The challenge to MCOCA’s mandatory minimum fine was dismissed. The court upheld Section 3(1)(ii) against allegations of arbitrariness, discrimination and disproportionality, and held that challenges to the conviction or default sentence belonged in a statutory appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Date of Decision: 23.07.2018
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| + | W.P.(CRL) 209 No. 12670/2018 |
3/2018 & Crl.M.B. No. | 1123/2018, Crl.M.A. |
| MOHD. IRFAN | ..... Petitioner | ||
| Through: Mr. Ajay Sharma, A versus |
Garg and Ms. Shilpa dvocates. |
||
| STATE OF NCT | OF DELHI & ANR Through: Mr. Rahul Counsel, G Chaitanya Mr. Anil Abhinav R-2/UOI |
..... Respondents Mehra, Standing NCTD with Mr. Gosain, Adv for R-1 Soni, CGSC with Mr. Tyagi, Advocate for |
|
| CORAM: HON'BLE MR. HON'BLE MR. |
JUSTICE VIPIN SANG JUSTICE I. S. MEHTA |
HI |
VIPIN SANGHI, J. (ORAL)
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in SC No. 6989/2016, in so far as it has imposed a fine of rupees five lakhs with default imprisonment of 2 years under section 3 (1)(ii) of the MCOCA.
3. Punishment for organised crime-
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(1) Whoever commits an offence of organised crime shall,
(i) if such offence has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees one lac;
(ii) in any other case, 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.
(2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organised crime or any act preparatory to organised crime, shall be punishable with imprisonment for a term which shall be not less than five years but which may extend to imprisonment for life, and shall also be liable to a .fine, subject to a minimum of rupees five lacs.
(3) Whoever harbours or conceals or attempts to harbour or conceal, any member of an organised 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.
(4) Any person who is a member of an organised 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.
(5) Whoever holds any property derived of obtained from commission of an organised crime or which has been acquired through the organised crime syndicate funds
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shall be punishable with a term which, shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum fine of rupees two lacs‖. (emphasis supplied)
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Patna High Court in the case of Shailesh Kumar Sinha Vs The State of Bihar & Ors., Civil Writ Jurisdiction Case No. 6675 of 2016 ; the decision of the Supreme Court of Pennsylvania, USA in Commonwealth of Pennsylvania V. Matthew Steven Eisenberg in Appeal No. 34 WAP 2012 decided on 19.08.2014; the Forty Seventh Report of the Law Commission on Trial And Punishment Of Social And Economic Offences , the decision of the High Court of Bombay in the case of Amit R. Saurabh Vs. The State of Maharashtra, Criminal Appeal No. 1167 of 201 decided on 29.03.2012, the decision of the Supreme Court in Palaniappa Gounder V. State of Tamil Nadu And Others (1977) 2 SCC 634; the decision of the Supreme Court in Excel Crop Care Ltd. v. Competition Commission of India & Ors. , (2017) 8 SCC 47; the decision of the Bombay High Court in Santosh Rajesh Sinha @ Rakesh Mandal v. The State of Maharashtra in Criminal Appeal No. 1167 of 2011, the decision of the Supreme Court in Shahejad Khan Mahebubkhan Pathan v. State of Gujarat (2013) 1 SCC 570 , and, the judgment of this Court in Issa @ Raj (Mohd.) V. State 2013 IV AD (Delhi) 608 in support of his submissions that:
(i) Punishment has to be fair and not draconian, for, that would be violative of Article 21 of the Constitution. The punishment cannot be disproportionate to the offence.
(ii) The general principle of law reflected in Sections 63 to 70 IPC is that the amount of fine should not be harsh or excessive.
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(iii) The fine, when measured against the conduct triggering the punishment, and the lack of discretion afforded to the trial court, is constitutionally excessive.
(iv) The majority opinion – as reported by the Law Commission, is in favour of not laying down a minimum punishment. Members of the judiciary at all levels regarded any such amendment (to prescribe a minimum punishment) totally unnecessary;
(v) The Law Commission is of the view that the discretion of the court to award a sentence below the minimum should not be totally abolished.
(vi) The State of Maharashtra has gone on record to concede that the prescription of minimum fine of Rs.Five Lakhs under clause (ii) of Section 3(1) of MCOCA is an inconsistency which has crept in at the time of drafting of the Act. It was stated on behalf of the State of Mahrashtra before the High Court that the Government intends to make suitable amends in the MCOCA, inter alia, in respect of this discrepancy.
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246, though the aspect of legislative competence of the State Legislature to enact the MCOCA was upheld, but there was no specific challenge to the constitutional validity of Section 3(1)(ii). Thus, this issue is still open.
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as facilitators, as propagators (Advocates); as harbourers or concealers/ protectors of members of an organized crime syndicate.
