Gujarat High Court
Sandip Omprakash Gupta vs State Of Gujarat on 6 May, 2021
Bench: A.S. Supehia
R/CR.MA/3819/2021 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 3819 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any NO
order made thereunder ?
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SANDIP OMPRAKASH GUPTA
Versus
STATE OF GUJARAT
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Appearance:
BIREN J PANCHAL(9300) for the Applicant(s) No. 1
MR ANKIT K MEHTA(10393) for the Applicant(s) No. 1
MR HARSHIT S TOLIA(2708) for the Applicant(s) No. 1
MR PARTH S TOLIA(5617) for the Applicant(s) No. 1
MS. MOXA THAKKER, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 06/05/2021
ORAL JUDGMENT
1. Heard the learned advocates for the respective
parties through video conferencing.
2. The present application is filed under Section
439 of the Code of Criminal Procedure in connection
with an F.I.R. being C.R. No.11210015200100 of 2020
registered with D.C.B. Police Station, Surat City,
Dist.Surat for the offences punishable under Sections
3(1)(i) and (ii), 3(2) and 3(4) of the Gujarat
Control of Terrorism and Organized Crime Act, 2015.
R/CR.MA/3819/2021 JUDGMENT
3. The case of the prosecution in nutshell is that
one Muzzafarali alias Asif Tomato, resident of
Salabatpura, Surat city, is a leader of one gang
called Asif Tameta Gang and engaged in several
offences or illegal activities. It is further alleged
that the above gang comprises of 14 members and the
applicant is alleged to be one of them. The last
offence or unlawful activity committed by the
applicant is as stated in F.I.R. being C.R.No.I29 of
2019 registered with the Dahej Police Station on
05.05.2019 for the offences of cheating and forgery.
Thus, it is stated that there is continuing unlawful
activity within the meaning of the Act.
3.1 Learned advocate for the applicant has submitted
that it is evident from Section 1(3) of the Gujarat
Control of Terrorism and Organized Crime Act, 2015
("the Act" for short) that, it has come into force
01.12.2019. It is submitted that there is nothing in
the Act to suggest that, the provisions of the Act
shall be applicable with the retrospective effect. It
is submitted that the last offence registered against
the applicant is vide F.I.R. being C.R. No.I29 of
2019 with Dahej Police Station on 05.05.2019. It is
submitted that thereafter, no offence is registered
against the applicant, hence the provisions of
Section 2(c) of the Act, which defines "continuing
unlawful activity" are not attracted. It is also
submitted that there is nothing to suggest that the
applicant is a member of Asif Tameta Gang or he has
committed unlawful activity on behalf of such gang.
R/CR.MA/3819/2021 JUDGMENT
3.2 Learned advocate for the applicant submitted
that Section 2(f) of the Act will not come in way of
the applicant for bail as there is no offence by the
syndicate as a whole and that five offences against
the applicant pending, the alleged members of
syndicate are not the coaccused neither the
applicant shown in offences as coaccused with the
other offences registered against the alleged members
of the syndicate. Learned advocate for the applicant
has referred to the decision of the Apex Court in the
case of State of Maharashtra vs. Shiva alias Shivaji
Ramaji Sonawale, (2015) 14 S.C.C. 272 in support of
his submission. Lastly, it is urged by the learned
advocate for the applicant that considering the
aforesaid aspects of the matter, the applicant may be
released on bail.
4. Learned Additional Public Prosecutor appearing
on behalf of the respondentState has opposed grant
of regular bail considering the nature and gravity of
the offence. She has referred to the report of the
Investigating officer and has submitted that the
authorities have considered six offences which are
registered against the applicant which are committed
by him being a member of Tameta Gang. Thus, it is
submitted that the present applicant may not be
released as he is threat to the society.
5. I have thoughtfully considered the rival
submissions raised at the bar. The relevant documents
as pointed out by the advocates are also perused.
R/CR.MA/3819/2021 JUDGMENT
6. In order to curb and control organized crime
and terrorist activities in the State of Gujarat the
Legislature has promulgated "the Gujarat Control of
Terrorism and Organized Crime Act, 2015" vide
Notification. The Act has come into force from
01.12.2019. Sections 2(c) and (f) which define
"continuing unlawful activity" and "organized crime
syndicate" read as under:
(c) "continuing unlawful activity" means an activity
prohibited by law for the time being in force, which
is a cognizable offence punishable with imprisonment
for a term 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 chargesheets have been filed
before a competent court within the preceding period
of ten years and that court has taken cognizance of
such offence;
(f) "organised crime syndicate" means a group of two
or more persons who, acting either singly or col
lectively, as a syndicate or gang indulging in
activities of organised crime;
The combined reading of the aforesaid provisions
suggest that there has to be a continuing unlawful
activity carried out by an organized crime syndicate,
for which more than one charge sheets have been filed
before a competent court within the preceding period
of ten years, and that the court has taken
cognizance of such offence.
