Himachal Pradesh High Court
Anshul Rana vs State Of Himachal Pradesh on 25 April, 2025
2025:HHC:11014
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) Nos. 214, 617, 633, 670
and 770 of 2025
Reserved on: 2.4.2025
Date of Decision: 25.04.2025.
1. Cr.MP(M) No. 214 of 2025
Anshul Rana …Petitioner
Versus
State of Himachal Pradesh …Respondent
2. Cr.MP(M) No. 617 of 2025
Sanjay Verma …Petitioner
Versus
State of Himachal Pradesh …Respondent
3. Cr.MP(M) No. 633 of 2025
Prajwal Justa …Petitioner
Versus
State of Himachal Pradesh …Respondent
4. Cr.MP(M) No. 670 of 2025
Aayan Chauhan …Petitioner
Versus
State of Himachal Pradesh …Respondent
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2025:HHC:11014
5. Cr.MP(M) No. 770 of 2025
Abhinav Kanwar …Petitioner
Versus
State of Himachal Pradesh …Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner(s) : Mr. Peeyush Verma, Senior
Advocate, with Mr. Anuj Bali,
Advocate, in Cr.MP(M) No. 214 of
2025, M/s M.S. Katoch and Harsh
Sharol, Advocates, in Cr.MP(M)
Nos. 617 of 2025 and 770 of 2025,
Mr. Gaurav Sharma, Advocate, in
Cr.MP(M) No. 633 of 2025, and
Mr. Ashwani Dhiman, Advocate, in
Cr.MP(M) No. 670 of 2025.
For the Respondent(s) : Mr. Lokender Kutlehria, Additional
Advocate General, with SI Hari Ram
and ASI Ranjeet Singh, IO, Police
Station Sadar, Shimla, in Cr.MP(M)
Nos. 214 of 2025 and 633 of 2025,
Mr. Ajit Sharma, Deputy Advocate
General, with SI Hari Ram, IO,
Police Station Sadar, Shimla in
Cr.MP(M) No. 617 of 2025, Mr.
Lokender Kutlehria, Additional
Advocate General, with SI Hari
Ram, IO, Police Station Sadar,
Shimla, in Cr.MP(M) Nos. 670 of
2025 and Mr. Jitender Sharma,
Additional Advocate General, with
ASI Ranjeev Singh, IO, Police
Station Sadar, Shimla, in Cr.MP(M)
No. 770 of 2025.
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2025:HHC:11014
Rakesh Kainthla, Judge
All the petitions have been filed for seeking regular
bail in the same FIR, hence, these are being taken up together for
disposal by way of a common judgment.
2. The petitioners have filed the present petitions
seeking regular bail. It has been asserted that the petitioners
were arrested in connection with FIR number 107 of 2024, dated
14th August 2024, registered with Police Station Sadar Shimla for
the commission of offences punishable under Sections 21 and 29
of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
The petitioners are innocent, and they have nothing to do with
the commission of a crime. They were arrayed as accused based
on the financial transaction with the main accused. The police
have completed the investigation, and no recovery is to be made
from the petitioners. The petitioners would abide by the terms
and conditions, which the Court may impose. Hence the
petitions.
3. The petitions are opposed by filing status reports
asserting that the police party was on patrolling duty on 13th
August 2024. Secret information was received on 14th August
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2025:HHC:11014
2024 at about 12:05 am that two persons staying in room number
101 of the Hotel Himachal, had a huge quantity of narcotics. The
Police reduced the information to writing and sent it to the
Supervisory Officer. The Police went to room number 101 with
two independent persons. Suraj and Rohit Pandey were found in
the room. The police searched the room and recovered one
polythene packet containing 6.380 grams of heroin and a digital
weighing machine. The Police seized the heroin and the Digital
weighing machine. The police arrested the occupants of the
room. Suraj and Rohit Pandey disclosed during the investigation
that the heroin was made available to them by Sandeep Shah.
Sandeep Shah used to send the location and direct them to keep
the heroin in those locations. They would drop the heroin and
send the location to Sandeep Shah via WhatsApp. The police
checked the call detail records and the bank account statements.
The police found that Jitender Verma, Jugal Kishore and Aastik
Chauhan were in contact with Rohit Pandey and Suraj. They had
transferred a huge amount to Sandeep Shah’s bank account.
Police arrested Jitender Verma, Jugal Kishore, Aastik Chauhan,
Sandeep Shah and Neeraj Kashyap. The police found during the
investigation that Sandeep Shah was dealing in narcotics. FIR
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2025:HHC:11014
number 108/2022 and FIR number 190/21 were registered against
him. Many persons, including the present petitioners, had
transferred the money to the accounts of Sandeep Shah, Arpita
Shah, and Neeraj Kashyap. The petitioners are members of an
organised crime syndicate which is involved in drug trafficking.
