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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2075 OF 2009

Vijay Anant Vashirde, residing at

Room No.8/9, Laxmi Building,
366/68, Maulana Azad Road,
Girgaon, Mumbai – 400 004, at
present in judicial custody and
lodged at Mumbai Central Prison,
Mumbai. ______________________________________Petitioner
Vs.
The State of Maharashtra, (at the
instance of Assistant
Commissioner of Police, D-1
(South), Mumbai vide D.C.B.,
C.I.D., C.R. No.42 of 2009 (V.P.
Road Police Station C.R. No.55 of
2009). _______________________________________Respondents

 STATEMENT OF JURISDICTION

The Constitution of India, 1950,

Article 226 of the Constitution of India Enshrines Power of High Courts to issue certain
Writs-
(1) Notwithstanding anything in Article 32[* * *], every High Court shall have Powers,
throughout the territories in relation to which it exercises jurisdiction, to issue to any
person or authority, including in appropriate cases, any Government, within those
territories directions, orders or writs, including [writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, or any of them, for
enforcement of any of the rights conferred by part III and for any other purpose.]

 STATEMENT OF FACTS

1) The Terrorist & Disruptive Activities (Prevention) Act, 1987 (for short, “TADA”)
was enacted to make special provisions for the prevention of, and for coping
with, terrorist and disruptive activities. In Kartar Singh, constitutional validity of
TADA was challenged.

2) Section 15 of TADA which made confession made by a person before a police

officer not lower in rank than a Superintendent of Police admissible in evidence
came under heavy attack.
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3) The Supreme Court agreed that it would be dangerous to make a statement given
to a police officer admissible. In order to ensure higher level of scrutiny and
applicability of TADA, the Supreme Court expressed that there must be Review
Committee constituted by the Central Government. In 1995, TADA lapsed.

4) The Prevention of Terrorism Ordinance, 2001 was promulgated on 24/10/2001. It

was followed by the Prevention of Terrorism (Second) Ordinance promulgated on
30/12/2001. In 2002, the Prevention of Terrorism Act, 2002 (for short, “POTA”)
was enacted replacing Prevention of Terrorism (Second) Ordinance, 2001.

5) Section 60 of POTA provided for a Review Committee. Sub-sections (4) to (6)

were added to Section 60 of POTA by Prevention of Terrorism (Amendment)
Ordinance, 2003. The said ordinance was further amended by the Prevention of
Terrorism (Amendment) Act, 2003. In view of adverse report about misuse of
POTA, Parliament repealed it.

6) The petitioner is an accused in MCOC Special Case No.6 of 2009. This writ petition
has been filed under Article 226 of the Constitution of India, praying, inter alia,
that directions be issued to the State of Maharashtra to establish a Review
Committee on the lines of directions given by the Supreme Court in Kartar Singh
v. State of Punjab, and as incorporated in POTA Amendment) Act, 2003 (since
repealed), so as to screen the abuse and misuse of the provisions of the
Maharashtra Control of Organized Crime Act, 1999 (“for short, “MCOCA”), that
all pending cases and newly registered cases be referred to a Review Committee
and that it may be declared that the provisions of MCOCA are not attracted to
the petitioner's case.
ISSUES RAISED BY THE PETITIONER

1) Whether there is need to incorporate the provision for establishment of a Review

Committee?
2) Whether the high Court is empowered to issue direction for constitution of a
Review Committee?

ARGUMENTS ON BEHALF OF PETITIONER

1) Whether there is need to incorporate the provision for establishment of a

Review Committee?

It is humbly submitted that the provisions of MCOCA are drastic and perhaps
stricter than TADA. There are several cases of misuse of MCOCA and, therefore, the
provisions of the Review Committee as incorporated in POTA and retained by the
Repealing Act pursuant to the Supreme Court's directions in Kartar Singh be
incorporated in MCOCA.
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It is further submitted that the Review Committee acts as a filter. TADA, POTA or
MCOCA are draconian legislations. Though validity of MCOCA is upheld, its arbitrary,
capricious and revengeful use must be prevented.

Moreover guidelines issued by the Supreme Court in Kartar Singh to the police
for the purpose of recording confessional statements under Sections 15 of TADA to
secure fundamental fairness.

Here it is pointed out that the Central Government was directed to incorporate
them by appropriate amendments in TADA and in the rules. However also the Supreme
Court directed constitution of Review Committee of high officials to review the cases so
as to ensure higher level of scrutiny and applicability of TADA.

In Shaheen Welfare Association, the Supreme Court referred to Kartar Singh and
observed that a more independent and objective scrutiny of the cases by a committee
headed by a retired Judge is necessary.

Here it is pertinent to note that this judgment was in the field when MCOCA was
enacted and, therefore, the State should have taken note of it. Provision for Review
Committee ought to have been incorporated in MCOCA.

It is further submitted that Section 18 of MCOCA makes certain confessions

made to police officers admissible. It is similar to Section 15 of TADA. While enacting
MCOCA, the legislature incorporated the important guidelines laid down in Kartar Singh
for the purpose of recording confessional statements. The legislature should have
therefore also made provision for a Review Committee as directed in Kartar Singh and
which was followed while enacting the amended POTA.

2) Whether the high Court is empowered to issue direction for constitution

of a Review Committee?

It is relied on Dwarka Nath v. Income-tax Officer, where the Supreme Court has
observed that Article 226 is couched in comprehensive phraseology and it ex facie
confers a wide power on the High Court to reach injustice wherever it is found.