1. Leges posteriores priores contrarias abrogant (later laws abrogate earlier contrary laws). 2. Generalia specialibus non derogant (a general provision does not derogate from a special one.)
xxx xxx xxx xxx
1519. The basic rule that a general provisions should yield to the specific provisions is based on the principle that if two directions are issued by the competent authority, one covering a large number of matters in general and another to only some of them, his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier directions must be given effect to.
xxx xxx xxx xxx
1521. In order to determine whether a statute is special or general one, the court has to take into consideration the
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principal subject-matter of the statute and the particular perspective for the reason that for certain purposes an Act may be general and for certain other purposes it may be special and such a distinction cannot be blurred.
(emphasis supplied)
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“ 89.07. The provisions would show that, except for commercial quantity , there is ample discretion on the Court. It is not that any quantity is found, the punishment of imprisonment would be mandatory and, that too, like in the Bihar Excise Act, minimum of 10 years.
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89.10. On behalf of the petitioners, apart from the judgment, which I would refer to, the 47th report of the Law Commission of India, on the Trial and Punishment of Social and Economic Offences, has been referred. The relevant parts are summarized as hereunder.
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"In its detailed report vide Clauses 4.12, 4.14 & 4.25 has clearly recommended against providing for absolute liability in form of a minimum sentence.
The law Commission in Clauses 7.42, 7.43, 7.44, 7.45, 7.46 & 7.47 of its Report has laid down the prime considerations which are relevant in proper sentencing and has held that sentences which are merely mathematically identical for violation of the same statute are improper, unfair and undesirable. Mathematically identical sentences indeed may in substance themselves be disparate.
In Clause 7.52, the Law Commission has opined that if the punishable act has caused no harmful effects, the punishment may be mild; if the act has caused some harm but the offender can repair the damage done to society, probation would be appropriate; if the harm is serious, imprisonment would of course be required. "
89.11. Now, I may come to Section 47 of the Bihar Excise Act, 1915. A reference to the provision would show that for the acts mentioned therein, the punishment is straightway 10 years of imprisonment extending to life. It takes away the power of the Court or the discretion of the Court in the matter and further it has to be accompanied with a fine of Rs. one lakh minimum. Thus, a humble rickshaw-puller found with only a bottle or a pouch of country liquor would, now, be exposed to minimum of 10 years of imprisonment with a fine of Rs. one lakh, an amount, which he had ever never possessed or seen. This has to be seen in juxtaposition of presumption clause as contained in Section 48 of the Act ”. (emphasis supplied)
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and control of, and for coping with criminal activity by organized crime syndicates or gangs. The statement of objects and reasons for enactment of the MCOCA read as follows:
― 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 fuelled by illegal wealth generated by contract killings, extortion, smuggling in contrabands, illegal trade in narcotics, kidnappings 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 narcoterrorism which extends 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 . The 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.‖ (emphasis supplied)
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of criminal activities indulged in by organized syndicate or gang. ”. The Supreme Court further observed “ Under MCOCA the emphasis is on crime and pecuniary benefits arising therefrom . In the wisdom of the legislature these are activities which are committed with the objective of gaining pecuniary benefits or economic advantages and which over a period of time have extended to promoting insurgency. ” (emphasis supplied)
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is part of a crime syndicate or a gang, and who is driven – not by passion; not by vengeance and; not by his/her circumstances alone, but by his objective of gaining pecuniary benefit, or gaining undue economic or other advantage for himself/ herself, or for other persons, or for promoting insurgency. This offender would be involved in multiple cases (at least two). As pointed out by Mr. Mehra, in the present case, the petitioner is found to be involved in 17 criminal cases of kidnapping with murder, robbery, dacoity, Arms Act, night burglary and theft etc.
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situations, the Courts could take into consideration the aspects noticed by the Supreme Court in Shantilal (supra). The legislature, while prescribing the minimum fine in Section 3 of the MCOCA, was conscious of the nature of criminal activity of the offenders dealt with, and in that light the minimum fines have been prescribed. Pertinently, in Shantilal (supra), the Supreme Court extracted, inter alia, the following passage penned down by the authors of the Code ;
―It appears to us that the punishment of fine is a peculiarly appropriate punishment for all offences to which men are prompted by cupidity; for it is a punishment which operates directly on the very feeling which impels men to such offences. A man who has been guilty of great offences arising from cupidity, of forging a bill of exchange, for example, of keeping a receptacle for stolen goods, or of extensive embezzlement, ought, we conceive, to be so fined as to reduce him to poverty. That such a man should, when his imprisonment is over, return to the enjoyment of three-fourths of his property, a property which may be very large and which may have been accumulated by his offences, appears to us highly objectionable. Those persons who are most likely to commit such offences would often be less deterred by knowing that the offender had passed several years in imprisonment, than encouraged by seeing him, after his liberation, enjoying the far larger part of his wealth .‖ [See Ratanlal & Dhirajlal's Law of Crimes, 26th Edn., (2007), pp. 221-22.]‖ (emphasis supplied)
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reduced in view of the legislative mandate. The Supreme Court, however, reduced the default period of imprisonment– in the event of non-payment of fine, from 3 years rigorous imprisonment to 6 months rigorous imprisonment.