The petitioner, Anshul Rana, had transferred ₹6,57,300 to the
account of Sandeep Shah, and an amount of ₹1,62,000 was
deposited in his account by various persons. Hence, the status
report.
4. I have heard Mr Peeyush Verma, learned Senior
Advocate assisted by Mr Anuj Bali, Advocate for the petitioner
Anshul Rana, Mr Gaurav Sharma, Advocate for the petitioner
Prajwal Justa, Mr Ashwani Dhiman, Advocate for the petitioner
Aayan Chauhan, Mr M.S. Katoch Advocate for the petitioners
Abhinav Verma and Sanjay Verma and Mr Lokender Kutlehria
and Mr Jitender Sharma learned Additional Advocate General, Mr
Ajit Sharma, learned Deputy Advocate General, for the
respondent/State.
5. Mr. Peeyush Verma, learned Senior Counsel,
submitted that there is no legally admissible evidence against the
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2025:HHC:11014
petitioners. The police are relying upon the statements made by
the co-accused, which are inadmissible in evidence. The
financial transactions are also not sufficient to implicate the
petitioners. The ingredients of Section 111 of the Bhartiya Nayaya
Sanhita (BNS) are not satisfied in the present case. Hence, he
prayed that the present petitions be allowed and the petitioners
be released on bail. He relied upon State of Gujarat v. Sandip
Omprakash Gupta, 2022 SCC OnLine SC 1727, Muhammed Rasheed
vs. State of Kerala 2024:Ker:61510, Suraj Singh @ Noni vs State of
Punjab 2024:PHHC:127296 and Shubham Sharma vs. State of HP
2025:HHC:6136 in support of his submission. M/s Gaurav Sharma,
Ashwani Dhiman and M.S. Katoch, Advocates adopted these
submissions.
6. Mr Jitender Sharma, learned Additional Advocate
General for the respondent/State, submitted that the petitioners
are members of an organised crime syndicate who are involved in
drug trafficking. There is sufficient material on record to connect
them with a commission of crime. The nature of crime is heinous
and punishable with life imprisonment. The narcotics are
adversely affecting the younger generation. The petitioners
would indulge in the commission of the crime in case of their
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2025:HHC:11014
release on bail. Hence, he prayed that the present petitions be
dismissed. Mr. Lokender Kutlehria and Mr. Ajit Sharma adopted
these submissions.
7. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
8. The parameters for granting bail were considered by
the Hon’ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768:
2024 SCC OnLine SC 974, wherein it was observed as under at page
783: –
“Relevant parameters for granting bail
26. While considering as to whether bail ought to be
granted in a matter involving a serious criminal offence,
the Court must consider relevant factors like the nature of
the accusations made against the accused, the manner in
which the crime is alleged to have been committed, the
gravity of the offence, the role attributed to the accused,
the criminal antecedents of the accused, the probability of
tampering of the witnesses and repeating the offence, if
the accused are released on bail, the likelihood of the
accused being unavailable in the event bail is granted, the
possibility of obstructing the proceedings and evading the
courts of justice and the overall desirability of releasing
the accused on bail. [Refer: Chaman Lal v. State of
U.P. [Chaman Lal v. State of U.P., (2004) 7 SCC 525: 2004 SCC
(Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan
Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004
SCC (Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of
U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta
Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar
8
2025:HHC:11014Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC
(Cri) 765]; Neeru Yadav v. State of U.P. [Neeru Yadav v. State
of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527]; Anil
Kumar Yadav v. State (NCT of Delhi)[Anil Kumar
Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3
SCC (Cri) 425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh
Kumar, (2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] .]
9. This position was reiterated in Ramratan v. State of
M.P., 2024 SCC OnLine SC 3068, wherein it was observed: –
“12. The fundamental purpose of bail is to ensure the
accused’s presence during the investigation and trial. Any
conditions imposed must be reasonable and directly
related to this objective. This Court in Parvez Noordin
Lokhandwalla v. State of Maharastra (2020) 10 SCC 77
observed that though the competent court is empowered
to exercise its discretion to impose “any condition” for
the grant of bail under Sections 437(3) and 439(1)(a) CrPC,
the discretion of the court has to be guided by the need to
facilitate the administration of justice, secure the
presence of the accused and ensure that the liberty of the
accused is not misused to impede the investigation,
overawe the witnesses or obstruct the course of justice.
