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IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.S.Dias, J.
Muhammad Rasheed – Petitioner
Versus
State Of Kerala, Represented By Public Prosecutor – Respondents
BAIL APPL. NO. 5927 OF 2024
Decided On : 13-08-2024
ORGANIZED CRIME - BAIL APPLICATION - Bharatiya Nyaya Sanhita, 2023 - Section 111 - The court analyzed Section 111 of the Bharatiya Nyaya Sanhita (BNS), which defines organized crime and the requirements for its application. It highlighted that organized crime involves continuing unlawful activities, including economic offenses, and requires multiple charge sheets within the preceding ten years. The court interpreted that the absence of prior charge sheets against the accused negated the applicability of organized crime in this case, influencing the decision to grant bail.
Fact of the Case:
The 1st accused was arrested for smuggling 964.5 grams of liquid gold at Calicut International Airport. The prosecution alleged that he conspired with others to commit organized crime under Section 111 of the BNS. The accused argued that he had no criminal antecedents and that the offense under Section 111(1) was not applicable as no charge sheet had been filed against him in the last ten years.
Finding of the Court:
The court found that the absence of any charge sheet against the petitioner in the last ten years meant that the offense under Section 111(1) of the BNS was not prima facie attracted. The court acknowledged the serious nature of the allegations but emphasized the need for evidence of ongoing unlawful activity to substantiate the charge of organized crime.
Issues: Whether the offense of organized crime can be attributed to an accused with no criminal antecedents and no charge sheet filed against him in the last ten years.
Ratio Decidendi: The court held that to establish organized crime under Section 111(1) of the BNS, there must be evidence of continuing unlawful activity and multiple charge sheets within the preceding ten years. The absence of such evidence in this case led to the conclusion that the organized crime charge was not applicable.
Final Decision: The bail application was allowed, and the petitioner was granted bail on executing a bond with specific conditions, emphasizing that the observations made were not an expression on the merits of the case.
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 has introd
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