Maykal Naginbhai Damor vs State Of Gujarat
2023 Latest Caselaw 2846 Guj

     R/CR.MA/18472/2022                               ORDER DATED: 11/04/2023




                IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/CRIMINAL MISC.APPLICATION NO. 18472 of 2022

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                          MAYKAL NAGINBHAI DAMOR
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR. MAULIK M SONI(7249) for the Applicant(s) No. 1
MR HARDIK SONI, APP for the Respondent(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                 Date : 11/04/2023
                                  ORAL ORDER

1. By way of present application under Section 439 of the Code of Criminal Procedure, the applicant has prayed for regular bail in connection with the FIR being 11188003210362 of 2021 registered at Bhiloda Police Station, District Aravalli for the offences punishable under Sections 3(1)(i), 3(1)(ii), 3(2), 3(3), 3(4), 3(5), 4 etc. of the Gujarat Control of Terrorism and Organized Crime Act (GCTOC), 2015 (hereinafter referred to as 'the Act' for short).

2. Learned advocate Mr. Moulik Soni appearing for the applicant made the following submissions:

[i] There are only four offences against the present applicant.

[ii] Co-accused have been enlarged by the Coordinate Bench of this Court.

[iii] The offence registered under the Prohibition Act would not constitute an offence to be invoked the Act as in the

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definition of Section 2(e) the Act, there is no mention about the offences against the Prohibition Act nor the same can be said to be Terrorism Act.

3. Learned APP vehemently opposed this application and submitted that the applicant has completely misinterpreted the provisions of the Act. Section 2(1)(c) of the Act provides that continuous unlawful activity, which means an activity prohibited by law for the time being in force, which is a cognizable offence in nature and punishable with imprisonment for three years or more as the offence against the prohibition act is also the offence, which is cognizable offences, provides for three year's punishment and the same can be considered in view of the Act. He further points out that out of four offences, which have been considered for invoking the Act and in all four offences, charge sheet is filed against the applicant, and therefore, the Act has rightly been invoked against the present applicant. He further submitted that as there are three offences have registered against the present applicant in the year 2020 which would indicate that the applicant is in continuous unlawful activity even after the Act came into force.

4. Learned APP also relied upon the judgment in the case of the State of Gujarat Vs. Sandip Omprakash Gupta reported in 2023 GLH (1) Page 44 and also the judgment in the case of Zakir Abdul Mirajkar Vs. State of Maharashtra vide order dated 24.08.2022 passed in Criminal Appeal No. 1125 of 2022 and submitted that by way of both the aforesaid judgments, the continuous unlawful assembly has been interpreted and the

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Hon'ble Supreme Court has categorically observed that any unlawful activity after date on which the Act came into force i.e 01.12.2019 would constitute continuous unlawful activity. Learned APP further submitted that it is not necessary as held by the Hon'ble Supreme Court in the case of Zakir Abdul Mirajkar (Supra), that offence is required to be committed by the applicant only, even if it is committed by any of the member of the syndicate then also that would constitute continuous unlawful activity and therefore, present application required to be dismissed.

5. I have considered the submissions made by learned advocate appearing for the applicant and learned APP for the respondent State and on perusal of the record, I find that there are four offences registered against the present applicant, for which, the charge sheet is filed in the preceding 10 years of his arrest. All four offences were cognizable offence and if the applicant finds guilty, he has to suffer punishment for more than three years, and therefore, the same would come within the purview of the Act as the definition of Section 2(1)(C) itself states that any activity which prohibited by law.

6. Section 2(1)(c) produced as under:

"Section 2(1)(c) : continuing unlawful activities 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 organized crime syndicate or on behalf of such syndicate in respect of which more than one charge

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sheets have been filed before a competent court with the preceding period of 10 years and that Court has taken cognizable of such offence."

