Chapter II PUNISHMENT FOR, AND MEASURES FOR COPING WITH, ORGANISED CRIME

Punishment for organised crime

1. (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 of rupees one lakh;
   • (ii) in any other case, 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 of rupees five lakhs.
2. (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 be not less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum of rupees five lakhs.
3. (3) Whoever harbours or conceals 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 less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum of rupees five lakhs.
4. (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 of rupees five lakhs.
5. (5) Whoever holds any property derived or obtained from commission of an organised crime or which has been acquired through the organised crime syndicate shall be punishable with a term of imprisonment which shall not 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 of rupees two lakhs.

Punishment for possessing unaccountable wealth on behalf of member of organised crime syndicate Whoever, being or having been a public servant or any other person, is possessed or had been possessed at any time, of property or pecuniary resources disproportionate to his known sources of income, which he cannot satisfactorily account for, and for which there is reason to believe that he had such property or resources on behalf of a member of an organised crime syndicate, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to ten years and shall also be liable to fine which shall not be less than rupees one lakh and such property shall also be liable to attachment and forfeiture under the provisions of this Act:

Special Rules of Evidence ("Special Rules of Evidence")

1. (1) Notwithstanding anything to the contrary contained in the Code or the Evidence Act, the following provisions shall apply in relation to cases involving an offence punishable under this Act:—
   • (a) the record of evidence collected by the investigating officer during the course of investigation shall be admissible as evidence in the trial of the accused;
   • (b) the entry made in the record of evidence as mentioned in clause
   • (a) may be proved by the officer who recorded the evidence or the officer who supervised the recording of such evidence.

("Interception of wire, electronic or oral communication")

1. (1) Notwithstanding anything contained in the Information Technology Act, 2000 or any other law for the time being in force, the Police Officer not below the rank of Superintendent of Police supervising the investigation of an organised crime under this Act may submit an application, in writing, to the Competent Authority for an order authorizing or approving the interception of wire, electronic or oral communication when he believes that such interception may provide evidence of the commission of an offence under this Act or may provide information concerning the offence.
2. (2) The Competent Authority may, if it is satisfied that there are reasonable grounds for such interception, issue an order authorizing or approving the interception of wire, electronic or oral communication for such period as it may deem fit: Provided that the period of interception shall not exceed sixty days, unless extended by the Competent Authority on an application made in this behalf.
3. (3) The evidence gathered through such interception shall be admissible as evidence in the court of law for the purpose of trial of the accused.

Authority for and admissibility of interception:

1. (1) A police officer not below the rank of Superintendent of Police supervising the investigation of an organised crime under this Act may submit the applications, in writing, to the Competent Authority for an order authorizing or approving the interception of wire, electronic or oral communication or provision under this Act.
2. (2) An application shall include the following information:
   • (a) the identity of the investigating officer making the application, and the head of the department authorizing the application;
   • (b) a full and complete 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 communication is to be intercepted;
     • (iii) a particular description of the type of communications sought to be intercepted;
     • (iv) the identity of the person, if known, committing the offence of organised crime whose communications are to be intercepted;
   • (c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
   • (d) a statement of the period of time for which the interception is required to be maintained;
   • (e) a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any competent authority for authorization of interceptions involving any of the same persons, facilities or places specified in the application, and the action taken by the authority on each such application;
   • (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. (3) The Competent Authority may require the applicant to furnish additional testimony or documentary evidence in support of the application.
4. (4) Upon such application, the Competent Authority may enter an ex-parte order authorizing or approving interception of wire, electronic or oral communication within the territorial jurisdiction of the State, if the Competent Authority determines on the basis of the facts submitted by the applicant that:
   • (a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offence of organised crime;
   • (b) there is probable cause for belief that particular communications concerning that offence will be obtained through such interception;
   • (c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;
   • (d) there is probable cause for belief that the facilities from which, or the place where, the wire, electronic or oral communication are to be intercepted are being used, or are about to be used, in connection with the commission of such offence, or are leased to, listed in the name of, or commonly used by such person.
5. (5) Each order authorizing or approving the interception of any wire, electronic or oral communication shall specify:
   • (a) the identity of the person, if known, whose communications are to be intercepted;
   • (b) the nature and location of the communications 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 authorized to intercept the communications, and of the person making the application;
   • (e) the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.
6. (6) The Competent Authority shall not grant an order under this section for a period of more than sixty days.
7. (7) An order authorizing the interception of a wire, electronic or oral communication under this section shall, upon request of the applicant, direct that a provider of wire or electronic communication service, landlord, custodian or other person shall furnish the applicant forthwith all information, facilities and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference.
8. (8) Notwithstanding anything contained in any other law or rule for the time being in force, the evidence obtained or collected through the interception of wire, electronic or oral communication 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 Act shall not be received in evidence or otherwise disclosed in any trial, hearing or other proceeding unless each accused has been furnished, with a copy of the order of the competent authority, and accompanying application, under which the interception was authorized or approved not less than ten days before trial, hearing or proceeding: Provided further that the period of ten days may be waived by the judge if he finds that it was not possible to furnish the party with the above information ten days before the trial and that the party will not be prejudiced by the delay in receiving such information.

