Holding

The Court held that offences under the Essential Commodities Act remain punishable up to seven years and therefore fall within MCOCA’s scope, and that any Section 23(1)(a) sanction must be granted after proper consideration; mechanically given or mindless approvals are void.

Summary

The Supreme Court examined whether offences under the Essential Commodities Act, 1955 (including those committed during the period of the Essential Commodities (Special Provisions) Act, 1981) fall within the ambit of the Maharashtra Control of Organized Crime Act, 1999 (MCOCA). It held that the 1955 Act’s Section 7 still authorises imprisonment of up to seven years, so the offences attract MCOCA despite the 1981 Act’s two‑year sentencing ceiling. The Court further ruled that a Section 23(1)(a) sanction must be granted with due mind; approvals given mechanically or based on a non‑existent enactment are vitiated. Accordingly, MCOCA was misapplied to Kapil Nagpal but correctly applied to Lalit and Anil Nagpal, and the respondent Lalit Nagpal was granted bail. The State’s Special Leave Petitions seeking to enforce MCOCA were dismissed.

Issues considered

Whether offences under the Essential Commodities Act, 1955 attract the provisions of MCOCA despite the Essential Commodities (Special Provisions) Act, 1981 limiting special‑court sentences to two years.
Whether the definition of "continuing unlawful activity" under Section 2(d) of MCOCA is satisfied by the facts.
Whether the approval under Section 23(1)(a) of MCOCA was valid when granted mechanically or on the basis of a non‑existent statute.
Whether offences under Sales Tax/Excise laws can be the basis for invoking MCOCA.
Whether the stringent provisions of MCOCA must be strictly interpreted, especially with regard to bail.

Legislation cited

Code of Criminal Procedures. 167(5), s. 438
Essential Commodities Act, 1955s. 3, s. 7
General Clauses Act, 1897s. 6
Indian Penal Code, 1860s. 120B, s. 302, s. 34, s. 364, s. 420, s. 468, s. 506(2)
Maharashtra Control of Organized Crime Act, 1999s. 21, s. 23(1)(a), s. 23(2), s. 2(a), s. 2(d), s. 2(e), s. 3
Sales Tax Acts. 63

Subjects

MCOCAEssential Commodities Actcontinuing unlawful activitySection 23 approvalorganized crimestrict interpretationbailmechanical sanction

Judgment

STATE OF MAHARASHTRA AND ORS. A

LALIT SOMDA TIA NAGPAL AND ANR.

FEBRUARY 13, 2007

[DR. AR. LAKSHMANAN AND ALTAMAS KABIR, JJ] B

Maharashtra Control of Organized Crime Act, 1999:

Interpretation of-Held-Having regard to stringent provisions of Act
of 1999, they have to be very strictly interpreted and authorities bound down C
to strict observance thereof-It was especially so as they sought to deprive
a citizen of his right to freedom at very initial stage of investigation, making
it extremely difficult for him to obtain bail-In such a situation it is to be
seen whether investigation from its very inception was conducted strictly in
accordance with its provisions. D
Application of-Case under Sections 3 and 7 of Essential Commodities
Act, 1955-Committed during period when Essential Commodities (Special
Provisions) Act, 1981 was in force-Held-Offences under 1955 Act continued
to attract provisions of Section 7 thereof-Only change brought about by
1981 Act was to limit power of Special Court to impose punishment for a E
maximum period of two years-Offence continued to remain punishable up
to a maximum period ofseven years so as to attract provisions ofAct of 1999.

Application of-Organized crime-Sa/es Tax and Excise Laws
violations-Held-Act of 1999 wds not intended to be applied to such
violations-Something more in nature ofcoercive acts and violence is required F
to be spelt out so as to bring unlawful activity complained of within definition
of 'organized crime' in Section 2(a) of Act of 1999.

Section 2(/)(d)-Continuing unlawful activity-Accused shown to be
involved in several cases of a similar nature which were pending trial or are
under investigation-Held-These facts justified application of provisions of G
Act of 1999 to accused.

Section 23(1)-Approval to commence investigation-Grant of-Held-
lt could not apply to a person whose name was not mentioned therein
473 H
474 SUPREME COURT REPORTS [2007] 2 S.C.R.

A initially and roped in only at a later stage while granting permission.for
other persons-It was more so as that person was not shown to be involved
in any continuing unlawful activity.

Section 23(/)-Approval to commence investigation-'-Held-If it is
granted mechanically, it is vitiated and unsustainable-On facts, held that
B as approval was given on consideration of enactment which was non est, it
reveal~d complete non-application of mind and was unsustainable.

Police along with District officers raided a Petrol Pump, seized various
goods and arrested persons in connection therewith. A police case was
C registered under Sections 3 and 7 of the Essential Commodities Act, 1955.
Special Inspector General of Police granted approval under Section 23(1)(a)
of the Maharashtra Control of Organized Crime Act, 1999, [MCOCA]
whereby said law became applicable to the case. The accused sought bail,
anticipatory bail and challenged their arrests. The High Court held that the
offences punishable under the provisions of the 1955 Act, committed during
D the period when the Essential Commodities (Special Provisions) Act, 1981
was in force, were not offences considered as continuing unlawful activity as
defined in Section 2( d) of the MCOCA. Hence, the present Special Leave
Petitions have been filed by State wherein the common question of law relates
to the applicability of MCOCA.

E Respondents contended that (i) offence under MCOCA must comprise
continiiing unlawful activity relating to organized crime (ii) having regard to
the stringent provisions of MCOCA, itS provisions will have to be very strictly
interpreted (iii) the approval order reveals complete non-application of mind
inasmuch as no case pending against them was referred to therein so as to
F make out a case of continuing unlawful activity, and also reference was made
thereiri to Section 3 of the Petroleum Storage and Distribution Act, 2000
which enactment does not exist

Disposing of the Special Leave Petitions, the Court
'
HELD: 1.1. Before the commencement of the Essential Commodities
G (Special Provisions) Act, 1981, all offences relating to the contravention of
Orders made under Section 3 of the Essential Commodities Act, 1955 were
triable by Judicial Magistrates of the First Class or by Metropolitan
Magistrates who had powers to impose punishment of imprisonment for a term
which could even extend to 7 years by virtue of Section 7(1)(a) (ii) of the
H aforesaid Act. It is only after the commencement of the 1981 Act that all
STATEOFMAHARASHTRAr. LAL!TSOMDATTANAGPAL 475

• ·~ offences under the said Act were triable by a Special Court with powers to A
impose punishment for a term not exceeding two years. !Para 57) 1490-C-D)

1.2. The limitation of the power to impose punishment only for a
maximum period of two years for an offence under the 1981 Act did not
preclude the authorities from applying the provisions of the MCOCA for
offences under Sections 3 & 7 of the 1955 Act as well as the 1981 Act. B
(Para 6611492-E)

