REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.               OF 2008 (Arising out of S.L.P. (Crl.) Nos. 753-756 of 2004)

State of Maharashtra          …. Appellant

Versus  

Bharat Shanti Lal Shah & Ors.                                …. Respondents

JUDGMENT

Dr. Mukundakam Sharma, J.   

1. Leave granted.

2. In  all  these  appeals  the  issue  that  falls  for  our  consideration  is  the

constitutional  validity of the Maharashtra Control  of Organised Crime

Act, 1999 (for short the ‘MCOCA’ or the ‘Act’) on the ground that the

State Legislature did not 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.  

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.  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 Writ Petition No. 27/2003.  

The Bombay High Court  heard the above mentioned writ  petitions

together and passed a common judgment 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  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

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Seventh Schedule to the Constitution and that already the Indian Telegraph

Act, 1885, a Central Act was holding the field.  The High Court also struck

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 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 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 the said Act is defined to mean

any appliance, instrument, material or apparatus used or capable of use

for  transmission  or  reception  of  signs,  signals,  writing,  images,  and

sounds  or  intelligence  of  any nature  by wire,  visual  or  other  elector-

magnetic emissions.  By enacting Section 4 in the said Act the Central

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Government  has  been  given  exclusive  privilege  in  establishing,

maintaining and working telegraphs.  The power 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 or any officer specifically authorized in that behalf by the

Central  or  the State  Government  to  take temporary possession  of  any

telegraph  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 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

officer  specially  authorized  in  that  behalf  by the Central  or  the State

Government may, if satisfied that it is necessary or expedient to do so in

the interest of the sovereignty and integrity of India, the security of the

State,  friendly  relations  with  foreign  states  or  public  order  or  for

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preventing incitement to the 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 making the order or an

officer thereof mentioned in the order.  

6. 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 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.

7. The Maharashtra State Legislature enacted a State legislation  under  the

name  of  Maharashtra  Control  of  Organised  Crime   Act, 1999 which

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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 inadequate to curb or control the menace of organised crime.  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.”

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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 word “abet” is

defined  in  clause  (a)  of  sub-Section  (1)  to  mean  and  include  the

communication  or  association  with  any  person  with  the  actual

knowledge or having reason to believe that such person is engaged in

assisting in any manner, an organized crime syndicate, the passing on or

publication  of,  without  any lawful  authority any information  likely to

assist the organized crime syndicate and the passing on or publication of

or distribution of any document or matter obtained from the organized

crime syndicate and also rendering of any assistance whether financial or

otherwise, to the organised crime syndicate.  Clause (d) of sub-Section

(1)  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 of more,

undertaken either singly or jointly,  as a member of an organized crime

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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

offence.  Clause (e) of sub-Section (1) 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 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. The

term “organised  crime  syndicate”  is  defined  under  clause  (f)  of  sub-

Section (1) to mean a group of two or more persons who, acting either

singly  or  collectively,  as  a  syndicate  or  gang  indulge  in  activities  of

organised crime.

9. Section 3 provides the punishment for organised crime. It states that (i)

whoever commits an offence of organised crime, (ii) whoever conspires

or  attempts  to  commit  or  advocates,  abets  or  knowingly facilitate  the

commission of an organised crime or any act preparatory to organised

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crime,  (iii)  whoever  harbours  or  conceals  or  attempts  to  harbour  or

conceal  any member of an organised crime syndicate, (iv)  any person

who is a member of an organised crime syndicate and (v)  whoever 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 unaccountable wealth on behalf of a

member of organised crime syndicate.

10.Section 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  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 to submit

an  application  in  writing  to  the  competent  authority  for  an  order

authorizing  or  approving  the  interception  of  wire,  electronic  or  oral

communication by the investigating officer, when such interception may

provide or has provided evidence of any offence involving an organised

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crime.  Sub-Sections  (2)  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  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  or  oral  communication  by  any  police  officer  except  as

otherwise  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.  Sub-section (1) of Section

21 of the MCOCA lays down that notwithstanding anything contained in

the Code of Criminal 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

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the  Code  and   “cognizable  case”  as  defined  in  that  clause  would  be

construed  accordingly.   Sub-section  (2)  of  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 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  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 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

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Schedule  and also  under  Entry 1,  2  and 3 of  List  III  of  the  Seventh

Schedule, which read as under:

Entry 1 List II: Public order (but not including the use of any 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) subject to the provisions of entry 2A of List I.

