"No Charge Sheet Filed Against Him In Last 10 Years"": Kerala HC Grants Bail To Man Accused Of 'Organised Crime' Offence U/S. 111(1) BNS

The Kerala High Court recently granted Bail to a man accused of 'organised crime' offence under Section 111(1) of the Bharatiya Nyaya Sanhita, 2023.

The Court noted that, to attract this offence, it is essential that a group engages in ongoing unlawful activity, with multiple charge sheets filed and cognizance taken by a court within the last ten years.

In that context, the Bench of Justice CS Dias observed that, "to attract an offence under Section 111 (1) of the BNS it is imperative that a group of two or more persons indulge in any continuing unlawful activity prohibited by law, which is a cognizable offence punishable with imprisonment of three years or more, undertaken by any person, either singly or jointly, as a member of an organised 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 petitioner, who was the first accused, sought bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023. He was accused of participating in an organized crime under Section 111(1) of the BNS, which carries a minimum sentence of three years and a maximum of ten years imprisonment. The allegation against him was that he, along with others, committed a serious economic offense by smuggling contraband gold into the country. The petitioner was arrested at Calicut International Airport, where liquid gold capsules were discovered in his body.

His counsel argued that he should not be held liable under Section 111(1) of the BNS, as he had no prior criminal record and no charge sheet had been filed against him within the last ten years. However, the Public Prosecutor opposed the bail, arguing that criminal antecedents were not necessary for liability and expressed concerns that the petitioner might intimidate witnesses and tamper with evidence.

The Court held that Section 111(1) of the BNS concerning organized crime, is analogous to provisions in the Maharashtra Control of Organised Crime Act and the Gujarat Control of Terrorism and Organised Crime Act. Therefore, the legal principles established by the Supreme Court in interpreting organized crime under these state laws apply equally to Section 111(1) of the BNS.

To attract an offense under Section 111(1) of the BNS, it is essential that a group of two or more persons engage in ongoing unlawful activity, which is a cognizable offense punishable by three or more years of imprisonment. This activity must be carried out either individually or collectively as part of an organized crime syndicate or on behalf of such a syndicate, with more than one charge sheet filed against the individuals involved within the preceding ten years, and the Court must have taken cognizance of such offenses.

In the present case, the Court noted that no charge sheet had been filed against the petitioner in any court in the last ten years. Therefore, the court concluded that "prima facie, the offence under Section 111(1) is not attracted." The Court emphasized that these are matters to be investigated and ultimately decided at trial.

Considering that the petitioner had been in judicial custody for 40 days and recovery had already been effected, the court granted bail with specific conditions, including the execution of a bond for Rs.1,00,000 with two solvent sureties, regular appearance before the Investigating Officer, and surrendering of the passport. The Court made it clear that any violation of the conditions could lead to the cancellation of bail.

The Court also clarified that the observations made in the order were solely for deciding the bail application and should not be construed as an expression on the merits of the case.

Cause Title: Muhammad Rasheed vs State of Kerala 

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