1.3. The view taken by the High Court is incorrect inasmuch as the
offences under the 1955 Act continued to attract the provisions of Section 7
thereof. The only change brought about by the 1981 Act was to limit the power C
of the Special Court to impose punishment for a maximum period of two years.
The offence continues to remain punishable up to a maximum period of seven
years so as to attract the provisions ofMCOCA. IPara 59) (490-G)

Nirma/ Kanti Roy v. State of West Bengal. [1998) 4 SCC 590, relied on

2.1. Having regard to the stringent provisions of MCOCA, its provisions D
i will have to be very strictly interpreted and the concerned authorities would
have to be bound down to the strict observance of the said provisions. There
can be no doubt that the provisions of the MCOCA have been enacted t_!) deal
with organized criminal activity in relation to offences which are likely to
create terror and to endanger and unsettle the economy of the country for E
which stringent measures have been adopted. The provisions of the MCOCA
seek to deprive a citizen of his right to freedom at the very initial stage of the
investigation, making it extremely difficult for him to obtain bail. Other
provisions relating to the admission of evidence relating to the electronic media
have also been provided for. In such a situation it is to be seen whether the
- ·~ investigation from its very inception has been conducted strictly in accordance F
with the provisions of the Act. (Para 62) (491-C-D)

3.1. Both Lalit Somdutt Nagpal and Anil Somdutt Nagpal have been
shown to have been involved in several cases ofa similar nature which are
pending trial or are under investigation. As far as Kapil Nagpal is concerned, G
his involvement has been shown only in respect of CR No.25/03 ofRasayani
Police Station, Raigad, under Sections 468,420,34, Indian Penal Code and
Sections 3, 7, 9 & 10 of the Essential Commodities Act. [Para 63) (491-F-G)

3.2. The facts as disclosed justified the application of the provisions of
the MCOCA to Lalit Nagpal and Anil Nagpal. !Para 63) 1491-H) H
476 SUPREME COURT REPORTS r2007] 2 S.C.R.

A 3.3. However, the said ingredients are not available as far as Kapil Nagpal
is concerned, since he has not been shown to be involved in any continuing
unlawful activity. Furthermore, in the approval that was given by the Special
Inspector General of Police, Kolhapur Range, granting approval to the Deputy
Commissioner of Police (Enforcement), Crime Branch, C.I.D., Mumbai to
B commence investigation under Section 23(1) of MCOCA, Kapil Nagpal has
not been mentioned. It is only at a later stage with the registering of CR No.25/
2003 ofRasayani Police Station, Raigad, that Kapil Nagpal was roped in with
Lalit Nagpal and Somdutt Nagpal and permission was granted to apply the
provisions of the MCOCA to him as well by Order dated 22nd August, 2005. :>' ~
In addition to the above, a glance at the permission sought by P.I.L.C.B., Raigad,
C on 1Sth August, 2005 seeking permission for registering an offence under
Section I(ii) MCOCA 1999 against Lalit Nagpal, Anil Nagpal, Kapil Nagpal
and one Parasnath Ramdular Singh will reveal that such permission was being
sought for, as far as Kapil Nagpal is concerned, in respect of an offence
allegedly under Section 63 of the Sales Tax Act, which would not attract the
provisions of the MCOCA. Therefore, as far as Kapil Lalit Nagpal is concerned,
D the provisions of the MCOCA have been misapplied to him. !Para 63]

4.1. The question is as to whether provisions of the MCOCA 1999 had
been applied to the case of Lalit Nagpal and Anil Nagpal strictly in accordance
thereof. Though sanction had been given by the Special Inspector General of
E Police, Kolhapur Range, on 31st August, 2004, granting permission under
Section 23(I)(a) of the MCOCA 1999 to apply its provisions to the alleged
offences said to have been committed by Anil Nagpal, Lalit Nagpal and Vijay
Nagpal, such sanction reveals complete non-application of mind as the same
appears to have been given upon consideration of an enactment which is non
est. Even if the subsequent approval order of 22nd August, 2005 is to be taken
F into consideration, the organized crime referred to in the said order is with
regard to the alleged violation of Sales Tax and Excise Laws, which, was not
intended to be the basis for application of the provisions of the MCOCA 1999.
To apply the provisions of MCOCA something more in the nature of coercive
acts and violence is required to be spelt out so as to bring the unlawful activity
G complained of within the definition of "organized crime" in Section 2(a) of
MCOCA. (Paras 66, 67] 1492-E, F, G; 493-A-CJ

4.2. Both the sanctions which formed the very basis of the investigation
have been given mechanically and are vitiated and cannot be sustained. In
taking recourse to the provisions of the MCOCA 1999, which has the effect
H
STATE OF MAHARASHTRA v. LALITSOMDATTANAGPAL[ALTAMAS KABIR,J.] 477

•• -.I
of.curtailing the liberty of an individual and keeping him virtually A
I
incarcerated, a great responsibility has been cast on the authorities in
ensuring that the provisions of the Act are strictly adhered to and followed,
which unfortunately does not appear to have been done in the instant case.
Therefore, the decision of the High Court is reversed though for reasons which
are entirely differe?t from those given by it. jPara 681 1493-DI
B
CRIMINAL APPELLATE JURISDICTION : Special Leave Petition (Cr!.)
Nos. 3320-3321 of2005.

From the Judgment and final Order dated 11.3.2005 of the High Court
of Judicature at Bombay in criminal W.P. Nos. 44/2005 and 146/2005.
c
WITH

SLP (Crl) Nos. 1101, 4581and4611/2006.

Mukesh K. Giri for the Appellants.
D
U.U. Lalit, Ravindra Keshavrao Adsure, Nitin Sangra, Sanjeev Kr .
.,_ Choudhary for the State of Maharashtra.

Harish N.Salve, R.F. Nariman, Mukul Rothagi, Ankur Chawla, Ishwari
Prasad Bagaria, Santosh Paul, Ashish Jha, Garuv Vatts, Ruby Singh Ahuja,
M.J. Paul, Shakil Ahmed Syed, Sushil Karanjkar and K.N. Rai, for the E
Respondents.

The Judgment of the Court was delivered by

ALT AMAS KABIR, J. 1. Five Special Leave Petitions, of which three
have been filed by the State of Maharashtra, one by Lalit Somdatta Nagpal F
and one by Kapil Nagpal, have been taken up for hearing together as they
involve common questions of law relating to the application of the provisions
of the Maharashtra Control of Organized Crime Act, 1999 in respect of offences
alleged to have been committed under Sections 3 and 7 of the Essential
Commodities Act, 1955. In order to answer the above question, it is necessary G
to briefly set out the facts involved in these Special Leave Petitions.