Entry 1 List III: 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 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  III:   Criminal  procedure,  including  all  matters included  in  the  Code  of  Criminal  Procedure  at  the commencement of this Constitution.

Entry  12  List  III:  Evidence  and  oaths;  recognition  of  laws, public acts and records, and judicial proceedings.

13.It was submitted by him that the provisions of MCOCA create and define

a new offence of organised crime under 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

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communication  is  necessary.   He  submitted  that  the  provisions  of

Sections 13 to 16, facilitate the detection and investigation of the offence

of organised crime, and the State’s legislative competence to enact such

provisions was traceable to Entry 1 and 2 in List II and Entry 1, 2 and 12

in List III of Seventh Schedule of the Constitution.   He pointed out that

the duty of police officers is to collect intelligence regarding commission

of  cognizable  offences  or  plans/designs  to  commit  such  offences,  to

prevent  the  commission  of  offences,  and  to  detect  and  apprehend

offenders (See Section 23 of Police Act, 1861 and Section 64 of Bombay

Police Act, 1951).  He also submitted 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 the State law

authorizes the interception as it is intended to prevent the commission of

an organised crime or to collect the evidence of such an organised crime.

He,  therefore,  contented  that  the  constitutional  validity  cannot  be

questioned on the ground of want of legislative competence of the State

Legislature to enact such a provision.    

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14.It was further submitted that Entries in List I, II and III must receive a

broad  and  liberal  construction.  Reference  to  the  doctrine  of  pith  and

substance was also made.

15.It was also contended that the findings recorded by 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

judgment of the High Court which contains a comparative chart 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.

16.  Mr.  Dushyant  A.  Dave,  learned  senior  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  Section  21  are  ultra  vires  Article  246  of  the

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Constitution of India.  It was submitted by them that the subject and the

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, 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 but they also

infringe  upon the  fundamental  rights  guaranteed  under  Part  III  of  the

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 Constitution 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 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 the

respondents  against  the  order  of  the  High  Court  upholding  the

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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.

19.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

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continuing unlawful activity, organised crime and also organised crime

syndicate. As the provisions treat all those covered by it in a like manner

and does not suffer from the vice of class legislation they cannot be said

to be violative 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 the

requirement of mens rea is done away with, thus automatically 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 unless it is specifically and expressly or by necessary

intendment excluded by the legislature. No such exclusion is found in

sub-sections (3) and (5) of Section 3. As held by the High Court, if the

provisions are read in the following manner no injury, as alleged, would

be caused:

"3(3). Whoever (intentionally) harbours or conceals or attempts to  harbor  or  conceal  any  member  of  an  organized  crime syndicate  shall  be  punishable  with  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."

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"3(5).  Whoever  (knowingly)  holds  any  property  derived  or 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 fine of rupees two lacs."  

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 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 into 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  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  rupees  one  lac  and  such

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property shall  also be liable for attachment and forfeiture, as provided by Section 20."

20.After  examining  the  impugned  judgment  in  depth  on  the  issue  of

constitutional validity of Section 2 (d), (e) and (f) and also Section 3 and

4 of MCOCA we are in accord with the findings arrived at by the High

Court that the aforesaid provisions cannot be said to be ultra vires the

Constitution and 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  competence  and  also  being  violative  of  the

fundamental rights guaranteed in Part III 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  would  be  necessary to  survey and

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notice  some  of  the  provisions  of  Constitution  and  well  established

doctrine and 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 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 made by the Parliament and State Legislatures. It declares that the

Parliament has the exclusive power to make laws with respect to any of

the  matters  enumerated  in  List  I  in  the  Seventh  Schedule.  The

Legislature of any State would have powers to make laws with respect to

any  of  the  matters  mentioned  in  List  II,  subject  to  the  power  of  the

parliament in regard to List I matters and the power of the Parliament

and  the  State  Legislature  in  respect  of  List  III  matters.  List  III

enumerates the  matters  in  respect  of  which both Parliament  and State

Legislatures have power to enact laws.  

