LexThe Andhra Pradesh Control of Organised Crime Act, 2001
Andhra Pradesh · state statute
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THE ANDHRA PRADESH CONTROL OF ORGANISED CRIME ACT, 2001
(ACT NO. 42 OF 2001)
ARRANGEMENT OF SECTIONS
Sections
1 Short title, extent and commencement
2 Definitions
3 Punishment for organised crime
4 Punishment for Possessing unaccountable wealth on behalf of member of
organised crime syndicate
5 Special Courts
6 Jurisdiction of Special Court
7 Power of Special Courts with respect to other offences
8 Public Prosecutor
9 Procedure and Powers of Special Courts
10 Trial by Special Courts to have precedence
11 Power to transfer cases to regular Courts
12 Appeal
13 Appointment of Competent Authority
14 Authorisation of interception of wire, electronic or oral communication
15 Constitution of Review Committee for review of authorisation orders
16 Interception and disclosure of wire, electronic or oral communication
prohibited
17 Special rules of evidence
18 Certain confessions made to police officer to be taken into consideration
19 Protection of witnesses
20 Forfeiture and attachment of property
21 Modified application of certain provisions of the Code
22 Presumption as to offences under Section 3
23 Cognizance of and investigation into an offence
24 Punishment for public servants failing in the discharge of their duties.
25 Overriding effect
26 Protection of action taken in good faith
27 Annual Report of Interceptions
28 Power of High Court to make rules
29 Powers of State Government to make rules
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THE ANDHRA PRADESH CONTROL OF ORGANISED CRIME ACT, 2001
Act No. 42 of 2001
[29th October, 2001]
AN ACT TO MAKE SPECIAL PROVISIONS FOR PREVENTION AND
CONTROL OF AND FOR COPING WITH CRIMINAL ACTIVITY BY
ORGANISED CRIME SYNDICATE OR GANG, AND FOR MATTERS
CONNECTED THERE-WITH OR INCIDENTAL THERETO.
Be it enacted by the Legislative Assembly of the State of Andhra Pradesh
in the Fifty-second Year of the Republic of India as follows:
1. Short title, extent and commencement - (1) This Act may be called the
Andhra Pradesh Control of Organised Crime Act, 2001.
(2) It extends to the whole of the State of Andhra Pradesh.
(3) It shall come into force on such date as the State Government may by.
notification, in the Andhra Pradesh Gazette, appoint.
(4) It shall remain in force for a period of three years fr om the date of
coming into force.
2. Definitions - (1) In this Act, unless the context otherwise requires,-
(a) "abet", with the grammatical variations and cognate
expressions, includes,-
(i) the communication or association with any person with the
actual knowledge or having reason to believe that such person
is engaged in assisting in any manner, an organised crime
syndicate;
(ii) the passing on or publication of without any lawful
authority, any information likely to assist the organised crime
syndicate and the passing on or publication of or distribution
of any document or matter obtained from the organised crime
syndicate; and;
(iii) the rendering of any assistance, whether financial or
otherwise to the organised crime syndicate;
(b) "Code" means the Code of Criminal Procedure, 1973 (Central
Act 2 of 1974);
(c) "Competent Authority" means the Competent Authority
appointed under Section 13;
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(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 organised crime
syndicate or on behalf of such syndicate in respect of which more
than one charge -sheet have been filed before a competent Court
within the proceeding period of ten years and that Court has taken
cognizance of such offence;
(e) "organised crime" means may continuing unlawful activity by an
individual, singly or jointly, either as a member of an organised
crime syndicate or on behalf of such syndicate by use of violence or
threat of violence or intimidation or coercion o f other unlawful
means, with the obje ctive of gaining pecuniary benefit or gaining
undue economic or other advantage for himself or any other
person or promoting insurgency;
(f) "organised crime syndicate" means a group of two or more
persons who, acting, either single or collectively, as a syndicate or
gang indulge in activities of organised crimes;
(g) "Secretary" means a Secretary to the Government of the State
and includes a Special Chief Secretary, a Principal Secretary or as
the as case may be, a Special Secretary in a department of
Secretariat;
(h) "Special Court" means the Special Court constituted under
section 5.
(2) Words and expressions used but not defined in this Act and defined in
the Code shall have the meanings respectively assigned to them in the Code.
