Supreme Court Clarifies “Continuing Unlawful Activity” under Gujarat Control of Terrorism Act: State of Gujarat vs. Sandip Omprakash Gupta (2022) INSC 1437 (15 December 2022)

Date of the Judgment: 15 December 2022
Citation: (2022) INSC 1437
Judges: S. Abdul Nazeer, J.B. Pardiwala
Can prior offenses be the basis for charges under the Gujarat Control of Terrorism and Organised Crime Act, 2015, even if no new offenses are committed after the Act’s enactment? The Supreme Court of India addressed this critical question, clarifying the scope of “continuing unlawful activity” under the Act. This judgment provides vital guidance on how past criminal records interact with the provisions of this special law.

Case Background

On November 27, 2020, the D.C.B. Police Station in Surat City, Gujarat, registered a First Information Report (FIR) against Sandip Omprakash Gupta and thirteen other individuals. The FIR alleged offenses under Sections 3(1)(i) and (ii), 3(2), and 3(4) of the Gujarat Control of Terrorism and Organised Crime Act, 2015 (the 2015 Act). Sandip Gupta was arrested on the same day. He applied for bail at the Sessions Court in Surat, which was rejected on January 21, 2021. Subsequently, he appealed to the High Court of Gujarat.

The High Court granted bail to Sandip Gupta, primarily relying on a previous Supreme Court ruling in *State of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane*. The High Court noted that the 2015 Act came into force on December 1, 2019, and no FIR had been registered against Sandip Gupta for any substantive offense after that date. The High Court concluded that prior FIRs registered under the Indian Penal Code (IPC) could not be considered a “continuing unlawful activity” to prosecute him under the 2015 Act. The State of Gujarat appealed this decision to the Supreme Court.

Timeline

Course of Proceedings

Initially, the Sessions Court at Surat rejected Sandip Gupta’s bail application on January 21, 2021. Subsequently, the High Court of Gujarat overturned this decision and granted bail on May 6, 2021. The High Court’s decision was primarily based on the precedent set in the *Shiva alias Shivaji Ramaji Sonawane* case, which emphasized that for offenses under the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), there must be a “continuing unlawful activity” after the Act’s enactment. The High Court observed that since no new FIRs were registered against Sandip Gupta after the 2015 Act came into force, the previous FIRs could not be used to prosecute him under the 2015 Act. This led the State of Gujarat to appeal to the Supreme Court.

Legal Framework

The Gujarat Control of Terrorism and Organised Crime Act, 2015 (the 2015 Act), aims to prevent and control terrorist acts and organized crime. Key definitions include:

• Section 2(1)(c): Defines “continuing unlawful activity” as an activity prohibited by law, punishable with imprisonment for three years or more, undertaken by a member of an organized crime syndicate, for which more than one charge sheet has been filed in the preceding ten years, and the court has taken cognizance.
  
  “continuing unlawful activity” means 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 of such syndicate in respect of which more than one charge-sheets have been filed before a competent court within the preceding period of ten years and that court has taken cognizance of such offence;
• Section 2(1)(e): Defines “organised crime” as a continuing unlawful activity, including extortion, land grabbing, contract killing, etc., by an individual or a syndicate, using violence or intimidation, to gain pecuniary benefits.
  
  “organised crime” means any continuing unlawful activity and terrorist act including extortion, land grabbing, contract killing, economic offences, cyber crimes having severe consequences, running large scale gambling rackets, women trafficking, racket for prostitution or ransom by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means.
• Section 2(1)(f): Defines “organised crime syndicate” as a group of two or more persons acting together in organized crime activities.
  
  “organised crime syndicate” means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulging in activities of organised crime;

The Act also specifies punishments for organized crime under Section 3, which includes imprisonment and fines based on the severity of the offense.

The Supreme Court also considered Section 20(4) of the 2015 Act, which imposes stringent conditions for granting bail to those accused under this Act. This section requires the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offense while on bail.

These provisions are crucial for understanding the legal context of the case and the Supreme Court’s analysis.

Arguments

Submissions on behalf of the Appellant State of Gujarat:

• The Solicitor General, representing the State of Gujarat, argued that the Supreme Court’s previous ruling in *Shiva alias Shivaji Ramaji Sonawane* needs to be reconsidered. He contended that it frustrates the purpose of the 2015 Act.
• The State argued that the five FIRs registered against Sandip Gupta before the 2015 Act came into force should be sufficient to establish “continuing unlawful activity.”
• The State emphasized that the definition of “continuing unlawful activity” in Section 2(1)(c) of the 2015 Act does not specify that the activity must occur after the Act’s promulgation. The phrase “within the preceding period of ten years” suggests that the activity could have occurred before the Act was enacted.
• The State pointed out that in the *Shiva alias Shivaji Ramaji Sonawane* case, the accused were acquitted, which is not the case here.
• The State argued that if the *Shiva alias Shivaji Ramaji Sonawane* ruling is upheld, it would mean that the first case under the 2015 Act can only be registered after two similar cases have been registered after December 1, 2019. This would conflict with the 2015 Act’s objective.
• The State contended that the legislature intended the 2015 Act to be immediately effective, considering all offenses within ten years prior to its commencement.

