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The Supreme Court has held that the confession made before an additional superintendent of police was valid under the Maharashtra Control of Organised Crime Act as the officer is in the same rank as the superintendent of police.
A bench of Justices DY Chandrachud and Surya Kant dismissed the appeals of the accused booked under MCOCA and other provisions under IPC and the gambling and prohibition Act.
"…we find no merit in the appeals. The appeals shall stand dismissed. However, it is clarified that: (i) the appellants are at liberty to approach the High Court for release on bail", the bench said.
It clarified that the evidentiary value of confessions alleged to have been made by the appellants (accused) shall be considered by the trial court and the mere validation of their being recorded by an officer in the rank of superintendent of police shall not be construed as the approval of the contents or voluntary nature of the alleged confessions by this Court.
The accused are members of an alleged organized crime syndicate that has engaged in systematic activities for cheating members of the public by conducting the "Mumbai Matka".
The 'Mumbai Matka' is gambling under which those who wish to gamble place bets on numbers/playing cards. At the end of the cycle, the results are to be declared based on a random draw of numbers/playing cards, and those who correctly guess the winning digits/playing cards win while the others lose.
Instead of declaring the winning digits based on a random draw, the organizers of the ‘Mumbai Matka' are alleged to identify the number on which the least bets are placed and declare that to be the winning digit.
The accused including Zakir Abdul Mirajkar and Salim Mullah in a batch of petitions challenged the Bombay high court order, which had upheld invoking of stringent provisions of MCOCA saying that though gambling may not by itself constitute an organised crime, an organised crime syndicate may utilize the profits from the illegal activity for other unlawful activities such as contract killing, abduction, and dacoity.
The accused challenged the high court order on the ground that the confession in the case under MCOCA was recorded by an Additional SP rank officer while the law provides that the officer shall not be below the rank of SP.
The bench after perusing the MCOCA provision Section 18 (1) said that the legislature has not used the expression, designation or post in Section 18 but, on the other hand, has used the expression rank.
Section 18(1) MCOCA stipulates that a confession made by a person before a police officer, not below the rank of the superintendent of police, shall be admissible subject to other statutory stipulations.
"The true question is whether the rank of the SP comprehends within it an additional SP. If an additional SP is of a rank inferior to that of an SP then clearly the holder of the rank of an additional SP would not be competent to record a confession under Section 18(1). Contrariwise, if an additional SP belongs to the same rank as an SP there would be no statutory bar on an Addl. SP recording a confession", the bench said while analysing the case.
It said that Section 18(1) MCOCA does not contemplate any specific authorisation of a police officer not below the rank of SP to record confessions.
The bench after perusing the Maharashtra police rules said that it is of the view that the expression "rank" must be understood as a class or category which encompasses multiple posts.
"The posts of SP, additional SP and DCP all fall within the same rank as they exercise similar functions and powers and operate within similar spheres of authority. Every person within a particular rank will not be of the same seniority. Officers of the same rank may have been in service for a different number of years", it said.
The top court said that at times, this may even bear on the post to which they are appointed but their rank remains undisturbed.
"A difference in the seniority of a particular officer is not the same as a difference in their ranks. The insignia on officers' uniforms denote, in this case, their seniority as well as their designations", it said.
It said an ACP in a commissionerate or a Deputy SP in a district or a Sub Divisional Police Officer with the stipulated period of continuous service can be posted on promotion as a DCP (in a Commissionerate) or, as the case may be, as an Addl. SP or Commandant in the State Reserve Police Force.
The bench noted that an Addl. SP, DCP, and Commandant are in the same rank as an SP and these posts are interchangeable on transfer.
"A DCP, when posted in a commissionerate, is of the same rank as an SP and can therefore record a confession under Section 18(1). A DCP is interchangeable upon transfer with an Addl. SP or SP. The authority which attaches to the post of a DCP to record a confession under Section 18(1) is not diluted when the posting is in a district either as an Addl. SP or, as the case may be, as an SP", it said.
The bench said that accepting the submission of the appellants (accused) will lead to an obvious incongruity and a DCP while being posted in a Commissionerate, can record a confession under Section 18(1) of the MCOCA.
"Yet, if the submission of the appellants were to be accepted, a DCP who is on transfer posted as an Addl SP in a district would be disentitled to record a confession under section 18(1). Hence, there is an obvious fallacy in the submissions of the appellants", the bench held.