Kerala High Court
Mohammed Ali vs National Investigation Agency on 2 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
CRL.A.NO.356 OF 2021
AGAINST THE ORDER IN CRL.M.P.NO.212 OF 2020 IN S.C.NO.01/2021/NIA
(RC NO.02/2020/NIA/KOC) DATED 22.03.2021 OF THE COURT FOR TRIAL OF
NIA CASES, ERNAKULAM, KERALA.
APPELLANT/ ACCUSED NO.7:-
MOHAMMED SHAFI P., AGED 36 YEARS, S/O ABOOBAKKAR,
PANNIKKOTTIL HOUSE, AYIKKARAPADI P.O, MALAPPURAM
DISTRICT.
BY ADV SRI.NIREESH MATHEW (K/973/1994)-18544
RESPONDENT/RESPONDENT-COMPLAINANT:
NATIONAL INVESTIGATION AGENCY, KOCHI,
REPRESENTED BY ITS SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 023.
BY SRI.S.V.RAJU, ADDITIONAL SOLICITOR GENERAL OF INDIA
BY SRI.P.VIJAYAKUMAR, ASST.SOLICITOR GENERAL OF INDIA
I/B.SRI.ARJUN AMBALAPPATTA, SENIOR P.P. FOR NIA CASES.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2021,
ALONG WITH CRL.A.369/2021 AND CONNECTED CASES, THE COURT ON
02.11.2021 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 2 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
CRL.A.NO.369 OF 2021
AGAINST THE ORDER IN CRL.M.P.NO.208 OF 2020 IN S.C.NO.01/2021/NIA
(RC NO.02/2020/NIA/KOC) DATED 22.03.2021 OF THE COURT FOR
TRIAL OF NIA CASES, ERNAKULAM, KERALA.
APPELLANT/ACCUSED NO.6:
JALAL A.M., AGED 38 YEARS, S/O.SMT.KHADEEJA,
ARYANKALAYIL HOUSE, ANICADU, MUVATTUPUZHA,
ERNAKULAM DISTRICT, PIN - 686 661.
BY ADVS.
SRI.C.C.THOMAS (SR.)
SRI.NIREESH MATHEW
RESPONDENT/RESPONDENT/COMPLAINANT:
NATIONAL INVESTIGATION AGENCY, KOCHI,
REPRESENTED BY ITS SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 023.
BY SRI.S.V.RAJU, ADDITIONAL SOLICITOR GENERAL OF INDIA
BY SRI.P.VIJAYAKUMAR, ASST.SOLICITOR GENERAL OF INDIA
I/B.SRI.ARJUN AMBALAPPATTA, SENIOR P.P. FOR NIA CASES.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2021,
ALONG WITH CRL.A.356/2021 AND CONNECTED CASES, THE COURT ON
02.11.2021 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 3 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
CRL.A.NO.370 OF 2021
AGAINST THE ORDER IN CRL.M.P.NO.56 OF 2021 IN S.C.NO.01/2021/NIA
(RC NO.02/2020/NIA/KOC) DATED 22.03.2021 OF THE COURT FOR
TRIAL OF NIA CASES, ERNAKULAM, KERALA.
APPELLANT/ACCUSED NO.10:
RABINS KARIKKANAKUDIYIL HAMEED @ RABINS HAMEED,
AGED 42 YEARS, S/O.HAMEED K.M.,
KARIKKANAKUDIYIL HOUSE, PERUMATTAM,
VELLORKUNNAM VILLAGE, PUTHUPPADI (P.O.),
ERNAKULAM DISTRICT.
BY ADV.SRI.NIREESH MATHEW
RESPONDENT/RESPONDENT/COMPLAINANT:
NATIONAL INVESTIGATION AGENCY, KOCHI,
REPRESENTED BY ITS SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 023.
BY SRI.S.V.RAJU, ADDITIONAL SOLICITOR GENERAL OF INDIA
BY SRI.P.VIJAYAKUMAR, ASST.SOLICITOR GENERAL OF INDIA
I/B.SRI.ARJUN AMBALAPPATTA, SENIOR P.P. FOR NIA CASES.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2021,
ALONG WITH CRL.A.356/2021 AND CONNECTED CASES, THE COURT ON
02.11.2021 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 4 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
CRL.A.NO.379 OF 2021
AGAINST THE ORDER IN CRL.M.P.NO.214 OF 2020 IN S.C.NO.01/2021/NIA
(RC NO.02/2020/NIA/KOC) DATED 22.03.2021 OF THE COURT FOR
TRIAL OF NIA CASES, ERNAKULAM, KERALA.
APPELLANT/ACCUSED NO.5:
RAMEES K.T., AGED 33 YEARS, S/O.ABDUL SATHAR,
KANNANTHODI, THEKKEKALATHIL HOUSE, VETTATHOOR P.O.,
PERINTHALMANNA, MALAPPURAM DISTRICT.
BY ADVS.
S.SREEKUMAR (SR.)
P.MARTIN JOSE
P.PRIJITH
THOMAS P.KURUVILLA
M.A.MOHAMMED SIRAJ
R.GITHESH
MANJUNATH MENON
SACHIN JACOB AMBAT
HARIKRISHNAN S.
RESPONDENT/RESPONDENT/COMPLAINANT:
NATIONAL INVESTIGATION AGENCY, KOCHI
REPRESENTED BY ITS SPECIAL PUBLIC PROSECUTOR,
HIGH CORUT OF KERALA, ERNAKULAM, KOCHI 682 023.
BY SRI.S.V.RAJU, ADDITIONAL SOLICITOR GENERAL OF INDIA
BY SRI.P.VIJAYAKUMAR, ASST.SOLICITOR GENERAL OF INDIA
I/B.SRI.ARJUN AMBALAPPATTA, SENIOR P.P. FOR NIA CASES..
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2021,
ALONG WITH CRL.A.356/2021 AND CONNECTED CASES, THE COURT ON
02.11.2021 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 5 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
CRL.A.NO.452 OF 2021
AGAINST THE ORDER IN CRL.M.P.NO.211 OF 2020 IN S.C.NO.01/2021/NIA
(RC NO.02/2020/NIA/KOC) DATED 22.03.2021 OF THE COURT FOR TRIAL OF
NIA CASES, ERNAKULAM, KERALA.
APPELLANT/ACCUSED NO.1:
SARITH.P.S., AGED 35 YEARS, S/O.SADANAKUMAR,
MUDRA, TC 65/2055, HRA-48, THIRUVALLOM,
THIRUVANANTHAPURAM-695 027.
BY ADVS.
DR.S.GOPAKUMARAN NAIR (SR.)
SRI.SOORAJ T.ELENJICKAL
SRI.ASWIN KUMAR M J
HELEN P.A.
