Holding

An offence under the Gujarat Control of Terrorism and Organised Crime Act, 2015, requires a ‘continuing unlawful activity’ committed after the Act’s commencement; past charge‑sheets alone do not satisfy the definition, rendering the FIR untenable and the bail order valid.

Summary

The State of Gujarat appealed against the High Court’s order granting bail to Sandip Omprakash Gupta under the Gujarat Control of Terrorism and Organised Crime Act, 2015 (the 2015 Act). The key issue was whether an FIR under the 2015 Act could be maintained when no FIR had been registered against the accused after the Act’s commencement on 1‑Dec‑2019, i.e., whether the definition of “continuing unlawful activity” required a post‑2019 offence. The Supreme Court examined the statutory definitions of “organised crime” and “continuing unlawful activity”, relying on the earlier decision in Shiva alias Shivaji Ramaji Sonawane (MCOCA) and held that a post‑Act unlawful act is essential; past charge‑sheets alone do not satisfy the requirement. Consequently, the FIR was not maintainable, and the High Court’s bail order was upheld. The Court also reiterated the stringent bail criteria under Section 20(4) of the 2015 Act. The appeal was dismissed.

Issues considered

Whether the definition of ‘continuing unlawful activity’ under Section 2(1)(c) of the Gujarat Control of Terrorism and Organised Crime Act, 2015 requires a post‑enactment offence for an FIR to be maintainable.
Whether an FIR can be registered under the 2015 Act based solely on charge‑sheets filed before the Act’s commencement.
Whether the ratio in Shiva alias Shivaji Ramaji Sonawane (MCOCA) applies to the 2015 Act.
What are the proper criteria for granting bail under Section 20(4) of the 2015 Act.

Legislation cited

Code of Criminal Procedure, 1973s. 439
Gujarat Control of Terrorism and Organised Crime Act, 2015s. 20(4), s. 21(4), s. 2(1)(c), s. 2(1)(e), s. 2(1)(f), s. 3, s. 4
Maharashtra Control of Organised Crime Act, 1999s. 21(4), s. 2(1)(d), s. 3, s. 4

Subjects

Organised crimeContinuing unlawful activityGujarat Control of Terrorism and Organised Crime Act 2015FIR maintainabilityBail under special legislationMCOCA precedentNon‑obstante clause

Judgment

[2022] 17 S.C.R. 765 765

THE STATE OF GUJARAT A
v.
SANDIP OMPRAKASH GUPTA
(Criminal Appeal No. 2291 of 2022)
DECEMBER 15, 2022 B
[S. ABDUL NAZEER AND J. B. PARDIWALA, JJ.]
Gujarat Control of Terrorism and Organised Crime Act, 2015:
s.2(1)(c) – Whether an FIR under the 2015 Act is maintainable in
law or can be registered if there is no FIR registered against the
C
accused after the promulgation of the 2015 Act for any offence
under the IPC or any other statute – Held: The term, ‘organised
crime’ indicates that there has to be an activity prohibited by law
for the time being in force which is a cognizable offence punishable
with imprisonment of three years or more, undertaken as singly or
jointly as a member of organised crime syndicate or on behalf of D
such syndicate, in respect of which activity more than one
chargesheets have been filed before a competent court within the
preceding period of ten years and the Court has taken cognizance
of such offence – There would have to be some act or omission
which amounts to organised crime after the 2015 Act came into
E
force i.e., 01.12.2019 in respect of which, the accused is sought to
be tried for the first time in the special court – For the purpose of
organised crime, there has to be a continuing unlawful activity –
There cannot be continuing unlawful activity unless at least two
chargesheets are found to have been lodged in relation to the
offence punishable with three years’ imprisonment during the period F
of ten years – It nowhere by itself declares any activity to be an
offence under the said 2015 Act prior to 01.12.2019 – It also does
not convert any activity done prior to 01.12.2019 to be an offence
under the said 2015 Act – It merely considers two chargesheets in
relation to the acts which were already declared as offences under
G
the law in force to be one of the requisites for the purpose of
identifying continuing unlawful activity and/or for the purpose of
an action under the said 2015 Act – If the person continues with
the unlawful activities and is arrested, after the promulgation of the
said Act, then, such person can be tried for the offence under the
said Act – If a person ceases to indulge in any unlawful act after H
765
766 SUPREME COURT REPORTS [2022] 17 S.C.R.

A the said Act, then, he is absolved of the prosecution under the said
Act – If he continues with the unlawful activity, it cannot be said
that the State has to wait till, he commits two acts of which cognizance
is taken by the Court after coming into force – Organised Crime.
Disposing of the appeal, the Court
B HELD: 1. A close analysis of the term, ‘organised crime’
would indicate that there has to be an activity prohibited by law
for the time being in force which is a cognizable offence punishable
with imprisonment of three years or more, undertaken as singly
or jointly as a member of organised crime syndicate or on behalf
C of such syndicate, in respect of which activity more than one
chargesheets have been filed before a competent court within
the preceding period of ten years and the Court has taken
cognizance of such offence. [Para 24][782-D-E]
2. The considerations which normally weigh with the Court
D in granting bail in non-bailable offences are: (1) the nature and
seriousness of the offences; (2) the character of the evidence;
(3) circumstances which are peculiar to the accused; (4) a
reasonable possibility of the presence of the accused not being
secured at the trial; (5) reasonable apprehension of witnesses
being tampered with; (6) the larger interest of the public or the
E State and other similar factors which may be relevant in the facts
and circumstances of the case. However, if the provisions of the
2015 Act are invoked in a given case, then, in addition to the
aforementioned broad principles, the limitations imposed in the
provisions contained in sub-section (4) of Section 20 of the 2015
F Act should not be lost sight of while dealing with application for
grant of bail. [Paras 26 and 27][782-H; 783-A-C]
3. It is plain from a bare reading of the non-obstante clause
in the sub-section that the power to grant bail by the High Court
or Court of Sessions is not only subject to the limitations imposed
G by Section 439 of the Code but is also subject to the limitations
placed by Section 20(4) of the 2015 Act. Apart from the grant of
opportunity to the Public Prosecutor, the other twin conditions
are: the satisfaction of the court that there are reasonable grounds
for believing that the accused is not guilty of the alleged offence

H
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA 767

and that he is not likely to commit any offence while on bail. The A
conditions are cumulative and not alternative. The satisfaction
contemplated regarding the accused being not guilty has to be
based on reasonable grounds. The expression ‘reasonable
grounds’ means something more than prima facie grounds. It
contemplates substantial probable causes for believing that the
B
accused is not guilty of the alleged offence. The reasonable belief
contemplated in the provisions requires existence of such facts
and circumstances as are sufficient in themselves to justify
satisfaction that the accused is not guilty of the alleged offence.
Thus, recording of findings under the said provision is a sine qua
non for granting bail under the 2015 Act. [Para 28][783-F-H; 784- C
A-B]
4. The same would be in tune with the dictum as laid in
Shiva alias Shivaji Ramaji Sonawane that there would have to be
some act or omission which amounts to organised crime after
the 2015 Act came into force i.e., 01.12.2019 in respect of which, D
the accused is sought to be tried for the first time in the special
court. This Court is in agreement with the view taken by the
High Court of Judicature at Bombay in the case of Jaisingh that
neither the definition of the term ‘organised crime’ nor of the
term ‘continuing unlawful activity’ nor any other provision therein
declares any activity performed prior to the enactment of the E
MCOCA to be an offence under the 1999 Act nor the provision
relating to punishment relates to any offence prior to the date of
enforcement of the 1999 Act, i.e., 24.02.1999. However, by
referring to the expression ‘preceding period of ten years’ in
Section 2(1)(d), which is a definition clause of the term ‘continuing F
unlawful activity’ inference is sought to be drawn that in fact, it
takes into its ambit the acts done prior to the enforcement of the
1999 Act as being an offence under the 1999 Act. The same
analogy will apply to the 2015 Act. [Paras 48 and 49][798-H; 799-
A-C]
G
5. Shiva alias Shivaji Ramaji Sonawane dealt with the
situation, where a person commits no unlawful activity after the
invocation of the MCOCA. In such circumstances, the person
cannot be arrested under the said Act on account of the offences
committed by him before coming into force of the said Act, even
H
768 SUPREME COURT REPORTS [2022] 17 S.C.R.