3. Punishment for o rganised crime - (1) Whoever commits an offence of
organised crime shall,-
(i) if such offence has resulted in the death of any person, be
punishable with death or imprisonment for life and shall also
be liable to a fine, subject to a minimum fine of rupe es one
lakh;
(ii) in any other case, be punishable with imprisonment for a
term which may extend to five years and shall also be liable to
a fine, subject to a minimum fine of rupees five lakhs.
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(2) Whoever conspires or attempts to commit or advocates, abets or
knowingly facilitates the commission of an organised crime or any act
preparatory to organised crime, shall be punishable with imprisonment for a
term which shall not be less than five years but which may extend to
imprisonment for life and shall also be liable to a fine, subject to a minimum
fine of rupees five lakhs.
(3) Whoever, harbours or conceal or attempts to harbour or conceal, any
member of an organised crime syndicate shall be punishable with
imprisonment for a term which shall not be le ss than five years but which may
extend to imprisonment for life, and shall also be liable to a fine, subject to a
minimum fine of rupees five lakhs.
(4) Any person who is a member of an organised crime syndicate shall be
punishable with imprisonment for a term which shall not be less than five
years but which may extend to imprisonment for life and shall also be liable to
a fine, subject to a minimum fine of rupees five lakhs.
(5) Whoever holds any property derived or obtained from commission of an
organised crime or which has been acquired through the organised crime
syndicate funds shall be punishable with impriso nment for a term which shall
be less than three years but which may extend to imprisonment for life and
shall also be liable to a fine, subject to a minimum fine of rupees two lakhs.
4. Punishment for possessing unaccountable wealth on behalf of member
of organised crime syndicate - If any person on behalf of a member of an
organised crime syndicate is, or, at any time has been, in possession of
movable or immovable property which he cannot satisfactorily account for, he
shall be punishable with imprisonment for a term which may extend to five
years and shall also be liable to a fine, subject to minimum fine of rupees one
lakh and such property shall also be liable for attachment and forfeiture, as
provided by section 20.
5. Special Courts - (1) The State Government may, by notification in the
Official Gazette, constitute one or more Special Courts for such area or areas,
or for such case or class or group of cases, as may be specified in the
notification.
(2) Where any question arises as to the jurisdiction of any Special Court,
it shall be referred to the State Government whose decision shall be final.
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(3) A Special Court shall be presided over by a Judge to be appointed by
the State Government, with the concurrence of the Chief Justice of the High
Court of Andhra Pradesh. The State Government may also appoint with the
concurrence of the Chief Justice of the High Court of Andhra Pradesh
additional Judges to exercise jurisdiction in a Special Court.
(4) A person shall not be qualified for a ppointment as a Judge or an
additional Judge of a Special Court, unless he immediately before such
appointment, is a sessions Judge or an additional sessions Judge.
(5) Where any additional judge is or additional Judges are appointed in a
Special Court, t he Judge of the Special Court may, from time to time, by
general or special order in writing provide for the distribution of the business of
the Special Court among himself and the additional Judge or additional Judges
and also for the disposal of urgent b usiness in the event of his absence or the
absence of any additional Judges.
6. Jurisdiction Of Special Court - Notwithstanding anything contained in the
Code, every offence punishable under this Act shall be triable only by the
Special Court within whose local jurisdiction it was committed, or as the case
may be, by the Special Court constituted for trying such offence under sub -
section (I) of Section 5.
7. Power of Special Courts with respect to other offences - (1) When trying
any offence punishable under this Act, a Special Court may also try any other
offence with which the accused may, under the Code, be charged at the same
trial, if the offence is connected with such other offence.
(2) If, in the course of any trial of any offence under this Act, it is found
that the accused persons have committed any other offence under this Act or
under any other law, the Special Court may convict such persons of such other
offence and may pass any sentence authorised by t his Act or, as the case may
be, such other law, for the punishment thereof.
8. Public Prosecutor - (1) For every Special Court, the State Government shall
appoint a person to be the Public Prosecutor and may appoint one or more
persons to be the Additiona l Public Prosecutor or Additional Public
Prosecutors:
Provided that the State Government may also appoint for any case or
group of cases, a Special Public Prosecutor.
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(2) A person shall not be qualified to be appointed as a Public Prosecutor,
an Additional Public Prosecutor or a Special Public Prosecutor unless he has
been in practice as an advocate for not less than ten years.
