# THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA

- **Citation:** [2022] 17 S.C.R. 765
- **Court:** Supreme Court of India
- **Decided:** 2022-12-15
- **Case number:** Criminal Appeal No. 2291 of 2022
- **Bench:** S. Abdul Nazeer, J. B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-gujarat-v-sandip-omprakash-gupta-35675
- **Pages:** 37

## Headnote

Gujarat Control of Terrorism and Organised Crime Act, 2015:
s.2(1)(c) - Whether an FIR under the 2015 Act is maintainable in
law or can be registered if there is no FIR registered against the
accused after the promulgation of the 2015 Act for any offence
under the IPC or any other statute - Held: The term, 'organised
crime' indicates that there has to be an activity prohibited by law
for the time being in force which is a cognizable offence punishable
with imprisonment of three years or more, undertaken as singly or
jointly as a member of organised crime syndicate or on behalf of
such syndicate, in respect of which activity more than one
chargesheets have been filed before a competent court within the
preceding period of ten years and the Court has taken cognizance
of such offence - There would have to be some act or omission
which amounts to organised crime after the 2015 Act came into
force i.e., 01.12.2019 in respect of which, the accused is sought to
be tried for the first time in the special court - 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 - 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 - 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
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the said Act, then, he is absolved of the prosecution under the said
Act - 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 - Organised Crime.
Disposing of the appeal, the Court
HELD: 1. A close analysis of the term, 'organised crime'
would indicate that there has to be an activity prohibited by law
for the time being in force which is a cognizable offence punishable
with imprisonment of three years or more, undertaken as singly
or jointly as a member of organised crime syndicate or on behalf
of such syndicate, in respect of which activity more than one
chargesheets have been filed before a competent court within
the preceding period of ten years and the Court has taken
cognizance of such offence. [Para 24][782-D-E]
2. The considerations which normally weigh with the Court
in granting bail in non-bailable offences are: (1) the nature and
seriousness of the offences; (2) the character of the evidence;
(3) circumstances which are peculiar to the accused; (4) a
reasonable possibility of the presence of the accused not being
secured at the trial; (5) reasonable apprehension of witnesses
being tampered with; (6) the larger interest of the public or the
State and other similar factors which may be relevant in the facts
and circumstances of the case. However, if the provisions of the
2015 Act are invoked in a given case, then, in addition to the
aforementioned broad principles, the limitations imposed in the
provisions contained in sub-section (4) of Section 20 of the 2015
Act should not be lost sight of while dealing with application for
grant of bail. [Paras 26 and 27][782-H; 783-A-C]
3. It is plain from a bare reading of the non-obstante clause
in the sub-section that the power to grant bail by the High Court
or Court of Sessions is not only subje

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[2022] 17 S.C.R. 765
765
THE STATE OF GUJARAT
v.
SANDIP OMPRAKASH GUPTA
(Criminal Appeal No. 2291 of 2022)
DECEMBER 15, 2022
[S. ABDUL NAZEER AND J. B. PARDIWALA, JJ.]
Gujarat Control of Terrorism and Organised Crime Act, 2015:
s.2(1)(c) - Whether an FIR under the 2015 Act is maintainable in
law or can be registered if there is no FIR registered against the
accused after the promulgation of the 2015 Act for any offence
under the IPC or any other statute - Held: The term, 'organised
crime' indicates that there has to be an activity prohibited by law
for the time being in force which is a cognizable offence punishable
with imprisonment of three years or more, undertaken as singly or
jointly as a member of organised crime syndicate or on behalf of
such syndicate, in respect of which activity more than one
chargesheets have been filed before a competent court within the
preceding period of ten years and the Court has taken cognizance
of such offence - There would have to be some act or omission
which amounts to organised crime after the 2015 Act came into
force i.e., 01.12.2019 in respect of which, the accused is sought to
be tried for the first time in the special court - 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 - 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 - 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
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the said Act, then, he is absolved of the prosecution under the said
Act - 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 - Organised Crime.