                                               20

24.It is a well established rule of interpretation that the entries in the list

being fields of legislation must receive liberal 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 comprehended within it. In Navinchandra

Mafatlal v.  CIT reported  in AIR 1955 SC 58  this Court observed as

under:

“6..………………As  pointed  out  by  Gwyer,  C.J.  in  United Provinces v. Atiqa Begum (1940) FC R 110 at p. 134 none of the items in the Lists  is  to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. It is, therefore, clear — and it is acknowledged by Chief Justice Chagla — that in construing an  entry  in  a  List  conferring  legislative  powers  the  widest possible construction according to their ordinary meaning must be put upon the words used therein…………The cardinal rule of interpretation, however, is that words should be read in their ordinary, natural and grammatical meaning subject to this rider that  in  construing  words  in  a  constitutional  enactment conferring  legislative  power  the  most  liberal  construction should be put upon the words so that the same may have effect in their widest amplitude.”

Similar were the observations of a five Judges’ Bench of this Court in

Godfrey   Phillips India Ltd.    v. State of U.P.,  reported in (2005) 2 SCC

515, which are as follows:

                                               21

“49…………Where  there  is  the  possibility  of  legislative overlap,  courts  have  resolved  the  issue  according  to  settled principles of construction of entries in the legislative lists.

50. The first of such settled principles is that legislative entries should be liberally interpreted, that none of the items in the list is  to  be  read  in  a  narrow or  restricted  sense  and  that  each general word should be held to extend to ancillary or subsidiary matters  which  can  fairly  and  reasonably  be  said  to  be comprehended in it (United Provinces v.  Atiqa Begam (1940) FCR 110,  Western India Theatres Ltd. v.  Cantonment Board 1959  Supp  (2)  SCR  63,  SCR  at  p. 69  and  Elel  Hotels  & Investments Ltd. v. Union of India (1989) 3 SCC 698).”

25.It is  also a cardinal  rule of interpretation that  there shall  always be a

presumption  of  constitutionality  in  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.  In  M/s

Burrakur Coal Co. Ltd. v. The Union of India and others reported in

1962 (1) SCR 44 this Court held the same in the following manner:

“24…….Where the validity of a law made by a competent authority is challenged in a Court of law that court is bound to  presume  in  favour  of  its  validty.   Further  while considering  the  validity  of  the  law  the  court  will  not consider  itself  restricted to the  pleadings  of the  State  and would be free to satisfy itself whether under any provision of the Constitution the law can be sustained…….”

                                               22

26.In  CST v.  Radhakrishnan   (1979)  2  SCC  249  this  Court  while

dealing with the question of constitutional validity of a statute held that

the presumption is always on the constitutionality and the burden is upon

the person who attacks it  to show that there has been transgression of

constitutional principles.  It was held in that decision that for sustaining

the  constitutionality  of  an  Act,  a  Court  may  take  into  consideration

matters of common knowledge, reports, preamble, history of the times,

object of the legislation and all other facts which are relevant and that it

must always be presumed that the legislature understands and correctly

appreciate the need of its own people and that discrimination, if any, is

based on adequate grounds and considerations.  

27.In this regard we may also refer to a three Judges’ Bench decision of this

Court titled Greater Bombay Cooperative Bank Ltd. v.  United Yarn

Tex (P)  Ltd.  & Others reported  in  (2007)  6  SCC 236.   In  the  said

decision  one  of  the  issues  that  was  raised  was  “whether  the  State

Legislature  is  competent  to  enact  legislation  in  respect  of  cooperative

societies  incidentally  transacting  business  of  banking,  in  the  light  of

Entry 32, List II of the Seventh Schedule of the Constitution.”   While

                                               23

deciding the said issue reference was made and reliance was placed on

the following passage contained in the earlier decision of this Court in

State of Bihar v. Bihar Distillaries Limited reported in (1997) 2 SCC

453,  about the nature of approach which the court should adopt while

examining the constitutional validity of a provision (vide para 85) :   

“The approach of the court, while examining the challenge to the  constitutionality  of  an  enactment,  is  to  start  with  the presumption  of  constitutionality.  The  court  should  try  to sustain its validity to the extent possible. It should strike down the enactment only when it  is  not  possible to sustain it.  The court should not approach the enactment with a view to pick holes  or  to  search  for  defects  of  drafting,  much  less inexactitude of language employed. Indeed, any such defects of drafting should be ignored out as part of the attempt to sustain the validity/ constitutionality of the enactment. After all, an Act made by the legislature represents the will  of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and clearly established before an enactment is declared  as  void.  The  same  approach  holds  good  while ascertaining the intent and purpose of an enactment or its scope and application…….”

