STATE OF MAHARASHTRA v. BHARAT SHANTI LAL SHAH & ORS

Citation: [2008] 12 S.C.R. 1083

Court: Supreme Court of India

Bench: K.G. BALAKRISHNAN, R.V. RAVEENDRAN, MUKUNDAKAM SHARMA

Case summary

STATE OF MAHARASHTRA v. BHARAT SHANTI LAL SHAH & ORS.pdf

Judgment text

[2008] 12 S. C. R. 1083 ·---f STATE OF MAHARASHTRA II. BHARAT SHANTI LAL SHAH & ORS. (Criminal Appeal Nos. 1376-1379 of 2008) SEPTEMBER 1, 2008 ' [K. G. BALAKRISHNAN, CJI, R. V. RAVEENDRAN AND -* DR. MUKUNDAKAM SHARMA, JJ] Constitution of India, 1950: Article 254 - Seventh Schedule - List I - Entry 31 - List .. II Entries 1 and 2, List Ill - Entries 1,2 and 12 - Provisions of Maharashtra Control of Organised Crime Act, 1999 authorising interception ofwire, electronic and oral communication in order to prevent commission of organized crime or to collect evidence to commission of such an organized crime - HELD: ,.. _ Are constitutionally valid - Grounds for interception of wire, ... electronic and ·oral communication under the provisions of MCOCA are distinct and different from those covered bys.

5(2) of Telegraph Act - The subjects and areas covered by two Acts cannot be said to be identical and common - Even ~ otherwise, when the area and subject of legislation is also covered within purview ofthe Entry ofState List, and Concurrent List, incidental encroachment to an entry in the Union List will not, in view of doctrine of pith and substance, make law ~ invalid and such an incidental encroachment will not make the legislation ultra vires the Constitution - Doctrine of Pith and Substance - Telegraph Act, 1885- s. 5(2) - Maharashtra " Control of Organised Crime Act, 1999 - Interpretation of Constitution. Maharashtra Control of Organised Crime Act, 1999: Gl -~-{ ss.

13 to 16- Constitutional validity of- HELD: Provisions are constitutionally valid - The Act is covered under Entries 1 and 2 of List II and is also relatable to Entries 1,2 and 12 of )--- List Ill ofthe Seventh Schedule to the Constitution-Provisions are not violative ofArticle 21 of the Constitution - Constitution of India, 1950-Articles 21 and 254 - Seventh Schedule, List II Entries 1 and 2 - List Ill - Entries 1,2 and 12 - Telegraph Act, 1885 - s. 5(2). s. 21(5) - Restriction on granting bail - HELD: Decision of the High Court striking down the words "or under any other * Act" occurring in sub-s. (5) of s. 21 is upheld - Provision of denying a person right to seek bail under MCOCA if he was on bail earlier for commission of an offence under any other Act suffers from vice of unreasonable classification - Constitution of India, 1950 - Article 14. ss.

2(d), (e) and (f) - "Continuing unlawful activity", "organized crime", and "organized crime syndicate"- Definition of - HELD: There is no vagMeness in the definitions - Provisions do not suffer from class legislation and are not -i viola~ive of Article 14 of the Constitution - Constitution of ... India, 1950 - Article 14. ss. 3(3) and (5) - HELD: High Court has rightly observed E· that in such penal provisions mens rea is always presumed as . I,.. integral part unless excluded expressly or by necessary intendment- Sub-sectionsf3)and (5) are to be read in the manner as mentioned in the judgment - Criminal Law - Mens rea. s. 4 - Words "at any time" - Connotation of - HELD: High Court has rightly held that 1hese words should be read ~ to mean at any time after coming into force of the Act and the enactment is prospective in operation and not retrospective - Interpretation of Statute - Prospective operation of enactment. ).