2. On 6th June, 2004 the Deputy Commissioner of Police (Enforcement),
Crime Branch, Mumbai alongwith other officers, including the District Supply
Officer, Kolhapur, Nayab Tehsildar, Taluka Karveer, Distt. Kolhapur, raided
H
478 SUPREME COURT REPORTS [2007] 2 S.C.R.

A Vijayanand Petrol Pump, Kolhapur and seized two iron tanks of 12,000 and
6,000 litres capacity, greenish lubricating oil in 200 litres barrel, 45 kilos of
white chemical powder in 5 gunny bags and ten motor tankers containing
petroleum products and two empty tankers, worth Rs.77,14,195/-, and arrested
9 persons in connection therewith.

B 3. On the statement made by Ranjit Pandurang Desai, Nayab Tehsildar,
Karveer Ta.Iuka, a case was registered at Karveer Police Station, 'Kolhapur,
being C.R. No. 39/2004, under Sections 3 and 7 of the Essential Commodities
Act, 1955 and under Section 3 of the Petroleum Storage and Distribution Act,
2000 _against 11 accused persons. Out of the 11 accused persons 10 were
C arrested and produced before the Chief Judicial Magistrate, Kolhapur, and
remanded to judicial custody on 7th May, 2004. On 20th May, 2004, on the
orders of the Director General of Police, the investigation into the alleged
offence was transferred to CB (Control), Crime Branch, Worli, Mumbai.

4. On an application made by the prosecution for police custody of the
D accused persons, the Fast Track Court, Kolhapur, by its order dated 25th
May, 2004 remanded the accused persons to police custody from judicial
custody. On 27th May, 2004, Lalit Nagpal, Ranjana Nagpal, Anil Nagpal, ,>.
Vijay Nagpal and Chetan Mehta moved the Sessions Judge, Kolhapur, for
grant of anticipatory bail and although initially protection was given from
arrest, on 14th June, 2004 the Sessions Judge rejected the anticipatory bail
E applications of all the applicants except that of Ranjana Nagpal, the wife of
the accused Lalit Nagpal. The second anticipatory bail application filed by
Anil Nagpal, Chetan Mehta and Lalit Nagpal by way of three separate Writ
Petitions were rejected by the High Court. The Writ Petition filed by Vijay
Nagpal was allowed while the others were directed to surrender before the
p Police on or before 20th August 2004.

5. The said Anil Nagpal, Lalit Nagpal and Chetan Mehta thus filed
Special Leave Petitions against the order of the Bombay High Court and
renewed their prayer for anticipatory bail before this Court. This Court also
initially directed that the applicants be not arrested and directed them to
G attend the Police Station every day. Subsequently, however, on 14th December,
2004 the Special Leave Petitions were dismissed and the petitioners therein
were directed to surrender and apply for regular bail before the Trial Court.
.'

H
6. Thereafter, on 19th January, 2005, Lalit Somdatta Nagpal filed Criminal
Writ Petition No. 44 of 2005 in the High Court challenging the approval order
'
STATE OF MAHARASHTRA v. LALITSOMDATTANAGPAL[ALTAMASKAl1iR,J] 479
.. ·--i
I dated 31st October 2004 passed under Section 23( I)( a) of the Maharashtra A
Control of Organized Crime Act, 1999 (hereinafter referred to as "MCOCA")

7. Accused Chetan Mehta also filed a writ petition, being No. 276 of
2004, in the Bombay High Court also challenging the approval order dated
31st October, 2004 under Section 23(1 )(a) of the above Act.
B
8. The said two writ petitions were heard by the High Court along with
Writ Petition No. 2562 of 2004 filed by the accused, Deepak Dwarkadas
• --( Mundado, on 2nd February, 2005. On the said date the writ petition of
Deepak Mundada was permitted to be withdrawn and the remaining two writ
petitions were adjourned till I 0th February, 2005 and again till 17th February,
2005, when one of the other accused, Anil Nagpal, filed Writ Petition No. 146 c
of2005.

9. By judgment dated 11th March, 2005, Bombay High Court allowed the
writ petitions filed by Lalit Nagpal and Anil Nagpal upon holding that having
regard to the provisions of the Essential Commodities Act, 1955 and the
D
Essential Commodities (Special Provisions) Act, 1981, the provisions of
MCOCA would have no application to the cases against the petitioners. The
State of Maharashtra has filed S.L.P.(Crl.) Nos.3320-21 of2005 against the said
judgment of the Bombay High Court.

I 0. Though, for reasons which are different from those given while E
allowing the writ petitions filed by Lalit Nagpal and Anil Nagpal, the Bombay
Court in a separate judgment issued rule and granted interim relief in Criminal
Writ Petition No. 2183 of2005 filed by Lalit Nagpal & Ors. seeking to quash
CR 11-B of2005 registered with Rasayani P.S:, Raigad, and also for quashing
the investigation proceedings under MCOCA. The State has filed SLP(Crl)
t No. 110 I of 2006 against the interim order passed by the Bombay High Court F
in Criminal Writ Petition No. 2183 of2005.

1I. Special Leave Petition (Criminal) 4581 of2006 has been filed by Lalit
Nagpal against the order of the Bombay High Court dated 14th July, 2006
whereby Lalit Nagpal's prayer for bail in Crl. Application No.1057 of2006 was
G
rejected, but the second application, being Crl. Application No. 348 of 2006,
~ for shifting the applicant to a particular hospital, was directed to be placed
,. before the appropriate Court taking up such applications.

12. The fifth and last Special Leave Petition (Cr!.) No. 4611 of21J06 has
been filed by Kap ii Lal it Nagpal against the order dated I st September, 2006 H
480 SUPREME COURT REPORTS [2007) 2 S.C.R.

A passed by the Bombay High Court in his Criminal Writ Petition No. 2183 of
2005 directing him to surrender before the Reviewing Authority at Kolhapur
within two weeks, failing which his petition, interalia, for restraining the
respondents from arresting him and stay of further investigation in Rasayani
P.S., Raigad, C.R. No. Il-B/2005, would stand dismissed ..

B 13. As the common question of law in all these Special Leave Petitions
relate to the applicability of MCOCA to the offences alleged to have been
committed by Lalit Nagpal and Kapil Nagpal, we have heard the matters
together and are disposing of all the five petitions by this common judgment.