“The  court  must  recognise  the  fundamental  nature  and importance  of  legislative  process  and accord due  regard  and deference  to  it,  just  as  the  legislature  and  the  executive  are expected to show due regard and deference to the judiciary. It cannot also be forgotten that our Constitution recognises and gives effect to the concept of equality between the three wings of the State and the concept of ‘checks and balances’ inherent in such scheme.”

                                               24

28.One of the proven methods of examining the legislative competence of

an enactment is by the application of 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  various  lists.  If  there  is  a  challenge  to  the  legislative

competence the courts will try to ascertain the pith and 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 the field of legislation

allotted  to  the  respective  Legislature  under  the  constitutional  scheme.

The said doctrine has come to be established in India and is recognized

in  various  pronouncements  of  this  Court  as  also  of  the  High  Courts.

Where a 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 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  an  incidental

encroachment  on  topics  in  the  Union  List,  the  State  Act  would  not

                                               25

become invalid merely because there is incidental encroachment on any

of the topics in the Union List.  

29.A five Judges’ Bench of this court in the case of A.S. Krishna v. State

of Madras, reported in 1957 SCR 399, held as under:

“8……….But  then,  it  must  be  remembered  that  we  are construing a federal Constitution. It is of the essence of such a Constitution  that  there  should  be  a  distribution  of  the legislative powers of the Federation between the Centre and the Provinces. The scheme of distribution has varied with different Constitutions,  but  even  when  the  Constitution  enumerates elaborately the topics on which the Centre and the States could legislate,  some  overlapping  of  the  fields  of  legislation  is inevitable.  The  British  North  America  Act,  1867,  which established  a federal  Constitution  for  Canada,  enumerated  in Sections 91 and 92 the topics on which the Dominion and the Provinces could respectively legislate. Notwithstanding that the lists were framed so as to be fairly full and comprehensive, it was not long before it was found that the topics enumerated in the two sections overlapped, and the Privy Council  had time and again to pass on the constitutionality of laws made by the Dominion and Provincial  legislatures.  It  was in this situation that the Privy Council evolved the doctrine, that for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance. That is to say, if a statute is found in substance to relate to a topic within the competence of the legislature, it should be held to be intra vires, even though it might incidentally trench on topics not within its legislative competence. The extent of the encroachment on matters beyond its competence may be an element in determining whether the legislation is colourable, that is, whether in the guise of making a law on a matter within it  competence, the legislature is,  in truth, making a law on a subject beyond its competence. But where that is  not the position, then the fact of encroachment does not affect the vires of the law even as regards the area of encroachment.”

                                               26

   Again a five Judges’ bench of this court while discussing the said

doctrine in Kartar Singh v. State of Punjab (1994) 3 SCC 569 observed as

under:  

“60. This doctrine of ‘pith and substance’ is applied when the legislative  competence  of  a  legislature  with  regard  to  a particular enactment is challenged with reference to the entries in the various lists i.e. a law dealing with the subject in one list is  also touching on a subject  in  another  list.  In such a case, what  has  to  be  ascertained  is  the  pith  and  substance  of  the enactment. On a scrutiny of the Act in question, if found, that the legislation is in substance one on a matter assigned to the legislature enacting that statute, then that Act as a whole must be  held  to  be  valid  notwithstanding  any incidental  trenching upon matters beyond its competence i.e. on a matter included in the list  belonging to the other legislature. To say differently, incidental encroachment is not altogether forbidden.”

30.Though it  is  true  that  the  State  Legislature  would  not  have  power  to

legislate upon any of the matters 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 List, in that event incidental encroachment to an

entry  in  the  Union  List  will  not  make  a  law  invalid  and  such  an

                                               27

incidental  encroachment  will  not  make  the  legislation  ultra  vires  the

Constitution.

