Mohamad Iliyas Mohamad Bilal ... vs State Of Gujarat
2022 Latest Caselaw 112 Guj

      R/CR.MA/13524/2021                          ORDER DATED: 05/01/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/CRIMINAL MISC.APPLICATION NO. 13524 of 2021
================================================================
                 MOHAMAD ILIYAS MOHAMAD BILAL KAPADIYA
                                 Versus
                           STATE OF GUJARAT
================================================================
Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1
MR. MITESH AMIN, PUBLIC PROSECUTOR with MR. H.K.PATEL, APP (2)
for the Respondent(s) No. 1
===============================================================
 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                             Date : 05/01/2022
                              ORAL ORDER

[1] The present application is filed under Section 439 of the Code

of Criminal Procedure, 1973, for regular bail in connection with FIR

being I-CR No.11210015210066 of 2021 registered with Surat

DCB Police Station, Surat for offence under Sections 3(1)(2), 3(2)

and 3(4) of the Gujarat Control of Terrorism and Organized Crime

Act (for short "GUJCTOC Act").

[2] It is submitted that the applicant is being prosecuted as a

member of syndicate headed by co-accused Vipul Gajipara. The

basis for such prosecution under the provisions of GUJCTOC Act is

only the offence registered with DCB Police Station being I-

C.R.No.11210015210064 of 2021.

[2.1] It is submitted that over and above, the applicant is attributed

with four individual offences, three of which are under Arms Act

while another offence would fall in the realm of business transaction

completely unconnected to the alleged organized crime. It is

R/CR.MA/13524/2021 ORDER DATED: 05/01/2022

submitted that if all the offences are seen together, there is no

element of commonality or participation in the offences which are

termed to be organized crime. Moreover, the act attributed to the

applicant would not fall in the definition of continuing unlawful

activity as there is no link of any act attributed to the applicant to

the first offence treated to be the offence of the organized crime of

the syndicate till the last offence allegedly committed by the

syndicate. It is submitted that to make out the offences under the

GUJCTOC Act, it is necessary to bring on record requisite mens-rea

connecting the applicant with the crimes committed by the

syndicate. In the only offence registered with DCB Police Station,

even if the role of the applicant is examined, then also the applicant

cannot be treated to be part of the syndicate.

[2.2] It is argued that in the charge-sheet filed in such offence

committed at the behest of one Vipul Gajipara and Altf Gafur Patel,

FIR is registered on the basis of Call Detail Records, however, there

is no Call Detail Records of the applicant with syndicate leader

namely Vipul Gajipara nor there is any other evidence to connect

the applicant with the leader or the syndicate.

[2.3] Learned advocate for the applicant has tried to bring to the

notice of the Court the proceedings initiated by the co-accused of

the constituent offences and orders passed respectively by various

Courts protecting such co-accused in the constituent offences. It is

submitted that the offence of the DCB being C.R.No.I-

R/CR.MA/13524/2021 ORDER DATED: 05/01/2022

C.R.No.11210015210064 of 2021 is in reality a civil dispute which is

given a colour of criminal offence and in such offence also, the main

accused has been granted protection to the extent that the

Investigating Agency is prevented from filing charge-sheet.

[2.4] Learned advocate submitted that to treat the criminal

offences of the applicant to be part of organized crime, it is required

that the applicant must be involved in more than two offences,

wherein charge-sheet is filed and cognizance is taken in more than

two offences. It is submitted that two offences, in case of the

applicant, are isolated offences or stand alone offences with no link

with the syndicate and therefore, existence of such two offences

cannot be treated as an offence to be considered as further

requirement of provisions of GUJCTOC Act. Learned advocate has

relied upon the decision in the case of Sandip Gupta v/s. State of

Gujarat to contend that there is no offence registered against the

said accused after the promulgation of the act. It is also submitted

that the Court has adopted the test of two charge-sheets being

indispensable for attracting the provisions of GUJCTOC Act.