The relevant observations are extracted herein below:
“14. The language of Section 437(3) CrPC, which uses
the expression “any condition … otherwise in the
interest of justice” has been construed in several
decisions of this Court. Though the competent court is
empowered to exercise its discretion to impose “any
condition” for the grant of bail under
Sections 437(3) and 439(1)(a) CrPC, the discretion of the
court has to be guided by the need to facilitate the
administration of justice, secure the presence of the
accused and ensure that the liberty of the accused is not
misused to impede the investigation, overawe the
witnesses or obstruct the course of justice. Several
decisions of this Court have dwelt on the nature of the
9
2025:HHC:11014conditions which can legitimately be imposed both in
the context of bail and anticipatory bail.” (Emphasis
supplied)
13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570,
this Court discussed the scope of the discretion of the
Court to impose “any condition” on the grant of bail and
observed in the following terms:–
“15. The words “any condition” used in the provision
should not be regarded as conferring absolute power on
a court of law to impose any condition that it chooses
to impose. Any condition has to be interpreted as a
reasonable condition acceptable in the facts permissible in
the circumstance, and effective in the pragmatic sense, and
should not defeat the order of grant of bail. We are of the
view that the present facts and circumstances of the
case do not warrant such an extreme condition to be
imposed.” (Emphasis supplied)
14. This Court, in Dilip Singh v. State of Madhya Pradesh
(2021) 2 SCC 779, laid down the factors to be taken into
consideration while deciding the bail application and
observed:
“4. It is well settled by a plethora of decisions of this
Court that criminal proceedings are not for the
realisation of disputed dues. It is open to a court to
grant or refuse the prayer for anticipatory bail,
depending on the facts and circumstances of the
particular case. The factors to be taken into consideration
while considering an application for bail are the nature of
the accusation and the severity of the punishment in the
case of conviction and the nature of the materials relied
upon by the prosecution; reasonable apprehension of
tampering with the witnesses or apprehension of threat to
the complainant or the witnesses; the reasonable
possibility of securing the presence of the accused at the
time of trial or the likelihood of his abscondence; character,
behaviour and standing of the accused; and the
circumstances which are peculiar or the accused and larger
10
2025:HHC:11014interest of the public or the State and similar other
considerations. A criminal court, exercising jurisdiction
to grant bail/anticipatory bail, is not expected to act as
a recovery agent to realise the dues of the complainant,
and that too, without any trial.” (Emphasis supplied)
10. This position was reiterated in Shabeen Ahmed versus
State of U.P., 2025 SCC Online SC 479.
11. The present petitions have to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
12. The petitioners were arrested based on the
statements made by the accused and the deposit of money by
them in the account of Sandeep Shah, Arpita Shah and Neeraj
Kashyap. It was laid down by the Hon’ble Supreme Court in
Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC
547: (2020) 2 SCC (Cri) 361: 2019 SCC OnLine SC 588 that a
statement made by co-accused during the investigation is hit by
Section 162 of Cr.P.C. and cannot be used as a piece of evidence. It
was also held that the confession made by the co-accused is
inadmissible because of Section 25 of the Indian Evidence Act. It
was observed at page 568:-
44. Such a person, viz., the person who is named in the
FIR, and therefore, the accused in the eye of the law, can
indeed be questioned, and the statement is taken by the
police officer. A confession that is made to a police officer
11
2025:HHC:11014would be inadmissible, having regard to Section 25 of the
Evidence Act. A confession, which is vitiated under Section
24 of the Evidence Act, would also be inadmissible. A
confession, unless it fulfils the test laid down in Pakala
Narayana Swami [Pakala Narayana Swami v. King Emperor,
1939 SCC OnLine PC 1 : (1938-39) 66 IA 66: AIR 1939 PC 47]
and as accepted by this Court, may still be used as an
admission under Section 21 of the Evidence Act. This,
however, is subject to the bar of admissibility of a
statement under Section 161 CrPC. Therefore, even if a
statement contains admission, the statement being one
under Section 161, it would immediately attract the bar
under Section 162 CrPC.”
13. Similarly, it was held in Surinder Kumar Khanna vs
Intelligence Officer Directorate of Revenue Intelligence 2018 (8) SCC
271 that a confession made by a co-accused cannot be taken as a
substantive piece of evidence against another co-accused and
can only be utilised to lend assurance to the other evidence. The
Hon’ble Supreme Court subsequently held in Tofan Singh Versus
State of Tamil Nadu 2021 (4) SCC 1 that a confession made to a
police officer during the investigation is hit by Section 25 of the
Indian Evidence Act and is not saved by the provisions of Section
67 of the NDPS Act. Therefore, no advantage can be derived by
the prosecution from the confessional statement made by the
co-accused implicating the petitioners.
14. A similar situation arose before this Court in Dinesh
Kumar @ Billa Versus State of H.P. 2020 Cri. L.J. 4564, and it was
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2025:HHC:11014
held that a confession of the co-accused and the phone calls are
not sufficient to deny bail to a person.
15. It was laid down by this Court in Saina Devi vs State of
Himachal Pradesh 2022 Law Suit (HP) 211 that where the police
have no material except the call details record and the disclosure
statement of the co-accused, the petitioner cannot be kept in
custody. It was observed:-
“[16] In the facts of the instant case also the prosecution,
for implicating the petitioner, relies upon firstly the
confessional statement made by accused Dabe Ram and
secondly the CDR details of calls exchanged between the
petitioner and the wife of co-accused Dabe Ram. Taking
into consideration the evidence with respect to the
availability of CDR details involving the phone number of
the petitioner and the mobile phone number of the wife of
coaccused Dabe Ram, this Court had considered the
existence of a prime facie case against the petitioner and
had rejected the bail application as not satisfying the
conditions of Section 37 of NDPS Act.
