NIZAMMIYA AKBARMIYA SAIYED Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present application is filed under Sec. 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.I-11217030210939 of 2021 registered with the Sidhhpur Police Station, Patan of the offence punishable under Ss. 3(1)(i), 3(1)(ii), 3(2), 3(3) and 3(4) of the Gujarat Control of Terrorism and Organized Crime Act, 2015.

(2.) Learned advocate Mr. F.H. Pathan appearing for the applicant has submitted that the so called incident had occurred during the period between 11/1/2016 and 13/4/2021 and the FIR came to be lodged on 27/8/2021. The applicant-accused was arrested on 29/8/2021 and since then he is in jail. Learned advocate Mr. Pathan has further submitted that the GUJCTOC came to be enacted by the State Legislative Assembly which came into force on 1/12/2019, and after the enactment of the said Act, one offence has been registered against the applicant-accused. Learned advocate Mr. Pathan has also submitted that the alleged offence took place during the period between 2016 and 2021 and the first information report has been lodged in the the month of August, 2021. Therefore, there is huge delay in registering the complaint. Learned advocate Mr. Pathan has also submitted that there are in all total four offences have been registered against the applicant-accused, out of which, three offences have been registered prior to enactment of GUJCTOC Act. It is further submitted that there is nothing in the Act to suggest that the provisions of the Act shall be made applicable with the retrospective effect. The another offence has been registered against the applicant-accused on 13/4/2021 and thereafter no offence is registered against the applicant and, therefore, the provisions of Sec. 2(c) of the Act which defines 'continuing unlawful activity' are not attracted. Learned advocate Mr. Pathan has also submitted that the first information report has been registered against the applicant-accused after the enactment of the law and pursuant to registration of the FIR, investigation was ensued and charge-sheet came to be filed. Trial was proceeded and, ultimately, at the end of the day, the applicant-accused came to be acquitted from the charges levelled against him in the first information report. Copy of the order passed by the learned Addl. Chief Judicial Magistrate, Sidhhpur acquitting the applicant-accused, is also placed on record. Under the circumstances, learned advocate Mr. Pathan for the applicant prays that the applicant may be enlarged on bail on any suitable terms and conditions.

(3.) The learned APP appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. Learned APP has submitted that, in fact, as per the provisions of the GUJCTOC, it is specifically stated in the Act that at the time of invocation of provisions of GUJCTOC, preceding ten years offences registered against the accused are required to be seen. Learned APP has further submitted that there are three offences registered against the applicant-accused which are pending for adjudication before the competent court. Learned APP has fairly submitted that it is true that one offence is registered against the applicant-accused after the enactment of law in which he has already been acquitted by the learned trial court. 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.