―Mandatory fines are not unheard of in Pennsylvania's statutory scheme, but they are unusual. Appellant logically adverts to the fines construct in the Crimes Code, which governs the vast majority of Pennsylvania criminal cases, including non-Gaming Act theft offenses. The Crimes Code generally reposes a considerable amount of discretion in the sentencing judge. Typically, the court is authorized to impose a fine up to a maximum set by statute. Thus, for example, if appellant had been charged with theft under Chapter 39 of the Crimes Code, he would have faced the prospect of a fine up to $10,000, in the discretion of the trial judge. See 18 Pa.C.S. §§ 3903 & 1101(4). Indeed, as appellant notes, even the most serious of offenses in Pennsylvania, murder in the first degree, affords the sentencing court discretion in determining the appropriate fine, and the maximum fine imposable is $50,000. 18 Pa.C.S. § 1101(1). The same general construct is found with respect to drug offenses, which are set forth in Title 35. See 35 P.S. § 780–113 (subsection (a) enumerates thirty-nine prohibited acts related to various narcotics; subsections (b) through (o) grade each of thirty-nine offenses and directs court to impose fines ―not exceeding‖ certain amounts).
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On the other hand, there are indeed some offenses where the General Assembly has determined that mandatory fines are appropriate. For example, in the realm of drug trafficking, Section 7508(a)(3)(iii) of Title 18 requires that when a person is convicted of possessing at least 100 grams of cocaine, the court must impose, at a minimum, “four years in prison and a fine of $25,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity[.]” 18 Pa.C.S. § 7508(a)(3)(iii). Notably, the qualifier “as is sufficient to exhaust the assets” employed in Section 7508 reflects a proportionality approach (at least insofar as the fine will exceed $25,000), that is not present in the provision subject to challenge in the case sub judice.
In our view, the fine here, when measured against the conduct triggering the punishment, and the lack of discretion afforded the trial court, is constitutionally excessive. Simply put, appellant, who had no prior record, stole $200 from his employer, which happened to be a casino. There was no violence involved; there was apparently no grand scheme involved to defraud either the casino or its patrons. Employee thefts are unfortunately common; as noted, appellant's conduct, if charged under the Crimes Code, exposed him to a maximum possible fine of $10,000. Instead, because appellant's theft occurred at a casino, the trial court had no discretion, under the Gaming Act, but to impose a minimum fine of $75,000—an amount that was 375 times the amount of the theft.
In addition to the sheer disproportion of the fine to the amount stolen is the fact that $75,000, by any common measure, is a considerable amount of money. As illustration, the minimum wage in Pennsylvania is currently $7.25 per hour, and the average Pennsylvania household earns approximately $51,000 per year. The fine imposed here would exhaust approximately five years of pre-tax income of a minimum wage worker, and the
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average family would not fare much better. In other words, the mandatory nature of the provision could act to effectively pauperize a defendant for a single act. It is not a measure targeted solely at high rollers, at the casino itself, or even at thefts from patrons, which might implicate the integrity of the gaming business. Rather, the statute affords the trial court no discretion to inquire into the specific facts or the individual circumstances of a case, which, in this instance, happens to include a twenty-six year old defendant with no prior record who was, at the time of sentencing, enrolled full-time as a student, living with his fiancée, expecting his first child, and did not own a house.‖ (emphasis supplied)
“ Amendment Act 9 of 2001—The Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishment for various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. Most of the offences invite uniform punishment of
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minimum ten years rigorous imprisonment which may extend up to twenty years. While the Act envisages severe punishments for drug traffickers, it envisages reformative approach towards addicts. In view of the general delay in trial it has been found that the addicts prefer not to invoke the provisions of the Act. The strict bail provisions under the Act add to their misery. Therefore, it is proposed to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment. This requires rationalisation of the sentence structure provided under the Act. It is also proposed to restrict the application of strict bail provisions to those offenders who indulge in serious offences.‖ (emphasis supplied)
Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,—
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to [one year], or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
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(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees . ” (emphasis supplied)
― 5. As a consequence of the amending Act coming into force on 2-10-2001, the sentencing structure underwent a drastic change. The Act introduced the concept of ―commercial quantity‖ in relation to narcotic drugs or psychotropic substances by adding clause (vii-a) in Section 2, which defines this term as any quantity greater than a quantity specified by the Central Government by notification in the Official Gazette. Further, the expression ―small quantity‖ is defined in Section 2, clause (xxiii-a), as any quantity lesser than the quantity specified in the notification. Under the rationalised sentencing structure, the punishment would vary depending on whether the quantity of offending material was “small quantity”, “commercial quantity” or something in between . This is the effect of the rationalisation of sentencing structure carried out by the amending Act 9 of 2001, in Section 27. A notification was issued on 9-10-2001, specifying in respect of 239 narcotic drugs and psychotropic substances, as to what would be ―small quantity‖ and ―commercial quantity‖.
