IMPORTANT POINT
The main legal point established in the judgment is that the statutory provision under section 438 of the Code is not applicable to cases involving the arrest of a person accused under the GCTOC Act, and the eligibility for anticipatory bail is determined based on the specific provisions of the GCTOC Act and the conduct of the accused.

JUDGMENT :

1. By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as Part -B C.R.No.11210061210073 of 2021 registered with Lal Gate Police Station, Surat.

2. Learned advocate for the petitioner would submit that the petitioner is arraigned as accused under section 3(1),(ii),3(2) and 3(4) of the Gujarat Control of Terrorism and Organized Crime Act, 2015 (for short 'GCTOC Act'). He would further submit that in order to attract the provisions for which the petitioner/accused is arraigned, prosecution prima facie is required to prove terrorist act or organised crime said to have been committed by the petitioner/accused. He would further submit that section 2(e) of the GCTOC Act defines organized crime and section 2(h) defines terrorist act. He would submit that organized crime means any continuing unlawful activity including extortion, land grabbing, contract killing, economic offences, Cyber crimes having severe consequences, human trafficking racket for prostitution for ransom by an individual, singly or jointly, either as a member of an organized crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion or other unlawful means. He would further submit that terrorist act said to have committed if it is done with intention to disturb public order or threaten the unity, integrity and security of the State or to strike terror in the minds of people or any section of the people by doing an act using bombs, dynamite or any other explosive substance or inflammable material or firearms or other lethal weapons or poison or noxious gases or other chemicals or any other substance hazardous in nature in such a manner so as to cause or likely to cause death or injury to any public functionary or any person or loss due to damage or destruction of property or disruption of any supplies or services essential to the life of the community or an act of detaining any person and threatening to kill or injure such person in order to compel the State Government to do or abstain from doing any act.

2.1. Learned advocate for the petitioner would further submit that though petitioner/accused is arraigned as accused for organized crime and terrorist act, no FIR ever registered against the petitioner, prior to registration of impugned FIR. No charge- sheet is filed against the accused. Referring to judgment of Hon'ble Apex Court in the case of Mohamad Iliyas Mohamad Bilal Kapadiya vs. State of Gujarat [2022 SCC Online SC 713], more particularly, para - 9 thereof, he would submit for invoking provisions of GCTOC Act, conditions which are required to be fulfilled is that such an activity should be prohibited by law for the time being in force or cognizable offence punishable with imprisonment of three years or more and that such activity is undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate and there must be more than one charge-sheet filed before the competent Court for such activity within a preceding period of ten years and the Courts have taken cognizance of such offence. Learned advocate for the petitioner submitted that in the present case, none of the conditions stated in the said judgment is fulfilled. The petitioner who is not named in the FIR is falsely arraigned in the offence.

2.2. Learned advocate for the petitioner has placed reliance on judgment of Co-ordinate Bench in the case of Idrish vs. State of Gujarat [2012 SCC Online Guj 174], more particularly, para 5 whereby Co-ordinate Bench has referred to judgment of Hon'ble Apex Court in the case of State of Gujarat vs. Sandip Omprakash Gupta [Criminal Appeal No.2291 of 2022]. The observations and findings of the Co-ordinate Bench is as under :-

"5. This Court has also taken into consideration the law laid down by the Honble