[17] Since the existence of CDR details of accused
person(s) has not been considered as a circumstance
sufficient to hold a prima facie case against the accused
person(s), in Pallulabid Ahmad’s case (supra), this Court is
of the view that petitioner has made out a case for
maintainability of his successive bail application as also
for grant of bail in his favour.
[18] Except for the existence of CDRs and the disclosure
statement of the co-accused, no other material appears to
have been collected against the petitioner. The disclosure
made by the co-accused cannot be read against the
petitioner as per the mandate of the Hon’ble Supreme
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2025:HHC:11014Court in Tofan Singh Vs State of Tamil Nadu, 2021 4 SCC 1.
Further, on the basis of the aforesaid elucidation, the
petitioner is also entitled to the benefit of bail.
16. A similar view was taken by this Court in Dabe Ram vs.
State of H.P., Cr.MP(M) No. 1894 of 2023, decided on 01.09.2023,
Parvesh Saini vs State of H.P., Cr.MP(M) No. 2355 of 2023, decided
on 06.10.2023 and Relu Ram vs. State of H.P. Cr.MP(M) No. 1061 of
2023, decided on 15.05.2023,
17. Therefore, the petitioners cannot be detained in
custody based on a statement made by the co-accused, as the
same does not constitute a legally admissible piece of evidence.
18. The police have relied upon the deposit of money in
the accounts of Sandeep Shah, Arpita Shah and Neeraj Kashyap.
The status report does not show that any heroin was recovered
from these persons. It was laid down by the Kerala High Court in
Amal E vs State of Kerala 2023:KER:39393 that financial
transactions are not sufficient to connect the accused with the
commission of a crime. It was observed:
“From the perusal of the case records, it can be seen that,
apart from the aforesaid transactions, there is nothing to
show the involvement of the petitioners. It is true that the
documents indicate the monetary transactions between
the petitioners and some of the accused persons, but the
question that arises is whether the said transactions were
14
2025:HHC:11014in connection with the sale of Narcotic drugs. To establish
the same, apart from the confession statements of the
accused, there is nothing. However, as it is an aspect to be
established during the trial, I do not intend to enter into
any finding at this stage, but the said aspect is sufficient to
record the satisfaction of the conditions contemplated
under section 37 of the NDPS Act, as the lack of such
materials evokes a reasonable doubt as to the involvement
of the petitioner.”
19. Therefore, prima facie, there is insufficient material to
connect the petitioners with the commission of a crime.
20. The police have also added Section 111 of BNS. It reads
as under:
“111. Organised Crime. “(1) 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 organized crime syndicate or on behalf of
such syndicate, by use 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 organized crime.
Explanation. –For the purposes of this sub-section,–
(i) “organised crime syndicate” means a group of
two or more persons who, acting either singly or
jointly, as a syndicate or gang, indulge in any
continuing unlawful activity;
(ii) “continuing unlawful activity” means an
activity prohibited by law which is a cognizable
offence punishable with imprisonment of three
15
2025:HHC:11014years 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;
(iii) “economic offence” includes criminal breach of
trust, forgery, counterfeiting of currency-notes,
bank-notes and Government stamps, hawala
transaction, mass-marketing fraud or running any
scheme to defraud several persons or doing any act
in any manner with a view to defraud any bank or
financial institution or any other institution
organization for obtaining monetary benefits in any
form.
(2) Whoever commits organised crime shall–
(a) If such offence has resulted in the death of any
person, be punished with death or imprisonment for
life, and shall also be liable to a fine which shall not
be less than ten lakh rupees;
(b) In any other case, be punished with
imprisonment for a term which shall not be less
than five years but which may extend to
imprisonment for life, and shall also be liable to a
fine which shall not be less than five lakh rupees.
(3) Whoever abets, attempts, conspires or knowingly
facilitates the commission of an organised crime, or
otherwise engages in any act preparatory to an organised
crime, shall be punished with imprisonment for a term
which shall not be less than five years but which may
extend to imprisonment for life, and shall also be liable to
fine which shall not be less than five lakh rupees.
(4) Any person who is a member of an organised crime
syndicate shall be punished with imprisonment for a term
which shall not be less than five years but which may
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2025:HHC:11014extend to imprisonment for life, and shall also be liable to
a fine which shall not be less than five lakh rupees.
