JUDGMENT :- The appellants were tried by the Special Judge, Nagpur, constituted under M.C.O.C. Act, 1999, in Special Case No.2/2001 for offence punishable under section 3(1)(ii) as well as section 3(4) of M.C.O.C. Act, 1999. 2. The charge contained imputations namely that, the accused were during the period of 10 years preceding 25-6-2001, named as accused in various offences, each amongst those was punishable with sentence for a period more than 3 years. The charge-sheet narrates 17 cases against accused Nos. 1, 11 cases against Nos.2 and 12 cases against accused No.3. The charge-sheet also consists of 2 preventive measure cases under Section 110(e) & (g) of Cr.P.C. against all the 3 accused persons, initiated first by Sonegaon Police Station and another by Dhantoli Police Station under 2 different Istegasha, each relating to one of the chapter cases, and accused have been ordered to execute bond for maintaining peace and order. These two chapter cases are relied upon as additional circumstance. 3. It is seen from the record that the copies of charge-sheet and fact that competent Judicial Magistrate has taken cognizance of these offences and issued process, was brought on record. 4. After completion of the trial, the learned Special Judge has reached the conclusion of holding the accused persons guilty of offence punishable under Section 3(1)(ii) as well as Section 3(4) of M.C.O.C. Act. 5. After hearing the learned advocate for the accused persons on the point of sentence, the learned Special Judge ordered different sentences as follows :- for O/u S.3(1)(ii) for O/u S.3(4) Accused No.1 - R.I. for 10 years; R.I. for 7 years Accused No.2 - R.I. for 10 years; R.I. for 7 years Accused No.3 - R.I. for 10 years; R.I. for 7 years 6. The present appeal is against the said judgment and order of conviction and sentence. 7. Heard the learned advocate for the appellants in support of appeal. The learned Advocate for the appellant had made it clear that the grounds of appeal as incorporated in the memo would be amplified during the course of submissions and there would be no other points to be urged. 8. In order to have the points of submission ready at hand, it would be useful to draw the grounds contained in memo of appeal for ready reference. 8. In order to have the points of submission ready at hand, it would be useful to draw the grounds contained in memo of appeal for ready reference. Those are quoted below :(i) That, the prosecution has failed to prove the ingredients of section 3(1)(ii) and 3(4) against the present appellants. (ii) That, the prosecution has failed to prove that the Appellants are members of an organised crime syndicate. Therefore, the provisions as envisaged in Sec. 2(f) of the M.C.O.C. Act is not satisfied. (iii) That, mere presentation of the charge-sheets against the appellants is not sufficient to prove that their acts fall within the meaning of Section 2(d) of the M.C.O.C. Act, which speaks about "continuing unlawful activity". It is submitted that the appellants are not convicted in any of the criminal cases registered against them and, therefore, launching of various prosecution against them cannot be treated for holding them guilty. (iv) That, moreover the prosecution has utterly failed to follow provisions of Section 23(2) of the M.C.O.C. Act, which is a mandate. (v) That, the special court has also relied on the provisions of Sections 16 and 17 of the M.C.O.C. Act. It is submitted that recently the Bombay High Court has held that Sec.16 of the M.C.O.C. Act needs to be struck down from the Act. (vi) That, the trial Court has not considered the defence put forth by the Appellants and therefore, the impugned judgment needs to be set aside. 9. In order to amplify the submissions, the learned advocate for the appellant further urged the following :(i) while it is true that accused persons were subjected to trial in various offences, the fact requires this court's consideration, is that neither of the offences have reached a conclusion and amongst those in no case the accused have been convicted and sentenced so far; (ii) there were certain other offences in relation to which trials have parallaly proceeded, in which these accused persons have been acquitted, and the details thereof can be placed on record. (iii) that the procedure required to be followed under Section 23(1) of the M.C.O.C. Act before taking cognizance has not been complied with, learned advocate for the appellant was not in a position to substantiate as to how any non-compliance as to Clause (b) or subsection (1) of Section 23 had occurred. (iii) that the procedure required to be followed under Section 23(1) of the M.C.O.C. Act before taking cognizance has not been complied with, learned advocate for the appellant was not in a position to substantiate as to how any non-compliance as to Clause (b) or subsection (1) of Section 23 had occurred. (iv) Record does not disclose objectively reached satisfaction as to the manner of reaching the opinion which has led to filing of charge-sheet under the provisions of M.C.O.C. Act. 10. The learned advocate for the appellant then took this Court through the judgment. 