A if, he is found guilty of the same. However, if the person continues
with the unlawful activities and is arrested, after the promulgation
of the said Act, then, such person can be tried for the offence
under the said Act. If a person ceases to indulge in any unlawful
act after the said Act, then, he is absolved of the prosecution
under the said Act. But, if he continues with the unlawful activity,
B
it cannot be said that the State has to wait till, he commits two
acts of which cognizance is taken by the Court after coming into
force. The same principle would apply, even in the case of the
2015 Act. [Para 51][801-A-D]
State of Maharashtra v. Shiva alias Shivaji Ramaji
C Sonawane (2015) 14 SCC272.: [2015] 9 SCR 211;
Prafulla Uddhav Shende v. State of Maharashtra 2008
SCC OnLine Bom 1848 : (2009) 2 AIR Bom R 1;
Jaisingh Ashrfilal Yadav and Others v. State of
Maharashtra and Another 2003 All MR (Cri) 1506;
D Bharat Shantilal Shah v. State of Maharashtra 2003
All MR (Cri) 1061; State of Maharashtra v. Bharat
Shanti Lal Shah and Others (2008) 13 SCC 5 : [2008]
12 SCR 1083; Altaf Ismail Sheikh v. State of
Maharashtra 2005 SCC OnLine Bom 420 : 2005 Cri
LJ 3584 : (2006) 1 CCR 391; State of Maharashtra
E and Others v. Lalit Somdatta Nagpal and Another (2007)
4 SCC 171 : [2007] 2 SCR 473; Tolaram Relumal and
Another v. State of Bombay AIR 1954 SC 496 : [1955]
SCR 158 – relied on.
Ranjitsing Brahmajeetsing Sharma v. State of
F Maharashtra and Another (2005) 5 SCC 294 : [2005]
3 SCR 345; State of Jharkhand and Others v. Ambay
Cements and Another (2005) 1 SCC 368 : [2004] 6
Suppl. SCR 125 – referred to.
Case Law Reference
G
[2015] 9 SCR 211 relied on Para 7
[2005] 3 SCR 345 referred to Para 29
[2008] 12 SCR 1083 relied on Para 35

H
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA 769

[2007] 2 SCR 473 relied on Para 45 A
[1955] SCR 158 relied on Para 47
[2004] 6 Suppl. SCR 125 referred to Para 47
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
2291 of 2022. B
From the Judgment and Order dated 06.05.2021 of the High Court
of Gujarat at Ahmedabad in R/Criminal Misc. Application No. 3819 of
2021.
Tushar Mehta, SG, Kanu Agarwal, Ms. Deepanwita Priyanka, C
Advs. for the Appellant.
Mohit D. Ram, Kishan H. Dahiya, Ms. Monisha Handa, Rajul
Shrivastav, Anubhav Sharma, Advs. for the Respondent.
The Judgment of the Court was delivered by
D
J. B. PARDIWALA, J.
1. Leave granted.
2. This appeal is at the instance of the State of Gujarat and is
directed against the order passed by the High Court of Gujarat dated
06.05.2021, in R/Criminal Miscellaneous Application No. 3819 of 2021 E
by which the High Court ordered release of the respondent accused
herein on bail in connection with the First Information Report being C.R.
No. 11210015200100 of 2020 registered with the D.C.B. Police Station,
Surat City, District Surat for the offences punishable under Sections
3(1)(i) and (ii), 3(2) and 3(4) resply of the Gujarat Control of Terrorism F
and Organised Crime Act, 2015 (for short, ‘the 2015 Act’).
3. The question that falls for our consideration is: 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 G
promulgation of the 2015 Act i.e., after 01.12.2019? To put it in other
words: 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?
H
770 SUPREME COURT REPORTS [2022] 17 S.C.R.

A 4. The aforesaid question arises especially in view of the fact that
the last offence registered against the respondent-accused is of 2019
and the chargesheet in regard to the said FIR was filed on 21.01.2019
i.e., indisputably prior to the promulgation of the 2015 Act. Furthermore,
there is no FIR registered against the respondent-accused after the 2015
Act came into force w.e.f. 01.12.2019.
B
FACTUAL MATRIX
5. On 27.11.2020 an FIR came to be registered against the
respondent accused herein and thirteen other co-accused for the offence
punishable under Sections 3(1)(i) and (ii), 3(2) and 3(4) resply of the
C 2015 Act. The respondent-accused came to be arrested on the very
same day and date of registration of the FIR i.e., 27.11.2020. The
respondent-accused applied for bail before the Sessions Court at Surat
by filing the Criminal Miscellaneous Application No. 6483 of 2020. The
Sessions Court at Surat rejected the bail application vide order dated
21.01.2021.
D
6. The respondent-accused thereafter, preferred bail application
before the High Court by way of the Miscellaneous Criminal Application
No. 3819 of 2021. The High Court allowed the bail application and ordered
release of the respondent-accused on bail subject to certain terms and
conditions.
E
7. The High Court granted bail to the respondent-accused,
essentially relying on the dictum as laid by this Court in the case of State
of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane reported in
(2015) 14 SCC 272. The High Court took notice of the fact that the 2015
Act came into force w.e.f. 01.12.2019 in the State of Gujarat and no
F FIR had been registered against the respondent-accused for any
substantive offence after 01.12.2019.
8. In such circumstances referred to above, the High Court took
the view relying on the decision of this Court in the case of Shiva alias
Shivaji Ramaji Sonawane (supra) that the five FIRs, which were
G registered in the past for different offences under the Indian Penal Code
(IPC) cannot be construed as a ‘continuing unlawful activity’ of the
respondent-accused so as to prosecute him under the provisions of the
2015 Act.
9. We must look into the relevant observations of the High Court,
H made in its impugned order as under:
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA 771
[J. B. PARDIWALA, J.]

“6. In order to curb and control organized crime and terrorist A
activities in the State of Gujarat the Legislature has
promulgated “the Gujarat Control of Terrorism and Organized
Crime Act, 2015” vide Notification. The Act has come into
force from 01.12.2019. Sections 2(c) and (f) which define
“continuing unlawful activity” and “organized crime
B
syndicate” read as under:
(c) “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 C
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;
(f) “organised crime syndicate” means a group of two or more D
persons who, acting either singly or col-lectively, as a
syndicate or gang indulging in activities of organised crime;
The combined reading of the aforesaid provisions suggest that
there has to be a continuing unlawful activity carried out by
an organized crime syndicate, for which more than one charge E
sheets have been filed before a competent court within the
preceding period of ten years, and that the court has taken
cognizance of such offence.
7. The Supreme Court in the case of Shivaji Ramaji Sonawale
(supra) while considering the parimaterial provisions of F
section 2(d) of the Maharashtra Control of Organised Crime
Act, 1999 to that of section 2(c) of the Gujarat Act, which
defines “continuing unlawful activity” has held thus:
“9. The significant feature of the two cases is that for
Crimes No.37 of 2001 and 38 of 2001 the respondents G
were separately tried and acquitted on 18th January, 2008
in the case of Shiva and on 28th February, 2006 in the
case of Mehmood Khan Pathan. In the said charge sheets,
the respondents were accused of committing offences only
under the IPC and the Arms Act. For the offences
H
772 SUPREME COURT REPORTS [2022] 17 S.C.R.

A punishable under MCOCA separate and independent
charge sheets were filed against the accused persons in
which they were convicted by the Trial Court which
conviction was reversed by the High Court as noticed
earlier. It was in the above backdrop that the High Court
held that once the respondents had been acquitted for the
B
offence punishable under the IPC and Arms Act in Crimes
No.37 and 38 of 2001 and once the Trial Court had
recorded an acquittal even for the offence punishable
under Section 4 read with Section 25 of the Arms Act in
MCOCA Crimes No.1 and 2 of 2002 all that remained
C incriminating was the filing of charge sheets against the
respondents in the past and taking of cognizance by the
competent court over a period of ten years prior to the
enforcement of the MCOCA. The filing of charge sheets or
taking of the cognizance in the same did not, declared the
High Court, by itself constitute an offence punishable
D
under Section 3 of the MCOCA. That is because the
involvement of respondents in previous offences was just
about one requirement but by no means the only requirement
which the prosecution has to satisfy to secure a conviction
under MCOCA. What was equally, if not, more important
E was the commission of an offence by the respondents that
would constitute “continuing unlawful activity”. So long
as that requirement failed, as was the position in the instant
case, there was no question of convicting the respondents
under Section 3 of the MCOCA. That reasoning does not,
in our opinion, suffer from any infirmity.
F
10. The very fact that more than one charge sheets had
been filed against the respondents alleging offences
punishable with more than three years imprisonment is not
enough. As rightly pointed out by the High Court
commission of offences prior to the enactment of MCOCA
G does not by itself constitute an offence under MCOCA.
Registration of cases, filing of charge sheets and taking
of cognizance by the competent court in relation to the
offence alleged to have been committed by the respondents
in the past is but one of the requirements for invocation of
H Section 3 of the MCOCA. Continuation of unlawful
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA 773
[J. B. PARDIWALA, J.]

activities is the second and equally important requirement A
that ought to be satisfied. It is only if an organised crime is
committed by the accused after the promulgation of
MCOCA that he may, seen in the light of the previous charge
sheets and the cognizance taken by the competent court,
be said to have committed an offence under Section 3 of
B
the Act.
11. In the case at hand, the offences which the respondents
are alleged to have committed after the promulgation of
MCOCA were not proved against them. The acquittal of
the respondents in Crimes No. 37 and 38 of 2001 signified
that they were not involved in the commission of the C
offences with which they were charged. Not only that the
respondents were acquitted of the charge under the Arms
Act even in Crimes Case No.1 and 2 of 2002. No appeal
against that acquittal had been filed by the State. This
implied that the prosecution had failed to prove the second D
ingredient required for completion of an offence under
MCOCA. The High Court was, therefore, right in holding
that Section 3 of the MCOCA could not be invoked only
on the basis of the previous charge sheets for Section
3 would come into play only if the respondents were proved
to have committed an offence for gain or any pecuniary E
benefit or undue economic or other advantage after the
promulgation of MCOCA. Such being the case, the High
Court was, in our opinion, justified in allowing the appeal
and setting aside the order passed by the Trial Court.”
8. By analyzing the expression “continuing unlawful activity”, F
the Apex Court has held that the filing of more than one charge
sheets for the offences punishable with more than three years
imprisonment is not enough, but it must be satisfied that the
continuation of unlawful activities is the second and equally
important requirement that ought to be satisfied. It is only if G
an organised crime is committed by the accused after the
promulgation of the Act that has to be considered in the light
of the previous charge sheets. Thus, the contention raised by
the learned Advocate with regard to the prospective effect of
the Act is not palatable in view of the aforesaid observations
H
774 SUPREME COURT REPORTS [2022] 17 S.C.R.