(3) Every person appointed as a Public Prosecutor or Additional Public
Prosecutor or Special Public Prosecutor under this secti on shall be deemed to
be a Public Prosecutor within the meaning of clause (u) of Section 2 of the
Code, and the provisions of the Code shall have effect accordingly.
9. Procedure and Powers of Special Courts - (1) A Special Court may take
cognizance of an y offence without the accused being committed to it for trial,
upon receiving a complaint of facts which constitute such offence or upon a
police report of such facts.
(2) Where an offence triable by a Special Court is punishable with
imprisonment for a term not exceeding three years or with fine or with both,
the Special Court may, notwithstanding anything contained in sub -section (1)
of Section 260 or Section 262 of the Code, try the offence in a summary way in
accordance with the procedure prescribed i n the Code and the provisions of
sections 263 to 265 of the Code shall, as far as may be, apply to such trial:
Provided that, where in the course of a summary trial under this sub -
section, it appears to the Special Court that the nature of the case is such that
it is undesirable to try in a summary way, the Special Court shall recall any
witnesses who may have been examined and proceed to re-hear the case in the
manner provided by the provisions of the Code for the trial of such offence and
the said provisions shall apply to and in relation to a Special Court as they
apply to and in relation, to a Magistrate:
Provided further that, in case of any conviction in a summary trial under
this section it shall be lawful for a Special Court to pass a sentence of
imprisonment for a term not exceeding two years.
(3) A Special Court may, with a view to obtaining the evidence of any
person, supposed to have been directly or indirectly concerned in or privy to an
offence, tender a pardon to such person on condition of his making a full and
true disclosure of the whole circumstances within his knowledge relative to the
offence and to every other person concerned, whether as principal or abettor, in
the commission thereof, and any pardon so tendered shall, for the purposes of
Section 308 of the Code, be deemed to have been tendered under section 307
thereof.
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(4) Subject to other p rovisions of this Act, a Special Court shall, for the
purpose of trial of any offence, have all the powers of a Court of Session and
shall try such offence as if it were a Court of Session, so far as may be, in
accordance with the procedure prescribed in t he Code for the trial before a
Court of Session.
10. Trial by Special Courts to have precedence - The trial of any offence
under this Act by a Special Court shall have precedence over the trial of any
other case against the accused in any other Court (not being a Special Court)
and shall be concluded in preference of the trial of such other case and
accordingly the trial of such other cases shall remain in abeyance.
11. Power to transfer cases to regular Courts - Where, after taking
cognizance of an offen ce, a Special Court is of the opinion that the offence is
not triable by it, it shall, notwithstanding that it has no jurisdiction to try such
offence, transfer the case for trial of such offence to any Court having
jurisdiction under the Code and the Court to which the case is transferred may
proceed with the trial of the offence as if it had taken cognizance of the offence.
12. Appeal - (1) Notwithstanding anything contained in the Code, an appeal
shall lie from any judgment, sentence or order, not being an interlocutory
order, of a Special Court to the High Court.
(2) Every appeal under this section shall be preferred within thirty days
from the date of the receipt of the judgment by the accused, sentence or order.
13. Appointment of Competent Authorit y - The State Government may
appoint any of its officers, in Home Department, not below the rank of
Secretary to Government, to be the Competent Authority for the purposes of
Section 14.
14. Authorisation of interception of wire, electronic or oral
communication - (1) A police officer not below the rank of Superintendent of
Police supervising the investigation of an organi sed crime under this Act may
submit an application in writing to the Competent Authority for an order
authorising or approving the interception of wire, electronic or oral
communication by the investigating officer when such interception may provide
or has provided evidence of any offence involving an organised crime.