SRI.ARUN ROY
SRI.SHAHIR SHOWKATH ALI
RESPONDENTS/COMPLAINANT & STATE:
1 UNION OF INDIA REPRESENTED BY SUPERINTENDENT OF POLICE,
NATIONAL INVESTIGATION AGENCY, 28/443, KADAVANTHRA,
ERNAKULAM-682 020.
2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM-682 031.
BY SRI.S.V.RAJU, ADDITIONAL SOLICITOR GENERAL OF INDIA
BY SRI.P.VIJAYAKUMAR, ASST.SOLICITOR GENERAL OF INDIA
I/B.SRI.ARJUN AMBALAPPATTA, SENIOR P.P. FOR NIA CASES.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2021,
ALONG WITH CRL.A.356/2021 AND CONNECTED CASES, THE COURT ON
02.11.2021 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 6 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
CRL.A.NO.438 OF 2021
AGAINST THE ORDER IN CRL.M.P.NO.27 OF 2021 IN S.C.NO.01/2021/NIA
(RC NO.02/2020/NIA/KOC) DATED 22.03.2021 OF THE COURT FOR
TRIAL OF NIA CASES, ERNAKULAM, KERALA.
APPELLANT/ACCUSED NO.2:
SWAPNA PRABHA SURESH, AGED 39 YEARS,
D/O.LATE SUKUMARAN SURESH, VAYALIL HOUSE, MUNCHIN ROAD,
JAGATHI, THYCAUDU P.O., THIRUVANANTHAPURAM-695 014.
BY ADVS.
SRI.SOORAJ T.ELENJICKAL
SRI.ASWIN KUMAR M J
HELEN P.A.
SRI.ARUN ROY
SRI.SHAHIR SHOWKATH ALI.
RESPONDENTS/COMPLAINANT & STATE:
1 UNION OF INDIA,
REPRESENTED BY SUPERINTENDENT OF POLICE,
NATIONAL INVESTIGATION AGENCY, 28/443, GIRINAGAR,
KADAVANTHRA, ERNAKULAM-682 020.
2 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
BY SRI.S.V.RAJU, ADDITIONAL SOLICITOR GENERAL OF INDIA
BY SRI.P.VIJAYAKUMAR, ASST.SOLICITOR GENERAL OF INDIA
I/B.SRI.ARJUN AMBALAPPATTA, SENIOR P.P. FOR NIA CASES.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2021,
ALONG WITH CRL.A.356/2021 AND CONNECTED CASES, THE COURT ON
02.11.2021 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 7 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
CRL.A NO. 426 OF 2021
AGAINST THE ORDER IN CRL.M.P.NO.81 OF 2021 IN S.C.NO.01/2021/NIA
(RC NO.02/2020/NIA/KOC) DATED 18.06.2021 OF THE COURT FOR TRIAL OF
NIA CASES, ERNAKULAM, KERALA.
APPELLANT/ ACCUSED NO.11:
SHARAFUDEEN K.T., AGED 38 YEARS, S/O. MOIDEEN K.T.,
KURUPPANTHODI HOUSE, KAKKOOTH ROAD,
PERINTHALMANNA POST, MALAPPURAM DISTRICT.
BY ADVS.
SRI.MANU TOM CHERUVALLY
SRI.K.R.JITHIN
SRI.BALAMURALI K.P.
SRI.SHAJI T.M.
RESPONDENT/COMPLAINANT:
UNION OF INDIA,
REPRESENTED BY SUPERINTENDENT OF POLICE,
NATIONAL INVESTIGATION AGENCY, 28/443, GIRI NAGAR,
KADAVANTHRA, ERNAKULAM, KERALA - 682020,
REPRESENTED BY SPECIAL PROSECUTOR.
BY SRI.S.V.RAJU, ADDITIONAL SOLICITOR GENERAL OF INDIA
BY SRI.P.VIJAYAKUMAR, ASST.SOLICITOR GENERAL OF INDIA
I/B.SRI.ARJUN AMBALAPPATTA, SENIOR P.P. FOR NIA CASES.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2021,
ALONG WITH CRL.A.356/2021 AND CONNECTED CASES, THE COURT ON
02.11.2021 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 8 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
CRL.A.NO.648 OF 2021
AGAINST THE ORDER IN CRL.M.P.NO.83 OF 2021 IN S.C.NO.01/2021/NIA
(RC NO.02/2020/NIA/KOC) DATED 18.06.2021 OF THE COURT FOR TRIAL OF
NIA CASES, ERNAKULAM, KERALA.
APPELLANT/ ACCUSED NO.12:
(WRONGLY MENTIONED AS ACCUSED NO.10 IN THE CAUSE TITLE OF
THE IMPUGNED ORDER)
MOHAMMED ALI, AGED 44 YEARS, S/O.ABDUL KHADER,
MULLARIKKATTU HOUSE, MUVATTUPUZHA, ERNAKULAM DISTRICT.
BY ADV.SRI.NIREESH MATHEW
RESPONDENT/RESPONDENT-COMPLAINANT:
NATIONAL INVESTIGATION AGENCY, KOCHI,
REPRESENTED BY ITS SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682 023.
BY SRI.S.V.RAJU, ADDITIONAL SOLICITOR GENERAL OF INDIA
BY SRI.P.VIJAYAKUMAR, ASST.SOLICITOR GENERAL OF INDIA
I/B.SRI.ARJUN AMBALAPPATTA, SENIOR P.P. FOR NIA CASES.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2021,
ALONG WITH CRL.A.356/2021 AND CONNECTED CASES, THE COURT ON
02.11.2021 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 9 -
"C.R"
K.Vinod Chandran & C. Jayachandran, JJ.
----------------------------------------
Crl.Appeal Nos.356, 369, 370, 379, 426,
438, 452 & 648 of 2021
------------------------------------------
Dated, this the 02nd November 2021
JUDGMENT
Vinod Chandran, J.
The appellants lament; as the lyrics in a folk song
in the vernacular intones, 'we are petty smugglers unduly
labelled as terrorists', resulting in their continued
incarceration pending investigation and trial, infringing
their right to life guaranteed under Article 21 of the
Constitution. Accused Nos.1, 2, 3, 4, 5, 8, 10 & 11 as per
the Final Report (who are accused Nos.1, 2, 5, 6, 7, 10, 12 &
13 as per the FIR) in S.C.No.1/2021/NIA are the appellants in
the Criminal Appeals, which impugn the common order of the
Special Court for NIA Cases, Ernakulam, rejecting their bail
applications.
2. The bulwark of the appellants' contentions is a
decision of another Division Bench of this Court in Muhammed
Shafi P. v. NIA Kochi, 2021 KHC 145; which is under challenge
before the Hon'ble Supreme Court, as appealed against by the
National Investigation Agency (for brevity 'NIA'). In the
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 10 -
cited decision, the bail granted by the Special Court to the
various accused, in the same transaction in which the present
appellants were also involved, was affirmed, as was the order
declining bail to A7 (now A5), who was again before the
Special Court and now in appeal before us.