A made by the Apex Court, but at the same time it is noticed in
the present case, that the expression “continuing unlawful
activity” is not satisfied in view of the offences which are
considered by the authority. In the instant case, for invoking
the provisions of the Act against the applicant, the state has
relied on 5 offences and one experiment order registered
B
against the applicant. The details are as under:

C

D

9. The Act came into force on 01.12.2019. The last offence
E
which is registered against the applicant is of 2019 registered
vide F.I.R. No.29/2019, (Item.1), for which the charge--sheet
is filed on 21.01.2019 which is prior to the promulgation of
the Act. The offence at serial no.6 being F.I.R. No.14/209
under sections 364(A), 387, 120(B), 114 of the IPC has been
F quashed by this Court vide order dated 03.12.2019 passed
in Criminal Misc. Application No.21872 of 2019 and hence,
the same could not have been considered by the authority
while registering the F.I.R. on 27.11.2020. The applicant has
not committed any offence after the promulgation of the Act.
At serial no.6, the state has referred to the extension order
G
dated 03.03.2019 also which is against the provisions
of section 2(c) of the Act. The Supreme Court has held that it
is only if an organized crime is committed by the accused after
the promulgation of the Act that has to be considered in the
light of the previous charge sheets. Thus, the state has
H misdirected itself with regard to the registration of offences
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA 775
[J. B. PARDIWALA, J.]

against the applicant, hence the applicant cannot be allowed A
to be further incarcerated in jail.
10. Having perused the materials placed on record and taking
into consideration the facts of the case, nature of allegations,
gravity of offences, role attributed to the accused, without
discussing the evidence in detail, at this stage, this Court is B
inclined to grant regular bail to the applicant. It is clarified
that this Court has not expressed any opinion with regard to
the applicant not being a member or a member of the crime
syndicate.”
10. Being dissatisfied with the aforesaid impugned order passed C
by the High Court releasing the respondent-accused on bail, the State of
Gujarat is here before this Court with the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANT STATE
11. Mr. Tushar Mehta, the Solicitor General vehemently submitted
that the dictum as laid by this Court in Shiva alias Shivaji Ramaji D
Sonawane (supra) requires a relook, as the said dictum frustrates the
very object of enacting the 2015 Act. Mr. Mehta would submit that the
five FIRs referred to above, registered against the respondent-accused
prior to the 2015 Act coming into force, were sufficient to bring the case
within the ambit of ‘continuing unlawful activity’ as defined under the E
2015 Act. He would submit that the term ‘organised crime’ as defined
under Section 2(1)(e) of the 2015 Act uses the term ‘continuing unlawful
activity’. A bare perusal of the definition of the term ‘continuing unlawful
activity’ would indicate that it does not refer to any ‘continuing unlawful
activity’ to be committed only after the promulgation of the 2015 Act.
Mr. Mehta would argue that the said term means activities prohibited by F
law in respect of which more than one chargesheets has been filed
before a competent court within the preceding period of ten years. The
phrase ‘within the preceding period of ten years’ by itself indicates that
the ‘continuing unlawful activity’ may be such activity, which could be
said to have been committed prior to the enactment of the 2015 Act. G
12. Mr. Mehta submitted that one distinguishing feature of the
decision of this Court in the case of Shiva alias Shivaji Ramaji
Sonawane (supra) is that in the said case, the accused persons were
acquitted and the same signified that they were not involved in the
commission of the offence with which they were charged. It is in such
H
776 SUPREME COURT REPORTS [2022] 17 S.C.R.

A factual background that this Court in Shiva alias Shivaji Ramaji
Sonawane (supra) could be said to have observed that it is only if an
organised crime is committed by the accused after the promulgation of
Maharashtra Control of Organised Crime Act, 1999 (for short, ‘the
MCOCA’) that he may, seen in the light of the previous chargesheets
and the cognizance taken by the competent court, be said to have
B
committed an offence under Section 3 of the MCOCA.
13. In the last, Mr. Mehta submitted that if the dictum as laid in
Shiva alias Shivaji Ramaji Sonawane (supra) is affirmed, the object
of the 2015 Act i.e., prevention and control of terrorist acts and for
coping with criminal activities by organised crime syndicates, will surely
C get hampered.
14. In the aforesaid contest, the submission of Mr. Mehta is that
if, the dictum as laid in Shiva alias Shivaji Ramaji Sonawane (supra)
is to be treated as the final word so far as the law is concerned, then the
first case under the 2015 Act can be registered, only after two cases of
D the nature described in the 2015 Act, had been registered against the
person or against an organised syndicate after 01.12.2019. As the
definition indicates, for making a crime punishable under the provisions
of the 2015 Act, there has to be more than one case registered or in
other words, it is the third case which can be registered for an offence
E under Sections 3 and 4 resply of the 2015 Act. Such an interpretation
would be in direct conflict with the very purpose of the 2015 Act. If such
an interpretation is accepted then the State will have to wait and helplessly
watch the organised crime taking place till it is the third time a person or
a syndicate is found involved in the offence after the 2015 Act came into
operation w.e.f. 01.12.2019 in the State of Gujarat. According to Mr.
F Mehta, the ‘continuing unlawful activity’ could have taken place ten
years prior to the registration of the new case. In such circumstances,
the intention of the Legislature could not have been other than giving
immediate effect to the 2015 Act by taking note of all the offences or
chargesheets registered within ten years prior to the commencement of
G the 2015 Act.
15. In such circumstances referred to above, the learned Solicitor
General prays that the ratio of the decision of this Court in the case of
Shiva alias Shivaji Ramaji Sonawane (supra) may either be explained
accordingly, keeping in mind the object of the 2015 Actor the issue may
H be referred to a larger Bench.
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA 777
[J. B. PARDIWALA, J.]

SUBMISSIONS ON BEHALF OF THE RESPONDENT- A
ACCUSED
16. On the other hand, this appeal has been vehemently opposed
by the learned counsel appearing for the respondent-accused. The
learned counsel would submit that no error not to speak of any error of
law could be said to have been committed by the High Court while B
passing the impugned order. He would submit that the decision of this
Court in the case of Shiva alias Shivaji Ramaji Sonawane (supra) is
binding on the High Court and the High Court has rightly applied the
dictum, as laid therein for the purpose of releasing the respondent-
accused on bail.
C
17. The learned counsel would submit that if the interpretation put
forward by the learned Solicitor General is accepted then the same would
be in breach of Article 20(1) of the Constitution which provides that no
person shall be convicted of an offence except for one which is in violation
of any law in force at the time of commission of the act charged as an
offence nor be subjected to a penalty greater than that which might D
have been inflicted under the law in force at the time of commission of
the offence.
18. The learned counsel further submitted that the scheme of the
2015 Act makes it abundantly clear that it is only if an accused commits
an organised crime after the promulgation of the 2015 Act, then the E
accused can be prosecuted under the provisions of the 2015 Act with
the aid of the charge sheets that might have been filed in last ten preceding
years.
19. The learned counsel would submit that unless there is a
substantive offence, mere past chargesheets would not constitute the F
offence of organised crime. He would argue that there is no merit in the
contention canvassed on behalf of the appellant-State that offence of
organised crime itself comprises of chargesheets filed in the past of
which cognizance is taken. He would argue that if such a contention
were to be accepted, it would amount to giving a free hand to the police G
to send anybody to a long term of imprisonment, merely by filing
chargesheets in respect of more than one offence.
20. In such circumstances referred to above, the learned counsel
appearing for the respondent-accused prays that there being no merit in
the present appeal, the same may be dismissed.
H
778 SUPREME COURT REPORTS [2022] 17 S.C.R.