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(2) Each application shall include the following information,
(a) the identity of the investigative or law enforcement officer
making the application, and the head of the department
authorising the application;
(b) a statement of the facts and circumstances relied upon by the
applicant, to justify his belief that an order should be issued,
including,-
(i) details as to the offence of organised crime that has been, is
being, or is about to be committed;
(ii) a particular description of the nature and location of the
facilities from which or the place where the commun ication is
to be intercepted;
(iii) a particular description of the type of communications
sought to be intercepted; and
(iv) the identity of the person, if known committing the offence
of organised crime whose communications are to be
intercepted;
(c) a statement as to whether or not other modes of enquiry or
intelligence gathering have been tried and failed or why they
reasonably appear to be unlikely to succeed if tried or to be too
dangerous or is likely to expose the identity of those connected
with the operation of interception;
(d) a statement of the period of time for which the interception is
required to be maintained. If the nature of the enquiry is such that
the authorisation for interception should not automatically
terminate when the describ ed type of communication has been
first obtained, a particular description of facts establishing
probable cause to believe that additional communications of the
same type will occur thereafter;
(e) a statement of the facts concerning all previous applicat ions
known to the individual authorising and making the application,
made to the Competent Authority for authorisation to intercept or
for approval of interceptions of, wire, electronic or oral
communications involving any of the same persons, facilities o r
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places specified in the application and the action taken by the
Competent Authority on each such application; and
(f) where the application is for the extension of an order, a
statement setting forth the results thus far obtained from the
interception, or a reasonable explanation of the failure to obtain
such results.
(3) The competent Authority may require the applicant to furnish
additional oral documentary evidence in support of the application.
(4) Upon such application, the Competent Authority may after recording
the reasons in writing reject the application, or issue an order, as requested or
as modified, authorising or approving interception of wire, electronic or oral
communications, if the Competent Authority determines on the basis of the
facts submitted by the applicant that,---
(a) there is a probable cause for belief that an individual is
committing, has committed, or is about to commit a particular
offence described and made punishable under Sections 3 and 4 of
this Act;
(b) there is a pr obable cause for belief that particular
communications concerning that offence will be obtained through
such interception;
(c) normal modes of enquiry and intelligence gathering have been
tried and have failed or reasonably appear to be unlikely to
succeed if tried or to be too dangerous or is likely to expose the
identity of those connected with the operation of interception;
(d) there is probable cause for belief that the facilities from which,
or the place where, the wire, electronic or oral communicat ions are
to be intercepted or be used or are about to be used, in connection
with the commission of such offence, leased to, or are listed in the
name of or commonly used by such person.
(5) Each order by the Competent Authority authorising or approving the
interception of any wire, electronic or oral communication un der this section
shall specify,-
(a) the identity of the person, if known, whose communications are
to be intercepted;
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(b) the nature and location of the communication facilities as to
which, or the place where, authority to intercept is granted;
(c) a particular description of the type of communication sought to
be intercepted, and a statement of the particular offence to which
it relates;
(d) the identity of the agency authorised to intercept the
communications, and of the person authorising th e application;
and
(e) the period of time during which such interception is authorised,
including a statement as to whether or not the interception shall
automatically terminate when the described communication has
been first obtained.
(6) The Competent Authority shall immediately after passing the order
under sub -section (4), but in any case not later than seven days from the
passing of the order, submit a copy of the same to the Review Committee
constituted under Section 15 along with all the relevant u nderlying papers,
record and his own findings, etc., in respect of the said order, for consideration
and approval of the order by the Review Committee.
(7) An order authorising the interception of a wire, electronic or oral
communication under this sectio n shall, upon request of the applicant, direct
that a provider of wire or electronic communication service, landlord, custodian
or other person shall furnish to the applicant forthwith all information,
facilities, and technical assistance necessary to acco mplish the interception
unobtrusively and with a minimum of interference with the services that such
service provider, landlord, custodian, or person is providing to the person
whose communications are to be intercepted.
(8) No order issued under this sec tion may authorise or approve the
interception of any wire, electronic or oral communication for any period longer
than is necessary to achieve the objective of the authorisation, nor in any event
longer than sixty days. Such sixty days period shall begin on the day
immediately preceding the day on which the investigative or law enforcement
officer first begins to conduct an interception under the order or ten days after
the order is issued, whichever is earlier. Extension of an order may be granted,
but only upon an application for an extension being made in accordance with
sub-section (1) and the Competent Authority making the findings required by
sub-section (4). The period of extension shall be no longer than the competent
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authority deems necessary to ac hieve the purposes for which it was granted
and in no event for longer than sixty days at a time. Every order and extension
thereof shall contain a provision that the authorisation to intercept shall be
executed as soon as practicable and shall be conducte d in such a way or
manner as to minimise the interception of communications not otherwise
subject to interception under this section and must terminate upon attainment
of the authorised objective, or in any event on expiry of the period of order. In
the event the intercepted communication is in a code or foreign language, and
an expert in that foreign language or code is not reasonably available during
the interception period, minimisation may be accomplished as soon as
practicable after such interception. An interception under this section may be
conducted in whole or in part by a public servant, or by an individual operating
under a contract with the State Government, acting under the supervision of
the investigative or law enforcement officer authorised t o conduct the
interception.
