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IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.S. DIAS, J.
Muhammad Rasheed, S/o. Mohammed – Petitioner
Versus
State Of Kerala, Represented By Public Prosecutor, High Court Of Kerala – Respondent
Bail Appl. No. 5927 Of 2024
Decided On : 13-08-2024
ORGANIZED CRIME - BAIL APPLICATION - Bharatiya Nyaya Sanhita, 2023 - Section 111 - The court analyzed the definition of organized crime under Section 111 of the Bharatiya Nyaya Sanhita, 2023, emphasizing that to establish such an offense, there must be a continuing unlawful activity involving a group of two or more persons, with more than one charge sheet filed within the preceding ten years. The court interpreted the necessity of prior criminal antecedents and concluded that the absence of such antecedents in the petitioner's case meant the organized crime charge was not applicable, leading to the decision to grant bail.
Fact of the Case:
The 1st accused was arrested for smuggling 964.5 grams of liquid gold into India, allegedly as part of a conspiracy involving organized crime. The petitioner applied for bail, arguing that he had no prior criminal record and that the organized crime charge under Section 111(1) of the Bharatiya Nyaya Sanhita was not applicable due to the absence of previous charge sheets.
Finding of the Court:
The court found that the petitioner did not have any criminal antecedents and that no charge sheet had been filed against him in the last ten years, which is a requirement to establish organized crime under Section 111(1). The court acknowledged the seriousness of the offense but emphasized the legal requirements for the charge to be applicable.
Issues: Whether the offense of organized crime can be attributed to an accused with no prior criminal record and no charge sheets filed against him in the last ten years.
Ratio Decidendi: The court held that to attract the offense of organized crime under Section 111(1), there must be a continuing unlawful activity involving a group of persons, with more than one charge sheet filed within the preceding ten years. The absence of such charge sheets in the petitioner's case meant that the organized crime charge was not applicable.
Final Decision: The court allowed the bail application, ordering the petitioner to be released on bail with specific conditions, including regular appearances before the Investigating Officer and restrictions on tampering with evidence.
ORDER :
(C.S. Dias, J.)
The collateral question that arises for consideration in this bail application is whether an offence of ‘organised crime’, defined under Section 111 (1) of the Bharatiya Nyaya Sanhita, 2023, can be attributed against an accused who has no criminal antecedents.
2. The 1st accused in Crime No.504/2024 of the Karipur Police Station, Malappuram, has filed the application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
3. The factual substratum of the prosecution case is that the Detecting Officer received information that the accused 1 to 3 had hatched a conspiracy to commit an organised crime to smuggle gold into the Country. Accordingly, on 02.07.2024, at around 07:30 hours, when the 1st accused arrived at the Calicut International Airport, he was intercepted, and frisked. Then it was found 964.5 grams of liquid gold, having a value of Rs.68,00,000/-, was concealed in capsules in his body. The 1st accused was arrested on the spot. Subsequently, the accused 2 and 3 were also arrested. Thus, the accused have committed the offence punishable under Section 111 (7) of the Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as 'BNS', for brevity).
4. Heard; Sri.Sarath K.P., the learned counsel appearing for the petitioner and Smt.Pushpalatha M.K., the learned Senior Public Prosecutor.
5. The learned Counsel for the petitioner zealously argued that to attract the offence under sub-section (1) of Section 111 of the BNS, it is imperative that there should be more than one charge sheet filed against the accused before a competent Court within the preceding period of ten years, and the Court has taken cognizance of such offence. In the case on hand, the above offence is not attracted because the petitioner does not have criminal antecedents. In any given case, the petitioner was arrested on 02.07.2024, the investigation is complete, recovery has been effected, and the 2nd accused has been enlarged on bail by the Court of Session, Manjeri. Hence, the petitioner is entitled to parity and may be enlarged on bail.
6. The learned Public Prosecutor strenuously opposed the application. She argued that the petitioner has committed a serious economic offence by smuggling contraband gold from abroad. Section 111(1) of BNS defines organised crime as any continuing unlawful activity, including economic offences. Explanation (iii) of sub-section (1) of Section 111 specifically defines economic offence, which includes hawala transactions. The act committed by the petitioner squarely falls within the purview of sub-section (1) of Section 111 of the BNS and is punishable under subsection (7) of Section 111 of the BNS. There is no necessity for the accused to have criminal antecedents. If the petitioner is enlarged on bail, he is likely to intimidate the witnesses, tamper with the evidence and flee from justice. Moreover, the investigation is in progress. Nevertheless, she did not dispute the contention that no charge sheet has been filed against the petitioner within the preceding ten years as per the prescription under explanation (ii) of sub-section (1) of Section 111 of the BNS.
7. The prosecution alleges that the petitioner smuggled 964.5 grams of liquid gold into the country, which was seized from his conscious possession.
8. The sheet anchor of the argument of the learned Counsel for the petitioner is that the offence under Section 111 (1) of the BNS is not attracted against the petitioner primarily because no charge sheet has been filed against him before any competent Court to date.
9. The Bharatiya Nyaya Sanhita Bill 2023, aimed to modernise and transform the criminal justice delivery system in India, was passed by the Parliament and received the assent of the President on 25.12.2023. The provisions of the Bharatiya Nyaya Sanhita (Act 45 of 2023), except subsection (2) of Section 106, came into force on 1.07.2024. By virtue of Section 358 of the BNS, the Indian Penal Code, 1860, stands repealed. The BNS
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