Mohmed Samir Salim Shaikh vs State Of Gujarat
2023 Latest Caselaw 8556 Guj

Gujarat High Court

Mohmed Samir Salim Shaikh vs State Of Gujarat on 11 December, 2023

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 R/CR.MA/2198/2023                                CAV JUDGMENT DATED: 11/12/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
                 CHARGESHEET) NO. 2198 of 2023


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE DIVYESH A. JOSHI                               Sd/-
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1    Whether Reporters of Local Papers may be allowed                   No
     to see the judgment ?

2    To be referred to the Reporter or not ?                            No

3    Whether their Lordships wish to see the fair copy                  No
     of the judgment ?

4    Whether this case involves a substantial question                  No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                      MOHMED SAMIR SALIM SHAIKH
                               Versus
                         STATE OF GUJARAT
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Appearance:
MR MOHDDANISH M BAREJIA(10612) for the Applicant(s) No. 1
MR. MANAN MEHTA, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                             Date : 11/12/2023
                             CAV JUDGMENT

1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.11210005220332 of 2022 registered with the Athwalines Police Station, Surat of the offence punishable under Sections 386, 506(2), 507, 114 of IPC and Sections 40, 42(a), 42(d) of the Gujarat Money Lenders Act

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and Sections 3(1)(2), 3(2) and 3(4) of The Gujarat Control of Terrorism and Organized Crime Act, 2015 (for short "GUJCTOC Act")

2. Learned advocate Mr. M.M. Barejia appearing for the applicant has submitted that the first information report has been registered against the applicant-accused on 24.02.2022 and the applicant-accused came to be arrested on 25.03.2022. Initially he was kept in police custody till 06.04.2022 and, thereafter, he was taken to the judicial custody and since 25.03.2022 he is in judicial custody. It is further submitted that the investigation has already been completed and charge- sheet has also been filed in the present case. Learned advocate Mr. Barejia has also submitted that the concerned Investigating Officer opposed the bail application before the Sessions Court by filing an affidavit, wherein the Prosecuting Agency has put reliance upon three earlier offences registered against the applicant-accused and those offences were registered in the year 2014, 2015 and 2016 and considering the same the provisions of GUJCTOC Act was invoked against the applicant-accused. It is pertinent to note that at the earlier point of time, i.e, in the year 2021, an FIR came to be lodged against the present applicant-accused under the provisions of the GUJCTOC Act relying upon the offences registered against the applicant accused in the year 2014, 2015 and 2016, in which, the applicant-accused was released on bail by the Sessions Court. Thereafter, again in the year 2022, the impugned FIR came to be registered against the applicant-accused invoking the provisions of the GUJCTOC Act by putting reliance upon the same set of evidence which was

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relied upon by the Investigating Agency in the earlier proceedings. Therefore, it can safely be said that on the basis of the same set of evidence, once again the provisions of the GUJCTOC have been invoked and, therefore, the principle of double jeopardy would come into play in the present case as the applicant-accused has already been released on bail by the Sessions Court in the earlier proceedings initiated in the year 2021 under the provisions of the GUJCTOC Act. Learned advocate Mr. Barejiya has further submitted that, in fact, the present first information report has been registered against total four persons, out of which, two persons have already been released on bail by the Sessions Court. However, the bail application of the applicant-accused was not considered by the trial court solely on the ground that at the time of granting bail in the earlier proceedings, certain conditions were imposed by the Sessions Court which were not strictly adhered and complied with in its true spirit. It is further submitted that the documents upon which reliance is being placed by the Prosecuting Agency is of the year 2014, 2015 and 2016 and, thereafter, not a single complaint has been registered against the applicant-accused. Therefore, the provisions of Section 2(c) of the Act which defines 'Continuing Unlawful Activity' are not attracted in the case on hand. Learned advocate Mr. Barejia has further submitted that the GUJCTOC Act came into force with effect from 01.12.2019 and to constitute an offence under the said Act, as Section 2(c)(1) of the Act, more than one offence is required to be registered against the accused person after the enactment of the said Act. However, in the case on hand, not a single offence has been registered against the

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applicant-accused after the Act came into force except the FIR registered in the year 2021 invoking the provisions of the very GUJCTOC Act. Under the circumstances, learned advocate for the applicant prays that the applicant may be enlarged on bail on any suitable terms and conditions.

