The Gujarat High Court on Tuesday issued notice to the state government on a petition challenging the Gujarat Control of Terrorism and Organised Crime Act which was passed in March, 2015 and got assent of the president in November last year.
The division bench of Chief Justice Vikram Nath and Justice JM Pardiwala issued notice, returnable in a month, to the state government on a plea filed by Mahmadusen Makrani, who was recently booked under the Act.
Through his lawyer Virat Popat, the petitioner has challenged the constitutional validity of the GCTOC Act and said some provisions of sections 2(1) (c), 16, 20(3), 20(4) and 20(5) violate Articles 20 and 21 of the Constitution, and “are drastic, arbitrary, unreasonable, susceptible to misuse and therefore, should be quashed and set aside”.
One of them, section 2(1)(c), deals with “continuing unlawful activity,” that considers offences retrospectively in the last 10 years, while others deal with confessions before a police officer as evidence, and conditions for granting anticipatory and regular bail.
As per the petition, a penal statute cannot be given retrospective effect, and Article 20(1) (of the Constitution) provides immunity from such kind of prosecution, including conviction or penalty.
“Article 20 (of the Constitution) clearly puts limitation upon the lawmaking power of any legislative authority as regards retrospective criminal legislation…A person accused of an offence has the fundamental right not to be prosecuted for greater penalty than what existed at the time when the offence is committed,” it said.
Another provision challenged in the petition relates to confession made before a police officer not below the rank of SP being accepted as admissible evidence against the accused as well as abettor, co-accused, or conspirator for an offence under the Act.
“This provision violates all statutory and mandatory rights given to the accused. Article 20(3) provides that no person accused of an offence shall be compelled to be a witness against himself,” it said.
Further, the provision preventing the accused from getting anticipatory bail has been challenged, as “anticipatory bail is also a statutory and fundamental right protected under Article 21”.
The petition also challenges the provision that requires twin conditions for the accused to be released on bail, firstly, the public prosecutor being given the opportunity to oppose the application of such release, and secondly, the special court being satisfied that the accused is not guilty of having committed such an offence.
“This impeaches the right to freedom under Article 14 and 21 of the Constitution,” it said.
Makrani was booked in Rajkot last month under the GCTOC Act, 2015, for attempt to murder, prohibition and assault, committed between 2015 and 2017, the first being quashed by the High Curt, which also granted stay on the second one, his lawyer Virat Popat said.
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