(emphasis supplied)
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severe nature of offences, minimum sentence and minimum fine was also prescribed.
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calculated to serve any social purpose. In fact, the common trend of sentencing is that even a sentence of life imprisonment is seldom combined with a heavy sentence of fine. ” In our view, it cannot be argued that, in respect of an offence covered by Clause (ii) of Section 3(1), the minimum fine should necessarily be less than the minimum fine prescribed in respect of the serious offence covered by Clause (i) of Section 3(1). For the aforesaid reasons, reliance placed by the petitioner on the Division Bench judgment of the Bombay High Court in Amit R. Saurabh (supra), also appears to be misplaced.
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Court, including the default sentence. The said aspects can only be assailed in a statutory appeal provided under the law. For the same reason reliance placed on Issa @ (Raj Mohd.) (supra), is misplaced.
―111. It should be noted that any penal law imposing punishment is made for general good of the society. As a part of equitable consideration, we should strive to only punish those who deserve it and to the extent of their guilt . Further, it is well-established by this Court that the principle of proportionality requires the fine imposed must not exceed what is appropriate and necessary for attaining the object pursued . In Coimbatore District Central Coop. Bank v. Employees Assn.[Coimbatore District Central Coop. Bank v. Employees Assn., (2007) 4 SCC 669 : (2007) 2 SCC (L&S) 68] , this Court has explained the concept of ―proportionality‖ in the following manner: (SCC p. 678, paras 18-19)
―18. “Proportionality” is a principle where the court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision . The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise—the elaboration of a rule of permissible priorities.
19. De Smith states that ―proportionality‖ involves ―balancing test‖ and ―necessity test‖. Whereas the former (―balancing test‖) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest
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imbalance of relevant considerations, the latter (―necessity test‖) requires infringement of human rights to the least restrictive alternative.‖ (emphasis supplied)
(VIPIN SANGHI) JUDGE
(I.S. MEHTA) JUDGE
JULY 23, 2018
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2 issues framed by the court
Is the mandatory minimum fine under Section 3(1)(ii) of MCOCA arbitrary, discriminatory or disproportionate?
Can the conviction or default sentence be challenged in extraordinary writ jurisdiction rather than by statutory appeal?
Colour shows how this judgement treated each authority
Shantilal Vs. State of M.P,.Distinguished¶109
(2007) 11 SCC 243 · Who else cites this
Shailesh Kumar Sinha Vs The State of Bihar & Ors.Distinguished¶85
Civil Writ Jurisdiction Case No. 6675 of 2016
Commonwealth of Pennsylvania V. Matthew Steven EisenbergRelied on¶128
Appeal No. 34 WAP 2012
Amit R. Saurabh Vs. The State of MaharashtraDistinguished¶155
Criminal Appeal No. 1167 of 201
Palaniappa Gounder V. State of Tamil Nadu And OthersDistinguished¶69
(1977) 2 SCC 634 · Who else cites this
Excel Crop Care Ltd. v. Competition Commission of India & Ors.Applied¶167
(2017) 8 SCC 47 · Who else cites this
Santosh Rajesh Sinha @ Rakesh Mandal v. The State of MaharashtraDistinguished¶149
Criminal Appeal No. 1167 of 2011
Shahejad Khan Mahebubkhan Pathan v. State of GujaratDistinguished¶156
(2013) 1 SCC 570 · Who else cites this
Issa @ Raj (Mohd.) V. StateDistinguished¶159
2013 IV AD (Delhi) 608
Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra & Ors.Relied on¶97
(2010) 5 SCC · Who else cites this
Basheer V. State of KeralaRelied on¶141
Basheer V. State of Kerala, (2004) 3 SCC 609 · Who else cites this
Yakub Abdul Memon Vs State Of MaharashtraRelied on¶57
(2013) 13 SCC 1 · Who else cites this
4 provisions across 2 enactments
MOHD. IRFAN
STATE OF NCT OF DELHI
UOI
Vipin Sanghi
I. S. Mehta
As recorded by the court registry
A constitutional writ petition in a criminal context, most commonly habeas corpus or a challenge to an FIR or detention order.
Judgements on the same questions, provisions and authorities, from every court