3. Briefly put, the allegations against the accused
are of smuggling gold through the diplomatic channel availing
the intimate connection, A1 and A2 had with the Consulate of
United Arab Emirates at Thiruvananthapuram; wherein the two
accused were formerly employed. A particular baggage was
detained by the Customs Officials, when 30.422 kgs. of gold
worth Rs.14.82 crores were seized. The investigation revealed
repeated consignments of contraband having been brought into
the country, camouflaged as diplomatic baggage. Muhammed
Shafi P.(supra) held that smuggling of gold is covered by the
provisions of the Customs Act and will not fall within the
definition of a 'terrorist act' as defined under Sec.15 of
the Unlawful Activities (Prevention) Act, 1967 (for brevity
'UA(P)A'). It was also held that unless evidence is brought
out to show that such smuggling was done with the intent, to
threaten or likely to threaten, the economic security or
monetary stability of India, by attempting to indulge in any
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 11 -
manner in the counterfeiting of high quality notes or coins,
then and then alone, Sec.15 would be attracted.
4. The Special Court noticed the above decision and
has relied on the decision of the Hon'ble Supreme Court in
NIA v. Zahoor Ahamad Shah Watali [(2019) 5 SCC 1] to examine
whether there are materials suggesting that the accusation
against the accused is true; prima facie, as required under
sub-sec.(5) of Sec.43D of the UA(P)A. The learned Judge found
that there exists materials revealing the conspiracy,
multiple manifold endeavors to smuggle gold into the country
and plans devised to continue such activities with impunity
as prima facie revealed from the voice clips, confession
statement and travel details of the accused; which together
prevailed upon the Court to reject the bail applications. The
appellants herein were found to be front liners in the
smuggling operations and hence a distinction was drawn from
those released on bail in Muhammed Shafi P. (supra) who, it
was held, were only back liners.
5. Sri.S.Sreekumar, learned Senior Counsel,
instructed to appear for A5 (now A3)(Crl.A.No.379 of 2021),
commenced arguments pointing out that the bail applications
rejected are that of accused Nos.1, 2, 3, 4, 5, 8, 10 & 11 as
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 12 -
per the Final Report. The offences alleged are under Sections
16, 17 and 18 of the UA(P)A Act. As has been held in Muhammed
Shafi P. (supra), the above provisions are attracted only if
the alleged actions of the accused amount to a terrorist
activity, under Section 15(1) & (iiia) of UA(P)A. In addition
to the reasoning of the Division Bench, the definition of
'high quality counterfeit Indian currency' in the Explanation
to Section 15 is pointed out along with the Third Schedule of
the Act and Investigation of High Quality Counterfeit Indian
Currency Rules, 2013. This further fortifies the reasoning in
Muhammed Shafi P. (supra) that the threat to economic
security, which is brought under the definition of a
'terrorist act' is only relating to counterfeiting of
currency or coins, that too of a high quality. The
requirement as per Explanation (b) of Section 15 of a
declaration by a forensic authority about the quality of the
counterfeit currency makes it explicit that an ordinary
smuggling of gold, with motive of mere profit and evasion of
duty, would not be threat to 'economic security' as defined
under the UA(P)A. Learned Senior Counsel also took us through
the explanation of the Ministry of Home Affairs before the
Department Related Parliamentary Standing Committee on Home
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 13 -
Affairs to further buttress the above contention. The attempt
of the Parliament was only to curb State sponsored
counterfeiting, from across the borders of the nation. The
final report filed before the Special Court has also been
read over, to impress upon us that there is not even an iota
of evidence of a terrorist act having been committed by the
accused herein.
6. Dr.S.Gopakumaran Nair, learned Senior Counsel,
instructed to appear for A1 (Crl.A.No.452 of 2021), while
adopting the arguments of A5, points out that A1 was the
former PRO of UAE Consulate who resigned in September, 2019.
The prosecution has alleged criminal conspiracy, after his
resignation and there is nothing to indicate that he had been
acting on behalf of the Consulate at the relevant time. The
specific allegation against A1 in the final report has been
read over to assert that the smuggling of gold alleged, does
not come within the definition of Section 15. It was pointed
out that none of the witnesses talked about A1 and the
authorization said to have been issued to A1 by the Consulate
is of the year 2016, which stands revoked by his resignation.
The learned Senior Counsel summarizes his arguments as, (i)
the charge-sheet does not make out any offence under UA(P)A,
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 14 -
(ii) there is neither funding of, or any financial
transaction relating to, terrorism, (iii) nor is there any
legal evidence to bring the alleged actions under Section 15
of the Act. If at all, the accused were indulging in
smuggling, that comes under the Customs Act; there is no
reason to apply the rigour under Section 43D(5) of the UA(P)A
in considering their bail applications. The accused have been
languishing in prison for more than an year and their right
to life which includes a right to live with dignity has been
infringed by the gruesome incarceration.
7. Sri.C.C.Thomas, learned Senior Counsel,
instructed to appear for A6 (now A4) (Crl.A.No.369 of 2021),
reads out paragraphs 33 and 34 of the Division Bench judgment
to urge the compelling fact that smuggling of gold
simplicitor cannot be brought under the definition of a
terrorist act. It is pointed out that the final report was
not before the Division Bench in Muhammed Shafi P. (supra),
though it had been filed on 05.01.2021, before the decision.
But the hearing was over much earlier to that and this Court
has the further benefit of finding no ingredient of a
terrorist act from the definite charge sheet now placed
before Court. There is no allegation that the sale proceeds
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 15 -
or profit generated from the activity was used in any
terrorist act and by reason of Section 6 of the NIA Act,
2008, the NIA is dis-entitled from prosecuting the offence,
since it is not a 'Scheduled Offence' under that Act.
8. Adv.Sooraj T. Elenjical appears for A2
(Crl.A.No.438 of 2021) and refers us to the FIR to argue that
she has been roped in merely for the reason that she had
earlier worked as Secretary to Consul General at the UAE
Consulate. The order which rejected the earlier application
for bail produced as Annexure A2 in Crl.A.438 of 2021 and
paragraph 12 therein is read over. Even at that stage, as
noted by the Special Court, there was nothing on record to
show that the proceeds of gold were used or intended to be
used for terrorism. But, the learned Judge rejected the bail
applications opining that a deeper probe would be required in
view of the transnational forces likely to have been involved
in the case. Now the final report is before Court and there
is neither an inkling of evidence connecting any of the
accused to any terrorist act or organization nor has the
involvement of any transnational forces been unearthed. The
distinction drawn between the various accused apprehended;
ie: front-liners and back-liners, hence pales into
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 16 -
insignificance. The description of the accused together, as a
terrorist gang, is not supported by any substantial evidence.