(5) Whoever, intentionally, harbours or conceals any
person who has committed the offence of an organised
crime shall be punished with imprisonment for a term
which shall not be less than three years but which may
extend to imprisonment for life, and shall also be liable to
fine which shall not be less than five lakh rupees: Provided
that this sub-Section shall not apply to any case in which
the harbour or concealment is by the spouse of the
offender.
(6) Whoever possesses any property derived or obtained
from the commission of an organised crime or proceeds of
any organised crime or which has been acquired through
the organised crime, shall be punishable with
imprisonment for a term which shall not be less than
three years but which may extend to imprisonment for life
and shall also be liable to fine which shall not be less than
two lakh rupees.
(7) If any person on behalf of a member of an organized
crime syndicate is, or at any time has been in possession
of movable or immovable property which he cannot
satisfactorily account for, shall be punishable with
imprisonment for a term which shall not be less than
three years but which may extend to imprisonment for ten
years and shall also be liable to fine which shall not be less
than one lakh rupees”.
21. It is apparent from the bare perusal of the Section
that a person should indulge in a specified activity either singly
or jointly as a member of an organised crime syndicate in respect
of which more than one charge-sheet has been filed before a
Court within the preceding period of ten years and the Court has
taken cognisance of such offence.
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2025:HHC:11014
22. This Section was explained by the Karnataka High
Court in Avinash vs. State of Karnataka (11.03.2025 – KARHC):
MANU/KA/0938/2025 as under:
1. The primary intent behind introducing Section 111 of
BNS, 2023, is to provide a targeted and effective
mechanism to dismantle organised crime syndicates.
From a reading of the said provision of law, it is manifest
that for the purpose of invoking Section 111 of BNS, 2023,
there are certain basic parameters and if only it is found
that the accused comes within the said parameters, the
offence punishable under Section 111 of BNS, 2023 can be
invoked. The said parameters are as follows:
(a) the offences enlisted in the Section must have
been committed;
(b) accused should be a member of an organised
crime syndicate;
(c) he should have committed the crime as a
member of an organised crime syndicate or on
behalf of such a syndicate.
(d) he should have been chargesheeted more than
once before a competent Court within the preceding
period of ten years for a cognizable offence
punishable with imprisonment for three years or
more, and the Court before which the chargesheet
has been filed should have taken cognisance of such
offence and including economic offence.
(e) the crime must be committed by using violence,
intimidation, threat, coercion or by any other
unlawful means.
23. It was laid down by the Kerala High Court in Mohd.
Hashim v. State of Kerala, 2024 SCC OnLine Ker 5260 that where no
charge sheet was filed against the accused in the preceding ten
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2025:HHC:11014
years, he cannot be held liable for the commission of an offence
punishable under Section 111 of the BNS Act. It was observed:
“10. Section 111 (1) explicitly stipulates that to attract the
offence, there should be a continuing unlawful activity, by
any person or group of persons acting in concert, singly or
jointly, either as a member of an organised crime
syndicate or on behalf of such syndicate. The material
ingredient to attract the above provision, so far as the
present case is concerned, is that there should have been a
continuing unlawful activity committed by a member of
an organised crime syndicate or on behalf of such
syndicate.
11. Explanation (i) and (ii) of sub-section (1) of Section 111
of BNS define an organised crime syndicate and a
continuing unlawful activity, respectively.
12. Continuing unlawful activity under explanation (ii) of
Section 111(1) of the BNS 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-sheet has to be
filed before a competent Court within the preceding period
of ten years and that Court has taken cognizance of such
an offence. Furthermore, an organised crime syndicate
under Explanation (i) of sub-section (1) of Section 111 of
the BNS means a group of two or more persons who,
acting either singly or jointly as a syndicate or gang,
indulge in any continuing unlawful activity.
13. While interpreting the analogous provisions of
the Maharashtra Control of Organised Crime Act, 1999,
which mandates the existence of at least two charge
sheets in respect of a specified offence in the preceding
ten years, the Honourable Supreme Court in State of
Maharashtra v. Shiva alias Shivaji Ramaji Sonawane [(2015)
14 SCC 272] has unequivocally held as follows:
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2025:HHC:11014
“9. It was in the above backdrop that the High Court
held that once the respondents had been acquitted for
the offence punishable under the IPC and Arms Act in
Crimes No. 37 and 38 of 2001 and once the Trial Court
had recorded an acquittal even for the offence
punishable under Section 4 read with Section 25 of
the Arms Act in MCOCA Crimes No. 1 and 2 of 2002 all
that remained incriminating was the filing of charge
sheets against the respondents in the past and taking
of cognizance by the competent court over a period of
ten years prior to the enforcement of the MCOCA. The
filing of charge sheets or taking of the cognisance in
the same did not, declared the High Court, by itself
constitute an offence punishable under Section 3 of the
MCOCA. That is because the involvement of
respondents in previous offences was just about one
requirement, but by no means the only requirement,
which the prosecution has to satisfy to secure a
conviction under MCOCA. What was equally, if not more
important, was the commission of an offence by the
respondents that would constitute “continuing unlawful
activity”. So long as that requirement failed, as was the
position in the instant case, there was no question of
convicting the respondents under Section 3 of the MCOCA.