Submissions on behalf of the Respondent-Accused:

• The respondent’s counsel argued that the High Court correctly applied the *Shiva alias Shivaji Ramaji Sonawane* ruling and that no error was made in granting bail.
• The respondent argued that accepting the State’s interpretation would violate Article 20(1) of the Constitution, which prohibits conviction for offenses not in force at the time of commission.
• The respondent submitted that the 2015 Act requires the commission of an organized crime after the Act’s promulgation to be prosecuted under the Act.
• The respondent argued that past charge sheets alone cannot constitute organized crime without a substantive offense.
• The respondent contended that the State’s interpretation would give the police excessive power to imprison individuals based on past chargesheets.

Submissions Table

Issues Framed by the Supreme Court

The core issue before the Supreme Court was:

1. Whether the requirement of ‘continuing unlawful activity’, as defined under Section 2(1)(c) of the 2015 Act, necessarily requires a separate FIR to have been registered against any purported member of a gang after the promulgation of the 2015 Act i.e., after 01.12.2019?
2. Whether an FIR under the 2015 Act (Special enactment) is maintainable in law or can be registered if there is no FIR registered against the accused after the promulgation of the 2015 Act for any offence under the IPC or any other statute?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

• State of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane, (2015) 14 SCC 272 – Supreme Court of India. This case was the primary authority relied upon by the High Court in granting bail to the respondent. The Supreme Court upheld the ratio in this case.
• Prafulla Uddhav Shende v. State of Maharashtra, 2008 SCC OnLine Bom 1848 : (2009) 2 AIR Bom R 1 – High Court of Judicature at Bombay. This case was the basis for the judgment in *Shiva alias Shivaji Ramaji Sonawane*.
• Jaisingh Ashrfilal Yadav and Others v. State of Maharashtra and Another, 2003 All MR (Cri) 1506 – High Court of Judicature at Bombay. This case discussed the constitutionality of MCOCA.
• Bharat Shantilal Shah v. State of Maharashtra, 2003 All MR (Cri) 1061 – High Court of Judicature at Bombay. This case challenged the constitutional validity of MCOCA and was upheld by the Supreme Court in *State of Maharashtra v. Bharat Shanti Lal Shah and Others*.
• State of Maharashtra v. Bharat Shanti Lal Shah and Others, (2008) 13 SCC 5 – Supreme Court of India. This case upheld the validity of the provisions of MCOCA.
• Altaf Ismail Sheikh v. State of Maharashtra, 2005 SCC OnLine Bom 420 : 2005 Cri LJ 3584 : (2006) 1 CCR 391 – High Court of Judicature at Bombay. This case discussed the requirement of approval for recording an FIR under MCOCA.
• Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Another, (2005) 5 SCC 294 – Supreme Court of India. This case discussed the principles of granting bail under MCOCA.
• State of Maharashtra and Others v. Lalit Somdatta Nagpal and Another, (2007) 4 SCC 171 – Supreme Court of India. This case emphasized the importance of strict adherence to the provisions of the 2015 Act.
• Tolaram Relumal and Another v. State of Bombay, AIR 1954 SC 496 – Supreme Court of India. This case discussed the principle of strict construction of penal provisions.
• State of Jharkhand and Others v. Ambay Cements and Another, (2005) 1 SCC 368 – Supreme Court of India. This case reiterated the rule of strict interpretation of penal statutes.

The Court also considered the following legal provisions:

• Section 2(1)(c) of the Gujarat Control of Terrorism and Organised Crime Act, 2015 – Definition of “continuing unlawful activity”.
• Section 2(1)(e) of the Gujarat Control of Terrorism and Organised Crime Act, 2015 – Definition of “organised crime”.
• Section 2(1)(f) of the Gujarat Control of Terrorism and Organised Crime Act, 2015 – Definition of “organised crime syndicate”.
• Section 3 of the Gujarat Control of Terrorism and Organised Crime Act, 2015 – Punishment for organised crime.
• Section 20(4) of the Gujarat Control of Terrorism and Organised Crime Act, 2015 – Conditions for granting bail.
• Article 20(1) of the Constitution of India – Protection against ex post facto laws.