11. After considering the submissions and perusal of judgment and testing the submissions to the documentary evidence on record, what this Court has to find out as point to be considered is as follows : Whether the judgment of the trial Court holding the accused liable for sentence under the provisions of M.C.O.C. Act is liable to be regarded as erroneous or vitiated on account of failure of the prosecution to prove any of the charges under Section 3(1)(ii) and Section 3(4) of the M.C.O.C. Act? 12. In order to address upon the point formulated in foregoing para, it becomes necessary to refer to the imputations in relation to which the accused were tried. 13. On perusal of the charge, it is seen that all the 3 accused are named common in some crimes, two amongst them in same cases and either of two with other accused not tried in M.C.O.C. case subject matter. This classification is as follows :- Grouping of Accused Nos.1 to 3 named common in crimes mentioned below :- (I) Crimes in which Accused Nos.1, 2 and 3 together are involved. Sonegaon Police Station Crime Nos. 130/00 & 5/00 Ambazari Police Station Crime No. 104/00 Dhantoli Police Station Crime Nos. 100/01 & 21/00 Ranapratap Nagar Police Crime Nos. 109/00 & Station 79/00 & 101/00 (II) Crimes in which Accused Nos.1 and 2 only or alongwith other accused who are not named as accused in M.C.O.C. case are involved. Dhantoli Police Station Crime No. 14/00 Ranapratap Nagar Police Crime Nos.135/97 & Station 164/97 (III) Crimes in which only Accused Nos.1 and 3, alongwith accused, who are not named as accused in M.C.O.C. case are involved. Ajni Police Station Crime Nos. Dhantoli Police Station Crime No. 14/00 Ranapratap Nagar Police Crime Nos.135/97 & Station 164/97 (III) Crimes in which only Accused Nos.1 and 3, alongwith accused, who are not named as accused in M.C.O.C. case are involved. Ajni Police Station Crime Nos. 132/00 & 100/00 Ambazari Police Station Crime Nos.96100 & 103/00 Apart from the crimes mentioned above, Accused No.1 i.e. Amarsingh was also involved, with other accused, other than A2 & A3 in crimes mentioned below;- . Ajni Police Station Crime Nos. 190/96 & 212/96 14. It is seen that one more accused named Rakesh who was not named and tried in subject matter trial was involved as accused in various cases of offences involving offence punishable for over 3 years R.I. The table Showing accused Rakesh being tries with either or all appellants is as follows : - Sr. Crime Accused alongwith Police Sections Exh. No. No. Rakesh Station 1. 132/00 A1 Amar Ajni Indian Penal Code Secs392,342,34 126 A3 Shalik 2. 100/00 Al Amar Ajni Indian Penal Code Secs.457, 380, 34 128 A3 Shalik 3. 96/00 Al Amar Ajni Indian Penal Code Secs.379, 34 129 A3 Shalik 4. 130/00 Al Amar Sonegaon Indian Penal Code Secs.457, 380 r/w. 130 A2 Premsingh 34 and 411 A3 Shalik 5. 104/00 Al Amar Ambazari Indian Penal Code Secs.307, 332, 353 131 A2 Prem r/w. 34 A3 Shalik Arms Act – Sec.4 B.P. Act – Sec.135 6. 103/00 A1 Amar Ambazari Indian Penal Code Secs.332, 336, 132 A3 Shalik 353,427 r/w. 34 Arms Act - Sec.4 132 7. 100/01 Al Amar Dhantoli Indian Penal Code Secs.332, 336, 107 A2 Prem 353,427 r/w. Sec.34 A3 Shalik Arms Act - Sec.4 8. 79/00 Al Amar Ranapratap Indian Penal Code Secs.454, 457, 137 A2 Prem nagar 380 r/w. Sec.34 A3 Shalik 9. 101/00 Al Amar Ranapratap Indian Penal Code Secs.454, 457, 138 A2 Prem nagar 380 r/w. Sec.34 A3 Shalik This aspect shall be dealt with at appropriate place in this judgment as regards accused Rakesh is concerned. 15. During the trial, prosecution examined 18 witnesses. 2 amongst them PW-1- Mohini Prashant Patek (Exh.84) and PW-4 Prashant Gujar (Exh.89) are the eye-witnesses. 16. PW-2 - Nilesh Jog (Exh.85) and PWs-7 to 10 are the complainants in various cases of house breaking, theft of motor-cycle etc. 15. During the trial, prosecution examined 18 witnesses. 2 amongst them PW-1- Mohini Prashant Patek (Exh.84) and PW-4 Prashant Gujar (Exh.89) are the eye-witnesses. 16. PW-2 - Nilesh Jog (Exh.85) and PWs-7 to 10 are the complainants in various cases of house breaking, theft of motor-cycle etc. Other witnesses are official witnesses of Police Department who have proved the procedure as to procurement of certified copies etc., filed as evidence in the trial. 