Ajay Raidhanbhai Kumbharvadia vs State Of Gujarat
2023 Latest Caselaw 2847 Guj

     R/CR.MA/15133/2022                               ORDER DATED: 11/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 15133 of 2022

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                          AJAY RAIDHANBHAI KUMBHARVADIA
                                       Versus
                                 STATE OF GUJARAT
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE for MR SANDEEP R
LIMBANI(5977) for the Applicant(s) No. 1
MR DHAWAN JAYSWAL, 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. Heard Mr. Shalin Mehta, learned Senior Advocate assisted by Mr. Sandeep R. Limbani learned advocate for the applicant and Mr. Dhawan Jayswal, learned APP for the respondent - State.

2. 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 11213015201549 of 2020 registered at Gondal City Police Station, District Rajkot (Rural) for the offences punishable under Sections 3(1)(i), 3(1)(ii), 3(2), 3(4), 3(5), 4 and 23 of the Gujarat Control of Terrorism and Organized Crime Act (GCTOC), 2015 (hereinafter referred to as 'the Act' for short).

3. Mr. Shalin Mehta, learned Senior Advocate for the applicant, made only two submissions and submitted that in all, there are six offences registered against present applicant, out of which,

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one offence is registered under the Act, which came into force on 01.12.2019 and as far as other offences registered against present applicant prior to 01.12.2019 are concerned, charge sheet has been filed against present applicant and in these five offences, the maximum punishment is less than three years and the offences where maximum punishment is more than three years was the offence, wherein the applicant was not named nor charge sheet is filed, and therefore, Mr. Mehta, learned Senior Advocate submitted that in view of the provision of Section 2(1)(c) of the Act, the act of the present applicant cannot be said to be a "continuous unlawful activity" and therefore, applicant is required to be enlarged on bail.

4. Mr. Mehta, learned Senior Advocate also pointed out that present applicant is in jail since last two years, and therefore, considering the period spent in the jail also, the applicant is required to be enlarged on bail as even if the charges leveled against the present applicant are proved and the applicant is held guilty, then also maximum punishment would be five years.

5. Learned APP has vehemently opposed this application and submitted that the law is settled in respect of Section 2(1)(c) of the Act which is about continuous unlawful activity. He further submitted that the Hon'ble Supreme Court had occasion to consider the aspect about continuous unlawful activity in catena of the decisions. Some of the matter in pari materia MaCOCA Act, where Section 2(1)(c) was considered by the

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Hon'ble Supreme Court , and there the Hon'ble Supreme Court has held that if the charge sheet is filed against any of the member of the syndicate, in that case also, that would constitute unlawful activity.

6. Learned APP further submitted that factually the submissions made by learned advocate appearing for the applicant are incorrect, for the reason that in all six offences including offences where the maximum punishment is more than three years and the applicant was named and therefore, it is not correct to say that charge sheet was filed against the applicant only in the offence wherein the maximum punishment was less than three years. Learned APP further submitted that in all six offences, charge sheet against the present applicant was filed. 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 continous unlawfull assembly has been interpreted and the 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

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of the syndicate then also that would constitute continuous unlawful activity.

7. Learned APP Further submitted that in the instant case the offence against present applicant was registered after the Act came into force i.e. on 14.2.2021 for which charge sheet No. 49 of 2021 was filed. Learned APP submitted that in respect of offence registered in the year 2021, subsequently Section 2(1)

(c) of the Act was added and the maximum punishment is of sever years and therefore, the same would constitute continuous unlawful activities and therefore, present application requires to be dismissed

8. I have heard learned advocates appearing for the respective parties. On perusal of the record, the following aspects emerge:

[i] in the 10 years preceding present offence, there are more than 1 charge sheets filed against the present applicant.

[ii] After the date on which on Act came into force i.e 01.12.2019, FIR being C.R.No.I-10 of 2019 came to be registered at DCB Police Station, Rajkot (Rural) for the offences punishable under Sections 406, 465, 467, 468, 471, 385 and 120(B) of the IPC for which the charge is filed and after addition of Section 466 of the IPC, maximum punishment is of 7 years and therefore, the

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same would constitute continuous unlawful activities.

9. 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 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

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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) 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."

10. 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

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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 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'.

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(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).

(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,

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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."

11. In view of the aforesaid Supreme Court judgments, which interpreted "continuous unlawful activities", as the offence against the present applicant was registered in the year 2021 and as there were more than one charge sheet in preceding 10 years in view of the fact that as continuous unlawful activities have been carried out by the applicant, I do not see any reason to consider the application for grant of bail. As far as submission made by learned Senior Advocate Ms. Shalin Mehta that the applicant has spent 2 years in the jail is concerned, considering the object of the Act, which prevents the organized crime and if the applicant is granted bail at this stage, inspite of voluminous material against the present applicant, very purpose of the Act would be frustrated and therefore, present application requires to be dismissed and accordingly is dismissed.

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