[2.5] Thereafter, the learned advocate has taken this Court through

the list of offences registered against the applicant. The manner and

method in which the offence has been registered and the status of

the applicant in such offence to broadly contend that the action of

the applicant amounting to the offence for which FIRs have been

registered, cannot be treated as a part and parcel of organized

R/CR.MA/13524/2021 ORDER DATED: 05/01/2022

crime of the syndicate attracting the provisions of GUJCTOC Act.

[3] As against this, learned Public Prosecutor has objected

against the application and stated that an notorious accused

named Vipul Dahyabhai Gajipara, residing in the Adajan police

station area, Surat, has formed Organized crime syndicate in

collusion with his accomplices for the benefit of his own as well

as for his gang members, through which they have committed

various offenses like hurt, grievous hurt, attempt to murder,

extortion, robbery, dacoity, many offenses regarding human

body and offenses related to Arms Act in the police station

areas in Surat city viz. Laal gate, Varachha, Kapodra, Sarthana,

Katargaam, Khatodara, Rander, Amroli. They have turned this

crime syndicate into their livelihood and created an

atmosphere of fear among the people. Due to their terror,

common man avoids to lodge complaint against them. In spite

of initiating all legal proceedings against the accused persons,

they have continued their criminal activity. Therefore, present

offense has been lodged against the leader of this gang Vipul

Gajipara and his accomplices.

[3.1] In that FIR, the present applicant has been named as

accused no.10. Moreover, he has vehemently stated that after

the present offense was lodged, the applicant-accused filed

R/CR.MA/13524/2021 ORDER DATED: 05/01/2022

Criminal Misc. Application No.1049/2021 before this Court

which was rejected. All the submissions made by the applicant-

accused were also made at the time of previous application.

Upon considering all those submissions, that bail application

was rejected on its merit. In these circumstances, the bail

application of applicant-accused should be rejected. He has

vehemently submitted that in another such offense, an

accused was released on bail by the Court. Circumstances of

that case compared to the present case are quite different. In

the said case, the Hon'ble High Court relied on the fact that not

a single offense was lodged against that accused after the

implementation of 'GUJCTOC Act', hence prima facie

considering as to whether the provision of GUJCTOC Act are

applicable or not, and the Court released the said accused on

bail. However, the accused in the present case, has committed

two more offenses in 2020 and 2021, after implementation of

'GUJCTOC Act' i.e 01.12.2019, in collusion with main accused

Vipul Gajipara, which attract the provisions of 'GUJCTOC Act'. In

one of those offenses, it is on record that absconding gang

leader Vipul Gajipara and notorious Altaf Patel were also

involved with him. Thus, the present accused has continued his

criminal activity as a member of Organized crime syndicate,

even after the implementation of 'GUJCTOC Act'.

R/CR.MA/13524/2021 ORDER DATED: 05/01/2022

[3.2] He has also submitted that considering the FIR of the

offenses lodged in the year 2020 and 2021, against the

present applicant-accused, it appears on record that he is

involved with gang leader Vipul Gajipara and notorious Altaf

Patel. Moreover, due to the fear of this gang, common people

were afraid to lodge complaint, initiate proceedings or give

statement against them. After the present offense was

registered, statements of some witnesses have been recorded

during investigation of this case. In that investigation, it was

surfaced that he is member of this gang and he has continued

criminal activity as member of the gang, hence his statement

was recorded as per section-164 of CrPC. Taking that

statement into account, it appears on record that he has been

involved in criminal activity as member of 'Vipul Gajipara gang'

even after implementation of this Act. He has vehemently

stated that many offenses have been registered against all the

members of this gang.

[3.3] He submitted that although after the implementation of

'GUJCTOC Act' on 01/12/2019 the applicant-accused had committed

an offence u/s. 387, 506(2), 120(B) of Indian Penal Code registered

vide Crime Reg. No. 11210015210064/2021 of D.C.B. Police Station,

looking to it, the judgment in the case of Sandip Omprakash Gupta

R/CR.MA/13524/2021 ORDER DATED: 05/01/2022

does not becomes helpful to the present applicant-accused. He has

stated that this offence has been mentioned by the Investigating

Officer in serial No. 5. of column no. 33 in his affidavit of exhibit-4.