14. Appearing for the State of Maharashtra in these Special Leave
C Petitions, Mr. Uday Lalit took us through the relevant provisions of the
Maharashtra Control of Organized Crime Act, 1999, in support of his stand
that the High Court had erroneously held that the provisions of the said Act
would have no application in respect of the offences alleged to. have been
committed by Lalit Nagpal and others in connection with CR 39 of2004 under
D Se,ctions 3 and 7 of the Essential Commodities Act, 1955 and Section 3 of the
Petroleum Storage and Distribution Act, 2000 and in respect of CR No. Il-8
of2005 ofRasayani P.S., Raigad. )

15. Mr. Lalit drew our attention to the expression "continuing unlawful
activity" defined in Section 2(i)(d) of the MCOCA, which reads as follows:-
E
2(l)(d)" continuing unlawful activity" means 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
either singly or jointly, as a member of an organized crime syndicate
or on behalf of such syndicate in respect of which more than one
F 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;

16. He also drew our attention to the definition of "organized crime" and
G "organized crime syndicate" which is defined in Section 2(1 )(e) and (f) of the
above Act as under :-

I '
2(l)(e) "organized crime" means any continuing unlawful activity by
an individual, singly or jointly, either as a member of an organized
crime syndicate or on behalf of such syndicate, by use of violence or
threat of violence or intimidation or coercion, or other unlawful means,
H
STATEOFMAHARASHTRA r. LALITSOMDATTANAGPAL[ALTAMAS KABIR,J.] 48]

with the objective of gaining pecuniary benefits, or gaining undue A
economic or other advantage for himself or any other person or
promoting insurgency;

2(1 )(t) "organized crime syndicate" means a group of two or more
persons who, acting either singly or collectively, as a syndicate or
gang indulge in activities of organized crime ; B
17. Mr. Lalit pointed out that the expression "continuing unlawful
activity" implied activity prohibited by law for the time being in force, which

, is a cognizable offence punishable with imprisonment of three years or more,
continuously undertaken and in respect whereof 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.

18. Mr. Lalit then took us through Section 3 of the MCOCA which
C

provides punishment for organized crime. The portion of Section 3 which is
relevant for .our purpose is Sub-section (I) which is set out hereinbelow:-
D
. 3(1 )(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 ;
(i) in any other case, be punishable with imprisonment for a term
which shall not be less than five years but which may extend to E
imprisonment for life and shall also be liable to a fine, subject to
minimimJ' fine of rupees five lacs ;

19. Mr. Lalit also referred to Section 21 of the aforesaid Act which
provides for the modified application of certain provisions of the Code of
0c_
1 Criminal Procedure in respect of offences under MCOCA. He laid special F
emphasis on Sub-se('.tions (3) and (4) whereby the provisions of Section 438
of the Code have be,1n made inapplicable to cases under MCOCA and grant
of bail has been ma•le dependent on certain conditions. He lastly referred to
Section 23(1)(a) which provides that no investigation could be taken up
without the prior approval of the Police Officer not below the rank of Deputy G
Inspector General of Police.

·-1 20. Since according to Mr. Lal it offences under the Essential Commodities
Act also attracted the provisions of MCOCA, he also referred to some of the
relevant provisions of the Essential Commodities Act, 1955. He firstly
referred to Section 3 which empowers the Central Government to control H
}---
'
482. SUPREME COURT REPORTS [2007] 2 S.C.R.
. .

A production, supply, distribution etc. of essential commodities and in particular .
provides for powers to the Central Government to make Orders to provide for 'r _,
the purposes set out in Sub-section(2).

21. He pointed out that by virtue of Section 7 of the Act any person
contravening any order made under Section 3 would be punishable
B
(i) in the case of an order made with reference to clause (h) or clause
(i) or sub-section (2) of that section, with imprisonment for a term
which may extend to one year and shall also be liable to fine, and
(ii) in the case ofany other order, with imprisonment for a term which
c shall not be less than three months but which may extend to
seven years and shall also be liable to fine :
[Provided that the court may, for any adequate and special rei\Oons
to be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than three months;]
D · 22. Mr. Lal it submitted that under Section I OA of the abpve Act every
offence punishable under the Essential Commodities Act would be cognizable.

23. Mr. Lalit urged that in order to more effectively deal with persons
indulging in hoarding and black-marketing of and profiteering in essential
E comm?dities, the Central Government enacted the Essemial Commodities
(Speci~I Provisions) Act, 1981, which came into force on !st September, 1982,
in all the States and Union Territories, except in the Union Territories of the
Andaman and Nicobar Islands, Arunachal Pradesh, Dadra and Nagar Haveli,
Lakshadeep and Mizoram. Mr. Lalit submitted that by virtue of Section 1(3)
and as indicated in the preamble to the Act, the same was to be valid for a
F period of 15 years from the date of commencement of the Act except in
respect of things done or omitted to be done before such cesser of operation )'---- ..
of the Act and Section 6 of the General Clauses Act 1897 would apply upon
such cesser of operation of the Act. In other words, the A1ct which came into
force on !st September,1982 was to remain in force till 3~st August, 1997.

G 24. Mr. Lalit contendP.d that by virtue of the provisions of the 1981 Act,
Section 7 of the principal Act was amended to make the said provision more
stringent by removing the prohibition to impose a sentence of less than three .
months.

25. Mr. Lalit submitted that Section l2A of the principal Act had been
H
STATEOFMAHARASHTRA r. LALJTSOMDATTANAGPAL[ALTAMAS KABJR,J.] 483

substitutea by Section I 2A of the 1981 Act which provides for the constitution A
of special Courts and provides further in Section l 2AA that all offences under
the Act would be triable only by the Special tourt constituted for the area
in which the offence had been committed or where there are more special
courts than one for such area by such one of them as may be specified in
this behalf by the High Court. He pointed out that 12AA(f) provides that all B
offences under the 1981 Act was to be tried in a summary way and the
provisions of Sections 262 to 265 of the Code of Criminal Procedure would,
as far as may be, apply to such trial.

26. Assailing the judgment of the High Court wherein it had been held
that since trials under the Essential Commodities Act were to be tried by C
Special Court in a summary way for which the maximum sentence that could
be imposed was two years, the provisions of MCOCA had no application.
Mr. Lalit submitted that such a view was not sustainable.

27. Mr. Lalit submitted that notwithstanding the amendments which
have been introduced by the 1981 Act to Section 7 of the principal Act, the D
main provisions of Section 7 of the principal Act remained untouched. He
submitted that the punishment provided for under Section 7(1 )(a)(ii) of the
1955 Act remain unchm;ged and punishment for an offence to which the said
provision was attracted would continue to be punishable with imprisonment
for a term which would not be less than three months but could extend to
7 years with liability to pay fine as well. E

28. Mr. Lalit submitted that having regard to the above, the provisions
of MCOCA would still be applicable to cases to be tried by the Special Court
under the provisions of the Essential Commodities (Special Provisions) Act,
1981.
F
29. In support of his submissions, Mr. Lalit firstly referred to and relied
on a decision of this Court in the case of Nirmal Kanti Roy v. State of West
Bengal, reported in [ 1998] 4 SCC 590, · where almost the same question, as
has been indicated by Mr. Lalit, had come up for consideration in the
context of Section 468 of the Code of Criminal Procedure. In the said matter, G
the contention which had been raised on behalf of the appellant was that
~. j although Section 7 (I) (a) (ii) of the 1955 Act provided for maximum
imprisonment of seven years, by virtue of the provisions of Section 12 AA
( 1) (f) of the 1981 Act, the maximum punishment which could be imposed
for an offence under the said Act is only two years. On such reasoning,
H
~··

484 . SUPREME COURT REPORTS [2007] 2 S.C.R.

