Gujarat High Court
Sabbir Ahmed Gulamkhan Nagori vs State Of Gujarat on 9 September, 2022
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
R/CR.MA/4230/2022 ORDER DATED: 09/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 4230 of 2022
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SABBIR AHMED GULAMKHAN NAGORI
Versus
STATE OF GUJARAT
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Appearance:
MR IH SYED, SENIOR ADVOCATE with MR R.K.MANSURI(3205) for the
Applicant(s) No. 1
MR CHINTAN DAVE, APP PUBLIC PROSECUTOR for the Respondent
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 09/09/2022
ORAL ORDER
1. The present application for regular bail filed under Section 439 of Code of Criminal Procedure is brought in connection with FIR No. 11217030210939 of 2021 dated 27.08.2021 registered before Siddhpur Police Station for the offences punishable under Sections 3(1)(i), 3(1)(ii), 3(2), 3(3) and 3(4) of the Gujarat Control of Terrorism and Organized Crime Act, 2015 (for short "GUJCTOC Act").
2. It is the case of the petitioner that in connection with the aforesaid First Information Report, the petitioner was arrested on 28.08.2021, produced before the Special GUJCTOC Court, Mirzapur, Ahmedabad on 29.08.2021 and since then, the petitioner is in jail.
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R/CR.MA/4230/2022 ORDER DATED: 09/09/2022
3. On account of such arrest, an application for seeking regular bail was filed under Section 439 of the Code of Criminal Procedure before the learned District and Sessions Court, at Ahmedabad which was registered as Criminal Misc. Application No. 3953 of 2021, which came to be rejected vide order dated 06.01.2022. It is further the case of the petitioner that earlier the petitioner had filed an application for regular bail before the stage of filing of the charge sheet being Criminal Misc. Application No. 17532 of 2021 which was permitted to be withdrawn with liberty to file after filing of the charge sheet and the said order was passed on 26.10.2021. It is the case of the petitioner that he is arraigned in the present FIR on the basis of past two cases which were registered before the Siddhpur Police Station being C.R. No. I-2 of 2016 and C.R. No. II-98 of 2016 and by detailing out the offences for which such complaints were lodged in a tabular form in paragraph 6. It has been submitted that the petitioner was not named in the FIR in the first case whereas, in second case there is no specific allegation and as such, in present FIR, the petitioner may be enlarged on regular bail since now the charge sheet has already Page 2 of 18 Downloaded on : Mon Sep 12 20:52:51 IST 2022 R/CR.MA/4230/2022 ORDER DATED: 09/09/2022 been submitted. Hence, the present application.
4. Learned Senior Advocate Mr. I.H. Syed appearing on behalf of the petitioner has vehemently contended that the petitioner is neither a member of any gang nor has ever acted as a part of any terrorist organization and had never committed any offence or his nowhere involved in the offence connected with dacoity or ransom or murder and as such, the petitioner has been falsely implicated for which he deserves to be enlarged on bail. It has further been contended that the petitioner was never arrested or suspected in any terrorist organization or abetted any terrorist activity and as such, cannot be said to be a person connected with offence punishable under GUJCTOC Act.
5. Learned Senior Advocate Mr. Syed has submitted that the first offence which was registered against the petitioner before Siddhpur Police Station was of the year 2016 and as such, it cannot be said in any way that the petitioner happened to be an active member of any alleged gang. It has been vehemently contended that out of two FIR of 2016, in first FIR he was not named whereas, in the second FIR, as stated in the tabular Page 3 of 18 Downloaded on : Mon Sep 12 20:52:51 IST 2022 R/CR.MA/4230/2022 ORDER DATED: 09/09/2022 chart in paragraph 6 of the application there was no specific allegation by virtue of which it can be inferred that the petitioner has committed any offence. Hence, no case prima facie is made of the offences punishable under the GUJCTOC Act. It has further been contended that in the first offence of 2016, a mere connection alleged was that the car of the petitioner was used by other accused persons and in that connection, the petitioner was even arrested and then released on regular bail, whereas in the second offence, the petitioner was released on anticipatory bail. It has further been contended that the act under which the offence is registered has come into force on 01.12.2019 and there is no provision under the Act which has given any retrospective effect. Hence, considering this, the petitioner was allegedly involved first in the year 2016 and as such, cannot said to be a part of continuing illegal activity which is defined under Section 2(c) of the GUJCTOC Act.
