When diamond merchant Bharat Shah was convicted for withholding information about producer Nazim Rizvi's underworld links, it was under the time-tested Indian Penal Code, and not under the new and much debated Maharashtra Control of Organised Crime Act, MCOCA.
Had Shah been convicted under MCOCA, his sentence would have been invariably harsher than the imprisonment handed down. Because under the provisions of MCOCA, a person with links to terrorist or mafia groups can get up to life in prison.
Rizvi and his assistant Abdul Rahim Allabaksh, who were also accused along with Shah, were convicted under MCOCA and sentenced to six years in prison, along with a fine of Rs 500,000 or an additional year in prison in lieu of payment.
Not surprisingly, Shah blasted MCOCA as a draconian law that gives the police almost unlimited power to arrest someone. 'In the end, my crime was about my not informing the police about Nasim Rizvi's links to the underworld. But how am I to know about his links? I deal with hundreds of people, surely I am not in a position to know everything about them,' he said.
Shah felt he was being penalized for his ignorance.
His lawyer Shrikant Shivde argued that the worst aspect of MCOCA is that confessions made to the police are acceptable as evidence. "In the case against Bharat Shah, a person with links to [notorious gangster] Chhota Shakeel, was used by the police as a witness. Another person had collected Rs 200,000 for Abu Salem [another notorious gangster] and is listed as 'absconding' in many cases was a witness," he said, adding, "If the police can stoop to this level, then what credibility does MCOCA have?"
Under MCOCA, the police has he power to record confessions. Over the years, human rights activists and lawyers have claimed that such confessions were recorded under duress and torture. But under the Indian Penal Code, a confession has to be made to a magistrate or judge to be admissible as evidence.
As far as Shivde is concerned, MCOCA gives the police too much power, which he said is often abused. "That absolute power corrupts absolutely is absolutely true in this case," he added.
A senior police officer, who did not wish to be identified for this report, saw it differently. "Bharat Shah is a very rich man and his huge team of lawyers could somehow find a loophole for him to escape. That by itself does not invalidate MCOCA," he insisted.
This officer pointed out that Shah had not been acquitted honourably. "The fact is that he is guilty of some crime, so for him to claim all innocence is wrong. And let us not forget, his co-accused, Rizvi and Allabaksh, were found guilty under the very same MCOCA," he added.
He said the police needed MCOCA to fight terrorism and the Mumbai mafia. "If the police don't have MCOCA, then who will handle the terrorists?" he asked.
Lawyer P R Vakil said the fact that Shah was acquitted of MCOCA while Rizvi and Allabaksh were convicted under the law proves that justice does prevail.
"I don't think a single case should decide the validity of MCOCA or any other law," he said, "We need to look at the larger picture."
He said the Act needed to be judged by whether it serves the purpose it was set up for. "My personal view is that in a very large way, MCOCA has served its purpose," he said.
Shivde said that in the final analysis, any law was as good or bad as its enactment. "You know why TADA [the Terrorist and Disruptive Activities (Prevention) Act]failed? Because it was misused by those it was meant to protect," he said.
Under TADA, a person could be condemned for any act that threatened the sovereignty of India, a clause that came in for flak later.
Shivde narrated an example. "A [municipal] council member was threatened in some local quarrel. The council member said that since he represented the community, a threat to him was a threat to the nation, and so the other person was booked under TADA!"
He said it was such ridiculous and mindless application of TADA against all and sundry that rang the Act's death knell. "If MCOCA is also misused by applying it to almost every case with some underworld link," he asserted, "it too will lose credibility and will then be voted out."