17. Prosecution placed on record copies of charge-sheets/final report alongwith order of issue of process thereon and copy of Istegasha and bond which are for convenience grouped together and are as follows :- Certified copies of F.I.R. Page Nos. Date Police Exh. Station No. 136 to 138 13-1-2000 Dhantoli 86 246 to 253 18-4- 2001 Dhantoli 98 307 to 312 17-1-2000 Dhantoli 118-A 317 to 328 25-6-2001 Dhantoli 122 159 to 164 2-3-2000 Ajni 92 149 to 155 5-3-2000 Ajni 90 170 to 175 23-3-2000 Ajni 94 199 to 202 26-5-1996 Ajni 100 206 to 208 12-5-1996 Ajni 102 181 to 187 2-3-2000 Sonegaon 96 191 to 195 13-1-2000 Sonegaon 98 440 to 442 23-9-1997 Sonegaon 139 443 to 446 4-10-1997 Sonegaon 140 214 to 218 17-3-2000 Ambazari 104 265 to 269 16-3-2000 Ambazari 113 230 to 245 31-5-2001 Dhantoli 106 278 to 285 11-4-2000 Dhantoli 116 286 to 294 12-4-2000 Dhantoli 117 295 to 306 22-4-2000 Sonegaon 118 372 to 380 24-7-2000 Sonegaon 130 345 to 352 6-7-2000 Ajni 126 356 to 365 6-5-2000 Ajni 128 366 to 371 24-5-2000 Ajni 129 381 to 392 14-6-2000 Ambazari 131 393 to 401 27-5-2000 Ambazari 132 410 to 419 6-6-2000 Ranapratap 136 Nagar 420 to 429 5-6-2000 Ranapratap 137 Nagar 430 to 439 5-6-2000 Ranapratap 138 Nagar 353 to 335 31-7-96 Ajni 127 402 to 403 4-8-96 Ajni 133 404 to 406 30-12-97 Ranapratap 134 Nagar 407 to 409 30-12-97 Ranapratap 135 Nagar Certified copies of Istegasha 447 to 449 14-4-2000 Sonegaon 141 P.S. 451 to 454 24-4-2000 Dhantoli 143 P.S. Certified copy of Bond 450 16-9-2000 142 455 20-7-2001 144 18. It can be seen that in all these offences either of the accused persons jointly with one amongst the three and some amongst the outside offender are subject matter of charge-sheet and further process of taking cognizance thereon has occurred. It can be seen that in all these offences either of the accused persons jointly with one amongst the three and some amongst the outside offender are subject matter of charge-sheet and further process of taking cognizance thereon has occurred. The evidence so brought before the Court adequately proves the charge framed against the accused under Section 3(i) and 3(4) of M.C.O.C. Act of being a member of organized criminal syndicate and remaining thereof as a device of livelihood. 19. The fact that the accused have been so named for these offences as accused persons, is a fact borne on record. These documents are within their knowledge as they have appeared in all these cases and are facing the trial in all these cases. In the trial, subject matter of appeal, all sheets in respect of cases were again put to them. All these documents were again put to the accused appellant by way of opportunity of defence and lastly in the statement under Section 313 by incorporating each one of the offence (under different questions put to the accused under Section 313). The answer to all those questions by the appellant is that, "it is false". 20. Now, in this situation, the critical position arose before the learned Special Judge was almost like an arithmetical equation. The imputations put against the accused were proved by documentary evidence and accused had pleaded in reply saying "it is false". This· defence of denial though permissible in law, is unsustainable on facts of the case, in cases subject matter of document put to them as documentary evidence against them since the accused were facing the trial could hardly have stated before any court of law that, "the lodgment of such cases is false", though -it is open to them to say that cases are false, nevertheless they have preferred to plead so. 2t. This Court, therefore, holds that finding of trial Court holding the accused guilty was like an infalliable conclusion based on an arithmetic equation about which trial Court was rendered option-less. Conviction is based on objective evidence. No subjective element is at all involved. The conviction under appeal, therefore, cannot be faulted as erroneous or an unavailable conclusion. The appeal, therefore, reveals to have no merit. 22. Conviction is based on objective evidence. No subjective element is at all involved. The conviction under appeal, therefore, cannot be faulted as erroneous or an unavailable conclusion. The appeal, therefore, reveals to have no merit. 22. When this court considered the merits of the case and found that the conviction is maintained, the learned Advocate for the appellant urged on the point of sentence and prayed for leniency, more particularly in the background that it cannot be anticipated as to how many more years it would be taken to reach the pending cases to a logical conclusion. 