A it was contended that the limit fixed by Parliament by the 1981 Act would have
the effect of altering the extent of punishment for the offence under Section
7 of the 1955 Act to imprisonment for a period of two years.
' 4
30. The aforesaid contention was turned down by this Court upon
holding that when the maximum punishment prescribed under Section 7(l)(a)
B (ii) was seven years, merely because the proviso to Section 12AA (l)(f)
limits the jurisdiction of the Special Court to award sentence up to two years,
it would not make the offence itself punishable with only two years'
imprisonment. It was observed that one has to look at the punishing provision
to know the extent of the sentence prescribed and not at the limit fixed for
C a particular court in the matter of awarding sentence.

31. Reference was also made to the decision of this Court in the case
of State of West Bengal v. Fa/guni Dutta and Anr., [I 993] 3 SCC 288, where
also a similar view was taken.

32. As far as S.L.P. (Crl.) No.1101/06 is concerned, Mr. Lal it subrnitted
D that the prayer of the writ petitioners to quash C.R.No.11-B registered with
Rasayani Police Station, Raigarh and for quashing the investigation under
MCOCA is yet to be considered, but having held in the earlier case that
MCOCA would not apply to an offence under the Essential Commodities Act,
the same benefit had been extended to the writ petitioners in the present case
at
and the interim stage relief had been granted in terms of prayer 'C' to
E the writ petitioner which reads as follows:-

"To restrain the respondents from applying, carrying on further
investigation and from arresting the petitioners under the provisions
of MCOC Act pertaining to the FIR registered with Rasayani Police
Station at C.R.No.Il-B/2005 on the complaint of Shri S.S. Tathaude,
F P.J. attached to LCB, Alibag, pending the hearing and final disposal
of this petition."
33. Mr. La lit submitted that by virtue of the said interim order, the
investigating agencies have been prevented from the proceeding further with
the investigation and/or arresting the petitioners under the provisions of the
G MCOCA. Mr. Lalit submitted that the decision in the first two matters \VOuld
have a direct bearing on the decision to be rendered in this Special Leave
Petition as well. \ •

34. Mr. R.F. Nariman, appearing for the respondents in the first two
Special Leave Petitions also referred to the provisions of Section 2 (d) of
H MCOCA and laid special emphasis on the expression "continuing". He
STATE OF MAHARASHTRA r. LAUT SOM DATTA NAGPAL [ALTAMAS KABIR,!] 485

.. --j urged that "continuing unlawful activity" would necessarily mean continuous A
engagement in unlawful activity where there would be a live link between all
the different offences alleged. According to Mr. Nariman, isolated incidents
spread over a period of 10 years, involving different types of offences, would
not attract the provisions of MCOCA. Such activity must be such as t-0.have
a link from the first to the last offence alleged to have been undertaken in B
an organized manner by an organized crime syndicate. It was contended
that there was nothing on record to indicate the existence of any organized
crime syndicate for the purpose of carrying on any continuing unlawful
\'. activity as envisaged under Section 2 (d) (e) and (f) of MCOCA.

35. Reference was also made to the approval granted by the Special C
Inspector General of Police, Kolhapur Range, granting permission under Section
23 (I) (a) ofMCOCA for applying Section 3 (I) (2) (4) ofMCOCA to Kaneer
Police Station C.R.No.39 of2004 under Sections 3 and 7 of the 1955 Act. Mr.
Nariman submitted that the said approval reveals complete non-application of
mind inasmuch as except for Karveer Police Station C.R.No.39/04, no other D
case alleged to be pending against the respondents had even been referred
to in the said order so as to make out a case of "continuing unlawful activity"
which by its very connotation contemplates more than one offence spread
over a period of 10 years. Apart from the above, it was also submitted that
reference had been made under the order of approval to Section 3 of the
Petroleum Storage and Distribution Act which enactment does not exist. E
36. It was submitted that it is obvious that the sanctioning authority
had not applied its mind in granting approval under Section 23 (1) (a) of
MCOCA and mechanically granted such permission. Mr. Nariman submitted
that the approval granted to apply Section 3 (I) (2) (4) of MCOCA to the F
respondents was liable to be set aside on such score alone.
37. Mr. Nariman then drew our attention to the changed legal position
in view of the enactment of the Essential Commodities (Special Provisions)
Act, 1981. He urged that the effect of Section 7 of the principal Act and in
particular Sub-section (1) (a) (2) thereof stood altered by virtue of Section G
12AA(l) (f) of the 1981 Act. Mr. Nariman urged that by virtue of Section
l 2A of the 1981 Act, provision was made for the constitution of Special
Courts as Section 12 AA provided that notwithstanding anything contained
in the Code of Criminal Procedure all offences under the Act would be triable
only by the Special Court constituted for the area and that all such offences
H
486 SUPREME COURT REPORTS [2007] 2 S.C.R.

A were to be tried in a summary way and that the provisions of Sections_ 262 -
to 265 of the Code may be applicable as far as may be to such trial. Mr.
Nariman submitted that the proviso to Section 12AA(l)(f) made it even more
clear tha_t in the case of any conviction in a summary trial under the said
Secti?n, it would be lawful for the Special Court to pass the sentence of
B imprisonment for a term not exceeding two years. It was urged that by virtue
of the _above the provisions of MCOCA stood eliminated in respect of
proceedings involving an offence under the Essential Commodities (Special
Provisions) Act, I981. It was submitted that in order to attract the provisions
of MCOCA the cognizable offence had to be punishable with imprisonment
of three years or more, which is not so in respect of offences under the 1981
C Act where the punishment has been limited to two years only.
38. Mr. Nariman submitted that the decision rendered in Falguni Datta 's
case (supra) was in the context of Section I 67(5) of the Code of Criminal
Procedure relating to the completion of investigation within the stipulated
period and has little relevance in the instant case. Mr. Nariman submitted
D that the provisions of MCOCA were extremely stringent and application of
the provision thereof would have far reaching consequences including
restrictions on grant of bail. In fact, by virtue of Section 21 (3), the
provisions of Section 438 of the Code of Criminal Procedure have been made
inapplicable in relation to any case involving the arrest of any person
E accused of having committed an offence punishable under the MCOCA.
Section 21(4) also lays down that n<;> person accused of an offence punishable
under the Act shall, if in custody, be released on bail, on his own bond unless
the conditions indicated are fulfilled. Mr. Nariman submitted that in view of
the stringent provisions of MCOCA, its provisions were required to be strictly
p interpreted as was observed by this Court in Ranjitsing Brahmjeetsing
Sharma V. State of Maharashtra And Anr., [2005] 5 SCC 294, commonly
known as Telgi case.
39. Referring to the list of cases on the basis whereof sanction had
been granted, Mr. Nariman submitted that the cases related mainly to offenc'!S
G under the Indian Penal Code which would immediately reveal that there was
no live link between the old and new cases to constitute continuing
unlawful activity. He also added that "organized crime" as defined in
Section 2 (e) of MCOCA contemplated continuing unlawful activity by use
of violence or threat of violence or intimidation or coercion or other
H unlawful means with the objecti·1e of gaining pecuniary benefits or gaining
undue economic or other advantage for the perpetrator of the crime or any
--i
'