Disposing of the appeal, the Court
HELD: 1. A close analysis of the term, 'organised crime'
would indicate that there has to be an activity prohibited by law
for the time being in force which is a cognizable offence punishable
with imprisonment of three years or more, undertaken as singly
or jointly as a member of organised crime syndicate or on behalf
of such syndicate, in respect of which activity more than one
chargesheets have been filed before a competent court within
the preceding period of ten years and the Court has taken
cognizance of such offence. [Para 24][782-D-E]
2. The considerations which normally weigh with the Court
in granting bail in non-bailable offences are: (1) the nature and
seriousness of the offences; (2) the character of the evidence;
(3) circumstances which are peculiar to the accused; (4) a
reasonable possibility of the presence of the accused not being
secured at the trial; (5) reasonable apprehension of witnesses
being tampered with; (6) the larger interest of the public or the
State and other similar factors which may be relevant in the facts
and circumstances of the case. However, if the provisions of the
2015 Act are invoked in a given case, then, in addition to the
aforementioned broad principles, the limitations imposed in the
provisions contained in sub-section (4) of Section 20 of the 2015
Act should not be lost sight of while dealing with application for
grant of bail. [Paras 26 and 27][782-H; 783-A-C]
3. It is plain from a bare reading of the non-obstante clause
in the sub-section that the power to grant bail by the High Court
or Court of Sessions is not only subject to the limitations imposed
by Section 439 of the Code but is also subject to the limitations
placed by Section 20(4) of the 2015 Act. Apart from the grant of
opportunity to the Public Prosecutor, the other twin conditions
are: the satisfaction of the court that there are reasonable grounds
for believing that the accused is not guilty of the alleged offence
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and that he is not likely to commit any offence while on bail. The
conditions are cumulative and not alternative. The satisfaction
contemplated regarding the accused being not guilty has to be
based on reasonable grounds. The expression 'reasonable
grounds' means something more than prima facie grounds. It
contemplates substantial probable causes for believing that the
accused is not guilty of the alleged offence. The reasonable belief
contemplated in the provisions requires existence of such facts
and circumstances as are sufficient in themselves to justify
satisfaction that the accused is not guilty of the alleged offence.
Thus, recording of findings under the said provision is a sine qua
non for granting bail under the 2015 Act. [Para 28][783-F-H; 784A-B]
4. The same would be in tune with the dictum as laid in
Shiva alias Shivaji Ramaji Sonawane that there would have to be
some act or omission which amounts to organised crime after
the 2015 Act came into force i.e., 01.12.2019 in respect of which,
the accused is sought to be tried for the first time in the special
court. This Court is in agreement with the view taken by the
High Court of Judicature at Bombay in the case of Jaisingh that
neither the definition of the term 'organised crime' nor of the
term 'continuing unlawful activity' nor any other provision therein
declares any activity performed prior to the enactment of the
MCOCA to be an offence under the 1999 Act nor the provision
relating to punishment relates to any offence prior to the date of
enforcement of the 1999 Act, i.e., 24.02.1999. However, by
referring to the expression 'preceding period of ten years' in
Section 2(1)(d), which is a definition clause of the term 'continuing
unlawful activity' inference is sought to be drawn that in fact, it
takes into its ambit the acts done prior to the enforcement of the
1999 Act as being an offence under the 1999 Act. The same
analogy will apply to the 2015 Act. [Paras 48 and 49][798-H; 799A-C]
5. Shiva alias Shivaji Ramaji Sonawane 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
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
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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. [Para 51][801-A-D]
State of Maharashtra v. Shiva alias Shivaji Ramaji
Sonawane (2015) 14 SCC272.: [2015] 9 SCR 211;
Prafulla Uddhav Shende v. State of Maharashtra 2008
SCC OnLine Bom 1848 : (2009) 2 AIR Bom R 1;
Jaisingh Ashrfilal Yadav and Others v. State of
Maharashtra and Another 2003 All MR (Cri) 1506;
Bharat Shantilal Shah v. State of Maharashtra 2003
All MR (Cri) 1061; State of Maharashtra v. Bharat
Shanti Lal Shah and Others (2008) 13 SCC 5 : [2008]
12 SCR 1083; Altaf Ismail Sheikh v. State of
Maharashtra 2005 SCC OnLine Bom 420 : 2005 Cri
LJ 3584 : (2006) 1 CCR 391; State of Maharashtra
and Others v. Lalit Somdatta Nagpal and Another (2007)
4 SCC 171 : [2007] 2 SCR 473; Tolaram Relumal and
Another v. State of Bombay AIR 1954 SC 496 : [1955]
SCR 158 - relied on.