6. Learned Senior Advocate Mr. Syed has further submitted that Section 2(f) of the said Act will not come in the way of the petitioner as there is no offence by the syndicate as indicated as Page 4 of 18 Downloaded on : Mon Sep 12 20:52:51 IST 2022 R/CR.MA/4230/2022 ORDER DATED: 09/09/2022 a whole and the petitioner is not co-accused in any other offence registered against the alleged members of the syndicate and as such, a combined reading of Section 2(c) and (f) suggest that there has to be continuing unlawful activity carried on by organized crime syndicate and in the absence thereof, no offence can be registered against the petitioner under the GUJCTOC Act. Learned Senior Advocate Mr. Syed has vehemently contended that a bare reading of the definition would clearly indicate that none of the aforesaid provisions are attracted. As a result of this, continuance of petitioner in jail is nothing but miscarriage of justice. It has been submitted that the reasons which are assigned by the learned trial Judge while not considering the request are not just and proper. Hence, by imposing suitable condition, the petitioner may be enlarged on bail. To strengthen his request, it has been submitted that the Hon'ble Apex Court in the case of Mcoca, the learned trial court has convicted the accused persons which was set aside by the Hon'ble Bombay High Court which was the subject matter of challenge before the Hon'ble Apex Court in the form of appeal and in that context, the Hon'ble Apex Court has clearly Page 5 of 18 Downloaded on : Mon Sep 12 20:52:51 IST 2022 R/CR.MA/4230/2022 ORDER DATED: 09/09/2022 observed that continuation of unlawful activities is the one and equally important requirement that ought to be satisfied and, therefore, the back ground of present fact is quite distinct and hence Hon'ble Court may kindly grant regular bail to the petitioner. Further learned Senior Advocate Mr. Syed has relied upon heavily on the decision delivered by the co-ordinate Bench of this Court in the case of Sandip Omprakash Gupta v. State of Gujarat rendered in Criminal Misc. Application No. 3819 of 2021 dated 06.05.202 in which the accused person was granted regular bail. Hence, it has been emphatically submitted that the prosecution has not made out any case on the basis of which petitioner may not be allowed to languish in jail. It has been further submitted that the petitioner is in jail since 28.08.2021 and is aged about more than 67 years and his medical condition is also not proper and as such, considering the said aspect also, by imposing suitable condition, this Court may kindly grant regular bail to the petitioner. It has further been submitted as such by referring to the aforesaid material, learned Senior Advocate Mr. Syed has summarized that the case of the petitioner if to be taken as it is, it does not fall within the Page 6 of 18 Downloaded on : Mon Sep 12 20:52:51 IST 2022 R/CR.MA/4230/2022 ORDER DATED: 09/09/2022 purview of Section 2(c) and further the role of the petitioner in earlier case of 2016 is not that much serious at all and apart from that by virtue of act which has come into force, undisputedly on 01.12.2019, there are no other offence registered against the petitioner after the year 2016, no offences individually against the petitioner or with others have been registered by virtue of which the petitioner can be arraigned and as such, in the absence of retrospectivity of the Act, there is hardly any case made out by the authority against the petitioner.
7. Further the petitioner is ailing person aged about roughly more than 67 years and his medical condition is not good since his weight was 160 kgs., and now reduced to 110 kgs., as per the instructions of learned Senior Advocate Mr. Syed and looking to his health condition also, it is not desirable in the interest of justice to allow the petitioner to languish in jail for a pretty long period since these material aspects having not been considered by the court below case, may be considered here and extend the bail as prayed for in connection with the FIR in question. A reference is made to two decisions in the case of Page 7 of 18 Downloaded on : Mon Sep 12 20:52:51 IST 2022 R/CR.MA/4230/2022 ORDER DATED: 09/09/2022 State of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane & Ors., reported in (2015) 14 SCC 272 (paragraphs 9, 10 and 11) and in the case of Mohamad Iliyas Mohamad Bilal Kapadiya v. State of Gujarat reported in 2022 SC Online SC 713 and the decision delivered by the Hon'ble co-ordinate Bench of this Court in almost similar circumstances. By referring to the aforesaid decisions, a request is made to grant the relief as prayed for in the petition. No other submissions have been made.