The final report does not attract Sections 15 to 18 of the
UA(P)A and any reasonable man would have expected the NIA, a
prestigious investigating agency created by statute, to have
filed a refer report leaving the accused to be prosecuted for
smuggling and not under the UA(P)A. Section 135 of the
Customs Act is sufficient to penalize the accused if the
allegations are proved and it takes in repeated offences
also. The large quantities or the multiple transactions,
alleged of smuggling does not enable a prosecution under the
UA(P)A and the NIA has no role to play. There is no question
of applying the rigour of prima facie truth in the
allegations under Section 43D(5). Out of the twenty accused
now charge-sheeted, eleven were granted bail and one was not
arrested due to health reasons. There is a pending
investigation against nine suspects and the eight, now in
appeal before this Court, are unnecessarily kept in custody.
The prosecution has put forth 247 witnesses, 329 documents
and 194 Material Objects. The accused have been in custody
for more than an year and the decision in Union of India v.
K.A.Najeeb (2021) 3 SCC 713] squarely applies since there is
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 17 -
no possibility of the trial commencing and concluding in the
near future. The proposition in K.A.Najeeb has been followed
by the Delhi High Court in Asif Iqbal Thanha v. State of NCT
of Delhi [MANU/DE/1095/2021] and by the Gauhati High Court in
Akhil Gogoi v. The National Investigation Agency
[MANU/GH/0002/2021]. Individually, on A2, it is pointed out
that there is no direct evidence against her, she having
resigned from the post of Secretary to UAE Consul General in
August 2019. There is no evidence of she having carried out
any odd jobs for the UAE Consulate along with A1, after her
resignation. A2 is arrayed as an accused only by reason of
her name having been mentioned by those who were involved in
the alleged smuggling activity. A2 is a lady with recurrent
cardiac and epileptic problems and is the mother of two
children. She has been away from her nine year old son and
nineteen year old daughter for more than an year and is now
suffering from acute mental depression. She has no
antecedents which would necessitate her further
incarceration.
9. Adv.Nireesh Mathew appears for A7 (now A5)
(Crl.A.No.356 of 2021), A10 (now A8) (Crl.A.No.370 of 2021)
and A12 (now A10) (Crl.A.No.648 of 2021). It is pointed out
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 18 -
that at the earlier instance the Special Court had declined
the bail applications, not only of A7 but also of A12 and
A13. A12 and A13 did not appeal and in the appeal of A7, the
order declining grant of bail was affirmed only since he was
seen to have travelled to other countries also. The final
report does not allege any trans-national forces having been
involved. Para 37 of Muhammed Shafi P. (supra) is read out to
argue that the apprehension expressed therein does not
survive at this point when the final report has been filed.
10. Adv.Manu Tom Cheruvally appearing for A13
(Crl.A.No.426 of 2021 - shown as A11) asserted that he has no
direct connection or link with the alleged act of smuggling
and is a mere victim of circumstances. He is alleged to have
only assisted one of the accused to dismantle the electronic
items. It is pointed out that one of the accused who is said
to have been declared an approver is neither cited as a
witness nor as an accused in the final report. A13 cannot be
said to be even a back-liner in the smuggling activity and
there is no question of his involvement in any terrorist
activity.
11. Sri.S.V.Raju at the outset sought for a
reconsideration of the dictum in Mohammed Shafi P. (supra).
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 19 -
It is argued that there is no substance in falling upon the
Customs Act, which penalize smuggling activities; to avoid a
prosecution under the UA(P)A. Threats against economic
stability would definitely be a terrorist act coming under
S.15 of the UA(P)A. Counterfeiting is also a penal offence
under S.489A to 489E IPC, which even going by the Division
Bench decision can be prosecuted under the UA(P)A, deeming
it to be a terrorist act. The Explanation to S.15 of UA(P)A
and the Third Schedule merely defines high quality
Counterfeit Indian Currency in the context of sub-clause
(iiia) of clause (a) of S.15(1). This does not include the
production, smuggling or circulation of 'any other material'.
Specific reference is made to the Investigation of High
Quality Counterfeit Indian Currency Rules, 2013 to emphasize
the threshold limit of Rupees One lakh provided therein for
finding damage to monetary stability of India. The learned
ASGI points out that in the present case the smuggling
activity runs into Crores and the seizure of contraband
effected on 05.07.2020 itself would be far exceeding the
threshold limit. The investigation has also revealed repeated
smuggling by the syndicate, in which all the accused were
members, the appellants being front-runners. The Explanation
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 20 -
and Third Schedule only deals with one specie, that is high
quality currency notes and coins and there could be other
materials and elements, which could disturb and damage the
economic stability of the Country. U.P. State Electricity
Board v. Hari Shanker Jain [(1978) (4) SCC 16] is relied on
to urge this Court to avoid a narrow construction and to give
effect to the intention of the Parliament.
12. It is pertinently pointed out that even if
Muhammed Shafi P. (supra) is accepted and taken as a binding
precedent, it has to be noticed that the bail application of
A7 was rejected by the Division Bench. What applies to A7, a
front-liner, equally applies to all the appellants herein,
who are front-runners. The same yardstick has to be applied
in the case of the appellants, charge-sheeted as
front-runners in the smuggling transactions, accused of
graver offences than that of the back-runners. K.A.Najeeb
(supra) is not applicable, since there, the accused granted
bail was incarcerated for five years and the trial had not
commenced. The learned ASGI has also argued relying on
D.K.Trivedi & Sons. v. State of Gujarat [1986 (supp). SCC 20]
that since the legal issue is under consideration of the
Hon'ble Supreme Court, it is best that this Court waits for
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 21 -
an authoritative pronouncement from the Hon'ble Supreme
Court.
13. The appellants have been consistently requiring
a hearing, especially since the other accused, in the same
transaction, were granted bail. The appellants alone are kept
behind bars for reason of the opinion forged in the impugned
order that they are the front-runners and those released are
back-runners. It is pertinent that Muhammed Shafi P. (supra)
confirmed the grant of bail made by the Special Court for
reason of there being no evidence of any counterfeiting of
high quality currency having been unearthed. In the case of
A7, bail was declined by the Special Court on the reasoning
that there should be a deeper probe, since at that time there
was an apprehension of transnational forces having been
involved in the smuggling activities carried on within the
country. As of now the investigation is over and a final
report is filed. In D.K.Trivedi (supra) the question raised
was regarding the constitutionality of S.15(1) of the Mines
and Minerals [Regulation & Development] Act, 1957 and the
power of the State Government to make rules, enabling charge
of dead rent and royalty, as also enhancement of the rates.