23. The learned advocate further pressed into service one more submission on the point of leniency, while the police have taken recourse to the M.C.O.C. Act against the present appellants which in spirit till operates as preventive measure though certain conduct has been defined as an offence. The learned advocate further contended that even when the accused are found guilty of offence of being a member of a syndicate for organised crime, the conclusion which is irresistable is that the prosecution was not fair since it did not book and subject to trial all other accused persons "who are jointly named as accused" in various criminal trials which are subject matter of documentary evidence used against the appellants. These accused persons and the offences in which they are involved alongwith either of the appellants herein are shown as follows :- Names of persons accused but not tried in M.C.O.C. case subject matter alongwith present appellants. Sr. Name of other Sections Crime Nos. Police Exh. No. accused Station No. 1. Rakesh I.P.C. Secs.454, 457, 132/00, 100/00,96/00, Ajni, 126, 380, 427,332,336, 130/00, 104/00, 103/00, Sonegaon, 128, 353,411,379,392 100/01, 79/00, 100/00. Ambazari, 129, Arms Act - Sec. 4 Total 9 crimes Dhantoli, 120, B.P. Act - Sec.135 Pratapnagar 131, 132, 107, 137 2. Lakhansingh I.P.C. Secs.379, 5/00, 14/00 Sonegaon, 116, 457, 380/34, 411 Total 2 crimes Dhantoli 118 3. Munna Uikey 4. Surendra I.P.C. Secs.380, 190/96, 212/96 Ajni 127, 454/34,411 Total 2 crimes 133 5. Gajanan I.P.C. Secs.454, 35/97, 164/97 Ranapratap 134, 457, 380 Total 2 crimes Nagar 135 6. Rajesh I.P.C. Secs.454, 109/00, Total 1 crime Ranapratap 136 380/34 Nagar 7. Lakhansingh I.P.C. Secs.379, 5/00, 14/00 Sonegaon, 116, 457, 380/34, 411 Total 2 crimes Dhantoli 118 3. Munna Uikey 4. Surendra I.P.C. Secs.380, 190/96, 212/96 Ajni 127, 454/34,411 Total 2 crimes 133 5. Gajanan I.P.C. Secs.454, 35/97, 164/97 Ranapratap 134, 457, 380 Total 2 crimes Nagar 135 6. Rajesh I.P.C. Secs.454, 109/00, Total 1 crime Ranapratap 136 380/34 Nagar 7. Ratnakar I.P.C. Secs.457, 5/00 Total 1 crime Sonegaon 118 Gurav 380,411 The learned advocate for appellant, therefore, contended that while persons similarly placed are enjoying liberty and are given immunity from M.C.O.C. Act, the question as to how for the same circumstances, the appellants could have their liberties fortified needs to be addressed. 24. Upon scrutiny of documents, this Court finds that there is substance in the factual aspect and the submissions advanced by the learned advocate that other accused namely Rakesh (accused in 9 crimes), Lakhansingh alongwith Munna Uikey (accused in 2 cases), Surendra (accused in 2 cases), Gajanan (accused in 2 cases) are the persons involved in at least two crimes each alongwith the accused who are appellants herein. 25. This court can while deciding the case of the appellants on merit as well, bring it to the notice of the competent authority who have initiated the proceedings and their higher authorities to look into the matter and examine the case of these accused persons named in Paras 23 & 24 above, who are seen involved in various other cases along with appellants herein and take appropriate action against those accused including under M.C.O.C. Act, if such action fits into the frame of law, which would eliminate trick and choose & victimization policy being adopted by the Police. 26. The result that ensues in the given situation is that the offence charged against the accused was duly proved. The judgment answers the ingredients of proof of fact as required within the four corners of the M.C.O.C. Act. In the result, appeal fails. There are no grounds made out to interfere in the sentence. The appeal is, therefore, dismissed. 27. The result that ensues in the given situation is that the offence charged against the accused was duly proved. The judgment answers the ingredients of proof of fact as required within the four corners of the M.C.O.C. Act. In the result, appeal fails. There are no grounds made out to interfere in the sentence. The appeal is, therefore, dismissed. 27. This Court cannot part-with the judgment without reiterating what it has observed in Para 25 above, by directing the Registry of this Court to bring to the notice of Commissioner of Police and Director General of Police the points of submissions advanced by the learned Advocate for the appellant and noted by this Court in relation to the other accused namely Rakesh, Lakhansingh, Munna Uikey, Surendra and Gajanan, who are involved in more than two cases along with either of the appellants and take appropriate decision as expeditiously as possible and within the period of one month from the date of receipt of the copy of the judgment. 28. The copies of this judgment be supplied to the appellants and their learned advocates and public prosecutor free of costs.