8. As against this, Mr. Chintan Dave, learned Additional Public Prosecutor appearing on behalf of the respondent - State has vehemently opposed this application by indicating that the petitioner is a member of organized syndicate and looking to the allegations levelled in the FIR and the circumstances which are connected with earlier complaints, the petitioner cannot be allowed to be released on bail. It has been submitted that there was a report whereby it has been curled out that the entire gang to which the petitioner is attached is facing as many as 14 offences in last ten years and 19 offences in the past and as such, since the petitioner is an active member, may be not Page 8 of 18 Downloaded on : Mon Sep 12 20:52:51 IST 2022 R/CR.MA/4230/2022 ORDER DATED: 09/09/2022 surfacing apparently, but is connected with the said activity even after 2016. The petitioner's case would certainly fall within the definition of Section 2(c) i.e continuing unlawful activity and when that be so, allowing the petitioner to enlarge on bail would frustrate the very object of the Act. Hence, the interpretation which is tried to be canvassed by the learned Senior Advocate Mr. Syed is a matter of adjudication, but at this stage, prima facie the aforesaid circumstances are sufficient enough to reject the application. It has further been contended by learned APP that a reference which is made of a decision delivered by the co- ordinate Bench, but the said decision is subject to scrutiny before Hon'ble Supreme Court and SLP is very much pending and as such, by referring to said fact as well as another decision of Hon'ble Supreme Court, has contended that no case is made out by the petitioner to be released on bail. In respect of decision relied upon by learned Senior Advocate Mr. Syed of Hon'ble Supreme Court, the facts of the same are quite distinct and as such, here no such stage is prevailing and hence, the question of prejudging the said aspect is impermissible to be canvassed by the learned Senior Advocate Mr. Syed. Hence, Page 9 of 18 Downloaded on : Mon Sep 12 20:52:51 IST 2022 R/CR.MA/4230/2022 ORDER DATED: 09/09/2022 looking to the present background no case deserves to be considered.
9. Learned APP has further submitted that a detailed report prepared by the Investigating Officer deserves to be considered in view of the fact that the petitioner is connected with organized crime activity and is falling within the definition of Section 2 (c) of the Act. In respect of two offences of the year 2016, the court cases are pending and some of the accused person named, are facing several cases during the span of 10 years and as such, it is not correct on the part of the petitioner to contend that the ingredients are not established, in fact the charge sheet after thorough investigation has been filed in which the offences are prima facie made out and further some of the accused persons are even absconding and as such, it is not safe to release the present petitioner in connection with the present offence. One such regular bail application filed by one of the accused person named - Riyazuddin is pending for consideration and as such, on the basis of the material which has been available on record, there is hardly any case made out by the petitioner to be released on bail. After referring to the Page 10 of 18 Downloaded on : Mon Sep 12 20:52:51 IST 2022 R/CR.MA/4230/2022 ORDER DATED: 09/09/2022 relevant report and the reasons assigned by the court below, a request is made that the application does not deserves to be considered.
10. In re-joinder to this, learned Senior Advocate Mr. Syed has further submitted that there is no material by virtue of which it can even be prima facie established that offences are attracted or even in definition under Section 2(c) can be said to be established. Apart from that the petitioner is ailing person, a senior citizen aged about 67 years and is suffering from heart ailment and for which necessary medical papers have also been attached issued by Galaxy Heart Institute and Multispeciality Hospital situated at Mehsana and as such, on the basis of such medical papers also, a request is reiterated to grant regular bail in connection with the offence as alleged.
11. Having heard the learned counsel appearing for the respective parties and having gone through prima facie material adduced before the Court, the following circumstances deserves consideration before coming down to any conclusion in the present application.
Page 11 of 18 Downloaded on : Mon Sep 12 20:52:51 IST 2022 R/CR.MA/4230/2022 ORDER DATED: 09/09/2022 (1) As could be seen from the material on record, petitioner had been allegedly involved in two other offences in past. So far as first offence is concerned, petitioner was not named. It was an allegation that his car was used by other accused persons for committing alleged crime and in said connection, petitioner was already on regular bail and has undisputedly observed strictly the conditions which have been engrafted. In respect of second offence which is said to have been committed in which, he was already enlarged on anticipatory bail and it was specifically contended that since said offences were of the year 2016 and the Act has come into force, i.e. GUJCTOC Act, in the year 2019, said circumstances has not been taken note of.
(2) So as to establish unlawful activity as defined under GUJCTOC Act and continuance thereof under Section 2(1)
(c), which indicates that an activity prohibited by law for the time being in force which is a cognizable offence with imprisonment for a period of three years or more Page 12 of 18 Downloaded on : Mon Sep 12 20:52:51 IST 2022 R/CR.MA/4230/2022 ORDER DATED: 09/09/2022 undertaken either singly or jointly, as a member of organized crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before the Court within preceding period of ten years and that Court has taken cognizance of such offence.
(3) Prima facie, whether previous involvement, as alleged, of petitioner, would bring him within the purview of Section 2(1)(c) of GUJCTOC Act is a matter of detailed adjudication and as such, at this stage, prima facie, it appears that case is made out at least for consideration of bail, more particularly when petitioner is aged by now 70 years and is in jail since 28.08.2021 and prima facie case of petitioner does not fall within the purview of definition of the Act.
(4) The Court has been posted with certain materials with regard to medical condition of petitioner and it has been submitted that as on 2.9.2022, petitioner was admitted in hospital for immediate treatment.
