The Kerala High Court recently clarified that the provision for anticipatory bail under Section 438 of the Code of Criminal Procedure (CrPC) does not apply to cases falling under the Unlawful Activities (Prevention) Act, 1967 (UAPA). A division bench comprising Justice P.B Suresh Kumar and Justice C.S Sudha held that the exclusion of anticipatory bail in UAPA cases is absolute, leaving no room for such applications under any circumstance.
The bench reasoned that allowing anticipatory bail in UAPA cases would create an anomalous situation where accused individuals could secure anticipatory bail unconditionally, while regular bail would remain subject to specific conditions. The Court emphasized that the right to seek anticipatory bail is not a fundamental right under Article 21 of the Constitution, making it permissible to exclude its application in cases concerning the UAPA.
The UAPA is a significant piece of legislation designed to prevent and combat terrorist activities in India. After amendments, the statute aligns with the resolutions of the United Nations Security Council to address terrorism effectively. Given the gravity of terrorism's impact on civil society, the UAPA specifically excludes the application of Section 438 of the CrPC for offences punishable under the Act. The Court noted that this exclusion is deliberate and conscious, considering the Act's primary objective of combating terrorist activities.
The case before the High Court involved the infamous 2020 gold smuggling case, where a substantial amount of gold was seized from an import cargo addressed to the UAE Consulate General. The National Investigation Agency (NIA) alleged that the appellant and others were involved in conspiring to smuggle gold, leading to damage to India's monetary stability and economic security.
In response to the NIA's final report and the seriousness of the allegations against him, the appellant sought anticipatory bail under Section 438 of the CrPC. However, the Special Court denied the application, leading the appellant to appeal to the High Court.
During the proceedings, the appellant relied on a previous judgment of the High Court, Muhammed Shafi P v. National Investigation Agency, which clarified that mere gold smuggling, covered under the Customs Act, would not amount to a terrorist act under the UAPA unless it was done with the intention to threaten the economic security of the nation. The appellant argued that he participated in the smuggling merely for financial gain, and the essential elements to attract UAPA charges would not prima facie apply to his case.
The Court analyzed the provisions of the UAPA, particularly Section 43(D)(4), which bars anticipatory bail and sets forth twin conditions necessary for granting regular bail. It also considered the objectives of the UAPA, which primarily aim to combat terrorism in alignment with the United Nations resolutions.
Ultimately, the Court found that the appellant's custodial interrogation was necessary, especially as he had been evading arrest. In light of the gravity of the case and the UAPA's specific exclusion of anticipatory bail, the Court dismissed the appeal, upholding the absolute bar on anticipatory bail in UAPA cases.
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