Authority Consideration Table

Judgment

Treatment of Submissions

Treatment of Authorities

The Supreme Court’s treatment of key authorities is as follows:

• State of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane: The Supreme Court affirmed the ratio of this case, stating that it correctly interprets the law. The Court clarified that there must be a commission of an offense that constitutes “continuing unlawful activity” after the enactment of the law.
• Prafulla Uddhav Shende v. State of Maharashtra: The Court relied on the High Court’s view that past charge sheets alone are not sufficient for an offense under MCOCA, and there must be a continuation of unlawful activity.
• Jaisingh Ashrfilal Yadav and Others v. State of Maharashtra and Another: The Court agreed with the view that neither the definition of ‘organised crime’ nor of the term ‘continuing unlawful activity’ declares any activity performed prior to the enactment of the MCOCA to be an offence under the 1999 Act.
• Bharat Shantilal Shah v. State of Maharashtra: The Court agreed with the view that the limited purpose of continuing unlawful activity was to see the antecedents of the person and not to convict.
• State of Maharashtra v. Bharat Shanti Lal Shah and Others: The Court relied on the finding that continuing unlawful activity is one of the ingredients of the offence of organised crime and the purpose thereof is to see the antecedents and not to convict, without proof of other facts which constitute the ingredients of Section 2(1)(e) and Section 3.
• Altaf Ismail Sheikh v. State of Maharashtra: The Court relied on the view that the approving authority must have some materials before it disclosing the activities of the person or the persons to be of the nature of offence under the MCOC Act and having committed such activities on or after 24th February, 1999.
• Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Another: The Court referred to the principles enunciated in this case regarding the grant of bail under special statutes.
• State of Maharashtra and Others v. Lalit Somdatta Nagpal and Another: The Court referred to this case to emphasize the importance of strict adherence to the provisions of the 2015 Act.
• Tolaram Relumal and Another v. State of Bombay: The Court referred to this case to reiterate the principle that if two possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty.
• State of Jharkhand and Others v. Ambay Cements and Another: The Court referred to this case to reiterate the rule of strict interpretation of penal statutes.

The Court emphasized that the provisions of the 2015 Act must be strictly interpreted, aligning with the principle that penal statutes should be construed narrowly to protect individual rights.

What weighed in the mind of the Court?

The Supreme Court’s reasoning was primarily influenced by the need to balance the stringent provisions of the 2015 Act with the protection of individual rights. The Court emphasized that while past criminal activities are relevant, they cannot be the sole basis for prosecution under the 2015 Act. There must be a commission of an organized crime after the Act came into force. This reflects a cautious approach to the application of special laws, ensuring that they are not used to penalize individuals retroactively or without a clear commission of a new offense. The court’s emphasis on strict interpretation of penal statutes and the importance of substantive rights also weighed heavily in its decision.

Sentiment Analysis Table

Fact:Law Ratio Table

Logical Reasoning

The Supreme Court disposed of the appeal, upholding the High Court’s decision to grant bail to Sandip Omprakash Gupta. The Court clarified that while past offenses are relevant, there must be some act or omission amounting to organized crime after the 2015 Act came into force. The Court held that the dictum laid down in *Shiva alias Shivaji Ramaji Sonawane* is the correct exposition of law.

Conclusion

The Supreme Court’s judgment in *State of Gujarat v. Sandip Omprakash Gupta* clarifies that for an individual to be prosecuted under the Gujarat Control of Terrorism and Organised Crime Act, 2015, there must be a commission of an offense that constitutes “continuing unlawful activity” after the Act’s enactment. Prior offenses can be considered as part of the individual’s criminal history, but they cannot be the sole basis for charges under the 2015 Act. This ruling emphasizes the importance of strict interpretation of penal statutes and ensures that individuals are not penalized retroactively. The judgment reinforces the principle that special laws must be applied with caution, respecting the fundamental rights of individuals while addressing the issue of organized crime.

The Supreme Court has affirmed that the purpose of looking at the past conduct of the accused is to see the antecedents and not to convict without proof of other facts which constitute the ingredients of Section 2(1)(e) and Section 3 of the 2015 Act. The court has also emphasized that the provisions of the 2015 Act must be strictly interpreted, aligning with the principle that penal statutes should be construed narrowly to protect individual rights.

Implications

The Supreme Court’s decision has several significant implications:

• Clarification of “Continuing Unlawful Activity”: The judgment provides a clear interpretation of “continuing unlawful activity,” requiring a substantive offense after the enactment of the 2015 Act, not just past criminal records.
• Protection Against Retroactive Application: The ruling safeguards individuals from being prosecuted under the 2015 Act solely based on past offenses, ensuring compliance with Article 20(1) of the Constitution.
• Strict Interpretation of Special Laws: The judgment emphasizes the need for strict interpretation of special laws like the 2015 Act, preventing their misuse and protecting individual rights.
• Guidance for Lower Courts: The ruling provides clear guidance for lower courts in handling cases under the 2015 Act, ensuring consistency in application of the law.
• Balancing Security and Rights: The judgment strikes a balance between the need to combat organized crime and the protection of fundamental rights, ensuring that special laws are not used to infringe upon individual liberties.