A ANALYSIS
21. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the only question
that falls for our consideration is whether the decision rendered by a
coordinate Bench of this Court in the case of Shiva alias Shivaji
B Ramaji Sonawane (supra) requires a relook and the issue be referred
to a larger Bench.
AN OVERVIEW OF THE GUJARAT CONTROL OF
TERRORISM AND ORGANISED CRIME ACT, 2015
22. The Gujarat Control of Terrorism Act, 2015, as its long title
C indicates, is ‘an Act to make special provisions for the prevention and
control of terrorist acts and for coping with criminal activities by organised
crime syndicates and for the matters connected therewith or incidental
there to’. The statement of objects and reasons contains the reasons,
which constitute the foundation for the legislature to step in:
D First, organised crime which is in existence for some years
poses a serious threat to society;
Secondly, organised crime is not confined by national
boundaries;

E Thirdly, organised crime is fuelled by illegal wealth generated
by contract killing, extortion, smuggling and contraband, illegal trade
in narcotics, kidnapping for ransom, collection of protection money
and money laundering, and other activities;
Fourthly, the illegal wealth and black money generated by
F organised crime pose adverse effects on the economy;
Fifthly, organised crime syndicates make common cause with
terrorists fostering narcoterrorism which extends beyond national
boundaries;
Sixthly, the existing legal framework in terms of penal and
G procedural laws and the adjudicatory system were found inadequate
to curb and control organised crime; and
Seventhly, the special law was enacted with ‘stringent and
deterrent provisions’ including in certain circumstances, the power
to intercept wire, electronic or oral communication.
H
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA 779
[J. B. PARDIWALA, J.]

In understanding the ambit of the enactment, emphasis must be A
given to three definitions:
a. Organised crime (Section 2(1)(e));1
b. Organised crime syndicate (Section 2(1)(f));2 and
c. Continuing unlawful activity (Section 2(1)(c).3 B

The expression ‘organised crime’ is defined with reference to a
continuing unlawful activity. The definition is exhaustive since it is
prefaced by the word ‘means’. The ingredients of an organised crime
are:
C
a. The existence of a continuing unlawful activity;
b. Engagement in the above activity by an individual;
c. The individual may be acting singly or jointly either as a
member of an organised crime syndicate or on behalf of
D
such a syndicate;
d. The use of violence or its threat or intimidation or coercion
or other unlawful means; and
e. The object being to gain pecuniary benefits or undue
economic or other advantage either for the person E
undertaking the activity or any other person or for promoting
insurgency.

1
Section 2(1)(e) - “organised crime” means any continuing unlawful activity and terrorist
act including extortion, land grabbing, contract killing, economic offences, cyber crimes F
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.
2
Section 2(1)(f) - “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.
G
3
Section 2(1)(c) - “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; H
780 SUPREME COURT REPORTS [2022] 17 S.C.R.

A The above definition of organised crime, as its elements indicate,
incorporates two other concepts namely, a continuing unlawful activity
and an organised crime syndicate. Hence, it becomes necessary to
understand the ambit of both those expressions. The ingredients of a
continuing unlawful activity are:
B a. The activity must be prohibited by law for the time being in
force;
b. The activity must be a cognizable act punishable with
imprisonment of three years or more;
c. The activity may be undertaken either singly or jointly as a
C member of an organised crime syndicate or on behalf of
such a syndicate;
d. More than one charge-sheet should have been filed in respect
of the activity before a competent court within the preceding
period of ten years; and
D
e. The court should have taken cognizance of the offence.
The elements of the definition of ‘organised crime syndicate’ are:
a. A group of two or more persons;
b. Who act singly or collectively, as a syndicate or gang; and
E
c. Indulge in activities of organised crime.
Section 2(1)(c) while defining ‘continuing unlawful activity’ and
Section 2(1)(e) while defining ‘organised crime’, both contain the
expression ‘as a member of an organised crime syndicate or on behalf
F of such syndicate’. While defining an organised crime syndicate, Section
2(1)(f) refers to ‘activities of organised crime’.
Section 3 provides for the punishment for organised crime.4 Sub-
section (1) of Section 3 covers ‘whoever commits an offence of organised
crime’. Sub-section (2) covers whoever conspires or attempts to commit
G 4
Section 3 - (1) Whoever commits an offence of terrorist act or organised crime shall,—
(i) if such offence has resulted in the death of any person, be punishable with death or
imprisonment for life and shall also be liable to fine which shall not be less than rupees
ten lakhs;
(ii) in any other case, be punishable with imprisonment for a term which shall not
be less than five years but which may extend to imprisonment for life and shall also be
H liable to fine which shall not be less than rupees five lakhs.
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA 781
[J. B. PARDIWALA, J.]

or advocates, abets or knowingly facilitates the commission of an A
organised crime or any act preparatory to organised crime. Sub-section
(3) covers whoever harbours or conceals or attempts to harbour or
conceal any member of an organised crime syndicate. Sub- section (4)
covers any person who is a member of an organised crime syndicate.
Sub-section (5) covers whoever holds any property derived or obtained
B
from the commission of an organised crime or which has been acquired
through the funds of an organised crime syndicate. Section 4 punishes
the possession of unaccountable wealth on behalf of a member of an
organised crime syndicate.
23. For charging a person of organised crime or being a member
of organised crime syndicate, it would be necessary to prove that the C
persons concerned have indulged in :
(i) an activity,
(ii) which is prohibited by law,
(iii) which is a cognizable offence punishable with imprisonment D
for three years or more,
(iv) undertaken either singly or jointly,
(v) as a member of organised crime syndicate i.e. acting as a
syndicate or a gang, or on behalf of such syndicate,
E
(2) Whoever conspires or attempts to commit or advocates, abets or knowingly
facilitates the commission of any terrorist act or an organised crime or any act
preparatory to any terrorist act or organised crime, shall be punishable with imprisonment
for a term which shall not be less than five years but which may extend to imprisonment
for life and shall also be liable to fine, which shall not be less than rupees five lakhs.
(3) Whoever intentionally harbours or conceals or attempts to harbour or conceal F
any person who has committed an offence of any terrorist act or any member of an
organised crime syndicate shall be punishable with imprisonment for a term which shall
not be less than five years but which may extend to imprisonment for life and shall also
be liable to fine which shall not be less than rupees five lakhs.
(4) Any person who is a member of an organised crime syndicate shall be punishable
with imprisonment for a term which shall not be less than five years but which may
extend to imprisonment for life and shall also be liable to fine which shall not be less
G
than rupees five lakhs.
(5) Whoever holds any property derived, or obtained from commission of terrorist
act or an organised crime or which has been acquired through the organised crime
syndicate funds shall be punishable with imprisonment for a term which shall not be
less than three years but which may extend to imprisonment for life and shall also be
liable to fine which shall not be less than rupees two lakhs. H
782 SUPREME COURT REPORTS [2022] 17 S.C.R.

A (vi) (a) in respect of similar activities (in the past) more than
one charge-sheets have been filed in competent court within
the preceding period of ten years,
(b) and the court has taken cognizance of such offence.
(vii) the activity is undertaken by :
B
(a) violence, or
(b) threat of violence, or intimidation or
(c) coercion or
(d) other unlawful means
C
(viii) (a) with the object of gaining pecuniary benefits or gaining
undue or other advantage or himself or any other person,
or
(b) with the object of promoting insurgency.
D 24. A close analysis of the term, ‘organised crime’ would indicate
that there has to be an activity prohibited by law for the time being in
force which is a cognizable offence punishable with imprisonment of
three years or more, undertaken as singly or jointly as a member of
organised crime syndicate or on behalf of such syndicate, in respect of
which activity more than one chargesheets have been filed before a
E competent court within the preceding period of ten years and the Court
has taken cognizance of such offence.
PRINCIPLES GOVERNING GRANT OF BAIL IN CASES
OF THE 2015 ACT
25. Although, Mr. Mehta with all fairness submitted that the
F
discretion exercised by the High Court in favour of the respondent-
accused in so far as releasing the accused on bail is concerned, the
same may not be disturbed in the facts and circumstances of the case.
Yet as this appeal arises from an order of bail granted by the High Court
wherein the provisions of the 2015 Act are made applicable, we deem it
G fit to reiterate the principles of grant of bail.
26. The considerations which normally weigh with the Court in
granting bail in non-bailable offences are:
(1) the nature and seriousness of the offences;
(2) the character of the evidence;
H
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA 783
[J. B. PARDIWALA, J.]

