Constitutional Validity of Some Provisions of Gujarat Control Of Terrorism and Organized Crime Act Challenged: Plea Filed in Gujarat HC.

(Judicial Quest News Network)

 A plea on Monday filed in Gujarat High Court Challenging the Constitutional Validity of Some provisions of Gujarat Control of terrorism and organized Crime (GCTOC)Act. Specifically mentioning the “Continuing Unlawful Activity” that is defined in the Act.

The petition is filed by Mahmadhusen @ Mamu Jahangirbhai Makrani (Baloch) through Advocate Virat.G. Popet.

The petitioner submits that Section 2(1)(c) of the said Act reads as under:

“2. (1) In this Act, unless the context otherwise requires, – (a) …. (b) …. (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 organized 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;

It has specifically questioned that

2(e) “organized crime” means continuing unlawful activity and terrorist act including extortion, land grabbing, contract killing, economic offences, cybercrimes having severe consequences, prostitution or ransom by an individual, singly or jointly, either as syndicate, by use of violence or act of violence or intimidation or coercion or other means;

It is urged to declare the following provisions

declare that provision of Sections 2(1)(c), 16, 20(3), 20(4), 20(5) of the Gujarat Control of Terrorism and Organized Crime Act, 2015 are violative of Articles 20 and 21 of the Constitution of India;

Th main grounds for the challenging the Act and its provision as stated in the petition are the petitioner submits that Section 2(1)(c) of the said Act reads as under: “2. (1) In this Act, unless the context otherwise requires, – (a) …. (b) …. (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 organized 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;”

The retrospective effect and Article 20(1) of the Constitution of India provides immunity from such kind of prosecution including conviction and/or penalty.

Section 16 of the Act has also been challenged which states That, provision of section 16 of the said Act reads as under: “16.

(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this section, a confession made b a person before a police officer not below the rank of the Superintendent of Police, or for the areas where the Commissioner of Police is appointed by the State Government, before a police officer not below the rank of the be reproduced, shall be 10 admissible in the trial of such accused, co accused, abettor or conspirator for an offence under the provisions of this Act: Provided that the co-accused, abettor or conspirator is charge-sheeted and tried in the same case together with the accused.

(2) The confession made under sub-section (1) shall be recorded in the atmosphere free from threat and inducement and shall be in the same language in which the person makes it.

(3) The Police officer shall, before recording any confession by the person .under sub-section (1), explain to such person that he is not bound to make a confession and that, if he does so, it may be used as evidence against him: Provided that such police officer shall not record any such confession unless, upon questioning the person making it, he is satisfied that the confession is being made voluntarily-

(4) The concerned police officer shall, after recording such voluntary satisfaction of the voluntary confession, certify in writing below the confession about his personal satisfaction of the voluntary character of the confession and mention the date and time of the same.

(5) Every confession recorded under subsection (l) shall be sent in – original forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been so received to the Special Court which may take cognizance of the offence.

(6) The person from whom a confession has been recorded under subsection (1) shall be 11 produced, within forty-eight hours, before the chief Metropolitan Magistrate or the chief Judicial Magistrate to whom the confession is required to be sent under sub-section (5), along with the statement of confession, written or recorded on mechanical or electronic device which would be in its original form without any edition or being tempered with in anyway.

(7) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall, record the statement, if any, made by the accused so produced and get his signature or thumb impression and if there is any complaint of torture, the accused shall be directed to be produced for medical examination before Civil Surgeon.”

The petitioner, , prays that this Hon’ble Court be pleased:

(a) To allow the present petition;

(b) To hold and declare that provision of Sections 2(1)(c), 16, 20(3), 20(4), 20(5) of the Gujarat Control of Terrorism and Organized Crime Act, 2015 are violative of Articles 20 and 21 of the Constitution of India;  (c) To issue appropriate writ, order or direction quashing and setting aside the provisions Sections 2(1)(c), 16, 20(3), 20(4), 20(5) of the Gujarat Control of Terrorism and Organized Crime Act, 2015 being ultra vires to Articles 20 and 21 of the Constitution of India; 

(d) Pending admission, hearing and final disposal of this petition, to stay operation and implementation of Sections 2(1)(c), 16, 20(3), 20(4), 20(5) of the Gujarat Control of Terrorism and Organized Crime Act, 2015; 23 

(e) To pass any other and further orders as may be deemed fit and proper to this Hon’ble Court.

[Read Petition]