7. The aforesaid definition specifically mentions about any activity prohibited by law, and therefore, the offence under the Prohibition Act can be considered for invoking the Act against the present applicant. Further, considering the fact that there are three offences registered against the present applicant for which charge sheet is filed in the year 2020 i.e. after the Act came into force on 01.12.2019.

8. The Hon'ble Supreme Court in the case of Zakir Abdul Mirajkar Vs. State of Maharashtra (Supra) has observed as under:

"77. From the analysis above, the appellants' submission that the allegation of engaging in illegal gambling would not sustain the invocation of the penal provisions of Section 3(2) MCOCA is simplistic. Although gambling may not, by itself, constitute an organized crime, it may be the route through which the accused are abetting the commission of organized crime. The question of whether the appellants are in fact abetting organized crime in this manner, is to be determined at the stage of trial. Similarly, the question of whether offences under the IPC would attract MCOCA in the present case is to be determined at the stage of trial and depends on the facts and circumstances of each case. The observation in Lalit Somdatta Nagpal (supra) that some degree of coercion or violence is required to charge an accused under provisions of MCOCA must be read together with Section 2(1)(e) recognizes that "other unlawful means" may be used while committing organized crime, in addition to coercion and violence.

c. More than one charge-sheet is not required to be filed with respect to each accused person.

The appellants have argued that in the preceding ten years, more than one charge-sheet has not been filed in respect of each of them. This submission does not hold water. It is settled

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law that more than one charge sheet is PART D required to be filed in respect of the organized crime syndicate and not in respect of each person who is alleged to be a member of such a syndicate.

78. In Govind Sakharam Ubhe v. State of Maharashtra, 2009 SCC OnLine Bom 770 a two-judge Bench of the Bombay High Court, speaking through Justice Ranjana Desai (as the learned judge then was) held that:

"37 ...Section 2(1)(d) which defines `continuing unlawful activity' sets down a period of 10 years within which more than one charge-sheet have to be filed ... It is the membership of organized crime syndicate which makes a person liable under the MCOCA. This is evident from section 3(4) of the MCOCA which states that any person who is a member of an organized crime syndicate shall be punished 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 fine, subject to a minimum of fine of Rs. 5 lakhs. The charge under the MCOCA ropes in a person who as a member of the organized crime syndicate commits organized crime i.e. acts of extortion by giving threats, etc. to gain economic advantage or supremacy, as a member of the crime syndicate singly or jointly. Charge is in respect of unlawful activities of the organized crime syndicate. Therefore, if within a period of preceding ten years, one charge- sheet has been filed in respect of organized crime committed by the members of a particular crime syndicate, the said charge- sheet can be taken against a member of the said crime syndicate for the purpose of application of the MCOCA against him even if he is involved in one case. The organized crime committed by him will be a part of the continuing unlawful activity of the organized crime syndicate. What is important is the nexus or the link of the person with organized crime syndicate. The link with the 'organized crime syndicate' is the crux of the term 'continuing unlawful activity'. If this link is not established, that person cannot be roped in."

79. Other courts, too, have held that persons who are alleged to be members of an organized crime syndicate need not have more than one charge-sheet filed against them in an individual capacity. Rather, charge-sheets with respect to the organized crime syndicate are sufficient to fulfil the condition in Section 2(1)(d).

80. For the above reasons, we find no merit in the appeals. The appeals shall stand dismissed. However, it is clarified that: (i)

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the appellants are at liberty to approach the High Court for release on bail; and (ii) the evidentiary value of confessions alleged to have been made by the appellants shall be considered by the trial court and the mere validation of their being recorded by an officer in the rank of Superintendent of Police shall not be construed as the approval of the contents or voluntary nature of the alleged confessions by this Court."