Ranjitsing Brahmajeetsing Sharma v. State of
Maharashtra and Another (2005) 5 SCC 294 : [2005]
3 SCR 345; State of Jharkhand and Others v. Ambay
Cements and Another (2005) 1 SCC 368 : [2004] 6
Suppl. SCR 125 - referred to.
Case Law Reference
[2015] 9 SCR 211
relied on
Para 7
[2005] 3 SCR 345
referred to
Para 29
[2008] 12 SCR 1083
relied on
Para 35
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[2007] 2 SCR 473
relied on
Para 45
[1955] SCR 158
relied on
Para 47
[2004] 6 Suppl. SCR 125
referred to
Para 47
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
2291 of 2022.
From the Judgment and Order dated 06.05.2021 of the High Court
of Gujarat at Ahmedabad in R/Criminal Misc. Application No. 3819 of
2021.
Tushar Mehta, SG, Kanu Agarwal, Ms. Deepanwita Priyanka,
Advs. for the Appellant.
Mohit D. Ram, Kishan H. Dahiya, Ms. Monisha Handa, Rajul
Shrivastav, Anubhav Sharma, Advs. for the Respondent.
The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
1. Leave granted.
2. This appeal is at the instance of the State of Gujarat and is
directed against the order passed by the High Court of Gujarat dated
06.05.2021, in R/Criminal Miscellaneous Application No. 3819 of 2021
by which the High Court ordered release of the respondent accused
herein on bail in connection with the First Information Report being C.R.
No. 11210015200100 of 2020 registered with the D.C.B. Police Station,
Surat City, District Surat for the offences punishable under Sections
3(1)(i) and (ii), 3(2) and 3(4) resply of the Gujarat Control of Terrorism
and Organised Crime Act, 2015 (for short, 'the 2015 Act').
3. The question that falls for our consideration is: whether the
requirement of 'continuing unlawful activity', as defined under Section
2(1)(c) of the 2015 Act, necessarily requires a separate FIR to have
been registered against any purported member of a gang after the
promulgation of the 2015 Act i.e., after 01.12.2019? To put it in other
words: whether an FIR under the 2015 Act (Special enactment) is
maintainable in law or can be registered if there is no FIR registered
against the accused after the promulgation of the 2015 Act for any
offence under the IPC or any other statute?
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
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4. The aforesaid question arises especially in view of the fact that
the last offence registered against the respondent-accused is of 2019
and the chargesheet in regard to the said FIR was filed on 21.01.2019
i.e., indisputably prior to the promulgation of the 2015 Act. Furthermore,
there is no FIR registered against the respondent-accused after the 2015
Act came into force w.e.f. 01.12.2019.
FACTUAL MATRIX
5. On 27.11.2020 an FIR came to be registered against the
respondent accused herein and thirteen other co-accused for the offence
punishable under Sections 3(1)(i) and (ii), 3(2) and 3(4) resply of the
2015 Act. The respondent-accused came to be arrested on the very
same day and date of registration of the FIR i.e., 27.11.2020. The
respondent-accused applied for bail before the Sessions Court at Surat
by filing the Criminal Miscellaneous Application No. 6483 of 2020. The
Sessions Court at Surat rejected the bail application vide order dated
21.01.2021.
6. The respondent-accused thereafter, preferred bail application
before the High Court by way of the Miscellaneous Criminal Application
No. 3819 of 2021. The High Court allowed the bail application and ordered
release of the respondent-accused on bail subject to certain terms and
conditions.
7. The High Court granted bail to the respondent-accused,
essentially relying on the dictum as laid by this Court in the case of State
of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane reported in
(2015) 14 SCC 272. The High Court took notice of the fact that the 2015
Act came into force w.e.f. 01.12.2019 in the State of Gujarat and no
FIR had been registered against the respondent-accused for any
substantive offence after 01.12.2019.