(3) circumstances which are peculiar to the accused; A
(4) a reasonable possibility of the presence of the accused not
being secured at the trial;
(5) reasonable apprehension of witnesses being tampered with;
(6) the larger interest of the public or the State and other similar B
factors which may be relevant in the facts and circumstances
of the case.
27. However, if the provisions of the 2015 Act are invoked in a
given case, then, in addition to the aforementioned broad principles, the
limitations imposed in the provisions contained in sub-section (4) of C
Section 20 of the 2015 Act should not be lost sight of while dealing with
application for grant of bail. The relevant provision reads as under:
“20.(4) Notwithstanding anything contained in the Code,
no person accused of an offence punishable under this Act
shall, if in custody, be released on bail or on his own bond, D
unless –
(a) the Public Prosecutor has been given an opportunity to
oppose the application of such release; and
(b) where the Public Prosecutor opposes the application, the
Special Court is satisfied that there are reasonable grounds E
for believing that accused is not guilty of committing such
offence and that he is not likely to commit any offence while
on bail.”
28. It is plain from a bare reading of the non-obstante clause in
the sub-section that the power to grant bail by the High Court or Court F
of Sessions is not only subject to the limitations imposed by Section 439 of
the Code but is also subject to the limitations placed by Section 20(4) of
the 2015 Act. Apart from the grant of opportunity to the Public Prosecutor,
the other twin conditions are: the satisfaction of the court that there are
reasonable grounds for believing that the accused is not guilty of the
alleged offence and that he is not likely to commit any offence while on G
bail. The conditions are cumulative and not alternative. The satisfaction
contemplated regarding the accused being not guilty has to be based on
reasonable grounds. The expression ‘reasonable grounds’ means
something more than prima facie grounds. It contemplates substantial
probable causes for believing that the accused is not guilty of the alleged H
784 SUPREME COURT REPORTS [2022] 17 S.C.R.

A offence. The reasonable belief contemplated in the provisions requires
existence of such facts and circumstances as are sufficient in themselves
to justify satisfaction that the accused is not guilty of the alleged offence.
Thus, recording of findings under the said provision is a sine qua non for
granting bail under the 2015 Act.
B 29. The Court should bear in mind the principles enunciated in the
case of
Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra
and Another reported in (2005) 5 SCC 294. We quote paras 43, 44 and
46 resply:
C “43. Section 21(4) of MCOCA does not make any distinction
between an offence which entails punishment of life
imprisonment and an imprisonment for a year or two. It does
not provide that even in case a person remains behind the
bars for a period exceeding three years, although his
D involvement may be in terms of Section 24 of the Act, the
court is prohibited to enlarge him on bail. Each case, therefore,
must be considered on its own facts. The question as to whether
he is involved in the commission of organised crime or
abetment thereof must be judged objectively. …..
44. The wording of Section 21(4), in our opinion, does not
E
lead to the conclusion that the court must arrive at a positive
finding that the applicant for bail has not committed an offence
under the Act. If such a construction is placed, the court
intending to grant bail must arrive at a finding that the
applicant has not committed such an offence. In such an
F event, it will be impossible for the prosecution to obtain a
judgment of conviction of the applicant. Such cannot be the
intention of the legislature. Section 21(4) of MCOCA,
therefore, must be construed reasonably. It must be so
construed that the court is able to maintain a delicate balance
between a judgment of acquittal and conviction and an order
G
granting bail much before commencement of trial. Similarly,
the court will be required to record a finding as to the
possibility of his committing a crime after grant of bail.
However, such an offence in future must be an offence under
the Act and not any other offence. Since it is difficult to predict
H the future conduct of an accused, the court must necessarily
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA 785
[J. B. PARDIWALA, J.]

consider this aspect of the matter having regard to the A
antecedents of the accused, his propensities and the nature
and manner in which he is alleged to have committed the
offence.
Xxx xxx xxx
46. The duty of the court at this stage is not to weigh the B
evidence meticulously but to arrive at a finding on the basis
of broad probabilities. However, while dealing with a special
statute like MCOCA having regard to the provisions contained
in sub-section (4) of Section 21 of the Act, the court may
have to probe into the matter deeper so as to enable it to C
arrive at a finding that the materials collected against the
accused during the investigation may not justify a judgment
of conviction. The findings recorded by the court while
granting or refusing bail undoubtedly would be tentative in
nature, which may not have any bearing on the merit of the
case and the trial court would, thus, be free to decide the D
case on the basis of evidence adduced at the trial, without in
any manner being prejudiced thereby.”
DECISION OF THIS COURT IN THE CASE OF STATE
OF MAHARASHTRA V. SHIVA ALIAS SHIVAJI RAMAJI
SONAWANE E

30. We may now proceed to look into the decision of this Court
rendered in the case of Shiva alias Shivaji Ramaji Sonawane (supra).
But before we undertake this exercise, we must look into the judgment
of the High Court of Judicature at Bombay in Prafulla Uddhav Shende
v. State of Maharashtra, 2008 SCC OnLine Bom 1848 : (2009) 2 AIR F
Bom R 1, which came to be challenged by the State of Maharashtra
before this Court & titled Shiva alias Shivaji Ramaji Sonawane (supra).
31. The High Court in Prafulla (supra) decided a batch of criminal
appeals filed by individual convicts. The accused persons therein were
convicted for the offences punishable under Section 3(4) of the MCOCA. G
Shiva alias Shivaji Ramaji Sonawane was also one of the appellants
in the batch of appeals before the High Court.
32. The High Court after referring to the various provisions of the
MCOCA looked into its own decision delivered by a Division Bench in
the case of Jaisingh Ashrfilal Yadav and Others v. State of H
786 SUPREME COURT REPORTS [2022] 17 S.C.R.

A Maharashtra and Another reported at 2003 All MR (Cri) 1506. We
quote paras 42 and 43 resply of the decision of the High Court in Prafulla
(supra):
“42. In Jaisingh Ashrfilal Yadav v. State of Maharashtra,
reported at 2003 All MR (Cri) 1506, to which the learned
B A.P.P. drew my attention, a Division Bench of this Court was
considering the constitutionality of the provisions of MCOC
Act. The Court observed in paragraph 9 as under:
“9. The analysis of the definition of the organised crime,
therefore, would reveal that continuing unlawful activity
C is one of its ingredients whereas in order to make an activity
to be continuing unlawful one, it should disclose filing of
minimum two charge-sheets in relation to the activity
prohibited by law in force and of the nature specified in
Section 2(d) during the period of preceding ten years. In
other words, lodging of two charge-sheets in relation to
D
the acts which are already declared under the law then in
force as offences of the nature specified under Section
2(d) during the preceding period of ten years is one of the
requisites for the offence of organised crime under the said
Act.” (Emphasis supplied)
E 43. The Court then considered the challenge based on Article
20(1) of the Constitution of India. In paragraph 19 the Court
observed as under:
“19. There is lot of difference between the act or activity
itself being termed or called as an offence under a statute
F and such act or activity being taken into consideration as
one of the requisites for taking action under the statute.
The former situation has to satisfy the mandate of Article
20(1) of the Constitution, however, in case of latter situation,
it stands on totally different footing. Undoubtedly, for the
G purpose of organised crime there has to be a continuing
unlawful activity. There cannot be continuing unlawful
activity unless at least two charge-sheets are to be found
to have been lodged in relation to the offence punishable
with three years’ imprisonment during the period of ten
years. Undisputedly, the period of ten years may relate to
H
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA 787
[J. B. PARDIWALA, J.]

the period prior to 24-2-1999 or thereafter. In other words, A
it provides that the activities which were offences under
the law in force at the relevant time and in respect of which
two charge-sheets have been filed and the Court has taken
cognizance thereof, during the period of preceding ten
years, then it will be considered as continuing unlawful
B
activity on 24-2-1999 or thereafter. It nowhere by itself
declares any activity to be an offence under the said Act
prior to 24-2-1999. It also does not convert any activity
done prior to 24-2-1999 to be an offence under the said
Act. It merely considers two charge-sheets in relation to
the acts which were already declared as offences under C
the law in force to be one of the requisites for the purpose
of identifying continuing unlawful activity and/or for the
purpose of an action under the said Act. This by itself
cannot be said to be in any manner violative of the mandate
of Article 20(1) considering the law laid down by the Apex
D
Court in Rao Shiv Bahadur Singh’s case as well as
in Sajjan Singh’s case.”
33. The High Court, thereafter in para 44 of Prafulla (supra)
referred to its decision, rendered by a Division Bench in Bharat Shantilal
Shah v. State of Maharashtra reported at 2003 All MR (Cri) 1061. In
Bharat Shantilal Shah (supra), the challenge was to the constitutional E
validity of MCOCA. We quote paras 44, 45 and 46 resply:
“44. In Bharat Shantilal Shah v. State of Maharashtra,
reported at 2003 All MR (Cri) 1061 the challenge to the
constitutional validity of MCOC Act, was considered by
another Division Bench. Definition of continuing unlawful F
activity in Section 2(1)(d) was sought to be attacked by
advancing the following arguments:
“19. Dealing with the next definitions in Section 2(1)(d)
of ‘continuing unlawful activity’ it was submitted that it
suffers from violation of Article 14 as it treats unequals as G
equals. It makes an activity continuing unlawful activity if
more than one charges of cognizable offence punishable
with imprisonment of three years or more are filed in
competent Court, if does not touch an activity as continuing
unlawful activity if undertaken by a person who is known H
788 SUPREME COURT REPORTS [2022] 17 S.C.R.