Thereafter, as per the report by the Investigating Officer, an offence

u/s. 387, 342, 323, 504, 506(2), 120(b) of Indian Penal Code have

been registered in Rander Police Station vide Crime Reg. no.

11210050211310 / 2021 on 16/06/2021, in which the complainant

has stated such facts that when he and his friend were going on a

bike, meanwhile, three persons came in Creta car and insisted them

to come to talk, took them at the place of incident, demanded

rupees four crores as extortion money, and otherwise they gave

threat to face the consequences and stated that they are the

members of the gang of Altaf Patel, Vipul Gajipara and Illyas

Kapadiya and these persons only have stated to receive the money

from the complainant. Hence, they threatened to make

arrangements of Four Crores and gave threat on showing pistol. In

this complaint also, on looking to the threat given by the accused

persons mentioning that they are the members of Mohammed Illyas

Kapadiya, Vipul Gajipara and Altaf Patel, it remains that the present

applicant-accused is connected with the gang of gang leader Vipul

Gajipara.

[4] Heard learned advocate for the parties and perused the

documents placed on record. The investigation pertains to one Vipul

Dahyabhai Gajipara, residing in the Adajan Police Station Area of

R/CR.MA/13524/2021 ORDER DATED: 05/01/2022

Surat City, in collusion with his accomplices, Danish @ Nano @

Daniyo Rameshchandra Biladawala (Khatri), Altaf Gafurbhai Patel,

Ankitkumar @ Doctor Karamvirsingh, Shashanksinh @ Mohit

Vishwapratapsinh Singh (Bhardwaj), Ujjwaldeep @ UD

Brijmohansingh (Rajput), Arjunkumar @ Arvind Satnarayan Pande,

Kapilkumar @ Popin @ Dhanraj @ Jatau @ Kapil Vakil S/o.

Mamchand, Aazad @ Aazad Pathan S/o. Aiyubkhan Goja (Pathan)

and Mohammad Iliyas Mohammad Bilal Kapadia, formed organized

crime syndicate to commit crimes and made monetary benefits

yielded out of such crimes their livelihood. Committing such crimes

in public frequently, they create an atmosphere of fear and terror in

order to put the public at large under their coercion and not become

obstacle in their criminal activities and to carry on their activities

without any obstructions.

[4.1] As per discrete information, in many cases apart from the

offenses of extortion and robbery mentioned in the table of the

complaint, the gang collects ransom money from the trader or

business class but due to the fear and terror of the said gang, the

victim trader, business class or common man avoid the police action

or to lodge the complaint against them. It is imperative to pull down

such activities mentioned above of such criminals in order to

maintain the law and order in the city and for maintaining peace

and public order. Despite the action of PASA/ exoneration has been

taken to control such criminal activities of the aforesaid accused

R/CR.MA/13524/2021 ORDER DATED: 05/01/2022

persons, there is no charge in the criminal mindset and conduct of

the said accused and they have kept such criminal activities

continue as ago.

[5] Considering the F.I.R. of the offence, names and addresses of

all the members of the gang and details of offences registered

against each accused in the last ten years have been mentioned on

its page No.5, name of Vipul Gajipara is mentioned in the first

column. Considering the F.I.R., many offences under section-307,

201, 365, 386, 323, 120(B), 143, 147, 148, 149, 387, 506(2) of

Indian Penal Code, section - 135 of Gujarat Police Act and section -

25(1)(A)(B) of the Arms Act have been registered against him. In the

same way, in addition to the sections mentioned above, offences

under sections - 323, 324, 395, 332, 212, 387, 397, 307, 392 etc. of

Indian Penal Code have been registered against other members of

the gang. Five offences have also been registered against the

present applicant-accused, out of which, three offences have been

filed under the Arms Act and two offences have been filed in

connection with grabbing properties, shares and money from the

people in collusion with gang leader Vipul Gajipara and other

accomplices.

[5.1] Thus, there is a prima facie material on record to believe that

the applicant-accused is a member of this organized crime

committing gang and is connected with the gang leader and other

accomplices. Statements of police witnesses and some other

R/CR.MA/13524/2021 ORDER DATED: 05/01/2022

witnesses in connection with the offences registered against them

as mentioned above are available on record. Section 17 of the

GUJCTOC Act provides for keeping secret the identity and address

of witnesses, this Court avoids mentioning names of the witnesses.