The Division Bench dismissed the writ petitions, challenging
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 22 -
the validity of notifications, directing the appellants to
approach the Hon'ble Supreme Court as similar matters were
pending there. The Hon'ble Supreme Court deprecated such
practice and observed that if the High Court was of the
opinion that the question pending before that Court was
seized of by the Hon'ble Supreme Court, then the proper
course of action would be to stay the hearing until the
Hon'ble Supreme Court disposes of the matter. In fact, in
these appeals by urging us to adjourn sine die, till the
Hon'ble Supreme Court decides the matter, the learned ASGI
would require us to do what the Hon'ble Supreme Court
deprecated. The instant batch of appeals are not a challenge
to the constitutionality of a provision or a notification.
The appeals are against the orders of a Special Court
refusing bail and as held in K.A.Najeeb (supra), in continued
incarceration of under-trial prisoners, without just cause,
there is also the issue arising of infringement of Article 21
of the Constitution of India. Especially in these appeals,
since the continued incarceration is only by reason of the
prosecution initiated under the UA(P)A and bail having been
declined resorting to the rigor of S.43D(5). However; IF as
the earlier Division Bench held in Muhammed Shafi P. (supra),
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 23 -
there is no ground to invoke the provisions of the UA(P)A,
the accused are entitled to be released, especially when they
have been granted bail in the cases filed under the Customs
Act. If UA(P)A is not applicable, then necessarily S.439
Cr.P.C. has to be resorted to, the rigor of which is far
lighter than that under the UA(P)A. The Hon'ble Supreme Court
in the challenge against Muhammed Shafi P. (supra) refused to
interfere with the bail granted and issued limited notice to
examine the question of law. In this context we have to
notice that so far as this Court, there is a binding
precedent, of a coordinate bench, which is in operation and
if the dictum of that decision is followed, there is no
question of distinguishing the various accused arrayed as
front-runners or back-runners. Whatever be the role of the
accused, the activity being smuggling of gold, which cannot
be deemed to be a terrorist act under S.15 of the UA(P)A.
14. The Division Bench, in Muhammed Shafi P.(supra)
held that sub-sec.(iiia) of Sec.15(1) can only rope in
production, smuggling or circulation of high quality
counterfeit Indian paper currency, coin or any other
material; the last of which is relatable solely to Indian
currency or coin. Any material connected with counterfeiting
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 24 -
including high quality paper and machinery or implements to
produce, would come within the ambit of the provision; but
not smuggling of gold, was the finding. The learned Judges
relied on the principles of 'ejusdem generis" and 'noscitur a
sociis', to hold that the arrangement of words in the
provision would not include gold smuggling with a mere motive
for illegal profiteering; which cannot, by any means, be
defined to be a 'terrorist act'. Nor was it the intention of
the legislature when 'economic security' was incorporated in
sub-section (1) of Section 15 with simultaneous incorporation
of sub-clause (iiia) of clause (a). It was also held that
when other precious metals and stones of enormous value could
be smuggled for unlawful gain, there is no reason to include
gold alone along with counterfeit Indian currency or coin.
The learned Judges referred to the UA(P) Amendment Bill 2011
to find that the intention was only to bring within the
definition of terrorist activity, the production, smuggling
and circulation of counterfeit Indian paper currency or coin
or any other material intended at carrying on such
counterfeiting.
15. The arguments addressed, for reconsideration of
the decision earlier rendered by the Division Bench; we
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 25 -
reject since we are not inclined to differ from Muhammed
Shafi P. (supra) for the following reasons. We remember the
caution often expressed that penal statutes should be
strictly construed [vide R.Kalyani v. Janak C.Mehta & Others
[(2009) 1 SCC 516]. The Division Bench while referring to the
UA(P) Amendment Bill of 2011, extracted from the Statement of
Objects and Reasons. The specific emphasis was on the words
"the existing provisions of the aforesaid Act do not include
within their scope an act done with an intent to threaten or
threaten likely to economic security of India and
counterfeiting Indian paper currency or coin"(sic). The
intent to threaten or the likelihood of threatening the
'economic security of India' referred to in Section 15(1) was
brought in by the very same amendment that inserted
sub-clause (iiia) of clause (a) and substituted the
Explanation to that provision. The concern was primarily with
the threat to economic security by way of production,
smuggling and circulation of high quality Indian paper
currency or coin. We specifically see from the presentation
made by the Ministry to the Parliamentary Standing Committee
of the Home Affairs that the amendments were recommended by
the Financial Act Task Force (FATF), an independent inter-
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 26 -
Governmental body that develops and promotes policies to
protect the global financial system against money laundering,
terrorist financing and financing of the proliferation of
weapons of mass destruction. This has been specifically
referred to by the Division Bench in paragraph 23 of the
decision and the extract made speaks of "the fact that gold
is a form of global currency and acts as a medium for
exchange in criminal transactions" (sic). True; acts of
destabilization of the economy, as distinguished from a
physically violent subversive act could also be deemed to be
a subversive act against the nation. If the intention was to
widen the definition of terrorism, to bring in acts,
destabilizing the economy; surely the Parliament had the
power. But, the Parliament by inserting economic security in
Sec. 15(1) and simultaneous insertion of sub-clause (iiia) of
clause (a) by the very same amending act, restricted the
definition of a terrorist activity, in so far as
destabilizing the economy, to counterfeiting of high quality
currency or coins. The words employed in sub-clause (iiia) of
clause (a), 'any other material', has to be restricted
adopting the principles of ejusdem generis and noscitur a
sociis; as held by the Division Bench in Muhammed Shafi P.
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 27 -
(supra).
16. We perfectly accept the argument that
counterfeiting is not the only activity which could threaten
the economic security of a nation and it is also not the mere
use of explosive substances or lethal weapons that could be
brought within the ambit of a terrorist act as understood
under Sec.15 of the UA(P)A. We refer to the decision of the
Hon'ble Supreme Court in State of Kerala v. Mathai Varghese
(1986) 4 SCC 746 from which the following extract in
paragraph 6 is made:
"... The High Court cannot, do so for, the court
can merely interpret the section; it cannot re
write, recast or redesign the section. In
interpreting the provision the exercise undertaken
by the court is to make explicit the intention of
the legislature which enacted the legislation. It is
not for the court to reframe the legislation for the
very good reason that the powers to "legislate" have
not been conferred on the court. When the expression
"currency note" is interpreted to mean "Indian
currency note", the width of the expression is being
narrowed down or cut down. Apart from the fact that
the court does not possess any such power, what is
the purpose to be achieved by doing so? A court can
make a purposeful interpretation so as to
'effectuate' the intention of the legislature and
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 28 -
not a purposeless one in order to "defeat" the
intention of the legislators wholly or in part. When
the court (apparently in the course of an exercise
in interpretation) shrinks the content of the
expression "currency note", to make it referable to
only "Indian currency note", it is defeating the
intention of the legislature partly inasmuch as the
court makes it lawful to counterfeit notes other
than Indian currency notes. The manifest purpose of
the provision is that the citizens should be
protected from being deceived or cheated. ...".