(9) Whenever an order authorising interception is issued pursuant to this
section, the order may require reports to be made to the Competent Authority
who issued the order showing that progress has been made towards
achievement of the authorised objective and the need for continued
interception. Such reports shall be made at such intervals as the Competent
Authority may require.
(10) Notwithstanding anything contained in any other provision of this
section, an officer not below the rank of Additional Director General of Police,
who reasonably determines that,-
(a) an emergency situation exists that involves,-
(i) immediate danger of death or serious physical injury to any
person;
(ii) conspiratorial activities threatening the security or interest
of the State; or
(iii) conspiratorial activities, characteristic of organi sed crime,
that requires a wire, electro nic or oral communication to be
intercepted before an order from the Competent Authority
authorising such interception can, with due diligence, be
obtained; and
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(b) there are grounds upon which an order could be issued under
this section to authorise such interception;
may authorise, in writing, the investigating Police Officer to intercept such
wire, electronic or oral communication, if an application for an order approving
the interception is made in accordance with the provisions of sub -sections (1)
and (2) within forty eight hours after the interception has occurred, or begins to
occur.
(11) In the absence of an order approving the interception made under
sub-section (10), such interception shall immediately terminate when the
communication sought i s obtained or when the application for the order is
rejected, whichever is earlier, in the event where an application for permitting
interception is rejected under sub -section (4) or an application under sub -
section (10) for approval is rejected, .or in an y other case where the
interception is terminated without an order having been issued, the contents of
any wire, electronic or oral communication intercepted shall be treated as
having been obtained in violation of this section.
(l2)(a) The contents of an y wire, electronic or oral communication
intercepted by any means authorised by this section shall, if possible, be
recorded on tape or wire or other comparable device. Recording of the contents
of any wire, electronic or oral communication under this sub -section shall be
done in such a way as will protect the recording from editing or other
alterations. Immediately upon, the expiration of the period of order, or
extension thereof, such recording shall be made available to the Competent
Authority issuing such order and shall be sealed under his directions. Custody
of the recordings shall be wherever the Competent Authority orders, they shall
if not be destroyed except upon an order of the Competent Authority, and in
any event shall be kept for ten years.
(b) Applications made and orders issued under this section shall be
sealed by the competent authority. Custody of the applications and
orders shall be wherever the competent authority directs and shall
not be destroyed except on an order of the competent a uthority,
and in any event shall be kept for ten years.
The Competent Authority upon the filing of a motion, may in
his discretion make available to such person or his counsel for
inspection such portions of the intercepted communications,
applications and orders as the Competent Authority determines to
be in the interest of justice.
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(13) Notwithstanding anything in the Code or in any other law for the
time being in force, the evidence collected through the interception of wire,
electronic or oral communi cation under this section shall be admissible as
evidence against the accused in the Court during the trial of a case:
Provided that, the contents of any wire, electronic or oral communication
intercepted pursuant to this section or evidence derived therefrom shall not be
received in evidence or otherwise disclosed in any trial, hearing or other
proceedings in any court unless each party, not less than ten days before trial,
hearing or proceedings, has been furnished with a copy of the order o f the
Competent Authority, and accompanying application, under which the
interception was authorised or approved:
Provided further that, this ten days period may be waived by the Judge,
trying the matter, if he finds that it was not possible to furnish the party with
the above information ten days before the trial, hearing or proceedings and that
the party will not be prejudiced by the delay in receiving such information.
Explanation: for the purposes of this section,-
(a) "Wire communication" means any oral transfer made in the
whole or part through the use of facilities for the transmission of
communications by the aid of wire, cable or other like connection
between the point of origin and the point of connection, between
the point of origin and the poin t of reception (including the use of
such connection in switching station) and such term includes any
electronic storage of such communication;
(b) "oral communication" means any oral communication uttered
by a person exhibiting an expectation that such c ommunication is
not subject to interception under circumstances justifying such
expectation but such term does not include any electronic
communication;
(c) "electronic communication" means any transfer of signs,
signals, writings, images, sounds, data or intelligence of any
nature transmitted in whole or in part by a wire, radio,
electromagnetic, photo electronic or photo optical system that
affects inland or foreign commerce but does not include,-
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(i) the radio portion of a cordless telephone communicat ion
that is transmitted between the wireless telephone hand -set
and base unit;
(ii) any wire or oral communication;
(iii) any communication made through a tone only paging
device; or
(iv) any communication from a tracking device;
(d) 'intercept' means the aural or other acquisition of the contents
by wire, electronic or oral communication through the use of any
electronic mechanical or other device.
