of 2004. This Court granted bail to two of the accused therein. The provisions of sub-sections (1) to (5) of Section 3 of the apcoca have not come up for discussion in that case. 11- 08 - 2004 passed by this Court in Criminal Petition no. 2699 of 2004. This Court granted bail to two of the accused therein. The provisions of sub-sections (1) to (5) of Section 3 of the apcoca have not come up for discussion in that case. Nor it has been argued that it is a case of conspiracy, abetment or facilitating the commission of offence of an organized crime. Having regard to the fact that both the petitioners are aged being 62 years and 72 years, their request has been considered by this Court in that petition. ( 18 ) IN view of the discussion made hereinabove and since sub-section (2) of section 3 of the APCOCA, in my considered view, is prima facie attracted in this case, and having regard to the two limitations contained in sub-section (4) of Section 21 thereof, the request of the petitioner for bail at this stage cannot be considered. ( 19 ) IN the result, the Criminal Petition fails and is dismissed.