A to be a criminal but more than one charge sheets have not
been filed against him. A person charged ten times of an
offence though acquitted on every occasion may yet be
roped in as a person engaged in continuing unlawful
activity. Whereas a person who is convicted for an offence
for three years punishment cannot be touched by this
B
definition if he is not charged with more than two of such
offences. The definition therefore treats as equal persons
who are hopelessly unequal that is to say a person who is
a known criminal but charge-sheeted and convicted not
more than once and another who has been falsely charged
C with 10 fabricated charges and acquitted of all the 10
charges with a finding that the charges were fabricated
yet merely because cognizance has been taken of that
charge are treated as person engaged in continuous
unlawful activity. The definition therefore arbitrary and
liable to be struck down as violative of Article 14. The
D
arguments appear to be attractive at the first blush, but
deeper scrutiny reveals the hollowness of the argument.”
45. Dealing with the objections to this definition the Court
observed in paragraph 25 of the judgment as under:
E “25. Then we would consider the submission of Shri Manohar
that the definition of continuing unlawful activity violates the
mandate of Article 14 and is therefore liable to be struck down.
According to the learned counsel unequals are being treated
as equals. Persons charged only once are not brought within
the purview of the Act but a person, with several charges
F framed and cognizance taken by competent Court who later
on are acquitted are covered by the definition. According to
him therefore a person is acquitted, of, ten charges cannot be
treated as equal to a person who charged and convicted of
only one offence. In our opinion, there is no violation of Article
G 14 by this definition. If we read the definition again, what
has been defined as continuing unlawful activity is a member
of organized crime syndicate in respect of which any activity
prohibited by law and done repeatedly i.e. more than once
for which charge-sheet has been filed in the Court of
competent jurisdiction in the past ten years. The purpose of
H
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA 789
[J. B. PARDIWALA, J.]

definition is to define what continuing unlawful activity is A
and it is for the purposes of defining what is continued
unlawful activity that those charges are to be taken into
consideration. Mere taking into consideration of such charges
cannot result in discrimination of the kind alleged by Shri
Manohar. The activity must be continuing unlawful activity
B
and to define it with clarity it is provided that any person who
in the past was charge-sheeted for more than one charge of
such activity or crime the cognizance of which has been taken
and imprisonment for which is more than three years should
be taken into account. The fact of the person having been
charge-sheeted in such cognizable offences in the past makes C
the unlawful activity continuing unlawful activity. This Section
only defines what the activity is. It does not itself provide for
any punishment for that activity. Had punishment been
provided the submission that it threats while punishing
unequals as equals may carry weightage. That being not the
D
case in the challenge to Section 2(1)(d) of the Act we see no
vagueness or violation of Article 14 by the definition. We find
that the provision treats all those covered by it in a like manner
and does not suffer from the vice of class legislation.”
(emphasis supplied)
E
46. In paragraph 27 the Court then went on to observe as
under:
“27. We also do not find substance in the challenge that the
equality clause in the Constitution is violated because the
definition ropes in anyone charged more than once, F
irrespective of whether the charge resulted in an acquittal or
conviction. The circumstances that followed the charge are
not material. The provision only defines what is continued
unlawful activities and refers to whether a person has been
charged over a period of ten years for the purpose of seeing
whether the person is charged for the first time or has been G
charged often. The circumstance of conviction or acquittal
that followed the charge are not material. The limited purpose
is to see antecedents of the person. Not to convict.””
(emphasis supplied)
H
790 SUPREME COURT REPORTS [2022] 17 S.C.R.

A 34. Thus, Prafulla (supra) looked into paras 19, 25 and 27 resply
of Bharat Shantilal Shah (supra). It may not be out of place to State
that the High Court of Judicature at Bombay in Bharat Shantilal Shah
(supra) held that Sections 3 and 4 resply of the MCOCA inherently
contemplated mensrea. The High Court held that the provisions of
MCOCA except those contained in Sections 13 to 16 resply to be valid
B
and struck down the provisions of Sections 13 to 16 resply as beyond the
legislative competence of the State Legislature. The High Court of
Judicature at Bombay also held that the words in sub-section (5) of the
Section 21 of the MCOCA ‘or under any other Act on the date of the
offence in question’ were violative of Article 14 of the Constitution and,
C therefore, were to be deleted.
35. The judgment of the High Court of Judicature at Bombay in
the case of Bharat Shantilal Shah (supra) was challenged by the State
of Maharashtra before this Court in so far as it held Sections 13 to 16
resply of the MCOCA as unconstitutional. A Bench of three Judges of
D this Court in State of Maharashtra v. Bharat Shanti Lal Shah and
Others reported in (2008) 13 SCC 5 upheld the judgment of the High
Court of Judicature at Bombay deleting the words ‘or under any other
….’ from sub-section (5) of the Section 21. The questions raised before
this Court were concerned essentially with the constitutionality of
interception of conversation or communication, which was subject matter
E of Sections 13 to 16 resply of the MCOCA. This Court reversed the
judgment only to the extent the High Court held the provisions ultravires.
36. There was no cross appeal filed by Bharat Shah challenging
the order of the High Court upholding the constitutional validity of the
provisions of Sections 2(1)(d), (e) and (f) and Sections 3 and 4 respectively
F of the MCOCA. Therefore, this Court had no occasion to go into that
question. This Court, however, observed that there was no vagueness
as the definitions defined with clarity what was meant by continuing
unlawful activity, organised crime and also organised crime syndicate.
This Court specifically concluded that after examining the judgment of
the High Court of Judicature at Bombay on the issue of the constitutional
G
validity of Sections 2(1)(d), (e) and (f) and Sections 3 and 4 respectively
of the MCOCA, that the court was in accord with the finding arrived at
by the High Court that the aforesaid provisions cannot be said to be
ultravires of the Constitution and this Court did not find any reason to
take a different view than the one taken by the High Court of Judicature
H at Bombay while upholding the validity of the aforesaid provisions.
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA 791
[J. B. PARDIWALA, J.]

37. The High Court of Judicature at Bombay had specifically held A
as affirmed by a three-Judge Bench decision of this Court that had
punishment been provided for continuing unlawful activity, the submission
that while punishing, it treats unequals as equals may carry weightage.
The High Court, as affirmed by this Court, upheld the validity of the
provision defining ‘continuing unlawful activity’ only because the Act
B
did not provide any punishment for that activity. In para 27 of Bharat
Shantilal Shah (supra), the High Court made it explicitly clear that the
limited purpose of continuing unlawful activity was to see the antecedents
of the person and not to convict. Section 2 defines, not only the offence
of ‘organised crime’ but also the other terms used in the MCOCA. What
is material is the definition of offence of ‘organised crime’ and not the C
definitions of other terms included in Section 2. Had the term ‘continuing
unlawful activity’ been synonymous with ‘organised crime’, it would not
have been necessary for the Legislature to include or provide for two
definitions. It would have been sufficient to provide for only one definition
of continuing unlawful activity and make that activity punishable. The
D
definitions in clauses (d) and (e) resply of sub-section (1) clearly indicate
that one of the components of organised crime is continuing unlawful
activity and, therefore, organised crime is something more than mere
continuing unlawful activity.
38. The High Court thereafter proceeded to observe in paras 47
to 53 resply as under: E

“47. The Court then rejected the objections to the
constitutional validity of the definition. It is thus clear that
apart from previous charge-sheets there has to be a
continuation, an activity to which MCOCA is applied.
F
48. This fortifies the conclusion that mere proof of filing
charge-sheets in the past is not enough. It is only one or the
requisites for constituting offence of organised crime. If only
the past charge-sheets were to be enough to constitute
offence of organised crime, it could have offended the
requirement of Article 20(1) of the Constitution and possibly G
Article 20(2) as well, (and in any case Section 300 of the Cr
PC). Had these judgments of the Supreme Court and Division
Benches of this Court been cited before the learned single
Judge deciding Amarnath v. State, (2006 All MR (Cri) 407 :
((2006) 6 AIR Bom R 120), the learned single Judge, without H
792 SUPREME COURT REPORTS [2022] 17 S.C.R.