31. In Bharat Hydro Power Corpn. Ltd. v. State of Assam (2004) 2 SCC

553 the Doctrine of pith and substance came to be considered, when after

referring to the catena of decisions of this Court on the doctrine it is laid

down as under:

“18. It  is  likely to happen from time to time that  enactment though purporting to deal with a subject in one list touches also on  a  subject  in  another  list  and  prima facie  looks  as  if  one legislature  is  impinging  on  the  legislative  field  of  another legislature. This may result in a large number of statutes being declared unconstitutional because the legislature enacting law may appear to have legislated in a field reserved for the other legislature. To examine whether a legislation has impinged on the  field  of  other  legislatures,  in  fact  or  in  substance,  or  is incidental, keeping in view the true nature of the enactment, the courts have evolved the doctrine of “pith and substance” for the purpose of determining whether it is legislation with respect to matters  in  one  list  or  the  other.  Where  the  question  for determination is whether a particular law relates to a particular subject mentioned in one list or the other, the courts look into the substance of the enactment.  Thus, if the substance of the enactment  falls  within  the  Union  List  then  the  incidental encroachment  by the  enactment  on  the  State  List  would  not make it  invalid. This principle came to be established by the Privy  Council  when  it  determined  appeals  from  Canada  or Australia involving the question of legislative competence of the federation  or  the  States  in  those countries.  This  doctrine came to be established in India and derives its genesis from the approach adopted by the courts including the Privy Council in

                                               28

dealing  with  controversies  arising  in  other  federations.  For applying the principle of “pith and substance” regard is to be had (i) to the enactment as a whole, (ii) to its main objects, and (iii)  to  the  scope  and  effect  of  its  provisions.  For  this  see Southern  Pharmaceuticals  &  Chemicals v.  State  of  Kerala (1981) 4 SCC 391, State of Rajasthan v. G. Chawla AIR 1959 SC 544, Thakur Amar Singhji v. State of Rajasthan AIR 1955 SC 504,  Delhi Cloth and General Mills Co. Ltd. v.  Union of India  (1983) 4 SCC 166 and Vijay Kumar Sharma v.  State of Karnataka (1990) 2 SCC 562. In the last-mentioned case it was held: (SCC p. 576, para 15)

“15.  (3)  Where  a  law passed  by  the  State  Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the entries in the Central  List  the  constitutionality  of  the  law  may  be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential.””

32.Article 254 of the Constitution succinctly deals with the law relating to

inconsistency between the laws made by the  Parliament and the State

Legislature.   The question of repugnancy under Article  254 will  arise

when a law made by Parliament and a law made by State Legislature

occupies the same field with respect to one of the matters enumerated in

Concurrent  List  and  there  is  a  direct  conflict  in  two  laws.   In  other

words,  the  question  of  repugnancy  arises  only  in  connection  with

subjects enumerated in Concurrent List.  In such situation the provisions

enacted by Parliament and State Legislature cannot unitedly stand and

                                               29

the State law will have to make the way for the Union Law. Once it is

proved and established that the State law is repugnant to the Union law,

the State law would become void but only to the extent of repugnancy.

At the same time it is to be noted that 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.

33.In the background of the aforesaid legal position we may now proceed to

examine the question of competence of the State Legislature to enact a

law of the nature of MCOCA.

34. A perusal of the relevant provisions of MCOCA would indicate that the

said  law  authorizes  the  interception  of  wire,  electronic  and  oral

communication only if it  is  intended to prevent  the commission of an

organised  crime  or  if  it  is  intended  to  collect  the  evidence  to  the

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

                                               30

officer  not  below  the  rank  of  Additional  Director  General  of  Police

within 48 hours of occurrence of interception.   

35.The provisions of the MCOCA when read with the Statement of Objects

and Reasons, which are already dealt with and referred to hereinbefore,

would make it apparent 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.  A comparative

reading of the provisions of the Telegraph Act as also of the MCOCA

would establish that both the Acts deal with the subjects and areas which

cannot be said to be identical and common.   