That reasoning does not, in our opinion, suffer from any
infirmity.
10. The very fact that more than one charge sheet had
been filed against the respondents, alleging offences
punishable with more than three years’ imprisonment,
is not enough. As rightly pointed out by the High Court,
commission of offences before the enactment of MCOCA
does not constitute an offence under MCOCA. Registration
of cases, filing of charge sheets and taking of cognisance by
the competent court in relation to the offence alleged to
have been committed by the respondents in the past is but
one of the requirements for invocation of Section 3 of the
MCOCA. Continuation of unlawful activities is the second
and equally important requirement that ought to be
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2025:HHC:11014
satisfied. Only if an organised crime is committed by the
accused after the promulgation of MCOCA, he may, seen in
the light of the previous charge sheets and the cognisance
taken by the competent court, be said to have committed
an offence under Section 3 of the Act.
11. In the case at hand, the offences which the
respondents are alleged to have committed after the
promulgation of MCOCA were not proved against them.
The acquittal of the respondents in Crimes Nos. 37 and
38 of 2001 signified that they were not involved in the
commission of the offences with which they were
charged. Not only that the respondents were acquitted
of the charge under the Arms Act, even in Crimes Case
Nos. 1 and 2 of 2002. No appeal against that acquittal
had been filed by the State. This implied that the
prosecution had failed to prove the second ingredient
required for completion of an offence under
MCOCA. The High Court was, therefore, right in holding
that Section 3 of the MCOCA could not be invoked only on
the basis of the previous charge sheets for Section 3 would
come into play only if the respondents were proved to have
committed an offence for gain or any pecuniary benefit or
undue economic or other advantage after the
promulgation of MCOCA. Such being the case, the High
Court was, in our opinion, justified in allowing the
appeal and setting aside the order passed by the Trial
Court”.
14. Subsequently, the Honourable Supreme Court in State
of Gujarat v. Sandip Omprakash Gupta [2022 SCC OnLine SC
1727], while interpreting the analogous provisions of the
Gujarat Control of Terrorism and Organised Crime Act,
2015, clarified the ratio in Shivaji alias Shivaji Ramaji
Sonawane (supra) by observing thus:
“52. It is a sound rule of construction that the
substantive law should be construed strictly so as to
give effect and protection to the substantive rights
unless the statute otherwise intends. Strict
construction is one which limits the application of the
21
2025:HHC:11014statute by the words used. According to Sutherland,
‘strict construction refuses to extend the import of
words used in a statute so as to embrace cases or acts
which the words do not clearly describe’.
53. The rule as stated by Mahajan C.J. in Tolaram
Relumal v. State of Bombay, (1954) 1 SCC 961: AIR 1954 SC
496, is that “if two possible and reasonable
constructions can be put upon a penal provision, the
court must lean towards that construction which
exempts the subject from penalty rather than the one
which imposes a penalty. It is not competent to the
court to stretch the meaning of an expression used by
the legislature in order to carry out the intention of the
legislature.” In State of Jharkhand v. Ambay
Cements, (2005) 1 SCC 368, this Court held that it is a
settled rule of interpretation that where a statute is
penal in character, it must be strictly construed and
followed. The basic rule of strict construction of a penal
statute is that a person cannot be penalised without a
clear reading of the law. Presumptions or assumptions
have no role in the interpretation of penal statutes.
They are to be construed strictly in accordance with the
provisions of law. Nothing can be implied. In such
cases, the courts are not so much concerned with what
might possibly have been intended. Instead, they are
concerned with what has actually been said.
54. We are of the view and the same would be in tune with
the dictum as laid in Shiva alias Shivaji Ramaji
Sonawane (supra) that there would have to be some act or
omission which amounts to organised crime after the 2015
Act came into force i.e., 01.12.2019 in respect of which, the
accused is sought to be tried for the first time in the special
court.
55. We are in agreement with the view taken by the
High Court of Judicature at Bombay in the case
of Jaisingh (supra) that neither the definition of the
term ‘organised crime’ nor of the term ‘continuing
unlawful activity’ nor any other provision therein
22
2025:HHC:11014declares any activity performed prior to the enactment
of the MCOCA to be an offence under the 1999 Act nor
the provision relating to punishment relates to any
offence prior to the date of enforcement of the 1999
Act, i.e., 24.02.1999. However, by referring to the
expression ‘preceding period of ten years’ in Section 2(1)
(d), which is a definition clause of the term ‘continuing
unlawful activity’ inference is sought to be drawn that in
fact, it takes into its ambit the acts done prior to the
enforcement of the 1999 Act as being an offence under the
1999 Act. The same analogy will apply to the 2015 Act.
56. There is a vast difference between the act or
activity, which is being termed or called an offence
under a statute and such act or activity being taken into
consideration as one of the requisites for taking action
under the statute. For the purpose of organised crime,
there has to be a continuing unlawful activity. There
cannot be continuing unlawful activity unless at least
two charge sheets are found to have been lodged in
relation to the offence punishable with three years’
imprisonment during the period of ten years.
