JITNESH KUMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned advocate Mr. Hardik Dave for the applicant and learned Additional Public Prosecutor Mr. Hardik Soni for the respondent -State.

(2.) By this application filed under Sec. 439 of the Code of Criminal Procedure, 1973, the applicant is seeking release on regular bail in connection with the FIR being C.R.No.11200045210282 of 2021 registered with Umargam Police Station, District Valsad for the offences punishable under Ss. 365, 395, 343, 346, 323, 506(2), 120(B), 34, 364(A), 465, 466, 471, 474, 201 etc. of the Indian Penal Code, under Sec. 25(1-b)A of the Arms Act and Ss. 3(1)(ii), 3(2) and 3(4) etc. of the Gujarat Control of Terrorism and Organized Crime Act, 2015 (herein after referred to as 'the GUJCTOC Act' for short).

(3.) Learned advocate Mr. Dave appearing for the applicant submits that the so-called incident occurred on 22/3/2021 and FIR has been registered on 23/3/2021. The present applicant accused has been arrested on 31/3/2021 and since then he is in judicial custody. The investigation is already completed and after submission of the charge-sheet, present bail application is preferred. Learned advocate Mr. Dave further submitted that the GUJCTOC Act has come into force from 1/12/2019 and as per the definition of 'continuing unlawful activity' given in the said Act, 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. It is submitted that except the present complaint, there is no other complaint registered against the present applicant accused and said fact is clearly found out from the chart prepared by the Investigating Officer, which is part and parcel of compilation of charge-sheet papers. Learned advocate Mr. Dave has further submitted that present applicant is in judicial custody since more than 2 years and 9 months. It is further submitted that the role of the present applicant accused is clearly prescribed in the compilation of charge-sheet papers and if the case of the prosecution is taken as it is then also no offence under the provisions of the GUJCTOC Act is made out against the present applicant accused. It is further submitted that recently in the case of Mohamad Iliyas Mohamad Bilal Kapadiya v. the State of Gujart rendered in Special Leave to Appeal (Cri.) No.1815 of 2022, the Hon'ble Apex Court has considered the bail application of the accused on the ground that only one charge-sheet was filed against the accused. Moreover, the Hon'ble Apex Court has also fixed the criterion for invoking the provisions of the GUJCTOC Act. It is further submitted that from the compilation of charge-sheet papers, it is clearly found out that present applicant accused is not a member of the syndicate. It is further submitted that the co-accused person whose role is graver than the present applicant accused has already been enlarged on bail by the Coordinate Bench of this Court. A copy of the order is also annexed with the memo of the petition. Learned advocate Mr. Dave lastly submitted that except the present complaint any other compliant has not been registered against the present applicant accused preceding 10 years from the date of enactment of the GUJCTOC Act. Therefore, considering the above stated factual aspects, the applicant may be enlarged on bail.