STATE OF MAHARASHTRA v_ LAUT SOM DATTA NAGPAL [ALTAMAS KABIR, J_J 487

other person promoting insurgency. He urged that none of the said ingredients A
were present in respect of the cases for which sanction had been granted
to apply the provisions of MCOCA to the case of the respondents.

40. It was urged that the High Court had rightly held that the provisions
of MCOCA would not apply to the cases filed against the respondents and
no interference was called for therewith. B
41. Mr. Harish Salve, learned senior counsel, who appeared for the
respondents in S.L.P. (Cr!.) 1101/2006, while re-emphasizing the submissions
made by Mr. Nariman regarding the interpretation of the expression
"continuing unlawful activity" in relation to Sections 3 and 7 of the MCOCA C
urged on a different note that the entire proceedings taken under MCOCA
against the respondents were misconceived. He reiterated that having regard
to the stringent provisions of MCOCA, the said provisions would have to be
strictly interpreted.

42. Mr. Salve urged that an offence under the MCOCA being one of D
'continuing unlawful activity', there could not be more than one First
Information Report in respect of the same set of offences, as has been done
in the instant case. Mr. Salve submitted that such a course of action was
contrary to the provisions of MCOCA and consequently the approval given
to apply the provisions of MCOCA to the respondents was not only untenable
but in complete violation of Section 23 (!)(a) ofMCOCA. Mr. Salve, submitted E
that as will appear from the application made by the P.I.L. C.B., Raigad, on
18th August, 2005, for permission to register an offence under Section I (ii)
of MCOCA against the respondents, there is only one case involving Kapil
Lalit Nagpal and that too essentially under the provisions of the Indian Penal
Code. With malicious intent another case has been referred to which had, F
however, been dismissed. Similarly, a case has been mentioned in relation to
both Lalit Nagpal and Anil Nagpal under Sections 120B, 364, 302, 506 (2),
Indian Penal Code and Section 34, Arms Act, from which they had already
been acquitted.

43. Mr. Salve also urged that in the absence of any enactment, such as G
the Petroleum Storage and Distribution Act, on the basis whereof sanction
had purportedly been given to apply the provisions _of MCOCA to the
petitioners, such sanction was wholly invalid as it is clear that the same was
granted mechanically without application of mind despite the drastic
consequences involved.
H
~-

488 SUPREME COURT REPORTS [2007] 2 S.C.R.

A 44: Mr. Salve urged that not only had no ground been made out for ....- -(
interference with the order of the High Court, but observations are required
to be made by this Court regarding the manner and the circumstances in
which the provisions of Acts having drastic consequences such as MCOCA
should b~ applied.

B 45. Mr. Mukul Rohtagi, learned senior counsel, who appeared for some
of the other respondents, adopted the submissions made by Mr. Nariman and
Mr. Salve. He submitted that the alleged offences, on the basis of which
approval_ had been granted to apply the provisions of MCOCA to the
petitioners' cases, did not satisfy the conditions relating to commission of
C and/or involvement in continuing unlawful activity which forms the very
basis of an offence under MCOCA.

46. '.He also submitted that approval having been given on the basis of
a noh-existent enactment, such approval stood vitiated on such account.

D 47. "Replying to the submissions made on behalf of the respondents in
the first three petitions, who were also the petitioners in the fourth and fifth
petitions, Mr. Lal it submitted that the conflict in ratio in Falguni Datta 's case
(supra) and in Durgesh Chandra Shah v. Vimal Chandra Shah, [1996] J SCC
341, had been referred to a larger Bench to resolve the question relating to
the interpretation of Section 167(5) of the Code of Criminal Procedure as
..
E amended by the State of West Bengal. The controversy stood concluded
upon the larger Bench holding that as the offence under Section 7A( I)(9)(ii)
of the Essential Commodities Act is punishable with imprisonment upto seven
years, the offence would not attract the bar of limitation under Section 468
of the Code.
F 48. Mr. Lalit submitted that the said decision reversed the decision in -r •
Falguni Datta 's case in relation to the interpretation of Section 7 in respect
of offences under MCOCA.

49. Mr. Lalit disputed Mr. Nariman's submissions that a live link had to
G exist been the different cases on the basis of which the decision is taken to
apply the provisions of MCOCA. According to Mr. Lal it, the legislature has
consciously not referred to such nexus theory so that each individual offence
could be treated as a separate cause to apply MCOCA. It was also submitted
that 'organized crime:' as defined in Section 2(1)(e) of MCOCA does not
indicate that such organized crime is required to be accompanied by any of
H
STATE OF MAHARASHTRA.-. LAUT SOMDA TTA NAGPAL [AL TAMAS KABIR,).] 489

-..i the coercive methods mentioned therein and any unlawful means would be A
\
sufficient to attract the said definition.

50. As to the filing of two FIRs necessitating the grant of two approvals
it was submitted that after the First FIR had been lodged and approval
obtained in respect thereof, a further offence came to light as part of the
sequence of continuing unlawful activity. This compelled the authorities to B
lodge a second FIR and seek approval in respect thereof also. It was sought
to be urged that two FIRs were really the result of continuing unlawful
activity, which is the very basis for an c;ffence under MCOCA.

51. On the question of grant of bail to Lal it Nagpal, Mr. Lalit contended
that the said petitioner in SLP (Crl) No. 4581 of 2006 had absconded for a c
considerable length of time and that, in any event, by virtue of the interim
orders passed in the Special Leave Petition, he had been allowed to be treated
in a private hospital in Bombay of his choice, though under the custody of
the investigating authorities.
D
52. Mr. Lalit submitted that the said order of 15th December, 2006 was
still being given effect to and the petitioner could continue to avail of such
treatment, when necessary, since his application for bail on medical grounds
was still pending before the High Court.