7. The Supreme Court in the case of Shivaji Ramaji
Sonawale (supra) while considering the pari materia
provisions of section 2(d) of the Maharashtra Control
of Organised Crime Act, 1999 to that of section 2(c)
of the Gujarat Act, which defines "continuing
unlawful activity" has held thus:
R/CR.MA/3819/2021 JUDGMENT
"9. The significant feature of the two cases is that for
Crimes No.37 of 2001 and 38 of 2001 the respondents were
separately tried and acquitted on 18th January, 2008 in
the case of Shiva and on 28th February, 2006 in the case
of Mehmood Khan Pathan. In the said charge sheets, the
respondents were accused of committing offences only
under the IPC and the Arms Act. For the offences
punishable under MCOCA separate and independent charge
sheets were filed against the accused persons in which
they were convicted by the Trial Court which conviction
was reversed by the High Court as noticed earlier. It was
in the above backdrop that the High Court held that once
the respondents had been acquitted for the offence
punishable under the IPC and Arms Act in Crimes No.37 and
38 of 2001 and once the Trial Court had recorded an
acquittal even for the offence punishable under Section 4
read with Section 25 of the Arms Act in MCOCA Crimes No.1
and 2 of 2002 all that remained incriminating was the
filing of charge sheets against the respondents in the
past and taking of cognizance by the competent court over
a period of ten years prior to the enforcement of the
MCOCA. The filing of charge sheets or taking of the
cognizance in the same did not, declared the High Court,
by itself constitute an offence punishable under Section
3 of the MCOCA. That is because the involvement of
respondents in previous offences was just about one
requirement but by no means the only requirement which
the prosecution has to satisfy to secure a conviction
under MCOCA. What was equally, if not, more important was
the commission of an offence by the respondents that
would constitute "continuing unlawful activity". So long
as that requirement failed, as was the position in the
instant case, there was no question of convicting the
respondents under Section 3 of the MCOCA. That reasoning
does not, in our opinion, suffer from any infirmity.
10. The very fact that more than one charge sheets had
been filed against the respondents alleging offences
punishable with more than three years imprisonment is not
enough. As rightly pointed out by the High Court
commission of offences prior to the enactment of MCOCA
does not by itself constitute an offence under MCOCA.
Registration of cases, filing of charge sheets and taking
of cognizance by the competent court in relation to the
offence alleged to have been committed by the respondents
in the past is but one of the requirements for invocation
of Section 3 of the MCOCA. Continuation of unlawful
activities is the second and equally important
requirement that ought to be satisfied. It is only if an
organised crime is committed by the accused after the
promulgation of MCOCA that he may, seen in the light of
the previous charge sheets and the cognizance taken by
the competent court, be said to have committed an offence
under Section 3 of the Act.
11. In the case at hand, the offences which the
respondents are alleged to have committed after the
promulgation of MCOCA were not proved against them. The
acquittal of the respondents in Crimes No.37 and 38 of
R/CR.MA/3819/2021 JUDGMENT
2001 signified that they were not involved in the
commission of the offences with which they were charged.
Not only that the respondents were acquitted of the
charge under the Arms Act even in Crimes Case No.1 and 2
of 2002. No appeal against that acquittal had been filed
by the State. This implied that the prosecution had
failed to prove the second ingredient required for
completion of an offence under MCOCA. The High Court was,
therefore, right in holding that Section 3 of the MCOCA
could not be invoked only on the basis of the previous
charge sheets for Section 3 would come into play only if
the respondents were proved to have committed an offence
for gain or any pecuniary benefit or undue economic or
other advantage after the promulgation of MCOCA. Such
being the case, the High Court was, in our opinion,
justified in allowing the appeal and setting aside the
order passed by the Trial Court."
8. By analyzing the expression "continuing unlawful
activity", the Apex Court has held that the filing of
more than one charge sheets for the offences
punishable with more than three years imprisonment is
not enough, but it must be satisfied that the
continuation of unlawful activities is the second and
equally important requirement that ought to be
satisfied. It is only if an organised crime is
committed by the accused after the promulgation of
the Act that has to be considered in the light of the
previous charge sheets. Thus, the contention raised
by the learned Advocate with regard to the
prospective effect of the Act is not palatable in
view of the aforesaid observations made by the Apex
Court, but at the same time it is noticed in the
present case, that the expression ""continuing
unlawful activity" is not satisfied in view of the
offences which are considered by the authority. In
the instant case, for invoking the provisions of the
Act against the applicant, the state has relied on 5
offences and one externment order registered against
R/CR.MA/3819/2021 JUDGMENT
the applicant. The details are as under :
Sr F.I.R/Police Offence under I.P.C Charge sheet no.