8. In such circumstances referred to above, the High Court took
the view relying on the decision of this Court in the case of Shiva alias
Shivaji Ramaji Sonawane (supra) that the five FIRs, which were
registered in the past for different offences under the Indian Penal Code
(IPC) cannot be construed as a 'continuing unlawful activity' of the
respondent-accused so as to prosecute him under the provisions of the
2015 Act.
9. We must look into the relevant observations of the High Court,
made in its impugned order as under:
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"6. In order to curb and control organized crime and terrorist
activities in the State of Gujarat the Legislature has
promulgated "the Gujarat Control of Terrorism and Organized
Crime Act, 2015" vide Notification. The Act has come into
force from 01.12.2019. Sections 2(c) and (f) which define
"continuing unlawful activity" and "organized crime
syndicate" read as under:
(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;
(f) "organised crime syndicate" means a group of two or more
persons who, acting either singly or col-lectively, as a
syndicate or gang indulging in activities of organised crime;
The combined reading of the aforesaid provisions suggest that
there has to be a continuing unlawful activity carried out by
an organized crime syndicate, for which more than one charge
sheets have been filed before a competent court within the
preceding period of ten years, and that the court has taken
cognizance of such offence.
7. The Supreme Court in the case of Shivaji Ramaji Sonawale
(supra) while considering the parimaterial provisions of
section 2(d) of the Maharashtra Control of Organised Crime
Act, 1999 to that of section 2(c) of the Gujarat Act, which
defines "continuing unlawful activity" has held thus:
"9. The significant feature of the two cases is that for
Crimes No.37 of 2001 and 38 of 2001 the respondents
were separately tried and acquitted on 18th January, 2008
in the case of Shiva and on 28th February, 2006 in the
case of Mehmood Khan Pathan. In the said charge sheets,
the respondents were accused of committing offences only
under the IPC and the Arms Act. For the offences
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
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punishable under MCOCA separate and independent
charge sheets were filed against the accused persons in
which they were convicted by the Trial Court which
conviction was reversed by the High Court as noticed
earlier. It was in the above backdrop that the High Court
held that once the respondents had been acquitted for the
offence punishable under the IPC and Arms Act in Crimes
No.37 and 38 of 2001 and once the Trial Court had
recorded an acquittal even for the offence punishable
under Section 4 read with Section 25 of the Arms Act in
MCOCA Crimes No.1 and 2 of 2002 all that remained
incriminating was the filing of charge sheets against the
respondents in the past and taking of cognizance by the
competent court over a period of ten years prior to the
enforcement of the MCOCA. The filing of charge sheets or
taking of the cognizance in the same did not, declared the
High Court, by itself constitute an offence punishable
under Section 3 of the MCOCA. That is because the
involvement of respondents in previous offences was just
about one requirement but by no means the only requirement
which the prosecution has to satisfy to secure a conviction
under MCOCA. What was equally, if not, more important
was the commission of an offence by the respondents that
would constitute "continuing unlawful activity". So long
as that requirement failed, as was the position in the instant
case, there was no question of convicting the respondents
under Section 3 of the MCOCA. That reasoning does not,
in our opinion, suffer from any infirmity.
10. The very fact that more than one charge sheets had
been filed against the respondents alleging offences
punishable with more than three years imprisonment is not
enough. As rightly pointed out by the High Court
commission of offences prior to the enactment of MCOCA
does not by itself constitute an offence under MCOCA.
Registration of cases, filing of charge sheets and taking
of cognizance by the competent court in relation to the
offence alleged to have been committed by the respondents
in the past is but one of the requirements for invocation of
Section 3 of the MCOCA. Continuation of unlawful
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activities is the second and equally important requirement
that ought to be satisfied. It is only if an organised crime is
committed by the accused after the promulgation of
MCOCA that he may, seen in the light of the previous charge
sheets and the cognizance taken by the competent court,
be said to have committed an offence under Section 3 of
the Act.
11. In the case at hand, the offences which the respondents
are alleged to have committed after the promulgation of
MCOCA were not proved against them. The acquittal of
the respondents in Crimes No. 37 and 38 of 2001 signified
that they were not involved in the commission of the
offences with which they were charged. Not only that the
respondents were acquitted of the charge under the Arms
Act even in Crimes Case No.1 and 2 of 2002. No appeal
against that acquittal had been filed by the State. This
implied that the prosecution had failed to prove the second
ingredient required for completion of an offence under
MCOCA. The High Court was, therefore, right in holding
that Section 3 of the MCOCA could not be invoked only
on the basis of the previous charge sheets for Section
3 would come into play only if the respondents were proved
to have committed an offence for gain or any pecuniary
benefit or undue economic or other advantage after the
promulgation of MCOCA. Such being the case, the High
Court was, in our opinion, justified in allowing the appeal
and setting aside the order passed by the Trial Court."
