A Petition has been filed before the Gujarat High Court challenging the constitutionality of Gujarat Control of Terrorism and Organised Crime (GCTOC) Act, more specifically how "continuing unlawful activity" has been defined under the stringent act of the State.
The Petition has been filed by one Mahmadhusen @ Mamu Jahangirbhai Makrani (Baloch) [more details about him has been mentioned at the bottom of this article] through Advocate Virat G. Popat challenging other provisions pertaining to admissibility of confessions before police as evidence, as well as with respect to clauses that bar an accused from being granted anticipatory bail.
The Petitioner specifically questions the "constitutional validity/legality of certain provisions of the Gujarat Control of Terrorism and Organized Crime Act, 2015 (Gujarat Act No.24 of 2019) since the said provisions violates mandate of Article 20 of the Constitution of India and impeaches fundamental rights of the citizen. The provisions are ultra vires to Article 20 of the Constitution of India. The petitioner seeks declaration that provisions of sections 2(1)(c), 16, 20(3), 20(4), 20(5) be declared unconstitutional / ultra vires to the Constitution of India as the same are violative of Articles 20 and 21 of the Constitution of India."
Grounds for Challenging the Act
Firstly, while challenging Section 2(1)(c) of the Act, which pertains to the definition of "continuing unlawful activity", which has been defined in the Act as "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 such syndicate in respect of which more than one charge sheet have been filed before the competent court within the preceding period of ten years and that court has taken cognisance of such offence", the petitioner contends that when the aforesaid definition of "continuing unlawful act" is read in juxtaposition with the definition of "organised crime", as specified in the Act, it would appear that the Act introduces creation of a new offence for the acts which have taken place even before the enactment of the Act.
In other words, a person could be punished under this Act retrospectively, that is for a time when the GCTOC Act did not exist and the offences were committed. Further, the petitioner claims that the penal statute cannot be given retrospective effect and Article 20 (1) of the Constitution of India provides immunity from such kind of prosecution including conviction and/or penalty.
Secondly, while challenging Section 16 of the Act, the petitioner contends that bare reading of the aforesaid provision would indicate that confession of an accused made before police officer not below the rank of Superintendent of Police is admissible in evidence against accused making the confession, abettor, co-accused or conspirator for an offence under the said Act.
It has been submitted that this provision is not only vague but violates all statutory and mandatory rights gives to the accused. Article 20(3) provides that no person accused of an offence shall be compelled to be a witness against himself. The said protection is available to the accused during investigation of an offence not merely with respect to evidence to be given in Court room but also to all previous stages.
It has been contended that such vague provision violates Article 14 of the Constitution of India as a person who is accused under the said Act would be treated in a different way so far as confession is concerned while under the normal law.
Thirdly, while challenging Sections 20(3), 20(4) and 20(5), it has been contended that these sub-sections bar an accused from being granted anticipatory bail and not granting bail if the accused was on bail under any other Act or GCTOC Act, when the said offence in question was committed. The petitioner has also submitted that a similar clause [Section 20(5)] in MCOCA was found to be unconstitutional by the Supreme Court in the Case of State Of Maharashtra vs Bharat Shanti Lal Shah & Ors. (2008)13 SCC 5
Prayers of the Petition
1- To hold and declare that provision of Sections 2(1)(c), 16, 20(3), 20(4), 20(5) of the Gujarat Control of Terrorism and Organized Crime Act, 2015 are violative of Articles 20 and 21 of the Constitution of India;
2- To issue appropriate writ, order or direction quashing and setting aside the provisions Sections 2(1)(c), 16, 20(3), 20(4), 20(5) of the Gujarat Control of Terrorism and Organized Crime Act, 2015 being ultra vires to Articles 20 and 21 of the Constitution of India;
3- Pending admission, hearing and final disposal of this petition, to stay operation and implementation of Sections 2(1)(c), 16, 20(3), 20(4), 20(5) of the Gujarat Control of Terrorism and Organized Crime Act, 2015.
The High Court on Tuesday (08th September) directed that the notice in this petition may go to the learned Advocate General for the respondent - State of Gujarat and the matter be listed on 29th October 2020.
About the Petitioner – The petition has been moved by 36-year-old 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, nearly two months ago, according to Rajkot police. The 11 were booked on August 19 in an FIR filed at Thorala police station in Rajkot.
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