A doubt, would not have held that the matter was simply one
of an arithmetical equation. The said judgment cannot be
reconciled with the judgments or Division Benches
in Jaisingh v. State, (2003 All MR (Cri) 1506 and Bharat
Shah v. State, 2003 All MR (Cri) 1061, which I am bound to
follow.
B
49. It is not necessary to go into the implications of the
expression “prosecuted and punished” used in Article 20(2)
of the Constitution. Section 300 of the Cr PC itself clearly
bars a fresh trial for the same offence. Section 21 of MCOCA
which prescribes modified applications of the Code to offences
C under MCOCA does not make provisions of Section 300 of
the Cr PC inapplicable. Therefore, since the previous criminal
history of the applicants denotes that they had been or are
being separately charged/tried for those offences before
competent Courts, there is no question of such offences
D constituting offence of organised crime.
50. In Appa @ Prakash Haribhau Londhe v. State of
Maharashtra, reported at 2006 All MR (Cri) 2804 : ((2006)
6 AIR Bom R 401), a Division Bench of this Court was
considering the challenge to the applicability of MCOC Act.
E The Court observed as under in paragraph 10 of the judgment:
“10. For the purpose of organised crime there has to be a
continuing unlawful activity and there cannot be continuing
unlawful activity unless at least two charge-sheets are to
be found to have been lodged in relation to the offence
F punishable with three years’ imprisonment during the period
of ten years. If no illegal activity as contemplated by MCOC
Act are committed after 1999, then the past activities prior
to 1999 may not be of any help for registering any FIR
only on the basis of those past activities as has been
observed by the Division Bench (R.M.S. Khandeparkar
G and P.V. Kakade, JJ.) of this Court in Writ Petition No.
689 of 2005 and other petitions, but if two or more illegal
activities are committed after 1999, then the past activities
can be taken into consideration in order to show the
continuity. We are therefore not in agreement with the
H submissions made by Mr. Pradhan that on the date of
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA 793
[J. B. PARDIWALA, J.]

registration of FIR against the petitioners they had not A
committed any act, as contemplated.”
51. While offences committed prior to 24-2-1999 cannot
amount to “organised crime”, since this offence was not on
statute book then, even post-24-2-1999 crimes could be tried
as “organised crime” only if information in respect of these B
crimes is permitted to be registered as organised crime and
sanction is accorded for prosecution for such crime under
Section 23 of MCOCA. Such are not the facts in the present
cases. There is no substantive crime which is allowed to be
registered under MCOCA. Offences in Crime Nos. 37/01 and
C
38/01. for which approval was sought are not subject-matter
of these trials. When Crime Nos. 3007/2001 and 3008/2001
were registered, upon receiving approval, there was no crime
reported. Seizure of weapons is subsequent to registration of
these crimes, for which the concerned accused persons have
been acquitted. Consequently without there being a D
substantive offence indicating continuity, there would be no
continuation of the unlawful activity and as a corollary no
“continuing unlawful activity”.
52. A look at provisions of the punishment. Section 3 of the
MCOCA would fortify this conclusion. Clauses (i) and (ii) of E
sub-section (1) would show that “if such offence has re-suited
in death of any person”, the offence of organised crime would
attract death sentence or life imprisonment with a fine of Rs.
one lakh. Now, if only old charge-sheets should be held as
enough, a person acquitted of a murder charge in the past
F
would be liable to be sent for a life term, in spite of acquittal,
simply because a charge-sheet had been filed in the past.
Had this been contemplated, the learned Judge, Special Court,
would have charged Accused No. 1/I Shiva of offence
punishable under Section 3(1)(i) of MCOCA and not one
punishable under Section 3(1)(ii) of the MCOCA, since Shiva G
had been charged once of murder (Sr. No. 9 in the chart) and
acquitted. Same would hold good about the other gangsters.
Advocate Tiwari, the learned counsel for Mehmood and others
relying on judgment of the Supreme Court in Dilip
Singh v. State of Punjab, reported at (1997) 3 Current
H
794 SUPREME COURT REPORTS [2022] 17 S.C.R.

A Criminal Journal 223, that charge-sheets cannot be made the
basis of guilt or innocence of an accused. Therefore, it is
clear that the offences referred to in various charge-sheets
are not “such oftence(s)” and consequently an offence,
punishable under Section 3 of the MCOCA has to be different
from those for which such accused had been charge-sheeted
B
in the past. Past criminal activity only aggravates the
continued activity amounting to an offence and attracts
provisions of MCOCA.
53. In view of this, since the appellants are not shown to have
indulged in any crime which can be said to be continuation
C of past criminal activity provisions of Section 3(1) of the
MCOCA are not attracted. It cannot be said that the
appellants have committed the offence of organised crime.”
39. It may not be out of place to state at this stage that in Prafulla
(supra), the High Court also referred to and relied upon its own decision
D in the case of Altaf Ismail Sheikh v. State of Maharashtra, 2005 SCC
OnLine Bom 420 : 2005 Cri LJ 3584 : (2006) 1 CCR 391, more particularly
para 24 therein, which reads thus:
“24. The Section 23 of the MCOC Act which opens with non-
obstante clause and further clothed with negative words
E clearly discloses the mandate of the legislature that the
cognizance of the offences under the MCOC Act should not
be in routine course, but only upon the facts disclosing the
applicability thereof and satisfaction of the officer of the high
rank, the minimum being of the rank of Deputy Inspector
F General of Police, in that regard. In fact, the officer of such
high rank is required to decide about the approval even for
recording of FIR in relation to any offence under the MCOC
Act. This obviously discloses that the approving authority has
to apply its mind about the applicability of the provisions of
the MCOC Act to the facts disclosed in a matter before allowing
G the recording of FIR and for that purpose, he must be, prima
facie, satisfied about the commission of offence of organised
crime under the MCOC Act by the person or persons against
whom the FIR is to be recorded. Obviously, for prima facie
satisfaction regarding the commission of the offence of
H organised crime or of participation therein in whatever manner,
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA 795
[J. B. PARDIWALA, J.]

the approving authority must have some materials before it A
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. In
other words, the activities of a person to be termed as the
offence under the MCOC Act, the same should inevitably
B
disclose to have been committed on or after 24th February,
1999. If the activity of the person is relating to the period
prior to 24th February, 1999, obviously, it cannot be said to
be an offence under MCOC Act, even though the activity may
be an offence under the provisions of some other statute in
force at the relevant time…..” C
(Emphasis supplied)
40. Thus, the High Court took the view relying on its various other
decisions that if no illegal activities as contemplated by MCOCA are
shown to have been committed after 1999, then the past activities, prior
to 1999 may not be of any help for registering any FIR only on the basis D
of such past activities. Further, if two or more illegal activities are
committed after 1999, then the past activities can be taken into
consideration in order to show the continuity.
41. The State of Maharashtra being dissatisfied with the aforesaid
judgment of the High Court of Judicature at Bombay challenged the E
same before this Court. It is the said challenge which culminated in the
decision titled as Shiva alias Shivaji Ramaji Sonawane (surpa).
42. We now proceed to look into the relevant observations made
by this Court as contained in paras 9, 10 and 11 resply:
F
“9. It was in the above backdrop that the High Court held
that once the respondents had been acquitted for the offences
punishable under IPC and the Arms Act in Crimes Nos. 37
and 38 of 2001 and once the trial court had recorded an
acquittal even for the offence punishable under Section 4
read with Section 25 of the Arms Act in MCOCA Crimes Nos. 1 G
and 2 of 2002, all that remained incriminating was the filing
of charge-sheets against the respondents in the past and
taking of cognizance by the competent court over a period of
ten years prior to the enforcement of MCOCA. The filing of
charge-sheets or taking of the cognizance in the same did
H
796 SUPREME COURT REPORTS [2022] 17 S.C.R.

A not, declared the High Court, by itself constitute an offence
punishable under Section 3 of M COCA . That is because the
involvement of the respondents in previous offences was just
about one requirement but by no means the only requirement
which the prosecution has to satisfy to secure a conviction
under MCOCA. What was equally, if not, more important was
B
the commission of an offence by the respondents that would
constitute “continuing unlawful activity”. So long as that
requirement failed, as was the position in the instant case,
there was no question of convicting the respondents under
Section 3 of MCOCA. That reasoning does not, in our opinion,
C suffer from any infirmity.
10. The very fact that more than one charge-sheets had been
filed against the respondents alleging offences punishable
with more than three years’ imprisonment is not enough. As
rightly pointed out by the High Court commission of offences
D prior to the enactment of MCOCA does not by itself constitute
an offence under M COCA . Registration of cases, filing of
charge-sheets and taking of cognizance by the competent
court in relation to the offence alleged to have been committed
by the respondents in the past is but one of the requirements
for invocation of Section 3 of M COCA . Continuation of
E
unlawful activities is the second and equally important
requirement that ought to be satisfied. It is only if an organised
crime is committed by the accused after the promulgation
of MCOCA that he may, seen in the light of the previous charge-
sheets and the cognizance taken by the competent court, be
F said to have committed an offence under Section 3 of the Act.
11. In the case at hand, the offences which the respondents
are alleged to have committed after the promulgation
of MCOCA were not proved against them. The acquittal of the
respondents in Crimes Nos. 37 and 38 of 2001 signified that
G they were not involved in the commission of the offences with
which they were charged. Not only that the respondents were
acquitted of the charge under the Arms Act even in Crime
Cases Nos. 1 and 2 of 2002. No appeal against that acquittal
had been filed by the State. This implied that the prosecution
had failed to prove the second ingredient required for
H
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA 797
[J. B. PARDIWALA, J.]