In that case, the contention raised, which was accepted by
the trial court and the High Court, was that under Sec.489-A
IPC an offence can be charged only if the counterfeiting is
of Indian currency. In the enactment under our consideration,
it is specifically mentioned as 'Indian currency' and the
principle that "... a purposeful interpretation should
effectuate the intention of the legislature and not a
purposeless one to defeat that intention..." works in favour
of the accused. The legislature had the power to bring in any
act threatening the 'economic security' as a terrorist act,
since it subverts the security and very stability of the
country. But the insertions by amendments, made in Act of
2013, confined it to counterfeiting of high quality currency.
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 29 -
17. Though, strictly only an aid to interpretation
we cannot but notice the relevant Ministry's stand before the
Parliamentary Standing Committee, which reads as under:
"(ii) The second major category of amendments comes from
the requirement to make high quality fake Indian
currency notes and the production and distribution
thereof also a terrorist offence. Government of
India wants to do that because there is mounting
evidence to suggest that this high quality fake
Indian currency note is actually being printed
across the border and being distributed from there,
both for financing terrorism as well as for
disturbing the monetary stability of our country.
With regard to high quality Counterfeit Indian
Currency, it is understood that it can only be
breached by sovereign support. Therefore, the
Government wanted to make it a terrorist offence.
This necessitated some amendments and some
insertions; ..."
The following clarification is also relevant :
"There are two things. One is the point
which you made about some people being caught
because of some fake currency notes coming out,
four or five. I think, what you wanted to put
across was that counterfeiting can also be for
purposes other than terrorism. It need not
necessarily be associated with terrorism. That is
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 30 -
why what we have criminalized here is not
counterfeiting which is done by other small-time
groups. What we have criminalized here is
counterfeiting which can be done only by sovereign
parties. That is why we have said high quality
counterfeit notes, and we have defined that high
quality counterfeit notes will be such counterfeit
notes which have duplicated the features which have
been mentioned in, I think, Schedule 3. Basically,
I would like to draw your attention to this. I will
read out the section again. "Whoever does any act
with intent to threaten or likely to threaten the
unity, integrity, security, economic security or
sovereignty of India or with intent to strike
terror or likely to strike terror in the people or
any section of the people in India or in any
foreign country" by doing any of these things, and
one of the things is damage to the monetary
stability of India by way of production. That means
caluse 1 by itself is not sufficient. You have to
read it with sub-clause (a), (i), (ii), (iii),
(iiia), etc. sir, sub-sub-clause (iiia) of clause
(a) says, "damage to, the monetary stability of
India by way of production or smuggling or
circulation of high quality counterfeit Indian
paper currency, coin or of any other material."
18. The recommendation of the Parliamentary
Committee is also extracted herein below:
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 31 -
"1.5.31 The Committee feels that the
objective to provide definition is to relate
economic security with the terrorist organizations
indulging in counterfeit currency and circulating
them in a big way. This is necessary to support the
system.
1.5.32 The Committee, therefore,
recommends that the term 'economic security' may be
defined in Section 2 of the Act before its
insertion in Section 15.
1.5.33 Subject to the above observation,
the Clause is adopted."
Economic security stood defined by clause (ea) of Section 2
in the UA(P)A. But the further insertion of (iiia) in Section
15(1) restricted the definition of terrorist activity; the
effective prevention and curbing of, which along with any
unlawfull activities as defined under clause (o) of section 2
was the intention behind UA(P)A. There is no accusation of
any unlawful activity levelled here against any of the
appellants.
19. A nation's currency is legal tender brought out
by the Central Bank of that nation, in our case, the Reserve
Bank of India. The observation made by the Division Bench
with respect to smuggling of other precious metals with a
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 32 -
profit motive to find smuggling of gold having no distinctive
status from those other precious metals is significant. Gold
as was observed by the FATF is global currency and is a
medium of exchange more so in India where there is a tendency
to hoard that particular metal. In fact in our humble view
even smuggling of gold and other precious metals which aims
at destabilizing the economy would be covered under threats
to economic security, as generally understood. But this
element was not contemplated by the Parliament as is evident
from the debates on the bill, which the members of the
Treasury Bench supported on the specific ground of
state/sovereign sponsored counterfeiting from across the
borders. A petty counterfeiting carried on by a small
operator/s was not intended to be covered under the UA(P)A.
This is explicit from the Explanation to Sec. 15(1),
requiring a declaration from a forensic expert of the
counterfeit currency comprising of the key security features
as specified in the Third schedule. The Rules of 2013
regulating the investigation of high quality Indian currency
offences is another indication of the object of the amendment
brought in by insertion of the words 'economic security' in
Sec. 15(1) along with sub-clause (iiia) of clause (a). Rule 6
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 33 -
of the said rules specify the procedure for applying the
provisions of Section 15(1)(a)(iiia). According to us, in the
guise of a purposive interpretation, the intent to threaten
or the likelihood of threatening economic security in Section
15(1), if given a more expansive meaning, then it would be
undermining the very intention of the Parliament which is
explicit in sub-clause (iiia) of clause (a). If we do that
then we would violate the dictum in Mathai Varghese (supra)
and would be recasting, redesigning and rewriting the
provision thus embarking upon a legislative exercise; which
power this Court and every Court lacks. Section 15(1) and the
various acts enumerated in the body of the provision has to
be read with the clauses incorporated and we find no reason
to differ from Muhammed Shafi P. (supra). We are of the
opinion that counterfeiting; that too of high quality
currency notes or coins and any material so to do is the only
specie included under section 15(1)(a)(iiia).
20. In this context, we cannot, but notice the
observations of the Hon'ble Supreme Court in NIA v. Zahoor
Ahamad Shah Watali (supra). In paragraph 23 of the said
decision, the Hon'ble Supreme Court considered the scope and
ambit of sub-section (5) of Section 43-D of the UA(P)A and
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 34 -
similar provisions under the TADA, Maharashtra Control of
Organized Crime Act, 1999 and Narcotic Drugs and Psychotropic
Substances Act, 1985. The special enactments referred,
required the Court, while granting bail "to record its
opinion that there are reasonable grounds for believing that
the accused is 'not guilty' of the alleged offence". In the
UA(P)A, the restriction is insofar as refusing bail if, in
the opinion of the Court, there are reasonable grounds to
believe that the accusation against the accused person is
prima facie true. Observing that there is a degree of
difference as to the satisfaction to be recorded by the
Court, it was emphasized that "By its very nature, the
expression 'prima facie' true would mean that the
materials/evidence collated by the investigating agency in
reference to the accusation against the accused concerned in
the first information report, must prevail until contradicted
and overcome or disproved by other evidence, and on the face
of it, shows the complicity of such accused in the commission
of the stated offence"(sic). It was held that the degree of
satisfaction is a tad lighter when the Court has to opine
that the accusation is 'prima facie true' as compared to the
opinion of the accused being 'not guilty' of the offence
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 35 -
alleged. However, under the UA(P)A the rigour definitely
would be more and the degree of satisfaction will be higher
than in considering an application for bail under Section 437
Cr.P.C. If the provisions of UA(P)A are not attracted prima
facie, then obviously the consideration of bail need not be
on the stricter terms contemplated in Sec. 43D(5), since
then, there would be no prima facie truth in the accusations.