Indisputably, the period of ten years may relate to the
period prior to 01.12.2019 or thereafter. In other words,
it provides that the activities, which were offences
under the law in force at the relevant time and in
respect of which two chargesheets have been filed and
the Court has taken cognizance thereof, during the
period of preceding ten years, then it will be considered
as continuing unlawful activity on 01.12.2019 or
thereafter. It nowhere by itself declares any activity to
be an offence under the said 2015 Act prior to
01.12.2019. It also does not convert any activity done
prior to 01.12.2019 to be an offence under the said 2015
Act. It merely considers two chargesheets in relation to
the acts which were already declared as offences under
the law in force to be one of the requisites for the
purpose of identifying continuing unlawful activity
23
2025:HHC:11014
and/or for the purpose of an action under the said 2015
Act.
57. If the decision of the coordinate Bench of this Court
in the case of Shiva alias Shivaji Ramaji
Sonawane (supra) is looked into closely along with
other provisions of the Act, the same would indicate
that the offence of ‘organised crime’ could be said to
have been constituted by at least one instance of
continuation, apart from continuing unlawful activity
evidenced by more than one chargesheets in the
preceding ten years. We say so, keeping in mind the
following:
(a) If ‘organised crime’ was synonymous with
‘continuing unlawful activity’, two separate
definitions were not necessary.
(b) The definitions themselves indicate that the
ingredients of the use of violence in such activity
with the objective of gaining pecuniary benefit
are not included in the definition of ‘continuing
unlawful activity’, but find place only in the
definition of ‘organised crime’.
(c) What is made punishable under Section 3 is
‘organised crime’ and not ‘continuing unlawful
activity’.
(d) If ‘organised crime’ were to refer to only
more than one chargesheets filed, the
classification of crime in Section 3(1)(i) and 3(1)
(ii) resply on the basis of consequence of
resulting in death or otherwise would have been
phrased differently, namely, by providing that ‘if
any one of such offence has resulted in the
death’, since continuing unlawful activity
requires more than one offence. Reference to
‘such offence’ in Section 3(1) implies a specific
act or omission.
(e) As held by this Court in State of
Maharashtra v. Bharat Shanti Lal Shah (supra)
24
2025:HHC:11014continuing unlawful activity evidenced by more
than one chargesheets is one of the ingredients
of the offence of organised crime and the
purpose thereof is to see the antecedents and not
to convict, without proof of other facts which
constitute the ingredients of Section 2(1)(e) and
Section 3, which respectively define commission
of offence of organised crime and prescribe
punishment.
(f) There would have to be some act or omission
which amounts to organised crime after the Act
came into force, in respect of which the accused
is sought to be tried for the first time, in the
Special Court (i.e. has not been or is not being
tried elsewhere).
(g) However, we need to clarify something
important. Shiva alias Shivaji Ramaji
Sonawane (supra) dealt with the situation where a
person commits no unlawful activity after the
invocation of the MCOCA. In such circumstances, the
person cannot be arrested under the said Act on
account of the offences committed by him before the
coming into force of the said Act, even if he is found
guilty of the same. However, if the person continues
with the unlawful activities and is arrested, after the
promulgation of the said Act, then such a person can
be tried for the offence under the said Act. If a person
ceases to indulge in any unlawful act after the said
Act, then he is absolved of the prosecution under the
said Act. But, if he continues with the unlawful
activity, it cannot be said that the State has to wait
till he commits two acts of which cognisance is taken
by the Court after coming into force. The same
principle would apply, even in the case of the 2015
Act, with which we are concerned.
58. In the overall view of the matter, we are convinced
that the dictum as laid by this Court in Shiva alias
Shivaji Ramaji Sonawane(supra) does not require any
25
2025:HHC:11014
relook. The dictum in Shiva alias Shivaji Ramaji
Sonawane (supra) is the correct exposition of law”.
16. Section 111 (1) of the BNS in respect of organised crime
is, in essence, analogous to the provisions of the
Maharashtra Control of Organised Control Act and the
Gujarat Control of Terrorism and Organised Crime Act.
The legal principles laid down by the Honourable Supreme
Court in its interpretation of organised crime as defined by
the above two state legislations are applicable on all fours
to Section 111 (1) of the BNS. Thus, it is not necessary to
have a further interpretation of the above analogous
provision.
17. 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-sheet has to be filed before a competent Court
within the preceding period of ten years and that Court
has taken cognizance of such an offence.
