Gujarat High Court
Mohamad Iliyas Mohamad Bilal Kapadiya vs State Of Gujarat on 5 January, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/13524/2021 ORDER DATED: 05/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 13524 of 2021
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MOHAMAD ILIYAS MOHAMAD BILAL KAPADIYA
Versus
STATE OF GUJARAT
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Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1
MR. MITESH AMIN, PUBLIC PROSECUTOR with MR. H.K.PATEL, APP (2)
for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 05/01/2022
ORAL ORDER
[1] The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being I-CR No.11210015210066 of 2021 registered with Surat DCB Police Station, Surat for offence under Sections 3(1)(2), 3(2) and 3(4) of the Gujarat Control of Terrorism and Organized Crime Act (for short "GUJCTOC Act").
[2] It is submitted that the applicant is being prosecuted as a member of syndicate headed by co-accused Vipul Gajipara. The basis for such prosecution under the provisions of GUJCTOC Act is only the offence registered with DCB Police Station being I- C.R.No.11210015210064 of 2021.
[2.1] It is submitted that over and above, the applicant is attributed with four individual offences, three of which are under Arms Act while another offence would fall in the realm of business transaction completely unconnected to the alleged organized crime. It is Page 1 of 15 Downloaded on : Wed Jan 12 17:06:04 IST 2022 R/CR.MA/13524/2021 ORDER DATED: 05/01/2022 submitted that if all the offences are seen together, there is no element of commonality or participation in the offences which are termed to be organized crime. Moreover, the act attributed to the applicant would not fall in the definition of continuing unlawful activity as there is no link of any act attributed to the applicant to the first offence treated to be the offence of the organized crime of the syndicate till the last offence allegedly committed by the syndicate. It is submitted that to make out the offences under the GUJCTOC Act, it is necessary to bring on record requisite mens-rea connecting the applicant with the crimes committed by the syndicate. In the only offence registered with DCB Police Station, even if the role of the applicant is examined, then also the applicant cannot be treated to be part of the syndicate.
[2.2] It is argued that in the charge-sheet filed in such offence committed at the behest of one Vipul Gajipara and Altf Gafur Patel, FIR is registered on the basis of Call Detail Records, however, there is no Call Detail Records of the applicant with syndicate leader namely Vipul Gajipara nor there is any other evidence to connect the applicant with the leader or the syndicate.
[2.3] Learned advocate for the applicant has tried to bring to the notice of the Court the proceedings initiated by the co-accused of the constituent offences and orders passed respectively by various Courts protecting such co-accused in the constituent offences. It is submitted that the offence of the DCB being C.R.No.I- Page 2 of 15 Downloaded on : Wed Jan 12 17:06:04 IST 2022
R/CR.MA/13524/2021 ORDER DATED: 05/01/2022 C.R.No.11210015210064 of 2021 is in reality a civil dispute which is given a colour of criminal offence and in such offence also, the main accused has been granted protection to the extent that the Investigating Agency is prevented from filing charge-sheet. [2.4] Learned advocate submitted that to treat the criminal offences of the applicant to be part of organized crime, it is required that the applicant must be involved in more than two offences, wherein charge-sheet is filed and cognizance is taken in more than two offences. It is submitted that two offences, in case of the applicant, are isolated offences or stand alone offences with no link with the syndicate and therefore, existence of such two offences cannot be treated as an offence to be considered as further requirement of provisions of GUJCTOC Act. Learned advocate has relied upon the decision in the case of Sandip Gupta v/s. State of Gujarat to contend that there is no offence registered against the said accused after the promulgation of the act. It is also submitted that the Court has adopted the test of two charge-sheets being indispensable for attracting the provisions of GUJCTOC Act. [2.5] Thereafter, the learned advocate has taken this Court through the list of offences registered against the applicant. The manner and method in which the offence has been registered and the status of the applicant in such offence to broadly contend that the action of the applicant amounting to the offence for which FIRs have been registered, cannot be treated as a part and parcel of organized Page 3 of 15 Downloaded on : Wed Jan 12 17:06:04 IST 2022 R/CR.MA/13524/2021 ORDER DATED: 05/01/2022 crime of the syndicate attracting the provisions of GUJCTOC Act. [3] As against this, learned Public Prosecutor has objected against the application and stated that an notorious accused named Vipul Dahyabhai Gajipara, residing in the Adajan police station area, Surat, has formed Organized crime syndicate in collusion with his accomplices for the benefit of his own as well as for his gang members, through which they have committed various offenses like hurt, grievous hurt, attempt to murder, extortion, robbery, dacoity, many offenses regarding human body and offenses related to Arms Act in the police station areas in Surat city viz. Laal gate, Varachha, Kapodra, Sarthana, Katargaam, Khatodara, Rander, Amroli. They have turned this crime syndicate into their livelihood and created an atmosphere of fear among the people. Due to their terror, common man avoids to lodge complaint against them. In spite of initiating all legal proceedings against the accused persons, they have continued their criminal activity. Therefore, present offense has been lodged against the leader of this gang Vipul Gajipara and his accomplices.
