TaxTMI 
TaxTMI 
2023 (10) TMI 1504
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....legal matters related to her husband and her companies. The person demanded a sum of Rs. 20 Crores for getting the work done and conveyed the modalities regarding the delivery of money. Thereafter, allegedly, the caller through his associates extorted money from her on multiple occasions. It has been alleged that the accused persons hatched a conspiracy by impersonating as Government Officers of the highest ranks and extorted money from the complainant to the tune of Rs. 217 Crores on multiple occasions. 3. Further, the complainant alleged that she received a call to deliver Rs. 1 Crore on 07.08.2021. On the information provided by the complainant, a trap was laid and accused Pradeep Ramdani, who came in a Hyundai I-20 car No. HR-26 BC 4740 was caught red-handed while receiving the amount of Rs. 1 Crore from the complainant. Pradeep Ramnani said that he collected the money on the instructions of his brother Deepak Ramnani. At the instance of Pradeep Ramnani, his brother Deepak Ramnani was also arrested in this case. Their interrogation further led to the alleged mastermind Sukesh Chander Sekhar, who had allegedly roped them in to collect the payment from the complainant. Sukesh ....
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....ad put forth different evidence not only for the offence under MCOC Act but also for other offenses under IPC. Hence the present bail application has been filed for release on bail. 6. Sh. R.K. Handoo Learned counsel for the applicant submitted that the allegation of the applicant facilitating Sukesh Chandrasekhar (A-I) to get in touch with Bollywood celebrities is disjoint in time and period as the period of the offence started from15.06.2020. Thus, the alleged facilitating of meetings of Bollywood celebrities in Tihar jail in the year 2018 cannot be pressed into service against applicant Pinky Irani, for an offence committed after June 2020. 7. Further, it was submitted by the learned counsel that the alleged "Absolute knowledge/awareness about the existence of organized crime syndicate" does not invite MCOCA. Learned counsel submitted that Awareness is neither abetment nor participation. The alleged absolute knowledge about the existence of organized crime does not make a person a member of the organized crime syndicate or gang, as envisaged U/S 2(t) of MCOCA. It is indulgence in activities of organized crime by a gang of two or more persons, acting singly or jointly/colle....
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.... Pinky Irani do not form part of organized crime. 11. Furthermore, it is submitted by the learned counsel that evidence to show the nexus of acts of the applicant with the prohibited activity of the syndicate, towards achieving the objective of the syndicate/gang as envisaged under section 2(e) of MCOCA, viz; to make pecuniary benefits or advantage for self or any other person. Therefore, only such acts which are committed towards the commission of the offence of the syndicate or gang, even if singly by its member, would make another person the gang liable. It is also submitted that it is an admitted case that the applicant was nowhere in the generation of proceeds of crime or commission of any acts or activity of alleged extortion during the period of offence till 7-8-2021 but is alleged to be a beneficiary in disbursal. It is submitted that there has to be a nexus and a connecting cord between the accused and the activities of the syndicate. Thus, the alleged acts of others cannot be attributed to Applicant. 12. It was submitted by the learned counsel for the applicant that the Ld. Trial Judge himself has observed in the impugned order that the disclosure statement under se....
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.... of crime, stems from the continuity factor attached to unlawful activity, as would be evident from the definitions quoted hereafter. 17. Further, the learned senior counsel submitted that the role of an individual as a member of an organized crime syndicate is to be evaluated from the point of view of her association/nexus with the organized crime syndicate (such syndicate being engaged in a continuing unlawful activity) against whom, at the given point in time, more than one charge-sheets stand filed, in relation to a cognizable offence punishable with imprisonment of three years or more, within last preceding ten years. It was also submitted that the requirement of more than one charge sheet is not against the individual members but against the organized crime syndicate, which as a syndicate is engaged in continuing unlawful activity. 18. It was submitted by the learned counsel that the Applicant's contention that requirement as specified w/s. 2(1)(d) MCOCA has not been met as against the applicant, for the reason that the prerequisite of more than one charge-sheet is missing, is wrong. The above requirement is not individual-centric but is syndicate-centric and this a....
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.... members of the Syndicate, since, the Applicant herself had stated that she has known the mastermind of the Syndicate for the past 12 years, which is evident from the conversation between the applicant and Jacqueline Fernandes. Further, in the statement of the applicant recorded u/s. 18 of the MCOCA, it has been admitted by the applicant that she was associated with the mastermind of the syndicate since 2017, after which she visited Tihar Jail, several times along with various female models/actresses, concealing the true identity of Sukesh Chandra Shekhar. 23. Learned Sr. SPP for the state further submitted that the it was the applicant who projected Sukesh Chander Shekhar to be a high-ranking and immensely influential Officer, who could be a catalyst in enhancing their career prospects in the fashion world/TV serials/cinema and on each such visit inside the jail, the visiting female models and actresses, in the presence of Pinky Irani (except in one meeting when she was not present), would receive expensive gifts from Sukesh Chandra Shekar, which clearly establishes that in the mind of Pinky Irani, there was no ambiguity as regards the true identity and syndicate activities of ....
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....eing in force is misplaced. The occasion to apply Section 71 of the PMLA, particularly the expression 'notwithstanding anything inconsistent therewith would arise only if there is an overlap between the two enactments. 29. Learned Sr. SPP further submitted that it is crystal clear that PMLA has its own field of operation and is concerned with the involvement in any process or activity with the proceeds of crime. Hence, the investigation in PMLA is primarily tailored to trace the proceeds of crime, which essentially means property, as defined in Section 2(b) of the said Act. On the other hand, MCOCA is a special Act for the prevention and control of continuing criminal/unlawful activities of an organized crime syndicate, which may be engaged in committing offence not only under IPC but those qualified as offences under other enactments as well. 30. Learned Sr. SPP also submitted that MCOCA is aimed at providing a special legal framework to deal with organized crime. Hence, the two enactments have no overlap between them and thereby, there is no requirement for testing the consistency or lack of it between the two enactments, rendering Section 71 of PMLA, wholly inapplicabl....
