To Attract Offense U/S 111(1) BNS Two Or More Persons Must Carry Out Continuous Unlawful Activity Leading To More Than One Chargesheet Within Last 10 Yrs: Kerala HC

Section 111 (1) of the BNS defines organised crime as a continuing criminal activity committed by a member of an organized crime syndicate or on behalf of such syndicate. Section 111 (1)(i) defines 'organized crime syndicate' and Section 111 (1) (ii) defines 'continuing unlawful activity'.

Justice C S Dias observed that prime facie an offence under Section 111 (1) is not attracted against the petitioner since no charge sheet has been filed against him in any Court in the 'preceding period of last ten years' to satisfy the mandate of 'continuing unlawful activity' as defined under Section 111(1) (ii). On interpreting the provisions, the Court held thus:

“In view of the above discussion, 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 1^st accused is the petitioner who has approached the Court with a bail application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023. He was accused of committing an organised crime under Section 111(1) of the BNS punishable under Section 111 (7) with a minimum of 3 years imprisonment extending up to a maximum of 10 years imprisonment.

The allegation was that the petitioner along with other accused committed a serious economic offence by smuggling contraband gold from abroad. The petitioner was arrested at the Calicut International Airport and liquid gold capsules were found in his body.

The Counsel for the petitioner argued that he cannot be made liable under Section 111(1) of the BNS since he has no criminal antecedents. He relied upon Section 111(1) (ii) to state that the petitioner was not liable because no charge sheet had been filed against him before any competent Court within the last ten years.

On the other hand, the Public Prosecutor submitted that there is no necessity to have criminal antecedents and opposed the bail application stating that he might intimidate witnesses and tamper with evidence.

Section 111 (1) (ii) reads thus: “continuing unlawful activity” means an 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, and includes economic offence;”

On interpreting the provisions and relying upon State of Maharashtra v Shiva alias Shivaji Ramaji Sonawane and others (2015) and State of Gujarat v Sandip Omprakash Gupta (2022), the Court stated that the petitioner has not committed offences in the preceding period of ten years that would constitute as continuing unlawful activity.

The Court found that there is no dispute that no charge sheet has been filed against the petitioner in the last ten years and that prima facie an offence under Section 111 (1) is not attracted. However, the Court stated that these matters could be investigated and proved in trial while allowing the bail application.

As such, the Court allowed the bail application.

Counsel for Petitioner: Advocates S.Rajeev, V.Vinay, M.S.Aneer, Sarath K.P., Anilkumar C.R., Prerith Philip Joseph, K.S.Kiran Krishnan, Nourin S. Fathima, K.K.Subeesh

Counsel for Respondents: Senior Public Prosecutor Pushpalatha M K

Citation: 2024 LiveLaw (Ker) 533

Case Title: Muhammad Rasheed v State of Kerala

Case Number: BAIL APPL. NO. 5927 OF 2024

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