53. Regarding the challenged thrown by Kapil Nagpal to the order dated E
Ist September, 2006 passed by the High Court directing him to surrender
before the Investigating Authority within two weeks failing which his petition
for quashing the FIR registered with Rasayani Police Station would stand
dismissed, Mr. Lalit submitted that no ground had been made out to interfere
with the same.
,. F
54. He submitted that since Kapil Nagpal had also absconded and steps
had been taken under Section 82 of the Code of Civil Procedure against him,
the High Court had quite rightly directed him to surrender before his application
for quashing could be taken up for consideration.

55. From the submissions made on behalf of the State of Maharashtra, G
it appears that the main question for determination in the Special Leave
:) Petitions filed by the State of Maharashtra relates to the applicability of
MCOCA to offences under the Essential Commtidities Act, 1955, having
particular regard to the enactment of the Essential Commodities (Special
Provisions) Act, 198 I. H
t- -
\

490 SUPREME COURT REPORTS [2007] 2 S.C.R.

A 56. As noticed hereinbefore, the Essential Commodities (Special r '
Provisions) Act, 1981 came into force on !st September, 1982 and was to
remain in force for a period of 15 years. Under Section 12 AA (I) (a) of
the aforesaid Act, all offences under the said Act were to be triable by
Special Courts. Section 12AA(l)(t) further provides that all offences under
B the Act are to be tried in a summary way and the provisions of Sections 262
to 265 of the Code of Criminal Procedure shall apply, as far as may be, to
such trial. In case of conviction, the proviso limits the period of punishment
to imprisonment for a term not exceeding two years.

57. Before the commencement of the 1981 Act, all offences relating to
C . the contravention of Orders made under Section 3 of the 1955 Act wer~ triable
by Judicial Magistrates of the First Class or by Metropolitan Magistrates who
had powers to impose punishment of imprisonment for a term which could
even extend to 7 years by virtue of Section 7 (I)( a) (ii) of the afores~id Act.
It is only 'after the commencement of the 1981 Act that all offences under the
said Act were triable by a Special Court with powers to impose punishment
D for a term not exceeding two years.

58. Since the provisions of MCOCA can be applied in respect of
continuing unlawful activity which has been defined to mean an activity
prohibited by law for the time being in force and which is a cognizable offence
punishable with imprisonment of 3 years or more, it has been urged by Mr.
E Nariman that the provisions of the 1981 Act made provisions of MCOCA
inapplicable for offences under the said Act. Even the High Court has
proceeded on the aforesaid basis and has inter a/ia observed that the
offences punishable under the provisions of the 1955 Act, committed during
the period when the 1981 Act was in force, could not be said to be offences
p which could be considered for the purpose of continuing unlawful activity
as defined in Section 2 (d) of the MCOCA.
) ..
59. The said view taken by the High Court in our judgment is incorrect
inasmuch as the offences under the 1955 Act continued to attract the
provisions of Section 7 thereof. The only change brought about by the 1981
G Act was to limit the power of the Special Court to impose punishment for a
maximum period of two years. The offence continues to remain punishable
up to a maximum period of seven years so as to attract the provisions of
MCOCA.'

60. The aforesaid position has been clearly explained in Nirmal Kanti
H
STATE OF MAHARASHTRA v. LALITSOMDATTANAGPAL[ALTAMASKABIR,J.] 49)

Roy's case (supra) wherein this Court held that merely because the proviso A
to Section 12AA(l)(t) limits the jurisdiction of the Special Court to award
sentence up to two years it would not make the offence itself punishable
with only two years' imprisonment.

61. The submissions advanced on behalf of the respondents on this
count must, therefore, fail. B
62. However, we are in agreement with the submission that having
regard to the stringent provisions of MCOCA, its provisions will have to be
very strictly interpreted and the concerned authorities would have to be
bound down to the strict observance of the said provisions. There can be C
no doubt that the provisions of the MCOCA have been enacted to deal with
organized criminal activity in relation to offences which are likely to create
terror and to endanger and unsettle the economy of the country for which
stringent measures have been adopted. The provisions of the MCOCA seek
to deprive a citizen of his right to freedom at the very initial stage of the
investigation, making it extremely difficult for him to obtain bail. Other D
provisions relating to the admission of evidence relating to the electronic
--1. media have also been provided for. In S"Jch a situation it is to be seen
whether the investigation from its very inception has been conducted strictly
in accordance with the provisions of the Act.

63. As has been repeatedly emphasized on behalf of all the parties, the E
offence under MCOCA must comprise continuing unlawful activity relating
to organized crime undertaken by an individual singly or jointly, either as a
member of the organized crime syndicate or on behalf of such syndicate by
use of coercive or other unlawful means with the objective of gaining
pecuniary benefits or gaining undue economic or other advantage for F
himself or for any other person or for promoting insurgency. In the instant
case, both Lalit Somdutt Nagpal and Anil Somdutt Nagpal have been shown
to have been involved in several cases of a similar nature which are pending
trial or are under investigation. As far as Kapil Nagpal is concerned, his
involvement has been shown only in respect of CR No.25/03 of Rasayani
Police Station, Raigad, under Sections 468,420,34, Indian Penal Code and G
Sections 3, 7,9 & 10 of the Essential Commodities Act. In our view, the facts
as disclosed justified the application of the provisions of the MCOCA to Lal it
Nagpal and Anil Nagpal. However, the said ingredients are not available as
far as Kapil Nagpal is concerned, since he has not been shown to be
involved in any continuing unlawful activity. Furthermore, in the approval H
}-·
492 SUPREME COURT REPORTS [2007] 2 S.C.R.

A that was given by the Special Inspector General of Police, Kolhapur Range,
granting approval to the Deputy Commissioner of Police (Enforcement), Crime
Branch, C.I.D., Mumbai to commence investigation under Section 23 (1) of
MCOCA, Kapil Nagpal has not been mentioned. It is only at a later stage
with the registering of CR No.25/2003 of Rasayani Police Station, Raigad, that
Kapil Nagpal was roped in with Lalit Nagpal and Somdutt Nagpal and
B permission was granted to apply the provisions of the MCOCA to him as well
by Order dated 22nd August, 2005.

64. In addition to the above, a glance at the perm1ss1on sought by
~· A
P.I.L.C.B., Raigad, on 18th August, 2005 seeking permission for registering an
C offence under Section I (ii) MCOCA 1999 against Lalit Nagpal, Anil Nagpal,
Kapil Nagpal and one Parasnath Ramdular Singh will reveal that such permission
was being sought for, as far as Kapil Nagpal is conr:erned, in respect of an
offence allegedly under Section 63 of the Sales Tax Act, which in our opinion
would notattract the provisions of the MCOCA.

D 65. We, therefore, have no hesitation in holding that as far as Kapil Lalit
Nagpal is concerned, the provisions of the MCOCA have been misapplied
to him.

