The Supreme Court in an appeal filed by the State of Gujarat against the order passed by the Gujarat High Court held that the offence of the 'organised crime' is constituted by at least one instance of continuation apart from the 'continuing unlawful activity' under the Gujarat Control of Terrorism and Organised Crime Act, 2015.

The two-Judge Bench comprising Justice S. Abdul Nazeer and Justice J.B. Pardiwala was dealing with a criminal matter in which the High Court had ordered the release of the respondent (accused) on bail for the offences punishable under Sections 3(1)(i) and (ii), 3(2) and 3(4) of the Gujarat Control of Terrorism and Organised Crime Act, 2015. The Bench stated –

"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. … 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."

The Bench further agreed with the view taken by the Bombay High Court in the case of Jaisingh Ashrfilal Yadav and Others v. State of Maharashtra and Another (2003) All MR (Cri) 1506 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.

Solicitor General Tushar Mehta appeared for the appellant while Advocate Mohit D. Ram represented the respondent.

Brief Facts –

An FIR was registered against the respondent i.e., the accused and 13 other co-accused for the offence punishable under Sections 3(1)(i) and (ii), 3(2), and 3(4) of the abovementioned 2015 Act. The respondent got arrested on the very same day and hence, applied for bail before the Sessions Court at Surat by filing the Criminal Miscellaneous Application. The Sessions Court rejected the bail application. Thereafter, the respondent preferred a bail application before the High Court. The High Court allowed the same and ordered the release of the respondent on bail subject to certain terms and conditions.

The High Court granted bail to the respondent essentially relying on the dictum as laid by the Supreme Court in the case of State of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane (2015) 14 SCC 272. The High Court took notice of the fact that the 2015 Act came into force w.e.f. December 1, 2019, in the State of Gujarat, and no FIR had been registered against the respondent for any substantive offence after December 1, 2019. The matter was therefore before the Supreme Court.

The counsel for the appellant i.e., the State submitted that the dictum as laid by the Supreme Court requires a relook as the same frustrate the very object of enacting the 2015 Act. On the other hand, the counsel for the respondent contended that no error could be said to have been committed by the High Court while passing the impugned order.

The question for consideration before the Supreme Court was 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 December 1, 2019. The Court in this regard observed, "The learned counsel appearing for the respondent-accused is right in his submission that having regard to the stringent provisions of the 2015 Act, its provisions should be very strictly interpreted and the authorities concerned would be obliged in law to strictly observe the said provisions. There need not be any debate on the fact that the provisions of the 2015 Act have been enacted to deal with organised criminal activity in relation to offence, which are likely to create terror and endanger and unsettle the economy of the country for which stringent measures have been adopted."

The Apex Court further noted that there is a vast difference between the act or activity which is being termed as an offence under a statute and such act or activity is taken into consideration as one of the requisites for taking action under the statute.

The Court also said, "It is a sound rule of construction that the substantive law should be construed strictly so as to give effect and protection to the substantive rights unless the statute otherwise intends. Strict construction is one which limits the application of the statute by the words used. According to Sutherland, 'strict construction refuses to extend the import of words used in a statute so as to embrace cases or acts which the words do not clearly describe'. … We are of the view and the same would be in tune with the dictum as laid in Shiva alias Shivaji Ramaji Sonawane (supra) 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."

It was thereafter concluded by the Court that the dictum in Shiva alias Shivaji Ramaji Sonawane case does not require any relook and is the correct exposition of law.

Accordingly, the Court disposed of the appeal.

Cause Title – The State of Gujarat v. Sandip Omprakash Gupta

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Justice S. Abdul NazeerJustice J.B. PardiwalaGrant of BailGujarat High CourtGUJCOCA

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