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....gal wealth generated by contract, killing, 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 being very huge, it has had serious adverse effect on our economy. It was seen that the organised criminal syndicates made a common cause with terrorist gangs and foster narco terrorism which extend beyond the national boundaries. There was reason to believe that organised criminal gangs have been operating in the State and thus, there was immediate need to curb their activities. It was also noticed that the organized criminals have been making 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 would be 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 were found to be rather inadequate to curb or control the menace of organised crime. Government, there....
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....a "continuing unlawful activity". The definition is exhaustive since it is prefaced by the word 'means'. The ingredients of an organised crime are: a. The existence of a continuing unlawful activity; b. Engagement in the above activity by an individual; c. The individual may be acting singly or jointly either as a member of an organised crime syndicate or on behalf of such a syndicate; d. The use of violence or its threat or intimidation or coercion or other unlawful means; and e. The object being to gain pecuniary benefits or undue economic or other advantage either for the person undertaking the activity or any other person or for promoting insurgency. The above definition of organised crime, as its elements indicate, incorporates two other concepts namely, a continuing unlawful activity and an organised crime syndicate. Hence, it becomes necessary to understand the ambit of both those expressions. The ingredients of a continuing unlawful activity are: a. The activity must be prohibited by law for the time being in force; b. The activity must be a cognizable act punishable w....
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....espect of similar activities (in the past) more than one charge-sheets have been filed in competent court within the preceding period of ten years, (b) and the court has taken cognizance of such offence. (vii) the activity is undertaken by: (a) violence, or (b) threat of violence, or intimidation or (c) coercion or (d) other unlawful means (viii) (a) with the object of gaining pecuniary benefits or gaining undue or other advantage or himself or any other person, or (b) with the object of promoting insurgency. 24. A close analysis of the term, 'organised crime' would indicate that there has to be an activity prohibited by law for the time being in force which is a cognizable offence punishable with imprisonment of three years or more, undertaken as singly or jointly as a member of organised crime syndicate or on behalf of such syndicate, in respect of which activity more than one chargesheets have been filed before a competent court within the preceding period of ten years and the Court has taken cognizance of such offence." 36. Before proceeding further, it is also necessary to be reminded t....
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.... attract the provisions of MCOCA. Furthermore, mens rea is a necessary ingredient for commission of a crime under MCOCA." 38. The bare reading of this makes it clear that each and every offence cannot be brought within the purview of the MCOC and in order to penalise a person under the MCOC, the ingredients of Section 2(d), 2(e) and 2(f) must be fulfilled. It is also pertinent to mention, that mens rea is a necessary ingredient for the commission of crime under MCOCA. 39. It is also necessary to understand that the factum of recording of offence of organised crime and not the recording of a crime against an offender as such is required to attribute to the provisions of MCOCA. 40. In State of Gujrat vs. Sandip Omprakash Gupta (Supra) the apex court also enumerated the conditions which normally weigh with the court states in granting bail in non-bailable offences. "26. The considerations which normally weigh with the Court in granting bail in non-bailable offences are: (1) the nature and seriousness of the offences; (2) the character of the evidence; (3) circumstances which are peculiar to the accused; (4) a reasonable possibility of the p....
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....reof must be judged objectively. 30 44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the m intention of the legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in future must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of th....
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....a flamboyant lifestyle to convey a sense of being above the law of the land and this played a measure role in enabling Sukesh Chandra Sekhar to acquire the influence that facilitated his running of syndicate despite being lodged inside prison. 47. The prosecution has also alleged that the petitioner told Shan Muthathil that he would receive a call from the Home Ministry which will prove that Sukesh Chandra Sekhar is an important person and in pursuance of that Shan Muthathil did receive a call. It has been submitted that this is proof that the petitioner was a close associate of Sukesh Chandra Sekhar. The state alleged that the petitioner remained a member of the crime syndicate as she concealed the real identity of the member of the present case and she always knew that Sukesh Chandra Sekhar was running a syndicate from inside the jail. The petitioner allegedly helped Sukesh Chandra Sekhar to create the aura and purchased costly items for the purpose of gifting them to the females whom the applicant had helped in meeting Sukesh Chandra Sekhar. 48. The question to be considered is whether such acts would fall within the definition of "continuing unlawful activity", "Organized....
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....three years or more and must have been done singly or jointly as a member of an organized crime syndicate or on behalf of such organized crime syndicate. It is also pertinent to mention that the alleged offence should be relatable to the statement of objects and reasons and the ingredients of "continuing unlawful activity" and "organized crime". This Court considers that the allegations are required to be tested during the trial to meet the requisite of MCOCA. It is also a matter of trial that whether money received by the petitioner was for gaining undue economic advantage, as the case of defence is that this money was transferred for distributing gift to the celebrities. 54. It is a settled proposition that the court at the stage of bail has only to see the prima facie case. Even in the case of MCOCA, the court is not required to arrive at a positive finding that the applicant has not committed such an offence because in such a case it will be impossible for the prosecution to obtain a judgment of conviction of the applicant in case the bail is granted. 55. The court is only required to evaluate and examine the case on the basis of broad probabilities. In regard to the offe....