Gujarat High Court

Piyushbhai Girdharbhai Kotadiya vs State Of Gujarat on 1 December, 2023

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      R/CR.MA/9436/2023                                          ORDER DATED: 01/12/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
                 CHARGESHEET) NO. 9436 of 2023

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                      PIYUSHBHAI GIRDHARBHAI KOTADIYA
                                   Versus
                              STATE OF GUJARAT
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Appearance:
MR NIRUPAM D NANAVATY, SENIOR ADVOCATE WITH MR. RAHIL P
JAIN(7305) for the Applicant(s) No. 1
MR HIMANSHU K PATEL, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                                  Date : 01/12/2023

                                        ORAL ORDER

1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with C.R.No.11213015201549 of 2020 registered with Gondal City Police Station, District Rajkot Rural for the offence punishable under sub- sections (1) and (2) of Section 3(1), Sections 3(2), 3(4), 3(5) and 4 of the Gujarat Control of Terrorism and Organised Crime Act, 2015 (hereinafter referred to as the 'GUJCTOC Act' for short).

2. Learned Senior Advocate Mr. Nirupam Nanavaty assisted by learned advocate Mr. Rahil P. Jain appears for the applicant accused submits that the so-called incident is occurred on 12.11.2020

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and on the same day, FIR has been filed against the accused persons. The present applicant accused has been arrested on 07.01.2021 and since then he is in judicial custody. The investigation is already completed and after submission of charge-sheet, present bail application is preferred. The applicant accused is Chartered Accountant by profession and it is alleged against the present applicant accused that with a sole purpose to maintain the account of an organized crime syndicate viz. Nikhil Donga's Gang, he was called and instructed to maintain the account and he rendered his services as a member of the said gang as a person with expertise being C.A. Learned Senior Advocate Mr. Nanavaty submits that for the purpose of bringing the present applicant accused under the clutches of provisions of GUJCTOC Act, prosecuting agency has put reliance upon one offence registered against him which is mentioned in the compilation of charge-sheet papers wherein it is clearly stated that the said offence has been registered against the present applicant accused being C.R.No.11213015201410 of 2020 registered with Gondal City 'B' Division Police Station for the offence punishable under Sections 269, 188, 114, 466, 447, 218 and 201 of the IPC and under Sections 42, 43, 45(12) of the Prison Act. The provision of the law invoked against the present

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applicant accused clearly goes on to show that the maximum punishment could be up to 6 months if at all the charges levelled against the applicant accused are held to be proved at the end of the trial. Learned Senior Advocate Mr. Nanavaty submits that without touching the merits of the case, simply on the basis of the period of incarceration spent by the applicant accused, which is more than 2 years and 10 months, bail application of the applicant accused is required to be entertained.

3. Learned Senior Advocate Mr. Nanavaty has placed reliance upon the order dated 02.09.2022 rendered in Criminal Appeal No.1404 of 2022 in the case of Shivrajbhai Rambhai Vichhiya v. the State of Gujarat by the Hon'ble Apex Court and submitted that though the said accused was having history of criminal antecedents of 10 cases, only on the ground of period of incarceration undergone by the said accused person, the said accused has been enlarged on bail by the Hon'ble Apex Court.

4. Learned Senior Advocate Mr. Nanavaty has also placed reliance upon the order dated 20.10.2023 rendered in Criminal Appeal No.3286 of 2023 in the case of Anilbhai @ Mehtaji Dineshbhai Dangariya v. the State of Gujarat by the Hon'ble Apex Court, and more particularly, relied upon the observations made by the Hon'ble Apex Court in para 9 of the said order.

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5. Learned Senior Advocate Mr. Nanavaty has also placed reliance upon the judgment dated 04.05.2023 rendered in Criminal Appeal No.1391 of 2023 in the case of Mukeshbhai Vallabhbhai Abhangi v. the State of Gujarat by the Hon'ble Apex Court, and more particularly, relied upon the observations made by the Hon'ble Apex Court in para nos. 14 and 15 of the said judgment.

6. Learned Senior Advocate Mr. Nanavaty has also read the provisions of Section 2(c) of GUJCTOC Act and submitted that for the earlier offence registered against the present applicant accused, the maximum punishment, if at all the charges levelled against the present applicant accused are held to be proved, could be of six months and therefore the case of the applicant accused would not fall under the definition of 'continuing unlawful activity' as defined under section 2(c) of the Act. Moreover, as per the definition of 'continuing unlawful activity', the condition precedent is that more than one charge-sheets have been filed before a competent court within the preceding period of ten years. However, in the present case, only one charge- sheet has been filed against the present applicant accused and that too not for the offence punishable with imprisonment for a term of three years or more and therefore also the case of the applicant accused would not fall under the definition of 'continuing unlawful

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activity' as defined under section 2(c) of the Act.

7. Learned Senior Advocate Mr. Nanavaty has further submitted that in number of cases the Hon'ble Supreme Court has recently released the accused persons on bail wherein the accused persons have remained in jail for more than two and half years. Thus, when the present applicant accused is also in judicial custody since last more than 2 years and 10 months, the bail application of the applicant may be entertained without touching the merits and demerits of the case and he may be enlarged on bail by imposing suitable terms and conditions. Learned Senior Advocate Mr. Nanavaty further submits that there are number of witnesses cited in the compilation of charge-sheet papers and it would take considerably long time to conclude the trial and the applicant accused is in custody since 07.01.2021 and for indefinite period he cannot be kept behind the bars and therefore also the bail application of the applicant may be considered.

