Criminology

Internal Security Management

Relevant Legislations related to Organised Crime

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Role Name Affiliation Principal Investigator Prof. G.S. Bajpai Professor/Registrar, NLU Delhi Paper Coordinator Dr. Hunny Matiyani Assistant Professor, LNJN NICFS, Delhi Content Writer/Author Dr. Swikar Lama Assistant Professor, Sardar Patel University of Police, Security and Criminal Justice, Jodhpur, Rajasthan Content Reviewer Prof. G.S. Bajpai Professor/Registrar, NLU Delhi

DESCRIPTION OF MODULE

Items Description of Module Subject Name Criminology Paper Name Internal Security Management Module Name/Title Relevant Legislations related to Organised Crime Module Id Objectives Learning Outcome:

 To make the learners understand the concept of .

 To make the learners understand various legislations related to Organised Crime.

Prerequisites General understanding of the Relevant Legislations related to Organised Crime Key words Crime, Legal, Control, Court

Relevant Legislations related to Organized Crime

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1. Introduction: The global nature of organized crime, , corruption and economic crime requires multilateral approach and solidarity within the international community. These forms of serious crime, in particular terrorism, continue to spread throughout the world in more sophisticated and dangerous forms. A nation considers terrorist attacks and their barbaric methods as a threat against the values of freedom, democracy, justice, the rule of law and human rights, particularly the right to life, and that is why we support all actions regarding the fight against terrorism initiated at various international fora. Crime as a phenomenon that does not distinguish national frontiers poses great challenges, which require joint efforts of all states and relevant institutions. The unique position of the United Nations, being an international organization of a global character, offers a great opportunity to tackle the problems of organized crime, terrorism, corruption and various forms of economic crime at a trans-national level. The condition of a successful strategy of the fight against terrorism and organized crime is to exceed the framework of the national frontiers towards not only international, but trans- national cooperation, since terrorism and organized crime has a trans-national nature. Fight against terrorism and organized crime requires in particular the perfect and faultless domestic legislation and an effective system of international instruments, which should ensure: i. The prevention and elimination of sources of crime, ii. Functioning of an effective law enforcement structure and mechanisms of sanctions, and iii. Universal cross border cooperation of all law enforcement authorities iv. Police, prosecuting authorities and courts of all democratic states. At the same time, it is important to take into account the principle that the fight against organized crime, including terrorism, must be compatible with fundamental freedoms and human rights that form the basic values of our civilization. We must not forget, that it is these values, against which terrorist attacks are aimed at.

2. Organized Crime in : After independence, organised expanded into a wider range of activities and extended over larger geographical areas. The single event which brought about the greatest change in organised crime was the idea of prohibition, forbidding by law the sale and distribution of alcoholic beverages. Organised crime was able to provide illegal liquor demanded by a large number of people. So many groups/gangs came to be engaged in manufacturing illicit liquor that they started fighting with one another. Inter-rivalries amongst them led to widespread use of violence. Quite a few of these gangs, the strongest, finally dominated the scene. In the 1970s, many of these gangs extended their activity to drug trafficking. Political wrangling for separate states created a large demand for arms and weapons. Some gangs/syndicates started supplying illicit arms to insurgents, terrorists, naxalites and agitators. Some gangs further extended their activities to supplying girls to rich people in Islamic countries. Thus, the organised groups because of the large sums of money they had amassed and the elaborate organization they possessed not only widely expanded their illegal activities but also started acting as kings of the underworld. The modern era of organised crime is represented by the crime syndicate. Organized crime has been expanded to the point where policemen, political leaders, law officers, etc. have also come to be associated with the gangs and syndicates. Many gang leaders contested elections to assemblies, parliament, municipal corporations, and gram panchayats, thereby

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securing political status which enables them to widen their social contacts, and use the influence of powerful people for escaping arrest after committing crimes. These gangs and syndicates today not only enjoy large financial gains but also enjoy immunity from interference and possess monopolistic control in large geographical areas. Major Criminal Enterprises: Five major enterprises providing illicit profits in India are: Numbers betting (i.e., matka), drug trafficking, estate , automobile thefts, and supplying illicit weapons to terrorists and insurgents. On a lower level, the two main criminal enterprises are: kidnapping for and supplying girls for prostitution.