-~· Interpretation of Constitution: Entries in the Lists of Seventh Schedule to the Constitution of India - HELD: Must receive liberal construction inspired by a broad and general spirit and not in a narrow pedantic sense. LAL SHAH & ORS. ~ Interpretation of statutes: Presumption as to constitutionality of a statute - HELD: There is always a presumption of constitutionality in favour of a statute and while construing the same, every legally permissible effort should be made to keep the statute within the competence of State legislature. Respondent nos. 2 and 3 were arrested under the provisions of the Maharashtra Control of Organised Crime Act, 1999 (MCOCA). They filed writ petitions before the High Court challenging the provisions of the Act. The High Court struck down ss. 13 to 16 of the Act as being beyond the legislative competence of the State Legislature; it also struck down sub-section (5) of s.

21 of the Act, holding the same as violative of provisions of Article 14 of the Constitution of India. Aggrieved, the State Government filed the instant appeals. >-- . ;. Allowing the appeals in part, the Court HELD: 1. 1 Though it is true that the State Legislature would not have power tolegislate 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 incidental encroachment will not make the legislation ultra vires the Constitution. [para 30] [1108,B-C] A. S. Krishna v. State of Madras 1957 SCR 399; Kartar ~ Singh v. State of Punjab (1994) 3 SCC 569; and Bharat Hydro Power Corpn. Ltd. v.

State of Assam (2004) 2 SCC 553 relied on. 1. 2The question of repugnancy under Article 254 of the Constitution arises only in connection with subjects enumerated in Concurrent List. However, 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. [para 32] [1109,F-G] 1. 3 A perusal of the relevant provisions of the j- Maharashtra Control of Organised Crime Act, 1999 would indicate that the said law authorizes interception of wire, electronic and oral communication only if it is intended to prevent commission of an organized crime or if it is intended to collect evidence to 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 officer not below the rank of Additional Director General of Police within 48 hours of occurrence -i of the interception. [para 34) [1110-C-D] .... 1. 4 The objects and reasons read with the contents of the MCOCA would indicate that the subject matter thereof is maintaining public order and prevention by E· police of commission of serious offences affecting public order and, therefore, it will be relatable to Entry 1 and 2 of List II. The provisions of the MCOCA when read with the Statement of Objects and Reasons, would make it apP,arent 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, 1885.

A comparative reading of the provisions of the Telegraph Act and the MCOCA would establish that both the Acts deal with the subjects and areas which cannot be said to be identical and common. ). 4 1962 1) SCR 44; CST v. Radhakrishnan (1979) 2 SCC 249; Greater Bombay Cooperative Bank Ltd. v. United Yam Tex (P) Ltd. & Others 2007 (4) SCR 823=(2007) 6 SCC 236; State of Bihar v. Bihar Distillaries Limited 1996 (9) Suppl. SCR 479 =(1997) 2 sec 453 - relied on. 3. 1 The interception of conversation though constitutes an invasion of an individual right to privacy but the said right can be curtailed in-accordance with the procedure validly established by law. Thus, what the Court is required to see is that the procedure itself must s be fair, just and reasonable and non-orbitrary, fanciful or oppressive. [para 44] [1116,F] 3.

2 The object of the MCOCA is to prevent the organised crime and its provisions authorize interception of wire, electronic or oral communication only if it is intended to prevent commission of an organised crime or if it is intended to colle. ct evidence to commission of such an organized crime. The procedure authorizing such interception is also provided therein with enough procedural safeguards. In addition, u/s 16 of the MCOCA, provision for prohibiting and v punishing the unauthorized user of information acquired by interception of wire, electronic or oral com111t1nication has been made. Thus, as the Act contains sufficient safeguards and also satisfies the constitutional mandate, it cannot be said that provisions of Section 13 to 16 are violative of Article 21 of the Constitution. Constitutional . , validity of Sections 13 to 16 of the MCOCA is upheld. [para 45 and 50][1116,G-H; 1117,A-B; 1118,E] r Gobind v. State of M.