Appointment of Special Courts:

1. (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. (2) Any question of law as to the cognizance of any offence by a Special Court shall be referred to the High Court having jurisdiction over the area, and the decision of the High Court, in such matter, shall be final.
3. (3) Where any question arises as to the jurisdiction of any Special Court, it shall be referred to the State Government whose decision in such matter shall be final.
4. (4) 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 Gauhati High Court.
5. (5) The State Government may also appoint, with the concurrence of the Chief Justice of the Gauhati High Court, Additional Special Courts for such area or areas or for such case or class or group of cases as may be specified in the notification.
6. (6) A person shall not be qualified for appointment as a Special Court Judge or an Additional Special Court Judge unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge.
7. (7) Where any vacancy occurs in the office of a Special Court Judge or an Additional Special Court Judge, such vacancy shall be filled in accordance with the provisions of this Act.
8. (8) Until a Special Court is constituted under sub-section (1), any case pending before any court could be transferred to a Special Court as soon as it is constituted.

Place of sitting The Special Court may, on its own motion or on an application made by the Public Prosecutor and if it considers it expedient or desirable so to do, sit for any of its proceedings at any place, other than its ordinary place of sitting.

Jurisdiction of Special Courts

1. (1) 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 section 8.
2. (2) If, having regard to the exigencies of the situation prevailing in a State, the Government of the State notifies more than one Special Court for any area, it may, by order, designate one of such Special Courts as the principal Special Court and define the matters triable by each of them.

Power of Special Court with respect to other offences.

1. (1) When trying any offence, 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. (2) If, in the course of any trial under this Act of any offence, it is found that the accused person has committed any other offence under this Act or any rule made thereunder or under any other law, the Special Court may convict such person of such other offence and pass any sentence or award punishment authorised by this Act or, as the case may be, such other law, for the punishment thereof.

Power of Special Court to transfer cases to regular courts. Where, after taking cognizance of an offence, a Special Court is of the opinion that the offence is not triable by it, it may, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the 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 as such.

Procedure and powers of Special Courts.

1. (1) A Special Court may take cognizance of offences without the accused being committed to it for trial, and, in trying the accused persons, shall follow the procedure prescribed in the Code for the trial of warrant cases before a Magistrate.
2. (2) 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: Provided that the person to whom pardon is tendered under this sub-section shall be examined as a witness in the trial of the accused in the case.
3. (3) Save as in this Act otherwise provided, the provisions of the Code shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court shall be deemed to be a Public Prosecutor.
4. (4) In particular and without prejudice to the generality of the provisions of section 164 of the Code, the provisions of section 164 thereof shall apply in relation to the case for the Special Court as if the reference in that section to the "Metropolitan Magistrate or the Judicial Magistrate of the first class" were a reference to the "Special Court".

Power of Special Court with respect to offences under other laws.

1. (1) When trying any offence, a Special Court may also try an offence other than an offence specified in section 3, with which the accused may, under the Code be charged at the same trial if the offence is connected with such other offence.
2. (2) If, in the course of any trial under this Act of any offence, it is found that the accused person has committed any other offence, the Special Court may convict such person of such other offence and pass any sentence authorised by this Act or, as the case may be, such other law, for the punishment thereof.

Appeal.

1. (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. (2) Every appeal under this section shall be preferred within thirty days from the date of the judgment, sentence or order appealed from: Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days.

Modified application of certain provisions of the Code.

1. (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. (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modifications specified in the following sub-sections:
   • (a) in sub-section (2), the reference to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as references to "thirty days", "ninety days" and "ninety days", respectively;
   • (b) after sub-section (2), the following sub-section shall be inserted, namely:— "(2A) Notwithstanding anything contained in sub-section
3. (1) or sub-section (2), the officer in charge of the police station shall not be entitled to police custody of the person arrested, for a period exceeding thirty days in the aggregate, and the Special Court may allow further detention of the person in judicial custody, not exceeding ninety days, in the aggregate: Provided that in further cases, the period of detention may be extended up to one hundred and eighty days on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the period of ninety days."
4. (3) Section 268 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that:
   • (a) the reference in sub-section
5. (1) thereof:
   • (i) to "the State Government" shall be construed as a reference to "the State Government or the Commissioner of Police";
   • (ii) to "order of the State Government" shall be construed as a reference to "order of the State Government or the Commissioner of Police, as the case may be".
6. (4) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under this Act.
7. (5) 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 the Public Prosecutor has been given an opportunity to oppose the application for such release.

Special Public Prosecutors

1. (1) The State Government may appoint one or more Special Public Prosecutors for such case or class of cases as may be specified in this behalf.
2. (2) Every Special Public Prosecutor so appointed shall be deemed to be a Public Prosecutor within the meaning of clause
   • (u) of section 2 of the Code of Criminal Procedure, 1973 (2 of 1974), and the provisions of the Code of Criminal Procedure, 1973 shall have effect accordingly.