Supreme Court sets precondition to invoke draconian Gujarat organized crime Act
New Delhi: Ruling in favour of liberty of citizens arrested under the draconian Gujarat Control of Terrorism and Organized Crime Act, 2015 (GUJTOC), the Supreme Court on Monday released a man charged under it stating that the precondition for invoking the law will require a person to be charge-sheeted in more than one case relating to activities of crime syndicate.
A bench of Justices BR Gavai and Hima Kohli said, “We are of the prime facie view that for invoking provisions of GUJTOC Act, preconditions have to be fulfilled. In the present case, only one charge sheet is filed in respect of an activity said to have been undertaken on behalf of a syndicate.”
The Court was hearing a petition filed by one Mohammad Iliyas Mohammad Bilal Kapadiya, a real estate businessman from Gujarat who had five other FIRs pending against him. The sixth FIR was registered against him on January 28, 2021 under GUJTOC Act provisions where he was accused of committing an offence of organized crime, the maximum punishment for which was life imprisonment.
The Court noted that in the five FIRs, he was out on bail and in only one case, there was a charge sheet filed relating to activities done as part of a crime syndicate. Ordering his release on bail, the bench said, “Since he is directed to be released on bail for the FIRs mentioned under S. Nos 1 to 5, we are inclined to release him on bail on such terms and conditions as found appropriate by the trial court.”
The Court additionally directed him to report to the investigating officer of the case every week and to restrain from influencing witnesses or tamper with evidence of the case.
He was arrested in the GUJTOC offence by the Gujarat Police on February 1 last year and had been in jail since then. He approached the top court for bail after his regular bail plea was dismissed by the Gujarat high court on January 5 this year. Earlier, even the trial court refused to release him on bail owing to the draconian provisions of GUJTOC Act and the objection taken by the state that his role as part of the crime syndicate was amply evident in all previous FIRs.
Senior advocate Mukul Rohatgi who appeared for the accused along with advocate Diksha Rai told the Court that to establish organized crime under GUJTOC, which is analogous to the Maharashtra Control of Organized Crime Act (MCOCA), the twin requirements must be met to invoke the offence of organized crime.
“It should be undertaken either singly or jointly as a member of a crime syndicate and second, it should be in respect of such activity, in relation to activities of syndicate where more than one charge sheet is filed,” Rohatgi said.
He further pointed out that this Act has been wrongly slapped on the accused to deprive him of his liberty. Moreover, Rohatgi said that there was no role attributable to the petitioner as part of the syndicate in the FIR.
The state appearing through advocate Deepanwita Priyanka told the Court that all FIRs against the accused petitioner are directly or indirectly committed as part of the syndicate and each FIR need not name all members of the syndicate to establish the link.
The Court went through the list of FIRs against the accused and found that two FIRs of 2014 and one FIR of 2015 were lodged under Arms Act where no member of crime syndicate was arrayed as an accused. The fourth FIR was of 2020 that related to title dispute over a landed property which too did not have any member of crime syndicate as accused.
It was only in 2021, a FIR was registered against seven persons including the petitioner where the charges were under extortion (IPC Section 387) and criminal intimidation (IPC Section 506) along with criminal conspiracy (IPC Section 120B) where two members of a crime syndicate were joined as accused. In the sixth FIR under GUJTOC Act, the police charge-sheeted 10 persons of which petitioner was named as one of the accused, on the strength of his role in the extortion case. The state on its part also failed to show any other FIR where the activity could be said to done by the petitioner as part of a syndicate.
The bench said, “The perusal of the chart (of FIRs) would reveal that in only one offence (FIR 64 of 2021) there are seven accused of which two members are part of a syndicate. In the remaining four FIRs, no member of syndicate is an accused.”
Kapadiya In his petition had said, “This situation is created only with a view to cause double jeopardy to petitioner herein and violate his statutory as well as fundamental rights which smacks of malafide.”
In July 2021, the Surat Sessions Judge rejected grant of regular bail that was not interfered with by the high court. Kapadiya had approached the top court in February this year.