P (1975) 2 SCC 148; People's Union for Civil Liberties (PUCL) v. Union of India 1996 (10) Suppl. SCR 321 =(1997) 1 SCC 301; and R. M. Malkani v. State of Maharashtra 1973 (2) SCR 417=(1973) 1 SCC 471 - relied on. 4. The object of MCOCA is to prevent organised crime and, therefore, there could be reason to deny ) consideration of grant of bail if one has committed a similar offence once again after being released on bail; buLthe same consideration cannot be extended to a person who J; provisions treat all those covered by it in a like manner and do not suffer from the vice of class legislation, they cannot be said to be violative ofArticle 14 of the Constitution. [para 18 and 19] [1100,A; 1100,D-F] 5. 2 With respect to s. 3 of MCOCA, even before the High Court the attack was in particular in respect of the provisions of sub-sections 3 (3) and (5) of s.

3 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 well settled, insofar as criminal law is concerned, that in such provisions mens rea is always presumed ~s integral part of penal offence or the 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 s. 3. As held by the High Court, if the provisions are read as shown in the judgment, no injury would be caused. [para 19] [1100,F-H; 1101,A] 5. 3 As far as section 4 of MCOCA is concerned, a perusal of the enactment along with the object and purpose reveals that it is only prospective in operation and not retrospective and, as rightly held by the High Court, the words "at any time" occurring in the section should be read to mean at any time after coming into force of MCOCA. [para 19] [1101,E-F] 5.

4 It is, therefore, clear that the High Court rightly arrived at the findings that provisions of ss. 2(d), (e) and (f) and ss. 3 and 4 of MCOCA cannot be said to be ultra vires the Constitution. Validity of the said provisions is upheld. [para 20] [1102,B] t Case Law Reference 1955 (1) SCR 829 relied on para 24 (2005) 2 sec relied on para 24 1962 (1) SCR 44 relied on para 25 1979 (2) sec 249 relied on para 26 2007 (4) SCR 823 relied on para 27 1996 (9) Suppl. SCR 479 relied on para 27 1957 SCR 399 followed para 29 LAL SHAH & ORS. [DR. MUK,UNDAKAM SHARMA, J. ] 1994 (2) SCR 375 followed para 29 2004 (2) sec 553 relied on para 31 2005 (4) Suppl. SCR 582 relied on para 37 1975 (3) SCR 946 relied on para 41 1996 (10) Suppl. SCR 321 relied on para 41 . J· 1973 (2) SCR 417 relied on para 42 CRIMINALAPPELLATE JURISDICTION : Criminal Appeal Nos. 1376-1379 of 2008 From the final Judgment and Order dated 5. 3. 2003 of the High Court of Judicature at Bombay in Criminal Writ Petition , Nos.

27 of 2003, 1738 of 2002 & 110 of 2003 with Crl. - Application No. 1504 of 2002 Shekhar Nafade, Ravindra Keshavrao Adsure and Gautam Godara for the Appellant. t- J. D. A. Dave, U. A. Rana, Nitesh Jain (for Mis. Gagrat & Co. ), Manoj Goel, Shuvodeep Roy, Wajih Shafiq, Gopal Verma (for Brij Bhusan) and Dr. NafisA. Siddiqui forthe Respondents. The Judgment of the Court was delivered by DR. MUKUNDAKAM SHARMA, J. 1. Leave gra·nted. 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 t 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 commonjudgment 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 Seventh Schedule to the Constitution and that already the Indian Telegraph Act, 1885, a Central Act was holding the field. The High Court also ~truck 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 reor reception of signs, signals, writing, images, and sounds or intelligence of any nature by wire, visual or other electormagnetic emissions. By enacting Section 4 iri the said Act the Central 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 --;it, or the State Government to take temporary possession of any telegrap_h 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 j expedient to do so in the interest of !

he sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for 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. ""'· ,s. 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. _L_ 7. The Maharashtra State Legislature enacted a State legislation under the name of Maharashtra Control of Organised Crime Act, 1999 which 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. " 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 ~ / ,/ / ,, ' / '! -m~mber of an organised crime syndicate, (iv) any person who fs a member of an organised crime syndicate and (v) whoever -1 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 8 },, syndicate. 1O. Sectio.

n 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 1an order authorizing . 9r 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 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 L. t 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. Subsection (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 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 0 ........