3. Legal Position India: Organized crime has always existed in India in some form or another. It has, however, assumed its virulent form in modern times due to several socio- economic and political factors and advances in science and technology. Even though rural India is not immune from it, it is essentially an urban phenomenon. In India, there is no comprehensive law to control organized crime in all its dimensions and manifestations, There is, however, substantive law regarding criminal . There are also penal provisions in various statutes against specific violations of those statutes. 3.1. Criminal Conspiracy: Sec. 120-A of the Indian Penal Code defines criminal conspiracy as: “When two or more persons agree to do, or cause to be done- (1) An illegal act, or (2) An Act which is not illegal by illegal means. Such an agreement is designated as criminal conspiracy: provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object”. Section 120-B of the India Penal Code provides for punishment for criminal conspiracy. The punishment for the conspirator is the same as for the principal offender. It may, however, be emphasized that the criminal conspiracy by itself is a substantive offence. The conspiracy need not fructify and the mere proof of the existence of the criminal conspiracy is adequate to have the criminal punished for such criminal conspiracy. 3.2. and Related Offences: Dacoity is one of the oldest forms of crimes in India and is committed purely for the purpose of looting or extortion. Section 391 of the Penal Code defines dacoity as: “When five or more persons conjointly commit or attempt to commit a , or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt amount to five or more, every person so committing, attempting or aiding is said to commit ‘dacoity’.” In other words, if five or more persons commit the offence of robbery, they commit ‘dacoity’. Dacoity is punishable with imprisonment for life or rigorous imprisonment up to 10 years and five months (section 395). The Code also criminalizes preparation to commit dacoity (section 399) and assembly for the purpose of committing dacoity (section 402). Importantly, section 400 of the Code criminalizes the act of belonging to a ‘gang’ of persons associated for the purpose of habitually committing . The punishment is quite severe and may even extend to life imprisonment. Similarly, section 401 criminalizes the act of belonging to a gang of thieves. It would, thus, appear that adequate legislative tools are available to the law enforcement agencies to deal with gangs of

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dacoits and thieves, but the proof of existence of a gang in Court requires painstaking investigation. In view of increasing incidents of kidnapping for ransom, the parliament inserted Section 364-A in the India Penal Code to provide for stringent punishment for such offences, further strengthened in 1995. The amended Section 364-A reads as follows: “Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organization or to do or abstain from doing any act or to pay shall be punishable with death, or imprisonment for life, and shall also be liable to fine”. 3.3. Law on : There is no central legislation to suppress ‘gang activity’ having countrywide applicability. The State of , most populous and politically most powerful (population: 139.1 million in 1991), enacted Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, which is applicable in that State only. The gang has been defined as a group of persons, who, singly or collectively, indulge in anti-national activities by violence or threat of violence for gaining undue political, economic or physical advantages and includes, offences against the body, boot legging, forcible possession of immovable property, creating communal disturbances, obstructing public servants in the discharge of their duties, kidnapping for ransom, diverting an aircraft or public transport vehicle from its schedule path, etc. A is punishable with minimum imprisonment of two years extendable up to 10 years (sec. 3). The rules of evidence have been modified and certain statutory presumptions can be raised against the gangsters by the trial court. Provision has also been made for the protection of witnesses. The trial may be held in-camera on the request of public prosecutor. The name and address of a witness can be omitted in the court records, if the Court so desires. The property of the gangster can be attached by the District Magistrate if satisfied that it was acquired through criminal activity. This Act has a wide canvass and purports to cover large areas of organized criminal activity. It is, however, different from laws enacted in foreign countries, in that, apart from criminalizing money making activities of the criminal gangs, it also criminalizes infringement of election laws, causing obstruction or disturbance in the pursuit of lawful trade, business or profession and incitement to violence and disturbance of communal harmony etc. It appears to be more comprehensive than The Racketeer Influenced and Corrupt Organizations Act (RICO).There is no firm data available to assess its effectiveness. It appears that due to inadequate investigations and inordinately delayed trials by the courts, this legislation has not been able to make any dent on the criminal landscape of the State. 3.4. Control of Organised Crime Act (MCOCA), 1999: Maharashtra Control of Organised Crime Act (MCOCA), 1999 is a law enacted by Maharashtra in 1999 to combat organised crime and terrorism. The preamble of MCOCA says that ‘the existing legal framework, i.e. the penal and procedural laws and the adjudicatory system, are found to be rather inadequate to curb of control the menace of organised crime.’ Government has, therefore, decided to enact a special law with stringent and deterrent provisions including, in certain circumstances, power to intercept wire, electronic or oral communication to control the menace of organised crime. Unlike normal law, the confessions before senior police officers are admissible, not only against the accused