36.In  paragraph  48  of  the  impugned  judgment,  the  High  Court  has

reproduced a comparative chart, which was filed before the High court

by the respondents herein, to show that MCOCA had made inroads on

the legislative power of the Parliament.  Our attention was also drawn to

the said chart  and we find that  the conclusion of the High Court that

there is repugnancy in view of the statutory provisions contained therein

do not appear to be sound. The High Court has recorded that under the

                                               31

Central  Law the  communication  can  be  intercepted  only  if  there  was

public emergency and interest of public safety was involved.  The High

Court did not find any such provision in MCOCA because the grounds

for interception in the State law are totally different  from the grounds

covered under the Telegraph Act.  State law authorizes interception only

if it is intended to prevent the commission of an organized crime and/or

if it is intended to collect evidence of such organized crime.  The High

Court  thereafter  proceeded  to  compare  Rule  419A (1)  and  (5)  of  the

Telegraph Rules with Section 14(4), (8) and (10) of MCOCA.  On the

basis of the aforesaid  comparison it  cannot be held that MCOCA had

encroached upon the legislative power of the Parliament.   The proviso to

Rule 419A(1)  deals with cases of emergency and provides that in cases

of emergency the communication may be intercepted without the prior

approval of the competent authority and the approval may be obtained

within a period of 15 days.  It was held by the High Court that no time

limit is provided under Section 14(4) of the Act.  But, the said finding

appears to be erroneous as Section 14(10) and (11) deal with emergency

situations and provide appropriate safeguards.   

                                               32

37.It is now well settled that though the Statement of Objects and Reasons

accompanying  a  legislative  Bill  cannot  be  used  to  determine  the  true

meaning and effect of the substantive provisions of a statute, but it  is

permissible  to  refer  to  the  Statement  of  Objects  and  Reasons

accompanying a Bill for the purpose of understanding the background,

the antecedent state of affairs, the surrounding circumstances in relation

to the statute, and the evil  which the statute sought to remedy. In this

regard we may refer to the majority view (6:1) in the case of Gujarat v.

Mirzapur Moti Kureshi Kassab Jamat, reported in (2005) 8 SCC 534,

wherein it was observed as under:

“Question  4.  Statement  of  Objects  and  Reasons  — Significance and role thereof

69.  Reference  to  the  Statement  of  Objects  and  Reasons  is permissible for understanding the background, antecedent state of  affairs  in  relation  to  the  statute,  and  the  evil  which  the statute  has  sought  to  remedy.  (See  Principles  of  Statutory Interpretation by Justice G.P. Singh, 9th Edn., 2004, at p. 218). In State of W.B. v.  Subodh Gopal Bose   AIR 1954 SC 92 the Constitution  Bench  was testing  the  constitutional  validity  of the legislation impugned therein. The Statement of Objects and Reasons  was  used  by  S.R.  Das,  J.  for  ascertaining  the conditions prevalent at that time which led to the introduction of the Bill and the extent and urgency of the evil which was sought to be remedied, in addition to testing the reasonableness of the restrictions imposed by the impugned provision. In his opinion, it  was indeed very unfortunate that the Statement of Objects  and  Reasons  was  not  placed  before  the  High  Court

                                               33

which would have assisted the High Court  in  arriving at  the right  conclusion  as  to  the  reasonableness  of  the  restriction imposed.  State of W.B. v.  Union of India  (1964) 1 SCR 371, SCR at pp. 431-32 approved the use of Statement of Objects and Reasons for the purpose of understanding the background and the antecedent state of affairs leading up to the legislation.

70. In  Quareshi-I  1959 SCR 629 itself, which has been very strongly relied upon by the learned counsel for the respondents before us,  Chief  Justice  S.R. Das has held:  (SCR pp. 652 & 661)

“The pronouncements of this Court further establish, amongst other things, that there is always a presumption in favour of the constitutionality of an enactment and that the burden is upon him,  who  attacks  it,  to  show  that  there  has  been  a  clear violation  of  the  constitutional  principles.  The  courts,  it  is accepted,  must  presume that  the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the Court may take into consideration matters  of common knowledge,  matters  of common report, the history of the times and may assume every state of facts  which can be conceived existing at the time of legislation. (AIR para 15)                                                    *  *   * … ‘The legislature is the best judge of  what is  good for the community, by whose suffrage it comes into existence…’. This should be the proper approach for  the court  but  the ultimate responsibility for determining the validity of the law must rest with the court…. (AIR para 21, also see the several decisions referred  to  therein.)”

