Offences Alleged Under Damage To Public Property Act Over Agitation Against Drainage Issues Not Act Of "Organized Crime Syndicate": Gujarat HC

The Gujarat High Court has held that the Applicant-Accused's participation in an agitation against the Municipality for certain drainage issues and the alleged offence committed by him u/s 3 of the Damage to Public Property Act, cannot be deemed to be an act of organised crime syndicate.

While granting bail to the Accused, Justice Nirzar Desai relied extensively on the Mohamad ILIYAS Mohamad Bilal Kapadiya vs. State of Gujarat judgement where the Apex Court had explained in the context of the Gujarat Control of Terrorism and Organised Control Act of 2015 ('GCTOC') , the following conditions:

1. That the activity should be prohibited by law for the time being in force.
2. That the activity is a cognizable offence punishable with imprisonment of three years or more.
3. That the activity is undertaken either singly or jointly as a member of an organised crime syndicate or on behalf of such syndicate.
4. That in respect of such an activity more than one charge sheet must have been filed before a competent Court.
5. That the charge-sheet must have been filed within a preceding period of ten years
6. That the Courts have taken cognizance of such offences.

Vide the instant Section 439 application under CrPC, the Applicant had sought bail for offences u/s 3(1)(B), 3(2) and 3(4) of GCTOC Act. It was argued that initially, the Applicant was not named in the FIR registered against 9 persons and only later he was arrested and shown as an Accused in the charge-sheet. Further, there was no material or evidence which would connect the Applicant with the offences. The allegations that the Applicant had created a gang called 'Fracture Gang' as an organised crime syndicate was unsubstantiated.

There were three other FIRs which were registered against the Applicant under various provisions of IPC and the Arms Act. However, the Applicant had been acquitted. In the fourth FIR of 2018 where offences were registered under the Public Property Act, the Applicant deserved to be acquitted since the notification of the GCTOC coming into force was published in 2019. Hence, the Accused could not be implicated under the Act.

Per contra, the Respondents submitted that the Applicant had created a Gang which had committed 55 offences. The Applicant, an ex-councillor, also had political influence and was acting 'behind the curtains' to get offences committed. Consequently, it was argued that if it can be established that the Applicant is a member of a syndicate which has committed organised crime which shows nexus between the Accused and the crime committed by him as a member of such a syndicate, then the person can be arraigned under the GCTOC Act.

As regards the alleged offences under the Public Property Act, the High Court found no reason for it to be considered an act of an organised crime syndicate. Further the GCTOC Act had come into force after the registration of offences against the Applicant and therefore, it was incorrect to implicate the Applicant under the said Act. Additionally, the Applicant was in jail since 04.08.2021. Keeping in view these factors, the High Court granted bail to the Applicant on a bond of Rs. 10,000.

Case No.: R/CR.MA/20242/2021

Case Title: AHEMADMIYA BAHAUDDINMIYA SAIYAD v/s STATE OF GUJARAT

Citation: 2022 LiveLaw (Guj) 378

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