No station
1 29/2019,Dahej 407,411,465,467,468 1128/2019
dated 21.09.19
, 471, 120(b)
2 285/2018,Sachin 506(2), 114 43491/18
dated 29.08.18
3 26/2016,Sachin 326, 323, 114 36060/2016
dated 27/06/2016
4 22/2019,Sachin 506(2), 114 6778/2019
dated 12.12.2019
5 382,Sachin 323, 504,506(2) 64157/2018
dated 25.12.18
6 Order
No.03/2019
dated 03.3.2019
of Asst. Police
Commissioner
9. The Act came into force on 01.12.2019. The last
offence which is registered against the applicant is
of 2019 registered vide F.I.R. No.29/2019, (Item.1),
for which the chargesheet is filed on 21.01.2019
which is prior to the promulgation of the Act. The
offence at serial no.6 being F.I.R. No.14/209 under
sections 364(A), 387, 120(B), 114 of the IPC has been
quashed by this Court vide order dated 03.12.2019
passed in Criminal Misc. Application No.21872 of
2019 and hence, the same could not have been
considered by the authority while registering the
F.I.R. on 27.11.2020. The applicant has not committed
any offence after the promulgation of the Act. At
serial no.6, the state has referred to the extension
order dated 03.03.2019 also which is against the
provisions of section 2(c) of the Act. The Supreme
Court has held that it is only if an organised crime
R/CR.MA/3819/2021 JUDGMENT
is committed by the accused after the promulgation of
the Act that has to be considered in the light of the
previous charge sheets. Thus, the state has
misdirected itself with regard to the registration of
offences against the applicant, hence the applicant
cannot be allowed to be further incarcerated in jail.
10. Having perused the materials placed on record
and taking into consideration the facts of the case,
nature of allegations, gravity of offences, role
attributed to the accused, without discussing the
evidence in detail, at this stage, this Court is
inclined to grant regular bail to the applicant. It
is clarified that this Court has not expressed any
opinion with regard to the applicant not being a
member or a member of the crime syndicate.
11. This Court has also taken into consideration the
law laid down by the Apex Court in the case of
Sanjay Chandra Vs. Central Bureau of Investigation,
(2012) 1 SCC 40.
12. In the result, the present application is
allowed and the applicant is ordered to be released
on regular bail in connection with an F.I.R. being
C.R. No.11210015200100 of 2020 registered with D.C.B.
Police Station, Surat City, Dist.Surat, on executing
a personal bond of Rs.10,000/ (Rupees Ten Thousand
Only) with one local surety of the like amount to the
satisfaction of the learned Trial Court and subject
to the conditions that he shall;
R/CR.MA/3819/2021 JUDGMENT
(a) not take undue advantage of liberty or misuse
liberty;
(b) not act in a manner injurious to the interest of
the prosecution;
(c) surrender his passport, if any, to the lower
court within a week;
(d) not leave the State of Gujarat without prior
permission of the concerned Trial Court;
(e) mark presence before the concerned Police Station
on alternate every Monday for initial six months and
thereafter, on alternate Monday of every English
calendar month, for a period of six months, between
10:00 a.m. and 2:00 p.m.;
(f) furnish latest address of residence to the
Investigating Officer and also to the Court at the
time of execution of the bond and shall not change
the residence without prior permission of the Trial
Court;
13. The Authorities will release the applicant only
if he is not required in connection with any other
offence for the time being. If breach of any of the
above conditions is committed, the concerned Trial
Court will be free to issue warrant or take
appropriate action in the matter. Bail bond to be
executed before the Trial Court having jurisdiction
to try the case.
14. It will be open for the concerned Court to
delete, modify and/or relax any of the above
conditions in accordance with law. At the trial,
R/CR.MA/3819/2021 JUDGMENT
learned Trial Court shall not be influenced by the
observations of preliminary nature, qua the evidence
at this stage, made by this Court while enlarging the
applicant on bail. Rule is made absolute accordingly.
15. Registry is directed to intimate the concerned
jail authority and the concerned Sessions Court about
the present order by sending a copy of this order
through Fax message, email and/or any other suitable
electronic mode.
16. Learned advocate for the applicant is also
permitted to send a copy of this order to the
concerned jail authority and the concerned Sessions
Court through Fax message, email and/or any other
suitable electronic mode.
Sd/-
(A. S. SUPEHIA, J)
SUYASH