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giving the confession but also against the other accused in the same case. There is no provision for granting anticipatory bail for six months to the accused. MCOCA puts a bar on soft liberal bail provisions. Under MCOCA, ‘not bail but jail’ is the controlling principle. Police can file charge sheet within 180 days instead of 90 days time limit in normal cases. There are measures in MCOCA which ensure protection of witnesses, like keeping the identity and address of the witness secret, and the witness need not to be produced in court. 3.5. Other Laws: There are several other central statutes which deal with specific facets of organized crime. Some of them are: the Customs Act, 1962; the Narcotics Drugs and Psychotropic Substances Act, 1884; the Immoral Traffic (Prevention) Act, 1956; and the Public Gambling Act,

Other laws relating to organized economic crimes are Income Tax Act, Customs Act,1962, COFEPOSA, 1974, Central Excise and Salt Act, 1944, Antiquity and Art Treasures Act, 1972, Foreign Exchange Regulations Act, 1973, Foreign Contribution (Regulation) Act, 1976, Banking Regulation Act, 1949, Prevention of Corruption Act, 1988 Import & Export (Control) Act, 1947, Passport Act, 1920, Companies Act, 1956,IT Act,2002 and Prevention of Act, 2002 .

3.6. Preventive Action: The National Security Act 1980 provides for preventive detention by the Central Government or the State Government or by the officers designated by these Governments. The detention order is issued for one year with a view to preventing a person from acting in any manner prejudicial to the defence of India or to the friendly relations with foreign powers. The detention has to be approved by an Advisory Board headed by a serving High Court judge. The expression ‘security of India’ is open to liberal interpretation and this Act has been used, though sparingly, against anti- national elements and hard core gangsters. Detention is an executive action and the case does not go to the court for trial.

4. International framework to combat organized crime: Co-operation in criminal matters is a very sensitive issue. Its effectiveness often depends on the confidential exchange of information and a common interest in the success of a particular operation. During the cold war, such mutual confidence was rather limited in the community of states. Organized crime was moreover perceived as being primarily a domestic problem. Yet the lack of common interests and mutual confidence, and the slowly developing awareness of the transnational dimensions of organized crime, explain only in part why states have been reluctant to establish a legally binding multilateral framework designed to encourage and promote international co-operation for the suppression of organized crime. As transnational offending – truly a catch-all term understood to mean deviant behaviour at a level of criminality that by its very nature necessarily involves either transcending state borders, violating the laws of several states, or evading a state’s jurisdiction by not being attributable to a certain state territory – many forms of organized crime have tended to be subject to so-called suppression treaties, that is, multilateral agreements between state parties in order to fight deviance effectively from an international perspective. 4.1. The United Nations Convention against Transnational Organized Crime: In view of these antecedents, the United Nations Convention against Transnational

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Organized Crime (UNCTOC), adopted in Palermo, Italy, on 15 December 2000, marks a major breakthrough, as the following brief outline of its content and significance shows. The declared purpose of the Convention is ‘to promote cooperation to prevent and combat transnational organized crime’. Since the effectiveness of such co-operation depends on the applicability of common legal standards, the Convention obliges states parties to criminalize participation in an organized criminal group, corruption, the laundering of the proceeds of crime (money laundering), and the obstruction of justice. It thus focuses on the ‘enabling’ or ‘secondary activities’ that are characteristic of organized crime. The ‘primary activities’ have been separated from the core instrument and are dealt with by the three Protocols thereto. This approach facilitated finding a consensus and increases the Palermo Convention’s chance of gaining universal acceptance. Indeed, it already has 147 states parties. Moreover, the decision to deal with the ‘primary activities’ in autonomous international treaties allows for the adoption of further protocols dedicated to specific aspects that are not covered by the existing instruments. It also facilitates its revision and amendment. The Convention against Transnational Organized Crime does not lay down a legal definition of (transnational) organized crime. As we have seen, a consensus to that effect would have been impossible to reach, and the desirability of such a definition may be questionable in light of the dynamics, explained above, of the phenomena. However, the Convention does specify the use of some basic terms in order to give states some necessary guidance for its implementation in national law. Article 2 contains meaningful explanations with regard to the duty to criminalize participation in an ‘organized criminal group’ (Article 5). It stipulates that: For the purposes of the Convention: i. ‘Organized criminal group’ shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit. ii. ‘Serious crime’ shall mean conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty. iii. ‘Structured group’ shall mean a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure. These definitions are subject to criticism for being over-inclusive and vague. While this point is relatively easy to make, it must not be overlooked that the consensus reached is nonetheless a remarkable achievement. Since it is the result of difficult multilateral negotiations, it at least represents a quasi-universal common denominator. The definition recognizes that criminal associations do not always have a hierarchical structure comparable to real enterprises, but often function as networks consisting of a few loosely connected members. Nonetheless, there has to exist a ‘Structured group … that is not randomly formed for the immediate commission of an offence’. This means that more spontaneous forms of collective criminality are excluded from it. This is an important limitation that may help to draw a line between organized crime and gang criminality. Furthermore, the subjective element (‘in order to obtain, directly or indirectly, a financial or other material benefit’) confirms the dominant view that organized crime is not driven by political motives but is primarily out to make a profit. Groups such as terrorists and insurgents are therefore not covered by the scope of application of the Convention against