15. Constitution of Review Committee for review of authorisation orders –
(1) There shall be a Review Committee to review every order passed by
the Competent Authority under Section 14.
(2) The Review Committee shall consist of the following ex -officio
members, namely:-
(i) the Chief Secretary to Government ………………Chairman
(ii) the Secretary, Home Department………………… Member
(iii) Secretary, Legal Affairs, Law Department ……….Member.
(3) Every order passed by the Competent Authority under Section 14,
placed before the Review Committee shall be considered by the Review
Committee within ten days ex cluding the holiday after its receipt to decide
whether the order, authorising or approving the application under
sub-section (4) of Section 14, for interception or disapproving the interception
made under sub-section (10) of that section in emergency situation, passed by
the Competent Authority was necessary reasonable and justified.
(4) The Review Committee, after examining the entire record and holding
such enquiry, if any deemed necessary may by order in writing , either approve
the order passed by the Competent Authority, or may issue order disapproving
the same. On issue of an order of disapproval by the Review Committee, the
interception if any, already commenced shall be forthwith discontinued. The
intercepted communication, if any in the form of tape, wire or other device ,
shall thereupon be directed to be destroyed and a certificate rendered to that
effect.
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16. Interception and disclosure of wire, electronic or oral communication
prohibited - Except or otherwise specifically provided in Section 14, any police
officer, who,-
(a) intentionally intercepts, endeavo urs to inter est, or procures
any other person to intercept or endeavour to intercept any wire,
electronic or oral communication.
(b) Intentionally us es, endeavours to use or procures any other
person to use or endeavour to use any electronic, mechanical or
other device to intercept any oral communication when,-
(i) such device is affixed to, or otherwise transmits a signal
through a wire, cable, or other like connection used in wire
communication; or
(ii) such device transmits communications by radio or interfere
with the transmission of such communication;
(c) intentionally discloses, or endeavours to disclose to any other
person the contents of any wire, electronic or oral communication,
knowing or having reason to know that the information was
obtained through the interception of a wire, electronic or oral
communication in violation of this section;
(d) intentionally uses, or endeavours to use, the contents of any
wire, or oral communication, knowing or having reason to know
that the information was obta ined through the interception of a
wire, electronic or oral communication in, violation of this section;
or
(e)(i) intentionally, discloses, or endeavours to disclose in any other
person the contents of any, wire, electronic or oral communication,
intercepted by means authorised by Section 14;
(ii) knowing , or having reason to know that the information
was obtained through the interception of such a
communication in connection with a criminal investigation
under this Act;
(iii) having obtained or received the information in connection
with a criminal investigation; and
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(iv) with intent to improperly obstruct, impede, or interfere
with a duly authorised criminal investigation; or
(f) intentionally continues the interception of wire, electronic or oral
communication after the issue of an order of disapproval b y the
Review Committee under sub-section (4) of Section 15.
shall for such violation be punishable with imprisonment for a
term which may extend to two years and shall also be liable to a
fine, subject to a minimum of rupees one lakh, to be borne by the
Police Officer concerned.
17. Special rules of evidence - (1) Notwithstanding anything to the
contrary contained in the Code, or the Indian Evidence Act, 1872 (Central
Act 1 of 1872), for the purposes of trial and punishment for offences under
this Act or connected offences, the Special Court may take into
consideration as having probative value, the fact that accused was,-
(a) on any previous occasion bound under Section 107 or Section
110 of the Code;
(b) detained and convicted under any law relating to preventive
detention; or
(c) on any previous occasion was p rosecuted in the Special Court
under this Act.
(2) Where it is proved that any person involved in an organised crime or
any person on his behalf is or has at any time been in possession of movable
or immovable property which he cannot satisfactorily account for, the Special
Court shall, unless contrary is proved, presume that such property or
pecuniary resources have been acquired or derived by his illegal activities.
(3) Where it is proved that the accused has kidnapped or abducted any
person, the Special Court shall presume that it was for ransom.