21. Admittedly, the charge-sheet has been filed in
the above case, which we refer to, from Crl.Appeal No.379 of
2021, produced as Annexure-B. We have the responsibility at
this stage, only of determining whether the accusations are
prima facie true, in deciding the issue of grant of bail. We
keep in mind the caution expressed by Muhammed Shafi P.
(supra) and reiterated by us that the threat to economic
security deemed to be a terrorist act, is confined to
counterfeiting of high quality currency notes and coins or
any other material manufactured, smuggled or circulated in
relation to such counterfeiting. We also keep in mind that if
there are transnational forces involved in subverting the
security and stability of the nation by any act; to further
which the smuggling of gold was carried out, then too the
provisions of the UA(P)A are attracted, specifically S.15.
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 36 -
S.17 also speaks of punishment for raising funds for
terrorist act and S.18 provides punishment for conspiracy,
attempt to commit or even advocating, abetting, advising,
inciting or directly or knowingly facilitating the commission
of any such act or even any act preparatory to the commission
of a terrorist act.
22. The facts of the case as seen from Annexure-B
indicates the activities of the accused having been first
detected, when contraband was seized from the import cargo
addressed to the Charge D' Affaires at the Consulate General
of the UAE, on 05.07.2020 at the Air Cargo Complex of
Trivandrum International Air Port by the Customs [Preventive]
Commissionerate, Cochin. A1 was first arrested, which led to
the arrest of A2 to A4. The facts unearthed during
investigation reveals a conspiracy entered into by A1 to A5
for facilitating smuggling through the diplomatic cargo
addressed to the Consulate General of UAE. A1, with the
knowledge and assistance of A2, to further the plans hatched,
forged authorisation letters on behalf of the Consulate
General and with the active connivance of the other accused
carried out smuggling by clearing the contraband sent through
diplomatic baggage and handed them over to the various
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 37 -
accused. They formed a telegram-messenger group to coordinate
the gold smuggling activities, exchanging of forged documents
and also carried out hawala operations, so as to refinance
the purchase and dispatch of gold from the United Arab
Emirates. The facts elaborately deal with the modus operandi,
the conspiracy, the persons involved; ie. the financier, the
kingpins, the operators etc, the multiple instances, the
quantities smuggled, the actual smuggling through diplomatic
channel and the hawala operation to recycle the profit
generated for funding and facilitating more of such
smuggling. The facts noticed and charges speak of " ...
threatening the security and economic security of the
country, destabilizing Indian economy and damage to the
friendly relation to UAE and thus co-jointly committing the
terrorist act. The accused had the motive to gain money, by
causing extensive and irreparable damage to the security and
economic stability of the country. For committing this
terrorist act, the accused had conspired together, recruited
people, formed a terrorist gang, raised funds and smuggled
around 167 Kg of gold from UAE. With this intention, the
accused had also conspired and contemplated smuggling of more
gold from other countries, such as Saudi Arabia, Bahrain and
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 38 -
Malaysia." [sic.para17.12 of Annexure B]. The charge also as
enumerated under the various paragraphs under serial No.18
reiterate the facts and we think it appropriate to extract
paragraph 18.1:
"The accused in this case had the knowledge
that an act of smuggling of gold into India, in
large quantity, would threaten the security and
economic security of the country, destabilize the
Indian economy and damage the friendly relations
with UAE. The accused had the motive to gain
money, by causing extensive and irreparable damage
to the security and economic stability of the
country. For committing this terrorist act, the
accused had conspired together, recruited people,
formed a terrorist gang, raised funds and smuggled
gold from UAE through the import cargo addressed
to diplomats at the Consulate General of UAE in
Thiruvananthapuram."
23. We cannot but observe that, but for
interpolating the narration of facts and the allegations in
the charge-sheet with the words 'damage to economic security
and stability of the country and terrorist activities',
there is nothing more to prima facie find the accused having
indulged in such activities as defined under S.15 of the
UA(P)A. We have looked at the witness schedule and conspectus
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 39 -
of the intention behind proffering them as witnesses from the
charge-sheet, which again does not reveal any terrorist act
as defined under S.15 of the UA(P)A. We make it clear that
this is only a prima facie finding we have entered into and
it is not to say that the provisions would not be attracted
at all; which has to be left to the Special Court to decide,
on the evidence led at the trial. As of now, the facts
narrated and the charges alleged do not commend us to find
the accused having any connection with any terrorist act
under S.15, least of all, a threat to the economic security
of the nation, which we have found; on an interpretation of
S.15(1)(a)(iiia); is restricted to counterfeiting high
quality notes and coins and any other material dealt with,
towards that end.
24. The impugned order has noticed the decision of
the Division Bench of this Court in Muhammed Shafi P. (supra)
and the Hon'ble Supreme Court in K.A.Najeeb (supra). The
learned Judge has then referred to the decision in Zahoor
Ahamad Shah Watali (supra) to find the applicants to be the
principal conspirators. The evidence placed both digital and
documentary were referred to, to find prima facie evidence
regarding the conspiracy and the multiple instances of
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 40 -
smuggling activities carried on, as also the future plans to
facilitate manifold activities of smuggling. It is hence, the
bail applications were rejected. We are unable to agree with
the Special Court. The prima facie evidence of conspiracy and
smuggling of gold, as has been held in Muhammed Shafi P.
(supra) does not prima facie give credence to an allegation
of threat to economic security or irreparable damage to the
economic security of the country; deemed to be a terrorist
act under S.15(1) of UA(P)A. The definition restricts it to
counterfeiting of high quality currency. Needless to say that
neither the charge-sheet nor the learned Special Court speak
of any other terrorist act as defined under S.15(1), but for
the threat to economic security, which is confined to sub-
clause (iiia) of clause (a) of S.15(1). We also do not find
any allegation or accusation, from the records now before us,
of the profit generated having been used in for any terrorist
activities as spoken of in Sections 15 to 18 of the UA(P)A.
The prima facie truth of the accusation under S.43(D)(5) has
to be, regarding an offence under the special enactment, the
UA(P)A. That being not discernible, as of now from the
available records, we cannot but set aside the order impugned
and allow the bail applications of all the accused. We do not
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 41 -
think the findings in Muhammed Shafi P. (supra), which led to
the refusal of bail to one of the accused any longer applies,
since on a deeper probe there is no element of terrorist
activity unearthed and as of now the accusations and
allegations are summarized in the charge-sheet; which, but
for the interspersed words of terrorist act does not reveal
any such act.