                          71. The  facts  stated  in  the  preamble  and  the  Statement  of Objects and Reasons appended to any legislation are evidence

                                               34

of the legislative judgment. They indicate the thought process of  the  elected  representatives  of  the  people  and  their cognizance of the prevalent state of affairs, impelling them to enact  the  law.  These,  therefore,  constitute  important  factors which amongst others will be taken into consideration by the court in judging the reasonableness of any restriction imposed on the fundamental rights of the individuals. The Court would begin  with  a  presumption  of  reasonability  of  the  restriction, more so when the facts stated in the Statement of Objects and Reasons  and  the  preamble  are  taken  to  be  correct  and  they justify  the  enactment  of  law  for  the  purpose  sought  to  be achieved.”  

38.The objects and reasons read with the contents of the Act would indicate

that  the  subject  matter  of  the  Act  is  maintaining  public  order  and

prevention by police of commission of serious offences affecting public

order and, therefore as submitted, it will be relatable to Entry 1 and 2 of

List  II.   After  enacting  MCOCA,  assent  of  the  President  was  also

obtained  and received  on  24.04.1999.   That  being  the  position  if  the

subject matter and the field of legislation are found to be covered under

any of the entries of the Concurrent List also, the constitutional validity

will have to be upheld.  Thus, Entry 1, 2 and 12 of the Concurrent List

would and could also be brought  into  operation and aid  can be taken

from said entries also, for the Act deals with subject matters which are

relatable as well to Entries 1, 2 and 12 of the Concurrent List.   

                                               35

39.We are of the considered opinion that source of power to legislate the

aforesaid Act can be derived by the State from the aforesaid entries of

the State List and the Concurrent List and while enacting the aforesaid

State Act 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 said Act might have 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

Entry 1 and 2 of the State Legislature we find no reason to hold that the

provisions of Sections 13 to 16 are constitutionally invalid because of

legislative competence.

40.Another ground on which challenge was made was that Section 13 to 16

violates the mandate of Article 21 of the constitution. It was submitted

that  provisions contained under Section 13 to 16 of the impugned act

authorizing interception of communication violates the Right to Privacy,

which  is  part  of  right  to  ‘life’  and  ‘personal  liberty’  enriched  under

Article 21. Article 21 of the Constitution reads as under:

“Protection to Life and Personal Liberty  

                                               36

21.  No person shall be deprived of his life or personal liberty except according to procedure established by law.”         

41.The Right to Privacy has been developed by the Supreme Court over a

period  of  time  and  with  the  expansive  interpretation  of  the  phrase

‘personal liberty’, this right has been read into Article 21.  It was stated

in the case of  Gobind  v. State of M.P. reported in (1975) 2 SCC 148

that Right to Privacy is a ‘right to be let alone’ and a citizen has a right

‘to safeguard the privacy of his own, his family, marriage, procreation,

motherhood,  child-bearing  and  education  among  other  matters’.  The

term privacy has not been defined and it was held in the case of People’s

Union for Civil Liberties (PUCL) v. Union of India, reported in (1997)

1 SCC 301 that as a concept it may be too broad and moralistic to define

it  judicially and whether  right  to  privacy can be claimed or  has  been

infringed in a given case would depend on the facts of the said case.

42.The  question  whether  interception  of  telephonic  message/tapping  of

telephonic conversation constitutes a serious invasion of an individual

right to privacy was considered by this court on two occasions. One in

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the year 1972 in the case of  R.M. Malkani  v. State of Maharashtra,

reported in (1973) 1 SCC 471, wherein it was held as under:

“31.……..Article  21  contemplates  procedure  established  by law with regard to deprivation of life or personal liberty. The telephonic conversation of an innocent citizen will be protected by  Courts  against  wrongful  or  highhanded  interference  by tapping the conversation. The protection is  not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to be imperilled by permitting the police to proceed by unlawful or irregular methods. In the present case there is no unlawful  or  even  irregular  method  in  obtaining  the  tape- recording of the conversation.”

43.The question posed above was considered again in detail by this Court in

the case of  People's Union (supra), wherein it was held as under:

“17.  We have, therefore, no hesitation in holding that right to privacy is  a part  of  the right  to  “life” and “personal  liberty” enshrined under Article 21 of the Constitution. Once the facts in  a  given  case  constitute  a  right  to  privacy,  Article  21  is attracted. The said right cannot be curtailed “except according to procedure established by law”.