However, it necessary to record that, prima facie it appears from

some of the crucial statements on record that the applicant-accused

is a member of this organized crime syndicate and has been

engaged in such criminal activities prior to and after enactment of

this act. From these statements, such fact emerges on record that,

the witnesses know all the members of this gang full well, who are

gangsters and ruffians. The gang acts under directions of notorious

gang leader Vipul Gajipara and his close friends Altaf Patel, Danish

and Mohammad Iliyas Kapadiya (the present applicant-accused).

The witnesses have also stated that, the members of this gang are

engaged in offences such as loot, robbery, abduction for ransom,

grabbing someone's land or property by occupying it, grabbing a

land property forcefully by entering into a deal, giving token amount

and threatening the land owner, who demands the remaining

amount, of killing him, recovery of due amount for any person and

coercion to withdraw police complaint.

[5.2] The witnesses also state that, whenever they hatch a

conspiracy, they commit an offence by forming organized gangs of

different members so as not to disclose involvement of every

members of the gang. Further, when any member is arrested by

R/CR.MA/13524/2021 ORDER DATED: 05/01/2022

police, another member is sent for other criminal act so that

involvement of the whole gang does not get disclosed due to

different location, place and person. The witnesses have also stated

that, Vipul Gajipara, a leader of the gang and Altaf Patel have their

den near platform No.4 of Surat Railway Station and hatched

conspiracy for every act from there. The facts mentioned above

have been stated corroboratively by many witnesses. Considering it,

the facts have emerged on record to believe that the applicant-

accused is a member of this gang.

[6] It is noteworthy that, the only material representation made

for the applicant-accused is that, the offences registered against the

applicant-accused in the past cannot be considered for registering

offence under the GUJCTOC Act and provision of this act is attracted

only if a fresh offence is committed by him on the date of F.I.R.. This

Court is of the view that if any accused has committed numerous

offences prior to enactment of this act and is engaged in criminal

activities as a member of a gang committing organized crimes even

after enactment of this act, then police can proceed to file a

complaint. It is natural that members of a gang committing

organized crimes are ruffians and used to commit offences relating

to body and property. It is comprehensible that, in such

circumstances, no person dares to file a complaint against them.

With respect to the present applicant-accused, even after

enactment of this act, offences of grabbing others' shares,

R/CR.MA/13524/2021 ORDER DATED: 05/01/2022

occupation, office, car and other movable and immovable

properties, threatening to kill and coercion in collusion with

notorious gang leader Vipul Gajipara have been registered against

him and gang leader Vipul Gajipara and other accomplices are also

involved with him. In such circumstances, provision of section-2(C)

and section-2(E) of the GUJCTOC Act are attracted against the

present applicant-accused.

[7] It appears from the record that total 5 serious offenses have

been registered against the applicant-accused. Two out of the five

offenses have been registered after 'the GUCTOC Act' came into

effect, i.e. after 01/12/2019, and out of them, in one of the offenses,

it is alleged that the present applicant-accused in collusion with the

main accused Vipul Gajipara and notorious Altaf Patel have

threatened, beaten and caused serious injuries to the complainant

in that case in order to usurp 65% shares of his company, the

company office, company's accounts, a BMW car etc. If the nature of

offenses registered against the applicant-accused is taken into

consideration all together, as per my humble opinion, the applicant-

accused prima facie attracts the provisions of GUJCTOC Act. Two out

of the five serious offenses registered against the applicant-accused

are registered after implementation of the GUJCTOC Act. In one of

those offenses, Vipul Gajipara and Altaf Patel are the co-accused

along with the present applicant-accused and they have committed

the offense in a manner attracting the provisions of this act. If the

R/CR.MA/13524/2021 ORDER DATED: 05/01/2022

details of the offense registered vide Rander Police Station Cr. NO.