[3.1] In that FIR, the present applicant has been named as accused no.10. Moreover, he has vehemently stated that after the present offense was lodged, the applicant-accused filed Page 4 of 15 Downloaded on : Wed Jan 12 17:06:04 IST 2022 R/CR.MA/13524/2021 ORDER DATED: 05/01/2022 Criminal Misc. Application No.1049/2021 before this Court which was rejected. All the submissions made by the applicant- accused were also made at the time of previous application. Upon considering all those submissions, that bail application was rejected on its merit. In these circumstances, the bail application of applicant-accused should be rejected. He has vehemently submitted that in another such offense, an accused was released on bail by the Court. Circumstances of that case compared to the present case are quite different. In the said case, the Hon'ble High Court relied on the fact that not a single offense was lodged against that accused after the implementation of 'GUJCTOC Act', hence prima facie considering as to whether the provision of GUJCTOC Act are applicable or not, and the Court released the said accused on bail. However, the accused in the present case, has committed two more offenses in 2020 and 2021, after implementation of 'GUJCTOC Act' i.e 01.12.2019, in collusion with main accused Vipul Gajipara, which attract the provisions of 'GUJCTOC Act'. In one of those offenses, it is on record that absconding gang leader Vipul Gajipara and notorious Altaf Patel were also involved with him. Thus, the present accused has continued his criminal activity as a member of Organized crime syndicate, even after the implementation of 'GUJCTOC Act'. Page 5 of 15 Downloaded on : Wed Jan 12 17:06:04 IST 2022
R/CR.MA/13524/2021 ORDER DATED: 05/01/2022 [3.2] He has also submitted that considering the FIR of the offenses lodged in the year 2020 and 2021, against the present applicant-accused, it appears on record that he is involved with gang leader Vipul Gajipara and notorious Altaf Patel. Moreover, due to the fear of this gang, common people were afraid to lodge complaint, initiate proceedings or give statement against them. After the present offense was registered, statements of some witnesses have been recorded during investigation of this case. In that investigation, it was surfaced that he is member of this gang and he has continued criminal activity as member of the gang, hence his statement was recorded as per section-164 of CrPC. Taking that statement into account, it appears on record that he has been involved in criminal activity as member of 'Vipul Gajipara gang' even after implementation of this Act. He has vehemently stated that many offenses have been registered against all the members of this gang.
[3.3] He submitted that although after the implementation of 'GUJCTOC Act' on 01/12/2019 the applicant-accused had committed an offence u/s. 387, 506(2), 120(B) of Indian Penal Code registered vide Crime Reg. No. 11210015210064/2021 of D.C.B. Police Station, looking to it, the judgment in the case of Sandip Omprakash Gupta Page 6 of 15 Downloaded on : Wed Jan 12 17:06:04 IST 2022 R/CR.MA/13524/2021 ORDER DATED: 05/01/2022 does not becomes helpful to the present applicant-accused. He has stated that this offence has been mentioned by the Investigating Officer in serial No. 5. of column no. 33 in his affidavit of exhibit-4. Thereafter, as per the report by the Investigating Officer, an offence u/s. 387, 342, 323, 504, 506(2), 120(b) of Indian Penal Code have been registered in Rander Police Station vide Crime Reg. no. 11210050211310 / 2021 on 16/06/2021, in which the complainant has stated such facts that when he and his friend were going on a bike, meanwhile, three persons came in Creta car and insisted them to come to talk, took them at the place of incident, demanded rupees four crores as extortion money, and otherwise they gave threat to face the consequences and stated that they are the members of the gang of Altaf Patel, Vipul Gajipara and Illyas Kapadiya and these persons only have stated to receive the money from the complainant. Hence, they threatened to make arrangements of Four Crores and gave threat on showing pistol. In this complaint also, on looking to the threat given by the accused persons mentioning that they are the members of Mohammed Illyas Kapadiya, Vipul Gajipara and Altaf Patel, it remains that the present applicant-accused is connected with the gang of gang leader Vipul Gajipara.
