JAYSINGH WADHU SINGH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition is filed under Articles 226 and 227 of the Constitution of India by the petitioner wherein the constitutional validity of some of the provisions of the Maharashtra Control of Organized Crime Act, 1999 (hereinafter referred to as the M. C. O. C. Act) is challenged. The petitioner also prays for direction to the State Government to frame appropriate rules and guidelines for preventing misuse of the provisions of the M. C. O. C. Act. The other reliefs claimed are : (i) a writ of prohibition prohibiting the respondents from relying upon the telephonic conversations dated 25th March, 1999, 9th April, 1999 and 10th April, 1999 against the petitioner for invoking the provisions of the M. C. O. C. Act : (ii) to quash and set aside the order dated 12th May, 2000 passed by respondent No. 3- Additional Chief Secretary in the Home Department of the State of Maharashtra; (iii) to quash and set aside the orders dated 18th April, 2000 and 25th August, 2000 of the learned Special Judge under the M. C. O. C. Act ; and further (iv) to set aside the order dated 15th September, 2000 of the learned Special Judge and also to transfer the case of the petitioner to regular Court ; and (v) to release the petitioner on bail pending trial assailing the order dated 28th August, 2000 rejecting the petitioners application for release on bail. The factual matrix in brief resulting into filing of this petition before us is as follows :

(2.) ON 2nd April, 1999, a complaint was received at Sion Police Station from one Prabhlinsingh, son of Sardarsingh @ Sardarsingh Abrol, having his shop at Sion under the name of M/s. Bawa Tyre Centre alleging that he has received a threatening call from unknown person, claiming his name as Pydhuni, who had told the complainants son that he was a person linked to Chhota Shakil group and further that the complainant should clear the account of J. W. Singh within 48 hours failing which his shop would be closed and he would face serious consequences if Chhota Shakil is not contacted on phone for settling the bill. He gave, according to the complainant, the telephone number of Chhota Shakil which was also available with the Sion Police Station. On receipt of the complaint, the Sion Police Station registered it as N. C. No. 267 of 1999. On 3rd April, 1999, the police protection was sought by Sardarsingh @ Dara which was provided to him. On 9th April, 1999 and 10th April, 1999, conversations of Telephone No. 8057755 of the Advocate Liyakatali were intercepted. On 9th April, 1999, Chhota Shakil alleged to have talked to Advocate Liyakatali Shaikh while on 10th April, 1999 a talk had taken place in between the petitioner J. W. Singh and Advocate Liyakatali Shaikh. The Order No. 40 of 1999 of the Additional Chief Secretary, respondent No. 3, initially was to remain in force till 6th April, 1999. This period later on continued by Order No. 104 of 1999 dated 3rd April, 1999 till 4th June, 1999 and thereafter by different orders upto 22nd December, 1999. Similarly, Order No. 68 of 1999 pertaining to Mobile No. 98260006 had allegedly remained in force till 8th April, 1999. It was continued upto 29th May, 1999 by Order No. 95 of 1999 dated 9th April, 1999 and thereafter by various orders upto 23rd December, 1999. On 3rd April, 1999, statements of Sardarsingh so also his son P. W. 29 were recorded by the Sion Police Station. Confidential reports were prepared as regards the interceptions of telephone conversation on 25th March, 1999, 9th April, 1999 and 10th April, 1999 and after obtaining approval from the Joint Commissioner of Police, the same were sent to the Commissioner of Police. The Commissioner of Police then submitted his report to the Honble The Chief Justice of this Court. By notification dated 26th August, 1999, published in the Maharashtra Government Gazette, the Government of Maharashtra in exercise of powers conferred upon it under the M. C. O. C. Act appointed the Principal Secretary (Appeal and Security) as competent authority for the purpose of section 14 of the M. C. O. C. Act. On 1st October, 1999, a confidential letter was addressed to the Additional Registrar of this Court for asking permission to register First Information Report against the petitioner J. W. Singh, who was then under suspension. Accordingly, permission was granted by this Court and communicated the same to the D. C. B. C. I. D. Mumbai. On 1st November, 1999, a complaint was lodged by ACP Ambadas Pote whereupon F. I. R. No. 298 of 1999 was registered by the Sion Police Station against the petitioner J. W. Singh and others viz. Liyakatali Shaikh, Chhota Shakil and one unknown person nicknamed as Pydhuni for the offence punishable under section 387 r/w 120-B of the Indian Penal Code. It is alleged that during the course of investigation of this offence, it was revealed that there was a prima facie case for proceeding against the petitioner and others under the provisions of M. C. O. C. Act and therefore, a prior approval was sought from the Additional Police Commissioner. The Additional Police Commissioner granted approval in exercise of powers conferred upon him under section 23 (1) (a) of the M. C. O. C. Act by his order dated 18th November, 1999. The Investigating Officer then added the offence under section 3 (1) (a) (i), (ii) and (2) and (4) to the offence registered under the F. I. R. of C. R. No. 298 of 1999 of M. C. O. C. Act. The Investigating Officer then proceeded further on 4th December, 1999, and the petitioners house was searched. The petitioner was then absconding. The petitioner filed Criminal Writ Petition No. 2139 of 1999 before this Court praying for quashing of the proceedings arising from the F. I. R. of C. R. No. 298 of 1999 registered against him at Sion Police Station for the offence punishable under section 387 read with 120-B of the Indian Penal Code and section 3 (i) and (ii) of the M. C. O. C. Act. This petition was dismissed in limine by this Courts order dated 17th December, 1999. The Court, in paragraphs 3 and 4 of the said order, has stated as under : 3. The averments in the F. I. R. in brief are as under :---

(3.) THIS Court then referred to rival submission made by learned Counsel for the petitioner and the Public Prosecutor in paragraph 10 which are as under :---