8. By analyzing the expression "continuing unlawful activity",
the Apex Court has held that the filing of more than one charge
sheets for the offences punishable with more than three years
imprisonment is not enough, but it must be satisfied that the
continuation of unlawful activities is the second and equally
important requirement that ought to be satisfied. It is only if
an organised crime is committed by the accused after the
promulgation of the Act that has to be considered in the light
of the previous charge sheets. Thus, the contention raised by
the learned Advocate with regard to the prospective effect of
the Act is not palatable in view of the aforesaid observations
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
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made by the Apex Court, but at the same time it is noticed in
the present case, that the expression "continuing unlawful
activity" is not satisfied in view of the offences which are
considered by the authority. In the instant case, for invoking
the provisions of the Act against the applicant, the state has
relied on 5 offences and one experiment order registered
against the applicant. The details are as under:
9. The Act came into force on 01.12.2019. The last offence
which is registered against the applicant is of 2019 registered
vide F.I.R. No.29/2019, (Item.1), for which the charge--sheet
is filed on 21.01.2019 which is prior to the promulgation of
the Act. The offence at serial no.6 being F.I.R. No.14/209
under sections 364(A), 387, 120(B), 114 of the IPC has been
quashed by this Court vide order dated 03.12.2019 passed
in Criminal Misc. Application No.21872 of 2019 and hence,
the same could not have been considered by the authority
while registering the F.I.R. on 27.11.2020. The applicant has
not committed any offence after the promulgation of the Act.
At serial no.6, the state has referred to the extension order
dated 03.03.2019 also which is against the provisions
of section 2(c) of the Act. The Supreme Court has held that it
is only if an organized crime is committed by the accused after
the promulgation of the Act that has to be considered in the
light of the previous charge sheets. Thus, the state has
misdirected itself with regard to the registration of offences
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against the applicant, hence the applicant cannot be allowed
to be further incarcerated in jail.
10. Having perused the materials placed on record and taking
into consideration the facts of the case, nature of allegations,
gravity of offences, role attributed to the accused, without
discussing the evidence in detail, at this stage, this Court is
inclined to grant regular bail to the applicant. It is clarified
that this Court has not expressed any opinion with regard to
the applicant not being a member or a member of the crime
syndicate."
10. Being dissatisfied with the aforesaid impugned order passed
by the High Court releasing the respondent-accused on bail, the State of
Gujarat is here before this Court with the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANT STATE
11. Mr. Tushar Mehta, the Solicitor General vehemently submitted
that the dictum as laid by this Court in Shiva alias Shivaji Ramaji
Sonawane (supra) requires a relook, as the said dictum frustrates the
very object of enacting the 2015 Act. Mr. Mehta would submit that the
five FIRs referred to above, registered against the respondent-accused
prior to the 2015 Act coming into force, were sufficient to bring the case
within the ambit of 'continuing unlawful activity' as defined under the
2015 Act. He would submit that the term 'organised crime' as defined
under Section 2(1)(e) of the 2015 Act uses the term 'continuing unlawful
activity'. A bare perusal of the definition of the term 'continuing unlawful
activity' would indicate that it does not refer to any 'continuing unlawful
activity' to be committed only after the promulgation of the 2015 Act.
Mr. Mehta would argue that the said term means activities prohibited by
law in respect of which more than one chargesheets has been filed
before a competent court within the preceding period of ten years. The
phrase 'within the preceding period of ten years' by itself indicates that
the 'continuing unlawful activity' may be such activity, which could be
said to have been committed prior to the enactment of the 2015 Act.