[4] Heard learned advocate for the parties and perused the documents placed on record. The investigation pertains to one Vipul Dahyabhai Gajipara, residing in the Adajan Police Station Area of Page 7 of 15 Downloaded on : Wed Jan 12 17:06:04 IST 2022 R/CR.MA/13524/2021 ORDER DATED: 05/01/2022 Surat City, in collusion with his accomplices, Danish @ Nano @ Daniyo Rameshchandra Biladawala (Khatri), Altaf Gafurbhai Patel, Ankitkumar @ Doctor Karamvirsingh, Shashanksinh @ Mohit Vishwapratapsinh Singh (Bhardwaj), Ujjwaldeep @ UD Brijmohansingh (Rajput), Arjunkumar @ Arvind Satnarayan Pande, Kapilkumar @ Popin @ Dhanraj @ Jatau @ Kapil Vakil S/o. Mamchand, Aazad @ Aazad Pathan S/o. Aiyubkhan Goja (Pathan) and Mohammad Iliyas Mohammad Bilal Kapadia, formed organized crime syndicate to commit crimes and made monetary benefits yielded out of such crimes their livelihood. Committing such crimes in public frequently, they create an atmosphere of fear and terror in order to put the public at large under their coercion and not become obstacle in their criminal activities and to carry on their activities without any obstructions.
[4.1] As per discrete information, in many cases apart from the offenses of extortion and robbery mentioned in the table of the complaint, the gang collects ransom money from the trader or business class but due to the fear and terror of the said gang, the victim trader, business class or common man avoid the police action or to lodge the complaint against them. It is imperative to pull down such activities mentioned above of such criminals in order to maintain the law and order in the city and for maintaining peace and public order. Despite the action of PASA/ exoneration has been taken to control such criminal activities of the aforesaid accused Page 8 of 15 Downloaded on : Wed Jan 12 17:06:04 IST 2022 R/CR.MA/13524/2021 ORDER DATED: 05/01/2022 persons, there is no charge in the criminal mindset and conduct of the said accused and they have kept such criminal activities continue as ago.
[5] Considering the F.I.R. of the offence, names and addresses of all the members of the gang and details of offences registered against each accused in the last ten years have been mentioned on its page No.5, name of Vipul Gajipara is mentioned in the first column. Considering the F.I.R., many offences under section-307, 201, 365, 386, 323, 120(B), 143, 147, 148, 149, 387, 506(2) of Indian Penal Code, section - 135 of Gujarat Police Act and section - 25(1)(A)(B) of the Arms Act have been registered against him. In the same way, in addition to the sections mentioned above, offences under sections - 323, 324, 395, 332, 212, 387, 397, 307, 392 etc. of Indian Penal Code have been registered against other members of the gang. Five offences have also been registered against the present applicant-accused, out of which, three offences have been filed under the Arms Act and two offences have been filed in connection with grabbing properties, shares and money from the people in collusion with gang leader Vipul Gajipara and other accomplices.