It is also relied on Deepak Bajaj v.State of Maharashtra, where the Supreme

Court has observed that under Article 32 and Article 226 of the Constitution, the
Supreme Court and the High Court can issue writs in the nature of habeas corpus,
mandamus, certiorari, etc. They can also issue orders and directions apart from issuing
writs and their powers are not subject to traditional restrictions on the powers of the
Supreme Court and the High Court.

It is finally submitted that, therefore, there are no fetters on the powers of this
court preventing it from directing constitution of a Review Committee.
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PRAYER

It is humbly prayed before this Hon’ble Court that in light of the issues raised,
arguments advanced and authorities cited, this Hon’ble Court be pleased to,

1) Issue a writ in the nature of Mandamus or any other suitable writ

2) directions be issued to the State of Maharashtra to establish a Review Committee
on the lines of directions given by the Supreme Court in Kartar Singh v. State of
Punjab
AND /OR

Pass any other order that the Hon’ble Court may deem fit in the interest of Justice,
Equity and Good Conscience.

ISSUES RAISED BY THE RESPONDENT

1) Whether there is need to incorporate the provision for establishment of a

Review Committee?

2) Whether the high Court is empowered to issue direction for constitution of

a Review Committee?

ARGUMENT ON BEHALF OF RESPONDENT

1) Whether there is need to incorporate the provision for establishment of a

Review Committee?

It is submitted that the petitioner is trying to draw support from the fact that in
Kartar Singh while dealing with TADA, the Supreme Court laid down guidelines so as to
ensure that the confessions obtained in the pre-indictment interrogation by a police
officer are not tainted but they are in conformity with fundamental fairness. The
Supreme Court also directed the constitution of a Review Committee. Thereafter, TADA
lapsed.

In POTA, a provision was made for a Review Committee. While enacting MCOCA,
the legislature incorporated the important guidelines laid down by the Supreme Court in
Kartar Singh in regard to recording of confessional statements.

2) Whether the high Court is empowered to issue direction for constitution

of a Review Committee?

It is humbly submitted that the petitioner wants this court to direct the State to
amend valid state legislation or to enact additional legislation which it cannot do. It is
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further submitted that MCOCA contains several provisions and mechanism to prevent
its misuse.

Section 23 thereof has been described as a filter by the Supreme Court in Vinod
Asrani v. State of Maharashtra and by this court in Pradeep Madgaonkar v. State of
Maharashtra.
It is further submitted that the decision not to include Review Committee is
consciously taken. The majority of the members of the State Level Committee to review
MCOCA did not favour the introduction of the Review Committee. However, all the
three members were unanimous that there was no misuse of MCOCA.

Further it is submitted that the Supreme Court has upheld the constitutional
validity of MCOCA. The legislative policy is in the exclusive domain of the State. The
nature and extent of safeguards and/or protections which ought to be introduced in a
statute is a matter of policy in which the court cannot interfere, as held by the Supreme
Court in State of West Bengal v. E.I.T.A. India Ltd, Duncan Industries Ltd. v. Union of
India, Karnataka Bank Ltd. v. State of A.P. & Ors.

Moreover it is well settled that the Court cannot direct the State to legislate, as
held in State of Himachal Pradesh v. A parent of a student, Narinder Chand Lt.
Governor v. A.U.T.H.P. & Ors., State of A.P. v. T. Gopalkrishnan Murthi, State of J. & K.
v. A.R. Zakk I, State of Karnataka v. State of A.P. & Ors., Municipal Committee Patiala
v. Model Town Resident's Association & Ors. and Common Cause (A. Regd. Society) v.
Union of India.

It is further submitted that what the Supreme Court did in Kartar Singh was in
exercise of the extra-ordinary jurisdiction constitutionally conferred on that court under
Article 142(1) of the Constitution. Powers of the High Court under Article 226 are not on
par with the constitutional jurisdiction conferred on the Supreme Court under Article
142.
Moreover, directions issued under Article 142 are not law under Article 141. In
this connection, as held in J & K Public Service Commission & Ors. v. Dr. Narinder
Mohan & Ors.

Further it is submitted that in most cases cited by the appellant, MCOCA was
erroneously applied because of lack of clarity amongst enforcement agencies on the
interpretation and meaning to be placed on the words / expressions “organized crime”,
“organized crime syndicate”, “with the object of gaining pecuniary benefits”. They do
not cover cases of abuse of MCOCA.

On the merits of the case, it is submitted that application of MCOCA is perfectly

justified. It is clearly evident from the material on record that the petitioner and the
members of the Pandav Putra Gang indulge in organized crime for gaining pecuniary
benefits.
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It is submitted that sanction is perfectly legal because there was enough material
before the sanctioning authority to form its opinion and the sanction is issued after due
application of mind.

PRAYER

It is humbly prayed before this Hon’ble Court that in light of the issues raised,
arguments advanced and authorities cited, this Hon’ble Court be pleased to,

1) Dismiss the present Petition with costs as the case filed by the Petitioner is
devoid of any waters
AND /OR

Pass any other order that the Hon’ble Court may deem fit in the interest of Justice,
Equity and Good Conscience.

JUDGMENT

1) It is hereby declared that this court cannot issue a direction to the State
Government to amend the law or to enact a law and provide for a Review
Committee. This Court, however, feels that if a provision for Review Committee is
made, the State will not be at a disadvantage. Constitution of a High Powered
Review Committee as recommended by the Supreme Court in Shaheen Welfare
Association will prevent a possible wrong use or misuse of MCOCA. It will be a
welcome step. This Court may not however be understood to have directed the
State Government to enact a law providing for the Review Committee, because
whether such a law should be enacted or not is a matter which lies entirely within
the legislative domain upon which this Court do not want to trench.