Updated: January 22, 2021 3:52:36 am
A division bench of the Gujarat High Court on Thursday issued notice to the state authorities on a petition challenging provisions of the stringent Gujarat Control of Terrorism and Organised Crime (GCTOC) Act. The state government is expected to respond by February 2.
Petitioner Baksaiyed alias Bakukhan Pathan (45), who has been held as an accused under the Act, has highlighted that provisions under sections 2(1)(c), 20(3), 20 (4) and 20(5) of the GCTOC Act are violative of fundamental rights enshrined under Article 20 that says that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, as well as of Article 21, which grants liberty to life.
The petitioner, represented by advocates Bhadrish Raju and Nimit Shukla, sought that the four specific provisions, challenged as unconstitutional, be quashed and set aside. Pathan also sought quashing of an FIR filed against him at the Vejalpur police station and stay on the investigation.
The FIR against Pathan and 10 others alleged that all accused persons, including the petitioner, have conspired with each other to create a gang and indulged in “organised crime”.
Five FIRs were earlier lodged against Pathan at Aslali, Sarkhej and Shahpur police stations between 2010 and 2020 under various charges of the Indian Penal Code (IPC) for offences such as unlawful assembly, voluntarily causing hurt, rioting, dacoity, forgery, cheating and criminal breach of trust.
He was also charged under provisions of Prevention of Gambling Act and the Preve-ntion of Animal Cruelty Act and was acquitted in the former by an Ahmedabad court.
The petitioner submitted that despite the five FIRs, he has only been chargesheeted in one that was filed in Shahpur in 2012, pertaining to unlawful assembly and rioting charges and thus his culpability in “continued unlawful activity” as defined under GCTOC Act, does not hold. The act stipulates more than one chargesheet in the preceding 10 years to be charged for “continued unlawful activity”.
The petition said that with such retrospective application of the Act, “it is absurd and illegal to come to the conclusion that the person who may have been discharged or acquitted from offences…can still be required to face trial and/or charge under provisions of GCTOC Act…”
Apart from section 2 (1) (c) that lays down the definition of “continued unlawful activity”, section 20(3) of the Act bars the applicability of anticipatory bail to one held as accused under GCTOC Act.
Section 20(4) disallows grant of bail unless public prosecutor is heard and if public prosecutor satisfies the court of reasonable grounds, and section 20 (5) of the Act deals with not granting bail if the accused was on bail under any other Act or the Gujarat Control of Terrorism and Organised Crime Act when the said offence was committed.
All these sections have been challenged, while also highlighting that the condition of not granting bail under GCTOC Act if the accused was on bail under any other Act, a provision which was also included in the Maharashtra Control of Organised Crime Act (MCOCA), was already struck down and held as unconstitutional by the Supreme Court.
In September 2020, another accused had also challenged the four provisions of the GCTOC Act, along with the provision under section 16 of the Act that stipulated that a confession made by a person before a police officer, not below the rank of superintendent of police, shall be admissible as evidence in trial.
The petition, moved by Mahmudhusen alias Manu Jahangirbhai Makrani (Baloch) of Rajkot, who was among the 11 booked from an alleged gang that had assaulted another group and ran riot on Bhavnagar road of the city, according to Rajkot police.
The 11 were booked on August 19 in an FIR filed at Thorala police station. The petition, represented by advocate Virat Popat, is pending.
Seeking priority hearing, advocate Popat on Thursday pointed out before the division bench headed by Chief Justice Vikram Nath that “there is no difference” between GCTOC Act and MCOCA and that several provisions were set aside by the SC in the latter. The bench, however, said that SC set aside similar provisions for MCOCA and not GCTOC Act.
Popat contended, “(The two acts) are word-to-word similar with identical provisions. The entire Act (GCTOC) is the same (as MCOCA). It is all copy-pasted…even printing error is the same in both Acts.”
Both the petitions are expected to heard on February 2.
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