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Transnational Organized Crime. This protects the Convention from being overly politicized. Whether such an important consensus could have been achieved after the 11 September 2001 terrorist attack on the United States and the US-proclaimed ‘merger of terrorism and organized crime’ is doubtful

5. Conclusion: Organized crime is first of all a domestic problem and, when unchecked, it assumes a transnational character. Organized crime succeeds so long as nations permit it to succeed. The first and foremost step in our control efforts should be to keep ‘incident’ or ordinary crime within reasonable bounds by keeping criminal elements under relentless law-enforcement pressure. If we succeed in this effort, we would have obviated or at least diminished the possibility of unattached criminal networks and the phenomenon of organized crime. Organized crime, depending upon its intensity, spread and dimensions must be combated by a deft mix of strengthening of criminal laws and criminal justice system; institutionalizing a national and State level co-coordinating mechanism and involving the mass media in control efforts. Law enforcement, however efficient, cannot succeed by itself without strong political commitment. This pre-supposes exclusion of criminal elements and their political sympathizers from elected public offices. As organised crime is for the acquisition of money power, it is imperative that the flow of money to organised criminal groups is dried up through stringent legislative and enforcement action. A democracy has inherent infirmities which manifest themselves in the functioning of criminal justice agencies. Despite best efforts, domestic crime is likely to spill into the international arena and often does. Hence, the need for international co-operation in suppressing it in the form of expeditious extradition of fugitive criminals, deportation of undesirable aliens; mutual legal assistance in investigations and prosecutions and speedy execution of Red Corner notices issued by . Further, the international community must put their heads together to harmonize extradition and deportation laws and to narrow the scope of ‘political offences’ in extradition laws and the Interpol charter. National strategies are inherently inadequate for responding to challenges that cross multiple borders and involve multiple jurisdictions and a multiplicity of laws. The rapid growth in transnational organized crime and the complexity of their investigations requires a global response. At present, the measures adopted to counter organized crime are not only predominantly national, but these measures differ from one country to another. It is absolutely imperative to increase cooperation between the world’s law enforcement agencies and to continue to develop the tools which will help them effectively counter transnational organized crime. In India, the Extradition Act, 1962 deals with extradition of fugitive criminals. Extradition can be made if the offence is an extraditable offence, i.e., an offence provided for in the extradition treaty with a State which is a treaty state and for other countries, an offence which is specified under the Second Schedule of the Act. Under this schedule, there are 18 types of offences. India has extradition treaties with Nepal, Belgium, Canada, Netherlands, the United Kingdom, the United States of America, Switzerland, Bhutan and Hong Kong and extradition arrangements with Sweden, Tanzania, Australia, Singapore, Sri Lanka, Papua New Guinea, Fiji and Thailand. Extradition treaties with Russia, Germany, UAE, Bulgaria, Thailand, France, Ukraine, Romania, Oman, Spain, Kazakhstan, Greece, Egypt, Malaysia and Mauritius are under finalization. Section 166 of the Criminal Procedure Code deals with reciprocal arrangements regarding processes. A court in India can send summons or warrants in duplicate to a court in a

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foreign country for service or execution and the said foreign court will cause the service or execution. Section 166-A of the Criminal Procedure Code provides for letters of request to the competent authority for investigation in a foreign country. A criminal court in India may issue a letter of request to a court or a competent authority to examine orally any person supposed to be acquainted with the facts and circumstances of the case, to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing. Similarly, Section 166-B provides for letters of request from a country or place outside India to a court or an authority for investigation in India. Under this provision, the Central Government may forward the letter of request received from a foreign country to a magistrate who may summon such person and record his statement. The Central Government can also send the letter to a police officer who will investigate the offence. The fight against transnational crime is a formidable task, but heightened public consciousness, increasing governmental concern and mutually dependent interests of the international community do give us a ray of hope.

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BIBLIOGRAPHY

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