66 .. Since we have already held that the limitation of the power to
impose punishment only for a maximum period of two years for an offence
E µnder the 1981 Act did not preclude the authorities from applying the
provisions of the MCOCA for offences under Sections 3 & 7 of the 1955
Act as well as the 1981 Act, we are left with the question as to whether the
same had been applied to the case of Lalit Nagpal and Anil Nagpal strictly
in accordance with the provisions of the MCOCA 1999. Having regard to
F the stringent provisions of the MCOCA, Section 23(1)(a) provides a safeguard
to the accused in that notwithstanding anything contained in the Code of
Criminal Procedure, no investigation of an alleged offence of organized crime
under the MCOCA, 1999 can be commenced without the prior approval of
a police officer not below the rank of Deputy Inspector General of Police. An
additional. protection has been given under Sub-section (2) of Section 23
G which prohibits any Special Court from taking cognizance of any offence
under t~e Act without the previous sanction of a police officer not below
the rank of Additional Director General of Police.

67. In the instant case, though sanction had been given by the Special

H

•..
STATE OF MAHARASHTRA v. LALITSOMDATTA NAGPAL[ALTAMASKABIR,.I.] 493

Inspector General of Police, Kolhapur Range, on 31st August, 2004, granting A
pennission under Section 23 (I) (a) of the MCOCA 1999 to apply its provisions
to the alleged offences said to have been committed by Anil Nagpal, Lalit
Nagpal and Vijay Nagpal, such sanction reveals complete non-application of
mind as the same appears to have been given upon consideration of an
enactment which is 'non est. Even if the subsequent approval order of 22nd B
August, 2005 is to be taken into consideration, the organized crime referred
to in the said order is with regard to the alleged violation of Sales Tax and
Excise Laws, which, in our view, was not intended to be the basis for
application of the provisions of the MCOCA 1999. To apply the provisions
of MCOCA something more in the nature of·coercive acts and violence is
required to be spelt out so as to bring the unlawful activity complained of C
within the definition of "organized crime" in Section 2 (a) of MCOCA .

68. In our view, both the sanctions which formed the very basis of the
investigation have been given mechanically and are vitiated and cannot be
sustained. Jn taking recourse to the provisions of the MCOCA 1999, which
has the effect of curtailing the liberty of an individual and keeping him D
virtually incarcerated, a great responsibility has been cast on the authorities
in ensuring that the provisions of the Act are strictly adhered to and

-
,,
fo II owed, which unfortunately does not appear to have been done in the
instant case.

69. We are not, therefore, inclined to interfere with the decision of the E
High Court though for reasons which are entirely different from those given
by the High Court.

70. The Special Leave Petitions (Crl.) Nos. 3320-3321/2005 filed by the
State of Maharashtra are, therefore, dismissed.
F
> 1
71. For the same reasons, Special Leave Petition (Crl.) No.1101/2006
filed by the State of Maharashtra must also fail and the High Court will now
have to dispose of the application filed by the petitioners in Crl.Writ Petition
No. 2183/2005 for quashing C.R. No.11-8/2005 registered with Rasayani Police
Station, Raigad. G
72. As far as Special Leave Petition (Crl.) No. 4581/2006 is concerned,
the same has been filed against the order passed by the Bombay High Court
rejecting the petitioner's prayer for grant of bail. As will be seen from the
records, the petitioner had earlier applied for grant of anticipatory bail which
was rejected by the Bombay High Court. In the Special Leave Petition filed H
494 SUPREME COURT REPORTS [2007] 2 S.C.R.

A against the said order of rejection, this Court also on 14th December, 2004
rejected the petitioner's prayer for grant of anticipatory bail. This Court
however granted 15 days' time to the petitioner to surrender and to apply for
regular bail. Despite the said order, the petitioner did not surrender till I st ,
July 2005, and thereafter applied for bail which was rejected on the ground
that the petitioner had violated the order passed . by this Court on 14th
B December; 2004 and had absconded for almost six months before surrendering.
The order passed by this Bombay High Court rejecting the petitioner's prayer
for bail was again challenged before this Court and the same was once again
dismissed on 20th January, 2006 with the observation that such dismissal
would not bar the petitioner to approach the trial court afresh. Thereafter,
C the petitioner moved a fresh application for bail before the Sessions Court
which was rejected on 3rd March, 2006. The petitioner challenged the order
of the Sessions Court in the Bombay High Court which once again dismissed
the petitioner's prayer for grant of bail on the ground that the circumstances
had not changed except that the prayer for enlarging the petitioner on had
be1.:n made bail on medical grounds. While rejecting the petitioner's prayer
D for bail, the High Court observed that on the basis of the medical report, no
case had been made out for enlarging the petitioner on bail. However, the
prayer as regards shifting the applicant to a particular hospital would have
to be considered on its own merits.

E 73. Special Leave Petition (Cr!.) No. 4581/2006 is directed against the
said order of the High Court refusing to grant bail to the petitioner.

74. It may be indicated that during the pendency of the writ petition,
F
this Court on a consideration of the medical condition of the petitioner
permitted him to be treated in a private hospital, though under the custody
p of the respondents. We understand that the petitioner continues to be
hospitalized. Having regard to the fact that we have dismissed the Special r .
Leave Petitions filed by the State of Maharashtra against the order of the
Bombay High Court holding that the provisions of MCOCA had been
misapplied to the facts of the case, the stringent provisions regarding bail
under the MCOCA 1999 will no longer be attracted in this case. Since the
G petitioner has been under arrest since the date of his surrender on !st July,
2005, and having further regard to his medical condition, we direct that the
petitioner, Lalit Somdutt Nagpal, be released on bail to the satisfaction of
the Chief Judicial Magistrate, Kolhapur. He will surrender his passport to
the Chief Judicial Magistrate, Kolhapur, until further orders of the magistrate
H and will not leave the country without the prior permission of the magistrate
STATE OF MAHARASHTRA,.. LALITSOMDATTANAGPAL(ALTAMAS KABIR,!.] 495

1- ---f and shall report to the Investigating Officer of the different cases as and A
when called upon to do so. Special Leave Petition (Cr!.) No. 4581/2006 is
accordingly allowed and the order of the Bombay High Court dated 14th July,
2006 refusing the petitioner's prayer for grant of bail is set aside.

75. As far as Special Leave Petition (Cr!.) No.4611/2006 is concerned,
since we have held hereinbefore while deciding the Special Leave Petitions B
filed by the State of Maharashtra that Kapil Lal it Nagpal had been wrongly
proceeded against under the provisions of the MCOCA 1999, we allow the
'y special leave petition and set aside the order passed by the Bombay High
Court on 1st September, 2006 in Cr!. Writ Petition No.2183/2005 with a direction
to hear out the petitioner's said writ petition in accordance with law. C
There will be no order as to costs in any -:>f these special leave petitions.

v.s. Special Leave Petitions disposed of.

,. )