9. Further, the Hon'ble Supreme Court in case of State of Gujarat Vs. Sandip Omprakash Gupta (Supra) has held in Para - 50 and 51, which are reproduced as under:

"50. There is a vast difference between the act or activity, which is being termed or called as an offence under a statute and such act or activity being taken into consideration as one of the requisites for taking action under the statute. For the purpose of organised crime, there has to be a continuing unlawful activity. There cannot be continuing unlawful activity unless at least two chargesheets are found to have been lodged in relation to the offence punishable with three years' imprisonment during the period of ten years. Indisputably, the period of ten years may relate to the period prior to 01.12.2019 or thereafter. In other words, it provides that the activities, which were offences under the law in force at the relevant time and in respect of which two chargesheets have been filed and the Court has taken cognizance thereof, during the period of preceding ten years, then it will be considered as continuing unlawful activity on 01.12.2019 or thereafter. It nowhere by itself declares any activity to be an offence under the said 2015 Act prior to 01.12.2019. It also does not convert any activity done prior to 01.12.2019 to be an offence under the said 2015 Act. It merely considers two chargesheets in relation to the acts which were already declared as offences under the law in force to be one of the requisites for the purpose of identifying continuing unlawful activity and/or for the purpose of an action under the said 2015 Act.

51. If the decision of the coordinate Bench of this Court in the case of Shiva alias Shivaji Ramaji Sonawane (supra) is looked into closely along with other provisions

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of the Act, the same would indicate that the offence of 'organised crime' could be said to have been constituted by at least one instance of continuation, apart from continuing unlawful activity evidenced by more than one chargesheets in the preceding ten years. We say so keeping in mind the following:

(a) If 'organised crime' was synonymous with 'continuing unlawful activity', two separate definitions were not necessary.

(b) The definitions themselves indicate that the ingredients of use of violence in such activity with the objective of gaining pecuniary benefit are not included in the definition of 'continuing unlawful activity', but find place only in the definition of 'organised crime'.

(c) What is made punishable under Section 3 is 'organised crime' and not 'continuing unlawful activity'.

(d) If 'organised crime' were to refer to only more than one chargesheets filed, the classification of crime in Section 3(1)(i) and 3(1)(ii) resply on the basis of consequence of resulting in death or otherwise would have been phrased differently, namely, by providing that 'if any one of such offence has resulted in the death', since continuing unlawful activity requires more than one offence. Reference to 'such offence' in Section 3(1) implies a specific act or omission.

(e) As held by this Court in State of Maharashtra v. Bharat Shanti Lal Shah (supra) continuing unlawful activity evidenced by more than one chargesheets is one of the ingredients of the offence of organised crime and the purpose thereof is to see the antecedents and not to convict, without proof of other facts which constitute the ingredients of Section 2(1)(e) and Section 3, which respectively define commission of offence of organised crime and prescribe punishment.

(f) There would have to be some act or omission which amounts to organised crime after the Act came into force, in respect of which the accused is sought to be tried for the first time, in the Special Court (i.e. has not been or is not being tried elsewhere).

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(g) However, we need to clarify something important. Shiva alias Shivaji Ramaji Sonawane (supra) dealt with the situation, where a person commits no unlawful activity after the invocation of the MCOCA. In such circumstances, the person cannot be arrested under the said Act on account of the offences committed by him before coming into force of the said Act, even if, he is found guilty of the same. However, if the person continues with the unlawful activities and is arrested, after the promulgation of the said Act, then, such person can be tried for the offence under the said Act. If a person ceases to indulge in any unlawful act after the said Act, then, he is absolved of the prosecution under the said Act. But, if he continues with the unlawful activity, it cannot be said that the State has to wait till, he commits two acts of which cognizance is taken by the Court after coming into force. The same principle would apply, even in the case of the 2015 Act, with which we are concerned."

10. In the aforesaid decision of the Hon'ble Supreme Court, as the applicant is indulged in continuous unlawful activities and therefore, I do not see any reason to grant bail to present applicant as there is voluminous material against the applicant. Accordingly, present application is required to be dismissed and is dismissed.

(NIRZAR S. DESAI,J) F.S. KAZI