8. Learned APP Mr. Himanshu Patel has objected present bail application with vehemence and submitted that role of the present applicant accused is clearly established from the compilation of charge-sheet papers. Learned APP Mr. Patel fairly submits that initially the FIR came to be registered against 12 accused persons

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wherein the name of the present applicant accused was not there in the FIR but during the course of investigation his name and specific role attributed by him has been found out. Mr. Patel further submits that out of the income of organized crime syndicate, the applicant accused purchased a house which was being run as office of main accused person Nikhil Donga. Learned APP further submits that various properties came to be purchased by the applicant accused from the income of the said organized crime syndicate run by the main accused person Nikhil Donga. Moreover, during the course of investigation, CDRs were also collected by the investigating officer which shows that the applicant accused was in constant touch with all other accused persons including Nikhil Donga and one jailor, who also arraigned as an accused. Learned APP further submits that when the main accused person Nikhil Donga was behind the bars, the applicant accused sent tiffin from his home to the said accused person. Learned APP has referred to the CDR report and submitted that the applicant accused was actively connected with all the accused persons including the main accused person Nikhil Donga. Learned APP further submits that the role of the present applicant accused is graver than the other accused persons and therefore he cannot claim parity. The learned APP read the statements of witnesses and

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submitted that the applicant accused is an active member of the organized crime syndicate. Learned APP also referred to and relied upon Sections 2(e) and 2(f) of the GUJCOC Act and submitted that prima facie case is made out against the applicant accused and there are all chances that at the end of the trial he will be convicted and therefore considering the overall facts and circumstances of the present case and the gravity of the offence, bail application of the applicant may not be entertained.

9. I have heard the learned advocates appearing on behalf of the respective parties. I have perused the police papers as well as other documents produced by the applicant along with the memo of the application. It is found out from the record that the so-called incident is occurred on 12.11.2020 and on the same day, FIR has been filed against the accused persons. The present applicant accused has been arrested on 07.01.2021 and since then he is in judicial custody. The investigation is already completed and after submission of charge-sheet, present bail application is preferred. The applicant accused is Chartered Accountant by profession and it is alleged against the present applicant accused that with a sole purpose to maintain the account of an organized crime syndicate viz. Nikhil Donga's Gang, he rendered his services as a member of the said gang as he possesses

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expertise skill of account being Chartered Accountant. Before adverting to the issue involved in the present application, at this juncture, I would like to refer to the following decisions rendered by the Hon'ble Supreme Court, relied on by learned Senior Advocate Mr. Nanavaty for the applicant.

The Hon'ble Apex Court in the case of Shivrajbhai Rambhai Vichhiya (supra), while enlarging the concerned appellant accused on bail, observed as under:

"Leave granted.

Heard learned counsel for parties. We would not like to record any detailed order at this stage which may prejudice the either of the sides, but suffice to say that out of 10 cases alleged against the appellant, there is one serious case which is stated to be of a murder where the appellant is already enjoying anticipatory bail.

The appellant has been held under the Gujarat Control of Terrorism and Organized Crime Act, 2015 and he has already spent about two and a half years in custody."

The Hon'ble Apex Court in the case of Anilbhai @ Mehtaji Dineshbhai Dangariya (supra), while enlarging the concerned appellant accused on bail, observed in para 9 as under:

"9. Having examined the records and on perusing the stand taken by the respondent- State in the counter affidavit, we are of the opinion that

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undisputedly, there is only one case, that is the instant case, where the appellant has been made an accused. No other chargesheet has been filed against the appellant in the preceding ten years alleging offences punishable with more than three years' imprisonment. So, there is no "continuing unlawful activity" qua the appellant for attracting the provisions of the GCTOC Act. The appellant has remained in custody since 29th January, 2021, for two years and nine months and he does not have any other criminal antecedents."

The Hon'ble Apex Court in the case of Mukeshbhai Vallabhbhai Abhangi (supra), while enlarging the concerned appellant accused on bail, observed in para 14 and 15 as under:

"14. Having considered the matter, the Court finds that for the purposes of considering grant of bail to the Appellant, at this stage, the fact that there was only one case prior to the present case, that too of the year 2014 and the FIR thereof having been quashed by the High Court, even prior to the filing of the charge- sheet, even for the sake of argument, if accepted, helps the Appellant and tilt the balance in his favour. The Appellant has succeeded in making out a prima facie case for the grant of bail.

15. The Appellant is in jail since 16.10.2020 viz. for over 2½ years. Admittedly, it is the first time, he is accused of such nature of crimes."

At this juncture, I would like to refer to the provisions of Section 2(c) of the GUJCTOC Act, which provides as under:

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"(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 charge-sheets have been filed before a competent court within the preceding period of ten years and that court has taken cognizance of such offence;"

Admittedly, in the present case, after the enactment of the GUJCTOC Act, one complaint has been registered against the present applicant accused and if at all at the end of day the charges levelled against the present applicant accused are held to be proved, in that event, the maximum punishment for the said offences would be up to six months. Therefore, without discussing anything on merits and demerits of the case and considering the ratio enunciated by the Hon'ble Apex Court in the aforesaid decisions as well as the provisions of law incorporated in the statute and considering the period of incarceration undergone by the applicant accused which is more than 2 years and 10 months, I am inclined to consider the present bail application.

10. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of

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Investigation, reported in [2012]1 SCC 40 as well as in case of Satender Kumar Antil v. Central Bureau of Investigation & Anr. reported in (2022)10 SCC 51.

11. In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.

12. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with C.R.No.11213015201549 of 2020 registered with Gondal City Police Station, District Rajkot Rural, on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injuries to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;

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[e] mark presence before the concerned Police Station on alternate Monday of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;

[f] furnish the present 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 this 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 Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.

14. At the trial, the 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.