12. Mr. Mehta submitted that one distinguishing feature of the
decision of this Court in the case of Shiva alias Shivaji Ramaji
Sonawane (supra) is that in the said case, the accused persons were
acquitted and the same signified that they were not involved in the
commission of the offence with which they were charged. It is in such
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
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factual background that this Court in Shiva alias Shivaji Ramaji
Sonawane (supra) could be said to have observed that it is only if an
organised crime is committed by the accused after the promulgation of
Maharashtra Control of Organised Crime Act, 1999 (for short, 'the
MCOCA') that he may, seen in the light of the previous chargesheets
and the cognizance taken by the competent court, be said to have
committed an offence under Section 3 of the MCOCA.
13. In the last, Mr. Mehta submitted that if the dictum as laid in
Shiva alias Shivaji Ramaji Sonawane (supra) is affirmed, the object
of the 2015 Act i.e., prevention and control of terrorist acts and for
coping with criminal activities by organised crime syndicates, will surely
get hampered.
14. In the aforesaid contest, the submission of Mr. Mehta is that
if, the dictum as laid in Shiva alias Shivaji Ramaji Sonawane (supra)
is to be treated as the final word so far as the law is concerned, then the
first case under the 2015 Act can be registered, only after two cases of
the nature described in the 2015 Act, had been registered against the
person or against an organised syndicate after 01.12.2019. As the
definition indicates, for making a crime punishable under the provisions
of the 2015 Act, there has to be more than one case registered or in
other words, it is the third case which can be registered for an offence
under Sections 3 and 4 resply of the 2015 Act. Such an interpretation
would be in direct conflict with the very purpose of the 2015 Act. If such
an interpretation is accepted then the State will have to wait and helplessly
watch the organised crime taking place till it is the third time a person or
a syndicate is found involved in the offence after the 2015 Act came into
operation w.e.f. 01.12.2019 in the State of Gujarat. According to Mr.
Mehta, the 'continuing unlawful activity' could have taken place ten
years prior to the registration of the new case. In such circumstances,
the intention of the Legislature could not have been other than giving
immediate effect to the 2015 Act by taking note of all the offences or
chargesheets registered within ten years prior to the commencement of
the 2015 Act.
15. In such circumstances referred to above, the learned Solicitor
General prays that the ratio of the decision of this Court in the case of
Shiva alias Shivaji Ramaji Sonawane (supra) may either be explained
accordingly, keeping in mind the object of the 2015 Actor the issue may
be referred to a larger Bench.
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SUBMISSIONS ON BEHALF OF THE RESPONDENTACCUSED
16. On the other hand, this appeal has been vehemently opposed
by the learned counsel appearing for the respondent-accused. The
learned counsel would submit that no error not to speak of any error of
law could be said to have been committed by the High Court while
passing the impugned order. He would submit that the decision of this
Court in the case of Shiva alias Shivaji Ramaji Sonawane (supra) is
binding on the High Court and the High Court has rightly applied the
dictum, as laid therein for the purpose of releasing the respondentaccused on bail.
17. The learned counsel would submit that if the interpretation put
forward by the learned Solicitor General is accepted then the same would
be in breach of Article 20(1) of the Constitution which provides that no
person shall be convicted of an offence except for one which is in violation
of any law in force at the time of commission of the act charged as an
offence nor be subjected to a penalty greater than that which might
have been inflicted under the law in force at the time of commission of
the offence.
18. The learned counsel further submitted that the scheme of the
2015 Act makes it abundantly clear that it is only if an accused commits
an organised crime after the promulgation of the 2015 Act, then the
accused can be prosecuted under the provisions of the 2015 Act with
the aid of the charge sheets that might have been filed in last ten preceding
years.
19. The learned counsel would submit that unless there is a
substantive offence, mere past chargesheets would not constitute the
offence of organised crime. He would argue that there is no merit in the
contention canvassed on behalf of the appellant-State that offence of
organised crime itself comprises of chargesheets filed in the past of
which cognizance is taken. He would argue that if such a contention
were to be accepted, it would amount to giving a free hand to the police
to send anybody to a long term of imprisonment, merely by filing
chargesheets in respect of more than one offence.
20. In such circumstances referred to above, the learned counsel
appearing for the respondent-accused prays that there being no merit in
the present appeal, the same may be dismissed.
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
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ANALYSIS
21. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the only question
that falls for our consideration is whether the decision rendered by a
coordinate Bench of this Court in the case of Shiva alias Shivaji
Ramaji Sonawane (supra) requires a relook and the issue be referred
to a larger Bench.