18. The right to privacy — by itself — has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation  in  the privacy of  one’s  home or  office  without interference  can  certainly  be  claimed  as  “right  to  privacy”.

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Conversations  on  the telephone are  often  of  an intimate  and confidential  character.  Telephone  conversation  is  a  part  of modern man’s life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets.  Telephone  conversation  is  an  important  facet  of  a man’s  private  life.  Right  to  privacy  would  certainly  include telephone conversation in the privacy of one’s home or office. Telephone-tapping  would,  thus,  infract  Article  21  of  the Constitution of India unless it is permitted under the procedure established by law.”

44.The interception  of  conversation  though constitutes  an invasion  of  an

individual  right  to  privacy  but  the  said  right  can  be  curtailed  in

accordance to procedure validly established by law. Thus what the Court

is  required  to  see  is  that  the  procedure  itself  must  be  fair,  just  and

reasonable and non arbitrary, fanciful or oppressive.  

45.The  object  of  the  MCOCA  is  to  prevent  the  organised  crime  and  a

perusal of the provisions of Act under challenge would indicate that the

said  law  authorizes  the  interception  of  wire,  electronic  or  oral

communication only if it  is  intended to prevent  the commission of an

organised  crime  or  if  it  is  intended  to  collect  the  evidence  to  the

commission  of  such  an  organized  crime.   The procedures  authorizing

such interception are also provided therein with enough procedural safe

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guards,  some  of  which  are  indicated  and  discussed  hereinbefore.  In

addition under Section 16 of the MCOCA, provision for prohibiting and

punishing the unauthorized user of information acquired by interception

of wire, electronic or oral communication has been made. Thus as the

Act under challenge contains sufficient safeguards and also satisfies the

aforementioned  mandate  the  contention  of  the  respondents  that

provisions  of  Section  13  to  16  are  violative  of  the  Article  21  of  the

Constitution cannot also be accepted.

46.Having recorded our finding in the aforesaid manner, we now proceed to

decide  the  issue  as  to  whether  a  person  accused  of  an  offence  under

MCOCA should be denied bail if on the date of the offence he is on bail

for  an  offence  under  MCOCA  or  any  other  Act.  Section  21  (5)  of

MCOCA reads as under:

“Notwithstanding anything contained in the Code, the accused shall not be granted bail if it is noticed by the Court that he was on bail in an offence under this Act, or under any other Act, on the date of the offence in question”

47.As discussed above the object of the MCOCA is to prevent the organised

crime and, therefore, there could be reason to deny consideration of grant

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of bail  if  one has  committed a similar  offence once again after  being

released  on  bail  but  the  same consideration  cannot  be  extended  to  a

person who commits an offence under some other Act, for commission

of  an  offence  under  some  other  act  would  not  be  in  any  case  in

consonance  with  the  object  of  the  act  which  is  enacted  in  order  to

prevent only organised crime.   

48.We  consider  that  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 his right to

seek bail, 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

denying consideration of bail. The aforesaid expression and restriction

on the right of seeking bail  is not even in consonance with the object

sought  to  be  achieved  by  the  Act  and,  therefore,  on  the  face  of  the

provisions this is an excessive restriction.  

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49.The  High  Court  found  that  the  expression  “or  under  any  other  Act”

appearing in the section is arbitrary and discriminatory and accordingly

struck down the said words from sub-Section (5) of Section 21 as being

violative of Article 14 and 21 of the Constitution.  We uphold the order

of the High Court to the extent that the words “or under any other Act”

should be struck down from Sub section (5) of Section 21.

50.In view of the aforesaid discussions, we allow the appeals of the State

Government, insofar as the constitutional validity of Sections 13 to 16 of

MCOCA is concerned.  We uphold the validity of the said provisions.

The decision of the High Court striking down the words “or under any

other  Act”  from sub-Section  (5)  of  Section  21  of  the  Act is  however

upheld.  The parties to bear their own cost.

51.Consequential orders, if any, in terms of the observations and directions

passed in these appeals, may be passed by the concerned Court(s) where

any proceeding under MCOCA is pending.      

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………………………CJI (K.G. Balakrishnan)

…………………………..J. (R.V. Raveendran)

…………………………..J. (Dr. Mukundakam Sharma)

New Delhi, September 1, 2008

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