3. The learned APP Mr. Manan Mehta appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. Learned APP Mr. Mehta has submitted that the specific role of the applicant- accused is clearly spelt out from the compilation of the charge- sheet papers. Learned APP Mr. Mehta has further submitted that the applicant-accused is a member of the Ajju Gang who are indulged in many illegal activities since long. It is further submitted that the present applicant-accused is a headstrong person and earlier also he was booked under the provisions of the GUJCTOC Act and subsequently enlarged on bail by the Sessions Court with certain conditions, out of which, one of the conditions was to prevent the applicant-accused from entering into the territory of District: Surat. Despite the said condition, he was found available in the City. Not only that, thereafter, he has also indulged in some criminal activities. It is found out from the record that the applicant-accused is a habitual offender. It is true that the Investigating Agency has put reliance upon certain materials at the time of invoking the provisions of the GUJCTOC Act against the present applicant- accused in the present FIR. Those FIRs were registered in the year 2014, 2015 and 2016 and, thereafter, except the present complaint, no other complaint has been registered against the applicant-accused. It is further submitted that the applicant-

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accused is one of the active members of the Organized Crime Syndicate known as Ajju Gang. Number of members of the said syndicate have been arraigned as an accused in the present offence and the applicant-accused was in constant touch with those accused persons which is evident from the Call Data Record of the present applicant-accused. Learned APP Mr. Mehta has also submitted that the gang leader, namely, Ajju has already been released on bail by the trial court. However, being aggrieved, the State Government has challenged the said order by filing an application for cancellation of bail before this Hon'ble High Court and eventually the said application was considered and the bail granted to the said accused was cancelled by the High Court. Therefore, considering the above stated factual aspects, this is a fit case wherein discretionary power of this Court is not required to be exercised in favour of the applicant-accused.

4. I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. It is found out from the record that at the time of invoking provisions of GUJCTOC against the applicant-accused, the Investigating Officer has put much emphasis upon four offences registered against the applicant-accused. In this regard, I would like to refer to the provisions of the GUJCTOC Act, more particularly, Section 2(c) and Section 3(1)(ii) of the Act. Section 2(c) reads thus;

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Section 2(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 organized 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."

5. Section 3(1)(ii) reads as under;

"In any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extent to imprisonment for life and shall also be liable to fine which shall not be less than rupees five lakhs."

6. From a bare perusal of the aforesaid provisions, it clearly appears that to constitute an offence under the GUJCTOC Act, more than one charge-sheets need to be filed before a competent court within the preceding period of ten years 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 and that court has taken cognizance of such offence. From the materials available on record, it appears that out of the four offences relied upon the Investigating Agency, three offence were registered during the period between 2014 and 2016. It also appears that thereafter, after the enactment of the Act, in the year 2021, an FIR came to be registered against the applicant-accused invoking the provisions of the GUJCTOC Act relying upon the offences registered in the year 2014, 2015 and 2016 wherein the

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applicant-accused was enlarged on bail by the Sessions Court. Thereafter, the impugned FIR has been filed by putting reliance on the same set of evidence as was relied upon in the earlier proceedings. Therefore, it appears that only one offence has been registered against the applicant-accused after the enactment of the GUJCTOC Act and that too under the provisions of the GUJCTOC Act wherein the applicant-accused has already been enlarged on bail. It also appears that this is a second attemp on the part of the Investigating Agency to book the applicant-accused under the provisions of the GUJCTOC Act on the basis of the same set of FIRs/evidence which had already been relied upon by it in the earlier proceedings initiated in the year 2021 for which the applicant-accused has already been set at liberty. Therefore, it can safely be said that only one first information report is available on record after the enactment of the GUJCTOC Act. Furthermore, to attract the provisions of the GUJCTOC Act, more than one FIR is required to be registered against the applicant-accused after the coming into force of the said Act. It has also come on record that the identically situated co-accused persons have already been enlarged on bail by the Sessions Court.

7. A close analysis of the term "organized crime" would indicate that there has to be an activity prohibited by law for the time being in force which is cognizable offence punishable with imprisonment for three years or more, undertaken as singly or jointly as a member of organized crime syndicate or on behalf of such syndicate in respect of which activity more than one charge-sheets have been filed before a competent

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court within the preceding period of ten years and court has taken cognizance of such offence. Here in the case on hand, there appears to be only one FIR registered against the applicant-accused after the enactment of the said Act.

8. 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 Investigation, reported in [2012]1 SCC 40.

9. 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.

10. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with the FIR being C.R. No.11210005220332 of 2022 registered with the Athwalines Police Station, Surat, 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;

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        [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;

[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;

11. 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.

12. 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.

13. 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. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(DIVYESH A. JOSHI,J) VAHID