We allow the appeals and direct the accused to be
released on the following conditions:
(1) The appellants/accused shall be released on
bail on their executing a bond for a sum of
Rs.25,00,000/- (Rupees Twenty Five lakhs only) each
with two solvent sureties each for the like-sum to
the satisfaction of the Special Court.
(2) If they hold Passport, they shall deposit
the same before the Special Court within three days
of release from custody, and if they do not have it
or is already surrendered, file an affidavit to that
effect within the same period.
(3) They shall not leave the State of Kerala
without the permission of the Special Court.
(4) They shall not make any attempt to contact
any of the prosecution witnesses, directly or
through any other person, or in any other way try to
tamper with the evidence or influence, coerce or
threaten any witness or other persons related to the
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 42 -
investigation.
(5) They shall not commit any offence while on
bail, including that of like nature; ie; smuggling.
(6) They shall appear before the SHO of the
local police station in whose limit they reside,
between 10 a.m. and 11 a.m. on every Sunday, until
further orders. The SHO shall report to the
Investigating Officer without any delay; if the
appellants/accused fail to appear as directed. The
appellants/accused shall also file a memo in three
days showing the details of the police station where
they intend to appear, to comply with the directions
herein. Investigating Officer shall forward a copy
of this order to the SHO of such Police Station for
due compliance of the directions.
(7) Lastly, they shall not change their place
of residence without prior information to the
Investigating Officer.
Sd/-
K.Vinod Chandran
Judge
Sd/-
C.Jayachandran
Judge
vku/-
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 43 -
APPENDIX OF CRL.A.356/2021
APPELLANT'S ANNEXURE
Annexure A PHOTOCOPY OF THE COMMON ORDER DATED
15.10.2020 IN CRL.M.P NO.139/2020 PASSED BY
THE SPECIAL COURT FOR NIA CASES, ERNAKULAM.
Annexure B PHOTOCOPY OF THE COMMON JUDGMENT DATED
18.02.2021 IN CRL. APPEAL NO.826/2020 PASSED
BY THIS HON'BLE COURT.
Annexure C PHOTOCOPY OF THE CHARGE SHEET FILED BY THE
RESPONDENT BEFORE THE SPECIAL COURT FOR TRAIL
OF NIA CASES, ERNAKULAM, DATED 05.01.2021.
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 44 -
APPENDIX OF CRL.A.369/2021
APPELLANT'S ANNEXURE
Annexure A PHOTOCOPY OF THE COMMON JUDGMENT DATED
18/02/201 IN CRL.APPEAL NO.826/2020 AND
CONNECTED CASES, PASSED BY THIS HONBLE COURT.
Annexure B PHOTOCOPY OF THE CHARGE SHEET FILED BY THE
RESPONDENT BEFORE THE SPECIAL COURT FOR TRIAL
OF NIA CASES, ERNAKULAM, DATED 05/01/2021.
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 45 -
APPENDIX OF CRL.A.370/2021
APPELLANT'S ANNEXURE
Annexure A PHOTOCOPY OF THE COMMON JUDGMENT DATED
18.2.2021 IN CRL.APPEAL NO 826/2020 AND
CONNECTED CASES, PASSED BY THIS HON'BLE COURT
Annexure B PHOTOCOPY OF THE CHARGE SHEET FILED BY THE
RESPONDENT BEFORE THE SPECIAL COURT FOR TRIAL
OF NIA CASES, ERNAKULAM, DATED 5.1.2021
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 46 -
APPENDIX OF CRL.A.379/2021
APPELLANT'S ANNEXURE
ANNEXURE A PHOTO COPY OF THE COMMON JUDGMENT DATED
18.02.2021 IN CRL. APPEAL NO. 826/2020 AND
CONNECTED CASES, PASSED BY THIS HONBLE COURT.
ANNEXURE B PHOTOCOPY OF THE CHARGE SHEET FILED BY THE
RESPONDENT BEFORE THE SPECIAL COURT FOR TRIAL
OF NIA CASES, ERNAKULAM, DATED 05.01.2021.
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 47 -
APPENDIX OF CRL.A.452/2021
APPELLANT'S ANNEXURE
Annexure I TRUE COPY OF THE FIR IN RC.NO.02/2020/NIA/KOC
DATED 10.07.2020
Annexure II TRUE COPY OF THE CHARGE SHEET DATED
05.01.2021 LAID BY THE NIA IN THE SPECIAL
COURT
Annexure II(a) TRUE COPY OF THE LIST OF WITNESSES DOCUMENT
MATERIAL OBJECTS ATTACHED TO THE CHARGE SHEET
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 48 -
APPENDIX OF CRL.A.438/2021
APPELLANT'S ANNEXURE
Annexure I TRUE COPY OF THE FIR IN RC.NO.02/2020/NIA/KOC
DATED 10.07.2020.
Annexure II TRUE COPY OF THE ORDER DATED 10.08.2020
PASSED IN CRL.M.P.NO.64/2020 IN RC
NO.02/2020/NIA/KOC ON THE FILES OF THE
SPECIAL JUDGE FOR NIA CASES ERNAKULAM.
Annexure III TRUE COPY OF THE CHARGE SHEET DATED
05.01.2021 LAID BY THE NIA IN THE SPECIAL
COURT.
Annexure III(a) TRUE COPY OF THE LIST OF WITNESS, DOCUMENTS
AND MATERIAL OBJECTS ATTACHED TO THE CHARGE
SHEET.
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 49 -
APPENDIX OF CRL.A.426/2021
APPELLANT'S ANNEXURE
ANNEXURE 1 THE TRUE COPY OF THE ORDER DATED 15.10.2020
BY HON'BLE NIA COURT.
ANNEXURE 2 THE TRUE COPY OF THE ORDER DATED 23.10.2020
BY HON'BLE NIA COURT.
ANNEXURE 3 THE TRUE COPY OF THE COMMON ORDER DATED
22.03.2021 BY HON'BLE NIA COURT.
ANNEXURE 4 THE TRUE COPY OF THE BAIL APPLICATION FILED
BY THE APPELLANT BEFORE THE HON'BLE NIA
COURT.
ANNEXURE 5 THE TRUE COPY OF THE STATEMENTS OF THE
WITNESSES, CW-143 AND CW 144.
Crl.Appeal Nos.356, 369, 370, 379,
426, 438, 452 & 648 of 2021 - 50 -
APPENDIX OF CRL.A.648/2021
APPELLANT'S ANNEXURE
ANNEXURE A PHOTOCOPY OF THE COMMON JUDGMENT DATED
18.02.2021 IN CRL.APPEAL NO.826/2020 AND
CONNECTED CASES, PASSED BY THIS HONBLE COURT.
ANNEXURE B PHOTOCOPY OF THE CHARGE SHEET FILED BY THE
RESPONDENT BEFORE THE SPECIAL COURT FOR TRIAL
OF NIA CASES, ERNAKULAM, DATED 05.01.2021.