18. Certain confessions made to police officer to be taken into
consideration - (1) Notwithstanding anything in the Code or in the Indian
Evidence Act, 1872 (Central Act 1 of 1872), but subject to the provisions of this
section, a confession made by a perso n before a police officer not below the
rank of the Superintendent of Police and recorded by such police officer either
in writing or on any mechanical devices like cassettes, tapes or sound tracks
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from which sounds or images can be reproduced, shall be ad missible in the
trial of such person or co-accused, abettor or conspirator:
Provided that, the co -accused, abettor or conspirator is charged and
tried in the same case together with the accused.
(2) The confession shall be recorded in a free atmosphere i n the same
language in which the person is examined and as narrated by him.
(3) The Police Officer shall, before recording any confession under sub -
section (1), explain to the person making it that he is not bound to make a
confession and that, if he does so, it may-be used as evidence against him and
such police officer shall not record any such confession unless upon
questioning the person making it, he is satisfied that it is being made
voluntarily. The concerned police officer , shall, after recording su ch voluntary
confession, certify in writing below the confession about his personal
satisfaction of the voluntary character of such confession, putting the date and
time of the same.
(4) Every confession recorded under sub -section (1) shall be sent
forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate
having jurisdiction over the area in which such confession has been recorded
and such Magistrate shall forward the recorded confession so received to the
Special Court which may take cognizance of the offence.
(5) The person from whom a confession has been recorded under sub -
section (1) shall also be produced before the Chief Metropolitan Magistrate or
the Chief Judicial Magistrate to whom the confession is required to be sent
under sub-section (4) along with the original statement of confession, written
or recorded on mechanical device without unreasonable delay.
(6) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate
shall scrupulously record the statement, if any mad e by the accused so
produced and get his signature and in case of any complaint of torture, the
person shall be directed to be p roduced for medical examination before a
Medical Officer not lower in rank than an Assistant Civil Surgeon.
19. Protection of w itnesses - (l) Notwithstanding anything contained in the
Code, the proceedings under this Act may be held in Camera, if the Special
Court so desires.
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(2) A Special Court may, on an application made by a witness in any
proceeding before it or by the Publi c Prosecutor in relation to such witness or
on its own motion, take such measures as it deems fit for keeping the identity
and address of any witness secret.
(3) In particular, and without prejudice to the generality of the provisions
of sub-section (2), the measures which a Special Court may take unde r that
sub-section may include,-
(a) the holding of the proceedings at a place to be decided by the
Special Court;
(b) the avoiding of the mention of the names and addresses of the
witnesses in orders or judgments or in any records of the case
accessible to public;
(c) the issuing of any directions for securing that the identity and
addresses of the witnesses are not disclosed;
(d) that, it is in the public interest to order that all or any of the
proceedings pending before such a court shall not be published in
any manner.
(4) Any person who contravenes any direction issued under sub -section
(3) shall be punishable with imprisonment for a term which may extend to one
year and with fine which may extend to one thousand rupees.
20. Forfeiture and attachment of property - (1) Where a person has been
convicted of any offence punishable under this Act, the Special Court may, in
addition to awarding any punishment, by order in writing, declare that any
property, movable or immovable or both, belonging to the accused and
specified in the order, shall stand forfeited to the State Government, free from
all encumbrances.
(2) Where any person is accused of any offence under this Act, it shall be
open to the Special Court trying him, to pass an order that all or any properties
movable or immovable or both, belonging to him shall, during the period of
such trial, be attached, and where such trial ends in conviction, the properties
so attached shall stand forfeited to the State Government, free from all
encumbrances.
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(3)(a) If, upon a report in writing made by an investigating police officer with
the approval of the supervisory officer referred to in sub -section (1) of Section
14, any Special Court has reason to believe that any person, who has
committed an offence punishabl e under this Act has absconded or is
concealing himself so that he may not be apprehended, such Court may,
notwithstanding anything contained in Section 82 of the Code, publish a
written proclamation requiring him to appear at a specified place and at a
specified time not less than fifteen days but not more than thirty days from the
publication of such proclamation.
Provided that, if the investigating police officer concerned fails
to arrest the accused, who has absconded or is concealing himself,
within a period of three months from the date of registering the
offence against such person, the officer shall, on the expiry of the
said period, make a report to the Special Court for issuing the
proclamation.