[5.1] Thus, there is a prima facie material on record to believe that the applicant-accused is a member of this organized crime committing gang and is connected with the gang leader and other accomplices. Statements of police witnesses and some other Page 9 of 15 Downloaded on : Wed Jan 12 17:06:04 IST 2022 R/CR.MA/13524/2021 ORDER DATED: 05/01/2022 witnesses in connection with the offences registered against them as mentioned above are available on record. Section 17 of the GUJCTOC Act provides for keeping secret the identity and address of witnesses, this Court avoids mentioning names of the witnesses. However, it necessary to record that, prima facie it appears from some of the crucial statements on record that the applicant-accused is a member of this organized crime syndicate and has been engaged in such criminal activities prior to and after enactment of this act. From these statements, such fact emerges on record that, the witnesses know all the members of this gang full well, who are gangsters and ruffians. The gang acts under directions of notorious gang leader Vipul Gajipara and his close friends Altaf Patel, Danish and Mohammad Iliyas Kapadiya (the present applicant-accused). The witnesses have also stated that, the members of this gang are engaged in offences such as loot, robbery, abduction for ransom, grabbing someone's land or property by occupying it, grabbing a land property forcefully by entering into a deal, giving token amount and threatening the land owner, who demands the remaining amount, of killing him, recovery of due amount for any person and coercion to withdraw police complaint.
[5.2] The witnesses also state that, whenever they hatch a conspiracy, they commit an offence by forming organized gangs of different members so as not to disclose involvement of every members of the gang. Further, when any member is arrested by Page 10 of 15 Downloaded on : Wed Jan 12 17:06:04 IST 2022 R/CR.MA/13524/2021 ORDER DATED: 05/01/2022 police, another member is sent for other criminal act so that involvement of the whole gang does not get disclosed due to different location, place and person. The witnesses have also stated that, Vipul Gajipara, a leader of the gang and Altaf Patel have their den near platform No.4 of Surat Railway Station and hatched conspiracy for every act from there. The facts mentioned above have been stated corroboratively by many witnesses. Considering it, the facts have emerged on record to believe that the applicant- accused is a member of this gang.
[6] It is noteworthy that, the only material representation made for the applicant-accused is that, the offences registered against the applicant-accused in the past cannot be considered for registering offence under the GUJCTOC Act and provision of this act is attracted only if a fresh offence is committed by him on the date of F.I.R.. This Court is of the view that if any accused has committed numerous offences prior to enactment of this act and is engaged in criminal activities as a member of a gang committing organized crimes even after enactment of this act, then police can proceed to file a complaint. It is natural that members of a gang committing organized crimes are ruffians and used to commit offences relating to body and property. It is comprehensible that, in such circumstances, no person dares to file a complaint against them. With respect to the present applicant-accused, even after enactment of this act, offences of grabbing others' shares, Page 11 of 15 Downloaded on : Wed Jan 12 17:06:04 IST 2022 R/CR.MA/13524/2021 ORDER DATED: 05/01/2022 occupation, office, car and other movable and immovable properties, threatening to kill and coercion in collusion with notorious gang leader Vipul Gajipara have been registered against him and gang leader Vipul Gajipara and other accomplices are also involved with him. In such circumstances, provision of section-2(C) and section-2(E) of the GUJCTOC Act are attracted against the present applicant-accused.
[7] It appears from the record that total 5 serious offenses have been registered against the applicant-accused. Two out of the five offenses have been registered after 'the GUCTOC Act' came into effect, i.e. after 01/12/2019, and out of them, in one of the offenses, it is alleged that the present applicant-accused in collusion with the main accused Vipul Gajipara and notorious Altaf Patel have threatened, beaten and caused serious injuries to the complainant in that case in order to usurp 65% shares of his company, the company office, company's accounts, a BMW car etc. If the nature of offenses registered against the applicant-accused is taken into consideration all together, as per my humble opinion, the applicant- accused prima facie attracts the provisions of GUJCTOC Act. Two out of the five serious offenses registered against the applicant-accused are registered after implementation of the GUJCTOC Act. In one of those offenses, Vipul Gajipara and Altaf Patel are the co-accused along with the present applicant-accused and they have committed the offense in a manner attracting the provisions of this act. If the Page 12 of 15 Downloaded on : Wed Jan 12 17:06:04 IST 2022 R/CR.MA/13524/2021 ORDER DATED: 05/01/2022 details of the offense registered vide Rander Police Station Cr. NO. 11210050211310/ 2021 are taken into consideration, it is stated that total three accused persons brandished a pistol and demanded a ransom of Rupees four crore from the complainant in that case and told him that they were working for Altaf Patel, Vipul Gajipara and Ilyas Kapadiya who had asked for collecting money. [8] The Court is of the view that If the provisions of Section-2(C) of the GUJCTOC Act are read with the judgment in the case of Sandip Omprakash Gupta case, the fact is clear that there are two main requirements for attracting provisions of the GUJCTOC Act against the applicant-accused. (1) More than one offense punishable with imprisonment of three years and more should have been registered against the accused in last ten years, wherein charge-sheet has been filed and the court has taken a cognizance of an offense. (2) Where the accused has committed any offense punishable with imprisonment of three years or more after this act has come into force. Both these requirements are met with in the case of present applicant-accused.