AN OVERVIEW OF THE GUJARAT CONTROL OF
TERRORISM AND ORGANISED CRIME ACT, 2015
22. The Gujarat Control of Terrorism Act, 2015, as its long title
indicates, is 'an Act to make special provisions for the prevention and
control of terrorist acts and for coping with criminal activities by organised
crime syndicates and for the matters connected therewith or incidental
there to'. The statement of objects and reasons contains the reasons,
which constitute the foundation for the legislature to step in:
First, organised crime which is in existence for some years
poses a serious threat to society;
Secondly, organised crime is not confined by national
boundaries;
Thirdly, organised crime is fuelled by illegal wealth generated
by contract killing, extortion, smuggling and contraband, illegal trade
in narcotics, kidnapping for ransom, collection of protection money
and money laundering, and other activities;
Fourthly, the illegal wealth and black money generated by
organised crime pose adverse effects on the economy;
Fifthly, organised crime syndicates make common cause with
terrorists fostering narcoterrorism which extends beyond national
boundaries;
Sixthly, the existing legal framework in terms of penal and
procedural laws and the adjudicatory system were found inadequate
to curb and control organised crime; and
Seventhly, the special law was enacted with 'stringent and
deterrent provisions' including in certain circumstances, the power
to intercept wire, electronic or oral communication.
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In understanding the ambit of the enactment, emphasis must be
given to three definitions:
a.
Organised crime (Section 2(1)(e));1
b.
Organised crime syndicate (Section 2(1)(f));2 and
c.
Continuing unlawful activity (Section 2(1)(c).3
The expression 'organised crime' is defined with reference to a
continuing unlawful activity. The definition is exhaustive since it is
prefaced by the word 'means'. The ingredients of an organised crime
are:
a.
The existence of a continuing unlawful activity;
b.
Engagement in the above activity by an individual;
c.
The individual may be acting singly or jointly either as a
member of an organised crime syndicate or on behalf of
such a syndicate;
d.
The use of violence or its threat or intimidation or coercion
or other unlawful means; and
e.
The object being to gain pecuniary benefits or undue
economic or other advantage either for the person
undertaking the activity or any other person or for promoting
insurgency.
1 Section 2(1)(e) - "organised crime" means any continuing unlawful activity and terrorist
act including extortion, land grabbing, contract killing, economic offences, cyber crimes
having severe consequences, running large scale gambling rackets, women trafficking,
racket for prostitution or ransom by an individual, singly or jointly, either as a member
of an organised crime syndicate or on behalf of such syndicate, by use of violence or
threat of violence or intimidation or coercion, or other unlawful means.
2 Section 2(1)(f) - "organised crime syndicate" means a group of two or more persons
who, acting either singly or collectively, as a syndicate or gang indulging in activities of
organised crime.
3 Section 2(1)(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;
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
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The above definition of organised crime, as its elements indicate,
incorporates two other concepts namely, a continuing unlawful activity
and an organised crime syndicate. Hence, it becomes necessary to
understand the ambit of both those expressions. The ingredients of a
continuing unlawful activity are:
a.
The activity must be prohibited by law for the time being in
force;
b.
The activity must be a cognizable act punishable with
imprisonment of three years or more;
c.
The activity may be undertaken either singly or jointly as a
member of an organised crime syndicate or on behalf of
such a syndicate;
d.
More than one charge-sheet should have been filed in respect
of the activity before a competent court within the preceding
period of ten years; and
e.
The court should have taken cognizance of the offence.
The elements of the definition of 'organised crime syndicate' are:
a.
A group of two or more persons;
b.
Who act singly or collectively, as a syndicate or gang; and
c.
Indulge in activities of organised crime.
Section 2(1)(c) while defining 'continuing unlawful activity' and
Section 2(1)(e) while defining 'organised crime', both contain the
expression 'as a member of an organised crime syndicate or on behalf
of such syndicate'. While defining an organised crime syndicate, Section
2(1)(f) refers to 'activities of organised crime'.
