SHIVRAJBHAI RAMBHAI VICHHIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present application has been preferred by the applicant -original accused under section 439 of the Code of Criminal Procedure for regular bail in connection with the offence being C.R. No.11193053200151 of 2020 registered with Savarkundla Rural Police Station, District Amreli for the offences punishable under sections 3(1)(i), 3(1)(ii), 3(2), 3(3), 3(4), and 3(5) of the Gujarat Control of Terrorism and Organized Crime Act, 2015.

(2.) Mr.B.M. Mangukiya, learned advocate for the applicant has submitted that the law of Gujarat Control of Terrorism and Organized Crime Act, 2015 ("GUJCTOC Act" for short) has come into force on and from 01.12.2019 and as such preceding 10 years as per section 2(c) of continuing unlawful activity will be 01.12.2009. The applicant is chargesheeted for the offence under section 3(1) of GUJCTOC Act. It is submitted that the FIRs which are placed on record to book the applicant for the offence under section 3 of the GUJCTOC Act by the prosecution are of 2016, March, 2019, October, 2019 and December, 2019 and the FIR in question is dated 09.03.2020. It is submitted that the prosecution has given list of offences alleged to have been committed by the applicant and except two offences which are of harboring and prohibition, which have occurred after implementation of the GUJCTOC Act, all other offences are alleged to have been occurred before the GUJCTOC Act came into force. It is further submitted that the applicant is falsely implicated in the offence by the respondent No.2 to nourish his personal grievance and grudge and this is a case of personal vindiction and revenge by the Superintendent of Police, Amreli -respondent No.2. It is submitted that Mr.Khuman was taken in the custody in the alleged arms recovery case and he was beaten personally by the respondent No.2 -D.S.P. caused severe bleeding injuries. Mr.Khuman was forced to change his clothes and was threatened that no complaint be given against the D.S.P. - respondent No.2 and as such the custodial atrocity was committed by the D.S.P. - respondent No.2 and in the same way, the present applicant is also made an instrument of vindiction by the D.S.P. - respondent No.2 and the FIR in question has been lodged falsely implicating the applicant. It is also submitted that no act of the applicant can be termed as organized crime or terrorism under the GUJCTOC Act and section 3 of the GUJCTOC Act provides for act of terrorism or organized crime and no alleged act of the applicant is falling under the definition of section 2(e) and 2(h) of the GUJCTOC Act. It is submitted that no allegation is made in the FIR against the applicant which can be termed as organized crime. The ingredients of the organized crime are not disclosed or made out in the FIR against the applicant. No act is attributed against the applicant which can be termed as terrorized act. It is submitted that the applicant is in custody since 03.03.2020 i.e. since last one year. He is local resident of Jesar Taluka, Bhavnagar District, having family and roots in Bhavnagar, he is not likely to flee away and he will be readily available for trial. Hence, it is prayed to exercise the discretion and order to release the applicant on bail.

(3.) Mr.Mitesh Amin, learned Public Prosecutor has vehemently opposed the present application and has submitted that the applicant is arraigned as an accused in the present FIR for the offence under sections 3(1)(i), 3(1)(ii), 3(2), 3(3), 3(4), and 3(5). He has also relied upon the affidavit of the Investigating Officer and has submitted that the applicant has been chargesheeted for the offence under sections 114 and 212 of the Indian Penal Code along with the offence under the Arms Act for harboring and offence under the prohibition Act has been registered against the applicant in the year 2019, the applicant has been chargesheeted subsequent to the GUJCTOC Act came into force and the applicant is having other antecedents prior to the commencement of the Act. The applicant has involved himself into the acts which are prohibited by law and also the activities of the applicant are such which have become his antecedents. He has submitted that there is a prima facie case against the applicant, the applicant is a member of organized crime syndicate and hence, he has requested not to exercise the discretion in favour of the applicant.