[9] Against the applicant, list of four offences have been registered which are as under:-
Sr.No. Police Station,C.R.No./Sections 1. D.C.B.Police Station Part-A 11210015210064/2021 Sections 387, 506(2) and 120(B) of IPC. Page 13 of 15 Downloaded on : Wed Jan 12 17:06:04 IST 2022 R/CR.MA/13524/2021 ORDER DATED: 05/01/2022 2. Rander Police Station Part-A 11210050200837/2020 Sections 447, 427, 506(2) and 114 of the IPC 3. D.C.B.Police Station II-C.R.No.3179 of 2014
Sections 25(1-A), and 29 of the Arms Act and Sections 188 and 114 of the IPC
4. Rander Police Station II-C.R.No.659 of 2014 Sections 25(1)A, 25(1-B)A and 29 of the Arms Act and under Section 135 of the GP Act
5. Amroli Police Station II-C.R.No.345 of 2015 Sections 25(1), 1(AA) of the Arms Act.
[10] From the investigation brought on record through report dated 04.08.2021, it appears that accused-Ujjwaldeep @ UD Brijmohansingh (Rajput), who was produced before the DCB Police Station is arrested 28/01/2021, Shashanksinh @ Mohit Vishwapratapsinh Singh (Bhardwaj) and, Mohammad Iliyas Mohammad Bilal Kapadiya are arrested on 01/02/2021 and Arjunkumar @ Arvind Satnarayan Pande is arrested on 08/02/2021. Thereafter, statements of the complainant, witnesses, investigating officers/staff of the offense registered against them and independent witnesses were recorded and statements under Section-164 of the Cr.P.C. of total 5 private witnesses have also been recorded in the present case. Moreover, evidences containing certified copies of the papers of the offense registered against the accused in the matter of this offense such as FIR, Charge Sheet Copy and Copies of Bail Orders / Bonds, Call details of the accused persons and details of the properties of the accused were collected Page 14 of 15 Downloaded on : Wed Jan 12 17:06:04 IST 2022 R/CR.MA/13524/2021 ORDER DATED: 05/01/2022 and after obtaining permission from the Home Department, Gandhinagar to prosecute and thereafter, the Charge Sheet No.93/2021 dated 06/05/2021 was submitted before the Hon'ble Court and the Hon'ble Court registered it as Sessions Case No.496/2021 on 06/05/2021.
[11] From the report it further appears that accused Vipul Dahyabhai Gajipara, Danish @ Nano @ Daniyo Rameshchandra Biladawala (Khatri), Ankitkumar @ Doctor Karamvirsingh and Aazad @ Aazad Pathan S/o. Aiyubkhan Goja (Pathan), are still absconding. Police team was sent to their present and native residence, where they are not found and remained absconding, therefore, written yadis were sent to the concerned PI of Varachha, Kapodra, Adajan and Godadara as well as to Mr. H.M. Aahir, Incharge of Absconding Accused Squad, Zone-1 to arrest them by obtaining warrant under Section-70 of the Cr. P.C. from the Hon'ble Court. [12] In view of the foregoing reasons, no case is made out to exercise discretion in favour of the applicant more particularly when the main accused persons are still at large. The Court has gone through the cogent and detail reasons given by the Sessions Court while rejecting the bail application and find no reason to interfere with the same. The present application stands dismissed. Rule is discharged.
(A.Y. KOGJE, J) SIDDHARTH Page 15 of 15 Downloaded on : Wed Jan 12 17:06:04 IST 2022