Section 3 provides for the punishment for organised crime.4 Subsection (1) of Section 3 covers 'whoever commits an offence of organised
crime'. Sub-section (2) covers whoever conspires or attempts to commit
4 Section 3 - (1) Whoever commits an offence of terrorist act or organised crime shall,-
(i) if such offence has resulted in the death of any person, be punishable with death or
imprisonment for life and shall also be liable to fine which shall not be less than rupees
ten lakhs;
(ii) in any other case, be punishable 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 which shall not be less than rupees five lakhs.
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or advocates, abets or knowingly facilitates the commission of an
organised crime or any act preparatory to organised crime. Sub-section
(3) covers whoever harbours or conceals or attempts to harbour or
conceal any member of an organised crime syndicate. Sub- section (4)
covers any person who is a member of an organised crime syndicate.
Sub-section (5) covers whoever holds any property derived or obtained
from the commission of an organised crime or which has been acquired
through the funds of an organised crime syndicate. Section 4 punishes
the possession of unaccountable wealth on behalf of a member of an
organised crime syndicate.
23. For charging a person of organised crime or being a member
of organised crime syndicate, it would be necessary to prove that the
persons concerned have indulged in :
(i)
an activity,
(ii)
which is prohibited by law,
(iii)
which is a cognizable offence punishable with imprisonment
for three years or more,
(iv)
undertaken either singly or jointly,
(v)
as a member of organised crime syndicate i.e. acting as a
syndicate or a gang, or on behalf of such syndicate,
(2) Whoever conspires or attempts to commit or advocates, abets or knowingly
facilitates the commission of any terrorist act or an organised crime or any act
preparatory to any terrorist act or organised crime, shall be punishable 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, which shall not be less than rupees five lakhs.
(3) Whoever intentionally harbours or conceals or attempts to harbour or conceal
any person who has committed an offence of any terrorist act or any member of an
organised crime syndicate shall be punishable 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 which shall not be less than rupees five lakhs.
(4) Any person who is a member of an organised crime syndicate shall be punishable
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 which shall not be less
than rupees five lakhs.
(5) Whoever holds any property derived, or obtained from commission of terrorist
act or an organised crime or which has been acquired through the organised crime
syndicate funds shall be punishable with imprisonment for a term which shall not be
less than three years but which may extend to imprisonment for life and shall also be
liable to fine which shall not be less than rupees two lakhs.
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
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(vi)
(a) in respect of similar activities (in the past) more than
one charge-sheets have been filed in competent court within
the preceding period of ten years,
(b) and the court has taken cognizance of such offence.
(vii)
the activity is undertaken by :
(a) violence, or
(b) threat of violence, or intimidation or
(c) coercion or
(d) other unlawful means
(viii) (a) with the object of gaining pecuniary benefits or gaining
undue or other advantage or himself or any other person,
or
(b) with the object of promoting insurgency.
24. A close analysis of the term, 'organised crime' would indicate
that there has to be an activity prohibited by law for the time being in
force which is a cognizable offence punishable with imprisonment of
three years or more, undertaken as singly or jointly as a member of
organised crime syndicate or on behalf of such syndicate, in respect of
which activity more than one chargesheets have been filed before a
competent court within the preceding period of ten years and the Court
has taken cognizance of such offence.
PRINCIPLES GOVERNING GRANT OF BAIL IN CASES
OF THE 2015 ACT
25. Although, Mr. Mehta with all fairness submitted that the
discretion exercised by the High Court in favour of the respondentaccused in so far as releasing the accused on bail is concerned, the
same may not be disturbed in the facts and circumstances of the case.
Yet as this appeal arises from an order of bail granted by the High Court
wherein the provisions of the 2015 Act are made applicable, we deem it
fit to reiterate the principles of grant of bail.
26. The considerations which normally weigh with the Court in
granting bail in non-bailable offences are:
(1)
the nature and seriousness of the offences;
(2)
the character of the evidence;
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(3)
circumstances which are peculiar to the accused;
(4)
a reasonable possibility of the presence of the accused not
being secured at the trial;
(5)
reasonable apprehension of witnesses being tampered with;
(6)
the larger interest of the public or the State and other similar
factors which may be relevant in the facts and circumstances
of the case.
27. However, if the provisions of the 2015 Act are invoked in a
given case, then, in addition to the aforementioned broad principles, the
limitations imposed in the provisions contained in sub-section (4) of
Section 20 of the 2015 Act should not be lost sight of while dealing with
application for grant of bail.