I 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 Schedule and also under Entry 1, 2 and 3 of List Ill of the Seventh Schedule, which read as under: ·~ Entry 1 List II: Public order (but not including tile 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 Ill: 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. r Entry 2 List Ill: Criminal procedure, including all matters included· in the Code of Criminal Procedure at the commencement of this Constitution. / ,~ Entry 12 List Ill: 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 I 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 communication is necessary. He submitted that' the provisions o of Sections 13 to 16, fac;ilitate the detection and investigation ---1· of the offence of organised crime, and the State's legislative competence ·to enact such pJovisions ·was traceable to Entry 1 and 2 in List II and Entry ~, 2 and 12 in List Ill 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 su. ch offences, to prevent the commission of offences, and to detect a·nd apprehend offenders (See Section .

23 of Police Act, 1861 and $ection 64 ofBombayJ~oliceAct, 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 th_e State law authorizes the interception·as it is inten. ded... to prevent the . commission of an Organised crlme Of ~'? _collect the evidence Of ·SUCh an organised crime'. He; thef,kfore, . contented that the cons. tituti_onal ,. :. _: validity cannot be questioned on the ground of want of legislative competence oft~e. State Legislature to enact such a provision. 14. It was further submitted that Entries in List 1; II and Ill must recei~e ab~oad arid~liberal construction. Reference to the doctrine: or pith and substance was. also ·made. ST. ATE OF MAHARASHTRA v. BHARAT SHANTI 1099 15. It was also contended that the findings recorded by ·J.

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 8 judgment of the High Court which contains a comparative chart ,A 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·. ·· ~ 6. Mr. Dushyant A. Dave, fparned ~enior 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 Constitution of t- India.

It was submitted by them that the subject and ttie 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 butthey also infringe upon the fundamental rights guaranteed under Part Ill 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 Const_itution 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 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 fi! ed by the respondent No. 3, it is not necessary for us io examine the. said issue as it was sought to be raised more specifically in the argument stage only. 19. Even otherwis~ when the said definitions as existing in Section 2 (d), (e) and (f) of the MCOCA are read and -f understood with the object and purpose of the Act which is to make special provisions for preven-tibn and control of organised crime it is clear that they are worded to subserve and achieve the said object and purpose of the Act. There is no vagueness as the definitions defined with clarity what it meant by continuing unlawful activity, organised crime and also organised' crfme ·syndicate. As the provisions treat all t~ose covered by it in a like manner and does not suffer tron:i the vice of class legisl~tion they cannot be said to be violati'. ie 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 tti~ · 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 u. nless it is specifically and expressly or by necessary intendment excluded by the legislature. No such exclusion is _, . . _, \ LAL SHAH & ORS. [DR. MUKUNDAKAM SHARMA, J. J found in sub-sections (3) and (5) of Section 3. As held by the ~ High Court, if the provisions are read in the following man1_1er" / no injury, as alleged, would be caused: "3(3). Whoever (intentionally) harbours or conceals or attempts to harbor or conceal any member of ari organized .

/ crime syndicate shall be punishable ~ith~ 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. " "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. " t 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 in~o force of MCOCA, the section should be read as under: >i "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 :..... - -~ 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 incidental encroachment will not make the legislation ultra vi res the Constitution. 31.

In Bharat Hydro Power Corpn. Ltd. v. State ofAssam (2004) 2 SCC 553 the Doctrine of pith and substance came to be considered, when after referring to the catena of decisions ""r 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 }... I" law relates to a particular subject mentioned in one list or the ;= other, the courts look into the substance of the enactment. r 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 dealing with controversies arising in other federations. For applying the principle of "pith and ' -, R. P. Appeal partly allowed.