11210050211310/ 2021 are taken into consideration, it is stated

that total three accused persons brandished a pistol and demanded

a ransom of Rupees four crore from the complainant in that case

and told him that they were working for Altaf Patel, Vipul Gajipara

and Ilyas Kapadiya who had asked for collecting money.

[8] The Court is of the view that If the provisions of Section-2(C)

of the GUJCTOC Act are read with the judgment in the case of

Sandip Omprakash Gupta case, the fact is clear that there are two

main requirements for attracting provisions of the GUJCTOC Act

against the applicant-accused. (1) More than one offense

punishable with imprisonment of three years and more should have

been registered against the accused in last ten years, wherein

charge-sheet has been filed and the court has taken a cognizance of

an offense. (2) Where the accused has committed any offense

punishable with imprisonment of three years or more after this act

has come into force. Both these requirements are met with in the

case of present applicant-accused.

[9] Against the applicant, list of four offences have been

registered which are as under:-

 Sr.No.                          Police Station,C.R.No./Sections

1.        D.C.B.Police Station
          Part-A 11210015210064/2021
          Sections 387, 506(2) and 120(B) of IPC.







      R/CR.MA/13524/2021                                      ORDER DATED: 05/01/2022



2.        Rander Police Station
          Part-A 11210050200837/2020
          Sections 447, 427, 506(2) and 114 of the IPC

3.        D.C.B.Police Station
          II-C.R.No.3179 of 2014

Sections 25(1-A), and 29 of the Arms Act and Sections 188 and 114 of the IPC

4. Rander Police Station II-C.R.No.659 of 2014 Sections 25(1)A, 25(1-B)A and 29 of the Arms Act and under Section 135 of the GP Act

5. Amroli Police Station II-C.R.No.345 of 2015 Sections 25(1), 1(AA) of the Arms Act.

[10] From the investigation brought on record through report dated

04.08.2021, it appears that accused-Ujjwaldeep @ UD

Brijmohansingh (Rajput), who was produced before the DCB Police

Station is arrested 28/01/2021, Shashanksinh @ Mohit

Vishwapratapsinh Singh (Bhardwaj) and, Mohammad Iliyas

Mohammad Bilal Kapadiya are arrested on 01/02/2021 and

Arjunkumar @ Arvind Satnarayan Pande is arrested on 08/02/2021.

Thereafter, statements of the complainant, witnesses, investigating

officers/staff of the offense registered against them and

independent witnesses were recorded and statements under

Section-164 of the Cr.P.C. of total 5 private witnesses have also

been recorded in the present case. Moreover, evidences containing

certified copies of the papers of the offense registered against the

accused in the matter of this offense such as FIR, Charge Sheet

Copy and Copies of Bail Orders / Bonds, Call details of the accused

persons and details of the properties of the accused were collected

R/CR.MA/13524/2021 ORDER DATED: 05/01/2022

and after obtaining permission from the Home Department,

Gandhinagar to prosecute and thereafter, the Charge Sheet

No.93/2021 dated 06/05/2021 was submitted before the Hon'ble

Court and the Hon'ble Court registered it as Sessions Case

No.496/2021 on 06/05/2021.

[11] From the report it further appears that accused Vipul

Dahyabhai Gajipara, Danish @ Nano @ Daniyo Rameshchandra

Biladawala (Khatri), Ankitkumar @ Doctor Karamvirsingh and Aazad

@ Aazad Pathan S/o. Aiyubkhan Goja (Pathan), are still absconding.

Police team was sent to their present and native residence, where

they are not found and remained absconding, therefore, written

yadis were sent to the concerned PI of Varachha, Kapodra, Adajan

and Godadara as well as to Mr. H.M. Aahir, Incharge of Absconding

Accused Squad, Zone-1 to arrest them by obtaining warrant under

Section-70 of the Cr. P.C. from the Hon'ble Court.

[12] In view of the foregoing reasons, no case is made out to

exercise discretion in favour of the applicant more particularly when

the main accused persons are still at large. The Court has gone

through the cogent and detail reasons given by the Sessions Court

while rejecting the bail application and find no reason to interfere

with the same. The present application stands dismissed. Rule is

discharged.

(A.Y. KOGJE, J) SIDDHARTH