S.111 BNS | State Can't Arrest First And Fish For Evidence Of "Organised Crime" Later: Punjab & Haryana High Court

The Punjab & Haryana High Court has held that State cannot arrest a person for "organised crime" under Section 111 of the Bhartiya Nyaya Sanhita (BNS) without having any prima facie admissible evidence against him.

The new law BNS, which replaced Indian Penal Code, added organised crime as an offence under Section 111, and if the crime results in the death of any person, maximum prescribed punishment is death penalty.

Organised crime is defined as- Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offence, cyber-crimes, trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostitution or ransom, by any person or a group of persons acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence threat of violence, intimidation, coercion, or by any other unlawful means to obtain direct or indirect material benefit including a financial benefit, shall constitute organised crime.

Justice Anoop Chitkara said, "Without legally admissible accusations, allegations, or evidence, the State cannot arrest a suspect to fish evidence against them or use such a suspect as custodial bait by any hook, line, and sinker to bring the case into the fold of S. 111 of BNS. Prima facie evidence must be admissible, and if such evidence is deemed inadmissible, the entire foundation will collapse."

In the present case, the accused, Suraj Singh filed the plea seeking anticipatory bail under Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS]. According to the reply filed by the police, it was stated in a disclosure statement by another accused that Singh allegedly illegally purchased a gun to commit organised crime and also committed various organised crime.

An FIR was lodged under Sections 111, 310 (4), 310 (5) of BNS and Sections 25, 27 Arms Act, 1959 against Singh.

Perusing the reply, the Court noted that, "During his (co-accused) custodial investigation, the investigation reveals that accused Karan Singh disclosed to the Police officer that he had purchased the pistol and cartridges from his school-time friend Pardeep Singh alias Kaka, who had further purchased these from the petitioner. After that, on numerous occasions, petitioner Suraj borrowed the said pistol. Based on this disclosure statement, the Investigator had arraigned the petitioner, Suraj, as an accused."

After examining the submissions, the judge referred to Section 23 of Bharatiya Sakshya Adhiniyam, 2023, [BSA], which states- no confession made to a police officer shall be proved as against a person accused of any offence.

The proviso of the Section states that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact discovered, may be proved.

The judge opined that perusal of the reply does not point towards the discovery of any fact to bring the confessions made by the co-accused within the purview of the Proviso to Section 23 of the BSA.

"Thus, the disclosure statement made by the accused, Karan Singh, cannot be proved in evidence and thus has no evidentiary value," it added.

The Court further noted that the other evidence is the confidential information received by the police from its sources who had informed about the accused, initially named in FIR, who formed a gang and had already indulged in criminal activities, were hatching a conspiracy to commit offences.

While analysing the role of the petitioner alleged by the State, the Court found that the initial evidence was based on prior information of an informer, which is a privileged communication under Section 131 BSA and, thus, cannot be proved. "Section 131 is a privilege granted to the officers mentioned in S. 131 BSA, and thus, they cannot be compelled to name their source. Thus, this evidence can also not be proved."

"The other evidence is a confession of the co-accused in custody before the Investigators, which is hit by S. 23(1) and 23 (2) of BSA, 2023. Under S. 23 of BSA, 2023, neither a confession made to a police officer can be proved against any person accused of any offense, nor a confession by an accused to a police officer can be proved except when made before a Magistrate, and if done, it would imply that such confession shall be inadmissible in evidence," it added.

Prima Facie Evidence Should Be Admissible For Arresting Under Organised Crime

Perusing Section 111 of the BNS, the Court said that, "To bring an offense into the four corners of an organized crime, the offense must fall under a category described in S. 111 of BNS, 2023. The primafacie evidence must be legally admissible to constitute any continuing unlawful activity to constitute an organized crime as defined in S. 111 BNS."

Without legally admissible prima facie evidence, the State cannot make any suspect undergo custodial interrogation to hunt for such evidence against the suspect or others. The evidence must be gathered first to make out a prima facie case within the scope of S. 111 of BNS, and such evidence alone would justify custodial interrogation to carry out further investigation, added the Court.

In the light of the above, the Court said that there would be no justifiability for custodial interrogation or the pre-trial incarceration at this stage.

Consequently, the plea was allowed.

Mr. B.S. Jaswal, Advocate for the petitioner.

Mr. Sukhdev Singh, AAG, Punjab.

Title: Suraj Singh @ Noni v. State of Punjab

Citation: Citation: 2024 LiveLaw (PH) 279

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