The Presumption Under Section 22

In one line

Section 22 requires the Special Court to presume that the accused committed the offence once the prosecution proves one of three specific things, and the presumption is rebuttable.

In the wording a student can write in an exam: by section 22(1) of the Maharashtra Control of Organised Crime Act, 1999, in a prosecution for organised crime punishable under section 3, if it is proved that unlawful arms or other material including documents or papers were recovered from the possession of the accused and there is reason to believe they were used in the commission of the offence, or that by the evidence of an expert the fingerprints of the accused were found at the site of the offence or on such material or on a vehicle used in connection with it, the Special Court shall presume, unless the contrary is proved, that the accused committed the offence.

Why a presumption at all

Because the prosecution's difficulty is linkage, not identification. In a syndicate case the police often know who did what, and cannot prove it, because the people who could say so will not.

A presumption moves the burden after a foundation is laid. The prosecution must still prove the foundational fact beyond reasonable doubt; only then does the presumption operate, and only until the contrary is proved.

That is the shape of every presumption in this Act. Section 17(2), unaccounted property; section 17(3), kidnapping for ransom; and section 22, the two limbs here.

The provision itself

Section 22(1), two foundational facts. In a prosecution under section 3, the Special Court shall presume, unless the contrary is proved, that the accused committed the offence if it is proved that:

(a) recovery. Unlawful arms and other material, including documents or papers, were recovered from the possession of the accused, and there is reason to believe that they were used in the commission of the offence.

(b) fingerprints. By the evidence of an expert, the fingerprints of the accused were found at the site of the offence, or on anything including unlawful arms and other material or a vehicle used in connection with the commission of the offence.

Section 22(2), financial assistance. In a prosecution under section 3(2), if it is proved that the accused rendered any financial assistance to a person accused of, or reasonably suspected of, an offence of organised crime, the Special Court shall presume, unless the contrary is proved, that he committed the offence under that sub-section.

Broken down: what the prosecution must still prove

The prosecution proves the foundation, and it proves it in the ordinary way. Recovery from the accused's possession, or expert evidence of fingerprints, or the rendering of financial assistance. None of that is presumed.