completion of an offence under MCOCA. The High Court was, A
therefore, right in holding that Section 3 of MCOCA could not
be invoked only on the basis of the previous charge-sheets
for Section 3 would come into play only if the respondents
were proved to have committed an offence for gain or any
pecuniary benefit or undue economic or other advantage after
B
the promulgation of MCOCA. Such being the case, the High
Court was, in our opinion, justified in allowing the appeal
and setting aside the order passed by the trial court.”
(Emphasis supplied)
43. Thus, in Shiva alias Shivaji Ramaji Sonawane (surpa), this C
Court took the view that there are two essential ingredients to constitute
an offence under MCOCA. First, the registration of cases, filing of
chargesheets and taking of cognizance by the competent court in relation
to the offences alleged to have been committed by the accused in the
past and secondly, continuation of unlawful activities. In other words, it
is only if an organised crime is committed by the accused after the D
promulgation of the MCOCA that he may, on the basis of the previous
chargesheets and the cognizance taken by the competent court, be said
to have committed an offence under Section 3 of the MCOCA.
44. Indisputably, in Shiva alias Shivaji Ramaji Sonawane (surpa),
the accused persons stood acquitted in connection with two of the crimes E
and considering the same, this Court took the view that the accused
persons could not be said to have committed the alleged crime after the
promulgation of MCOCA, as the allegations could not be proved against
them. However, this Court, in no uncertain terms, has observed that
what is important is the commission of an offence by the accused that
F
would constitute ‘continuing unlawful activity’ and the unlawful activities
could be said to have continued only if the accused are found to have
indulged in an organised crime after the promulgation of the MCOCA.
45. The learned counsel appearing for the respondent-accused
is right in his submission that having regard to the stringent provisions
G
of the 2015 Act, its provisions should be very strictly interpreted and
the authorities concerned would be obliged in law to strictly observe
the said provisions. There need not be any debate on the fact that the
provisions of the 2015 Act have been enacted to deal with organised
criminal activity in relation to offence, which are likely to create terror
and endanger and unsettle the economy of the country for which H
798 SUPREME COURT REPORTS [2022] 17 S.C.R.

A stringent measures have been adopted. The provisions of the 2015 Act
seek to deprive a citizen of his right to freedom at the very initial stage
of the investigation, making it extremely difficult for him to obtain bail.
Other provisions relating to the admission of evidence and electronic
media have also been provided for. In such a situation, it has to be
ensured whether the investigation from its very inception has been
B
conducted strictly in accordance with the provisions of the 2015 Act.
(See: State of Maharashtra and Others v. Lalit Somdatta Nagpal
and Another reported in (2007) 4 SCC 171)
46. It is a sound rule of construction that the substantive law should
be construed strictly so as to give effect and protection to the substantive
C rights unless the statute otherwise intends. Strict construction is one
which limits the application of the statute by the words used. According
to Sutherland, ‘strict construction refuses to extend the import of words
used in a statute so as to embrace cases or acts which the words do not
clearly describe’.
D 47. The rule as stated by Mahajan C.J. in Tolaram Relumal and
Another v. State of Bombay reported in AIR 1954 SC 496, is 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 rather than the one which imposes
E a penalty. It is not competent to the court to stretch the meaning of
an expression used by the legislature in order to carry out the
intention of the legislature….” In State of Jharkhand and Others v.
Ambay Cements and Another reported in (2005) 1 SCC 368, this Court
held that it is a settled rule of interpretation that where a statute is penal
in character, it must be strictly construed and followed. The basic rule of
F strict construction of a penal statute is that a person cannot be penalised
without a clear letter of the law. Presumptions or assumptions have no
role in the interpretation of penal statutes. They are to be construed
strictly in accordance with the provisions of law. Nothing can be implied.
In such cases, the courts are not so much concerned with what might
G possibly have been intended. Instead, they are concerned with what has
actually been said.
48. We are of the view and the same would be in tune with the
dictum as laid in Shiva alias Shivaji Ramaji Sonawane (supra) that
there would have to be some act or omission which amounts to organised
H crime after the 2015 Act came into force i.e., 01.12.2019 in respect of
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA 799
[J. B. PARDIWALA, J.]

which, the accused is sought to be tried for the first time in the special A
court.
49. We are in agreement with the view taken by the High Court
of Judicature at Bombay in the case of Jaisingh (supra) that neither the
definition of the term ‘organised crime’ nor of the term ‘continuing
unlawful activity’ nor any other provision therein declares any activity B
performed prior to the enactment of the MCOCA to be an offence under
the 1999 Act nor the provision relating to punishment relates to any
offence prior to the date of enforcement of the 1999 Act, i.e., 24.02.1999.
However, by referring to the expression ‘preceding period of ten years’
in Section 2(1)(d), which is a definition clause of the term ‘continuing
unlawful activity’ inference is sought to be drawn that in fact, it takes C
into its ambit the acts done prior to the enforcement of the 1999 Act as
being an offence under the 1999 Act. The same analogy will apply to the
2015 Act.
50. There is a vast difference between the act or activity, which
is being termed or called as an offence under a statute and such act or D
activity being taken into consideration as one of the requisites for taking
action under the statute. For the purpose of organised crime, there has
to be a continuing unlawful activity. There cannot be continuing unlawful
activity unless at least two chargesheets are found to have been lodged
in relation to the offence punishable with three years’ imprisonment during E
the period of ten years. Indisputably, the period of ten years may relate
to the period prior to 01.12.2019 or thereafter. In other words, it provides
that the activities, which were offences under the law in force at the
relevant time and in respect of which two chargesheets have been filed
and the Court has taken cognizance thereof, during the period of preceding
ten years, then it will be considered as continuing unlawful activity on F
01.12.2019 or thereafter. It nowhere by itself declares any activity to be
an offence under the said 2015 Act prior to 01.12.2019. It also does not
convert any activity done prior to 01.12.2019 to be an offence under the
said 2015 Act. It merely considers two chargesheets in relation to the
acts which were already declared as offences under the law in force to G
be one of the requisites for the purpose of identifying continuing unlawful
activity and/or for the purpose of an action under the said 2015 Act.
51. If the decision of the coordinate Bench of this Court in the
case of Shiva alias Shivaji Ramaji Sonawane (supra) is looked into
closely along with other provisions of the Act, the same would indicate H
800 SUPREME COURT REPORTS [2022] 17 S.C.R.

A that the offence of ‘organised crime’ could be said to have been
constituted by at least one instance of continuation, apart from continuing
unlawful activity evidenced by more than one chargesheets in the
preceding ten years. We say so keeping in mind the following:
(a) If ‘organised crime’ was synonymous with ‘continuing
B unlawful activity’, two separate definitions were not
necessary.
(b) The definitions themselves indicate that the ingredients of
use of violence in such activity with the objective of gaining
pecuniary benefit are not included in the definition of
C ‘continuing unlawful activity’, but find place only in the
definition of ‘organised crime’.
(c) What is made punishable under Section 3 is ‘organised
crime’ and not ‘continuing unlawful activity’.
(d) If ‘organised crime’ were to refer to only more than one
D chargesheets filed, the classification of crime in Section
3(1)(i) and 3(1)(ii) resply on the basis of consequence of
resulting in death or otherwise would have been phrased
differently, namely, by providing that ‘if any one of such
offence has resulted in the death’, since continuing unlawful
E activity requires more than one offence. Reference to ‘such
offence’ in Section 3(1) implies a specific act or omission.
(e) As held by this Court in State of Maharashtra v. Bharat
Shanti Lal Shah (supra) continuing unlawful activity
evidenced by more than one chargesheets is one of the
F 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, which respectively define
commission of offence of organised crime and prescribe
punishment.
G
(f) There would have to be some act or omission which
amounts to organised crime after the Act came into force,
in respect of which the accused is sought to be tried for the
first time, in the Special Court (i.e. has not been or is not
being tried elsewhere).
H
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA 801
[J. B. PARDIWALA, J.]

(g) However, we need to clarify something important. Shiva A
alias Shivaji Ramaji Sonawane (supra) dealt with the
situation, where a person commits no unlawful activity after
the invocation of the MCOCA. In such circumstances, the
person cannot be arrested under the said Act on account of
the offences committed by him before coming into force of
B
the said Act, even if, he is found guilty of the same. However,
if the person continues with the unlawful activities and is
arrested, after the promulgation of the said Act, then, such
person can be tried for the offence under the said Act. If a
person ceases to indulge in any unlawful act after the said
Act, then, he is absolved of the prosecution under the said C
Act. But, if he continues with the unlawful activity, it cannot
be said that the State has to wait till, he commits two acts
of which cognizance is taken by the Court after coming
into force. The same principle would apply, even in the case
of the 2015 Act, with which we are concerned.
D
52. In the overall view of the matter, we are convinced that the
dictum as laid by this Court in Shiva alias Shivaji Ramaji Sonawane
(supra) does not require any relook. The dictum in Shiva alias Shivaji
Ramaji Sonawane (supra) is the correct exposition of law.
53. With the aforesaid clarification, the appeal stands disposed of. E

Devika Gujral Appeal disposed of.
(Assisted by : Shevali Monga, LCRA)

F

G

H