18. In the present case, it is undisputed that no charge
sheet has been filed against the petitioner in any court in
the last ten years. Therefore, prima facie, the offence
under Section 111(1) is not attracted. Nevertheless, these
are matters to be investigated and ultimately decided after
trial. Additionally, the petitioner has been in judicial
custody for the last 57 days, and recovery has been
effected.
24. This judgment was followed in Pesala Sivashankar
Reddy v. State of A.P., 2024 SCC OnLine AP 5422, wherein it was
held:
26
2025:HHC:11014
“8. The Hon’ble Supreme Court in the matter of State of
Maharashtra v. Shiva Alias Shivaji Ramaji Sonawane 2015
SCC OnLine SC 648 was dealing with the Maharashtra
Control of Organised Crime Act, 1999 (MCOC) Act and the
offence of organised crime under the said act. The Hon’ble
Supreme Court has held that only if an organised crime is
committed by the accused after the promulgation of the
MCOCA Act, that he may be seen in the light of the
previous charge sheet, which is taken cognisance by the
competent court, would have committed an offence under
Section 3 of the Act.
9. The Hon’ble Supreme Court, in the matter of Mohamad
Iliyas Mohamad Bilal Kapadiya v. State of Gujarat 2022 Live
Law (SC) 538, held that to invoke the provisions of Gujarat
control of terrorism and organised act crime, 2015, in
respect of an act of organised crime more than one charge
sheet should be filed in the preceding ten years. Section 111
of B.N.S. is analogous to the organised crime acts of
various states, which were dealt with by the Hon’ble
Supreme Court.
10. The Hon’ble High Court of Kerala in the matter
of Mohammed Hashim v. State of Kerala 2024 SCC OnLine
Ker 5260. The learned Judge of the Kerala High Court has
emphasised that Section 111 can be invoked only if more
than one charge sheet has been filed for such offences in
the preceding ten years before a competent court, and
such charge sheets are taken cognisance of by the court.
11. This Court agrees with the observations of the Kerala
High Court, and admittedly, no charge sheet has been filed
against the petitioner for similar offences in any court of
law in the preceding ten years as such, cause for
invocation of Section 111 of B.N.S. has to be dealt
appropriately by the investigating officer during the
course of investigation of the crime.”
25. It was held in Suraj Singh vs. State of Punjab
(25.09.2024 – PHHC): MANU/PH/4288/2024 that the police must
27
2025:HHC:11014
gather legally admissible evidence to connect the accused with
the commission of a crime punishable under Section 111 of the
BNS Act. It was observed:
“15. To bring an offence into the four corners of an
organised crime, the offence must fall under a category
described in S. 111 of BNS, 2023. The prima facie evidence
must be legally admissible to constitute any continuing
unlawful activity to constitute an organised 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. 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.”
26. In the present case, there is no legally admissible
evidence to connect the petitioners with the commission of
organized crime and prima facie Section 111 of BNS is not
attracted to the present case.
27. In view of the above, the present petitions are
allowed, and the petitioners are ordered to be released on bail
subject to their furnishing bail bonds in the sum of ₹1,00,000/-
28
2025:HHC:11014
each with one surety each in the like amount to the satisfaction
of the learned Trial Court. While on bail, the petitioners will
abide by the following conditions:
(i) The petitioners will not intimidate the witnesses, nor will
they influence any evidence in any manner whatsoever.
(ii) The petitioners shall attend the trial and will not seek
unnecessary adjournments.
(iii) The petitioners will not leave the present address for a
continuous period of seven days without furnishing the
address of the intended visit to the concerned Police
Station and the Court.
(iv) The petitioners will surrender their passports, if any, to in
the Court and;
(a) The petitioners will furnish their mobile number and social
media contact to the Police and the Court and will abide by
the summons/notices received from the Police/Court
through SMS/WhatsApp/Social Media Account. In case of
any change in the mobile number or social media
accounts, the same will be intimated to the Police/Court
within five days from the date of the change.
28. It is clarified that if the petitioners misuse the liberty
or violate any of the conditions imposed upon them, the
investigating agency shall be free to move the Court for
cancellation of the bail.
29
2025:HHC:11014
29. The observations made here-in-above are regarding
the disposal of the petitions and will have no bearing whatsoever
on the case’s merits.
30. The petitions stand accordingly disposed of. A copy of
this order be sent to the Superintendent of Sub Jail Kaithu, Distt.
Shimla,H.P. and the learned Trial Court by FASTER.
31. A downloaded copy of this order shall be accepted by
the learned Trial Court while accepting the bail bonds from the
petitioners, and in case said Court intends to ascertain the
veracity of the downloaded copy of the order presented to it, the
same may be ascertained from the official website of this Court.
(Rakesh Kainthla)
Judge
25th April, 2025
(Chander)
Digitally signed by KARAN SINGH GULERIA
Date: 2025.04.25 12:37:28 IST
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