Page 13 of 18 Downloaded on : Mon Sep 12 20:52:51 IST 2022 R/CR.MA/4230/2022 ORDER DATED: 09/09/2022 (5) It has been pointed out that medical condition of the petitioner is not good and he is overweight of around 110 kilogram and more and is requiring a serious medical attention and same is possible if petitioner is enlarged on bail by imposing suitable conditions.
(6) It has been pointed out that after the year 2016, except in those two offences, as alleged, no further offence is committed and undisputedly, except present FIR, there were no other offences after the Act came into force, i.e. on 1.12.2019 and as such, in absence of any retrospective effect of the Act, hardly any case is made out by the authority, as contended. Prima facie, it is very doubtful as to whether petitioner is falling within definitions to attract the provisions of GUJCTOK Act?
(7) In such a situation where the Act can be applied retrospectively or not, it has been pointed out that issue is seized with Hon'ble the Apex Court and same is likely to take some more time and as such, in a situation where petitioner's health has been deteriorated and is requiring Page 14 of 18 Downloaded on : Mon Sep 12 20:52:51 IST 2022 R/CR.MA/4230/2022 ORDER DATED: 09/09/2022 constant medical treatment, it appears to this Court that to allow the petitioner to languish in jail in such a situation of health is not in the interest of justice, more particularly when petitioner is ready and willing to abide by any of the conditions.
(8) It has further appeared from the record that after the year 2016, there are no other offences registered either individually or with any other associates, as alleged offender, and there is no other distinguishable material pointed out to the Court, by virtue of which it is possible to allow the petitioner to languish in jail. Even at one stage, learned Additional Public Prosecutor has submitted that one co-accused person namely Riyazuddin, whose bail application is pending before Coordinate Bench in the form of Criminal Misc. Application No.3360 of 2022 and hence, requested that grant of bail to present accused would have a direct adverse effect on such pending application of co-accused. But, now it has been pointed out before the Court that by virtue of order dated 8.8.2022, said accused Riyazuddin, S/o. Maiyuddin Page 15 of 18 Downloaded on : Mon Sep 12 20:52:51 IST 2022 R/CR.MA/4230/2022 ORDER DATED: 09/09/2022 Akbarmiya Saiyed, has already been enlarged on bail by imposing suitable conditions by Coordinate Bench and as such, there is no other earthly reason available for learned Additional Public Prosecutor to object the grant of bail to present petitioner.
12. Overall circumstances have led this Court to exercise discretion in favour of the petitioner, more particularly when medical condition of the petitioner, who is of an advance age, is deteriorated and ailing person deserves to be enlarged on bail. That being the situation, especially when Coordinate Bench has already extended liberty to other co-accused person of this very FIR, the Court is of the opinion that by imposing appropriate conditions looking to the health issue of petitioner, discretion deserves to be exercised.
13. The Court at this stage is not concluding about applicability of the Act in present facts and circumstances and about retrospective applicability since pursuant to decision of Coordinate Bench, issue is pending before Hon'ble Apex Court and therefore, without expressing any opinion on such issues, Page 16 of 18 Downloaded on : Mon Sep 12 20:52:51 IST 2022 R/CR.MA/4230/2022 ORDER DATED: 09/09/2022 which are involved, the Court considers it necessary to exercise the discretion, more particularly when petitioner is suffering from ailment. Even otherwise, principle of bail or jail by now is well-defined by catena of decisions. Hence, considering the said proposition, background of facts demands that petitioner be enlarged on bail.
14. Hence, present application is allowed and the petitioner is ordered to be released on REGULAR BAIL in connection with the FIR being C.R. No.11217030210939 of 2021 registered with Siddhpur Police Station, District Patan, on executing a personal bond of Rs.10,000/- (Rupees Ten thousands only), with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that he shall;
(a) not take undue advantage of liberty or misuse liberty;
(b) not act in a manner injuries to the interest of the prosecution;
(c) surrender passport, if any, to the lower court within a week;
(d) not leave India without prior permission of the Sessions Judge concerned;
(e) furnish latest address of residence to the Investigating Officer and also to the Court at the time of execution of Page 17 of 18 Downloaded on : Mon Sep 12 20:52:51 IST 2022 R/CR.MA/4230/2022 ORDER DATED: 09/09/2022 the bond and shall not change the residence without prior permission of the trial Court;
15. The Authorities will release the petitioner only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned Lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. At the trial, learned Trial Court shall not be influenced by the observations of preliminary nature and restricted to bail consideration only at this stage, made by this Court while enlarging the petitioner on bail. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(ASHUTOSH J. SHASTRI, J) OMKAR Page 18 of 18 Downloaded on : Mon Sep 12 20:52:51 IST 2022