(b) The Special Court issuing a proclama tion under clause (a)
may, at any time, order the attachment of any property movable or
immovable or both, belonging to the proclaimed person, and
thereupon the provisions of Sections 83 to 85 of the Code shall
apply to such attachment as if such attachmen t was made under
that Code.
(c) If within six months from the date of attachment, any person,
whose property is or has been, at the disposal of the State
Government under sub -section (2) of Section 85 of the Code,
appears voluntarily or is apprehended and brought before the
Special Court by whose order the property was attached, or the
court to which such Court is subordinate, and proves to the
satisfaction of such court that he did not abscond or conceal
himself for the purpose of avoiding apprehensio n and that he had
not received such notice of the proclamation as to enable him to
attend within the specified time therein, such property or, if the
same has been sold, the net proceeds of the same and the residue
of the property, shall, after satisfying therefrom all costs incurred
in consequence of the attachment, be delivered to him.
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21. Modified application of certain provisions of the Code - (1)
Notwithstanding anything contained in the Code or in any other law, every
offence punishable under this Act, shall be deemed to be a cognizable offence
within the meaning of clause (c) of Section 2 of the Code and "cognizable case"
as defined in that clause shall be construed accordingly.
(2) Section 167 of the Code shall apply in relation to a case involvi ng an
offence punishable under this Act subject to the modifications that, in sub -
section (2),-
(a) the reference s to "fifteen days" and "sixty days", wher ever they
occur, shall be construed as references to "thirty days" and "ninety
days", respectively;
(b) after the proviso, the following proviso shall be inserted namely:
"Provided further that if it is not possible to complete the
investigation within the said period of ninety days, the Special
Court shall extend the said period upto one hundred and eighty
days, on the report of the Public Prosecutor indicating the progres s
of the investigation and the specific reasons for the detention of the
accused beyond the said period of ninety days".
(3) Nothing in Section 438 of the Code shall apply in relation to any case
involving the arrest of any person on an accusation of havi ng committed an
offence punishable under this Act.
(4) Notwithstanding anything contained in the Code, no person accused of
an offence punishable under this Act shall, if in custody, be released on bail or
on his own bond, unless,-
(a) the Public Prosecutor has been given an opportunity to oppose
the application for such release; and
(b) where the Public Prosecutor opposes the application, the Court
is satisfied that there are reasonable grounds for believing that he
is not guilty of such offence and that he is not likely to commit any
offence while on bail.
(5) Notwithstanding anything contained in the Code, the accused shall
not be granted bail if it is noticed by the Court that he was on bail in an offence
under this Act or under any other Law on the date of the offence in question.
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(6) The limitations on granting of bail specified in sub -section (4) are in
addition to the limitations under the Code or any other law for the time being
in force on the granting of bail.
(7) The Police Officer seeking the custody of any person for pre-indictment
or pre-trial interrogation from the judicial custody shall file a written statement
explaining the reason for seeking such custody and also for the delay, if any, in
seeking the police custody.
22. Presumption as to offences under Section 3 - (1) In a prosecution for
an offence of organized crime punishable under Section 3, if it is proved,-
(a) that unlawful arms and other material including documents or
papers were recovered from the possession of the accused and
there is reason to believ e that such unlawful arms and other
material including documents or papers were used in the
commission of such offence; or
(b) that by the evidence' of an expert, the finger prints of the
accused were found at the site of the offence or on anything
including unlawful arms and other material including documents
or papers and vehicle used in connection with the commission of
such offence, the Special Court shall presume, unless the contrary
is proved, that the accused had committed such offence.
(2) In a pr osecution for an offence of organized crime punishable under
sub-section (2) of Section 3, if it is proved that the accused rendered any
financial assistance to a person accused or reasonably suspected of, an offence
of organi sed crime, the Special Court s hall presume, unless the contrary is
proved, that such person has committed the offence under the said
sub-section (2).
23. Cognizance of and investigation into an offence - (1) Notwithstanding
anything contained in the Code,--
(a) no information about the commission of an offence of organized
crime under this Act, shall be recorded by a police officer without
the prior approval of a police officer not below the rank of Depu ty
Inspector General of Police.
(b) no investigation of an offence under the provisions of this Act
shall be carried out by a police officer not below the rank of Deputy
Superintendent of Police.
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(2) No SpExcerpt shown. Open the full act in Lexace.