Rajasthan High Court
Mohammed Aslam Son Of Abdul Rashid vs Union Of India on 1 February, 2021
Bench: Satish Kumar Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 5139/2020
Mohammed Aslam Son Of Abdul Rashid, R/o Gosia Mohalla, Vpo
Sherani Abad, Tehsil Didwana, Nagaur, Rajasthan - 341302
----Petitioner
Versus
1. Union Of India, Ministry Of Home Affairs, CTCR Division
North Block, New Delhi.
2. National Investigation Agency, Cgo Complex, Lodhi Road,
New Delhi, 110003.
----Respondents
For Petitioner(s) : Mr. Farooq Ahmed
For Respondent(s) : Mr. R.D. Rastogi, ASG through VC
Mr. Tej Prakash Sharma, Advocate
HON'BLE MR. JUSTICE SATISH KUMAR SHARMA
Order
Reportable
01/02/2021
The present petition has been filed under section 482 of
Cr.P.C. for quashing of FIR No. 36/2020/NIA/DLI/22-09-2020
registered at Police Station NIA, New Delhi under section 16 of
Unlawful Activities (Prevention) Act, 1967 (Act of 1967) read with
Section 120-B of IPC.
Heard learned counsel for the petitioner and Mr. R.D.
Rastogi, learned Additional Solicitor General assisted by Mr. T.P.
Sharma, Advocate for respondents and perused the material made
available on record.
Learned counsel for the petitioner submits that the present
petitioner and other nine persons are facing trial under Customs
Act for smuggling of 18.569 kilograms of gold before the Court of
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Additional Chief Judicial Magistrate (Economic Offences), Jaipur
Metropolitan-II, Jaipur, still the present FIR has been registered by
the NIA and the same being the second FIR on similar allegations
is not maintainable. He further submits that the customs
authorities often launch criminal prosecution for smuggling of gold
but no such criminal case has ever been registered by the NIA.
Thus, the action of NIA is discriminatory to the present petitioner.
The impugned FIR has been registered only on the basis of
suspicion whereas such FIR can only be registered for prima facie
involvement of any person in terrorist activities as defined under
Section 15 of the Act of 1967. The petitioner is being implicated
on the allegation that he has smuggled the gold with intent to
threaten the economic security of India as per provisions of
Section 15(I)(a)(iiia) but in this provision smuggling of gold is not
covered in the term "any other material". Thus, the present FIR is
a glaring example of abuse of process which deserves to be
quashed. He has placed reliance on the following judgments:-
A. Criminal Appeal No.742 of 2020 Arnab Manoranjan
Goswami Vs. The State of Maharashtra & Ors. (Supreme
Court);
B. 1995 SCC Online Raj 620 : (1996) 2 RLW 578 Raguraj
Singh and Another Vs. State of Rajasthan and Another;
C. (2001) 7 Supreme Court Cases 71 Dadi Jagannadham
Vs. Jammulu Ramulu and Others;
D. (1991) 2 Supreme Court Cases 119 Assistant Collector
of Central Excise, Guntur Vs. Ramdev Tobacco Company;
E. 2019 SCC Online SC 825 Pradeep Ram Vs. State of
Jharkhand;
F. Criminal Application ST. No. 5028 of 2020 Kangana
Ranaut & Anr. Vs. State of Maharashtra & Anr. (Bombay
High Court)
G. Criminal Mis. Writ Petition No. 5019 of 2020
Suryaprakash Singh Verma @ Golu & Others VS. State of
U.P. and 3 others;
I. (2020) 3 Supreme Court Cases 54 Prem Chand Singh
Vs. State of Uttar Pradesh and Another.
(3 of 8) [CRLMP-5139/2020]
H. 2020 SCC OnLine SC 994 Amish Devgan Vs. Union of
India and Others.
Per contra, learned Additional Solicitor General assisted by
Mr. T. P. Sharma, Advocate has vehemently opposed the petition
with the submissions that the accused-petitioner has been found
to be involved in smuggling of huge quantity of gold with intent to
threaten or likely to threaten the economic security of the country
which is prima facie a terrorist act as defined under Section 15 of
the Act of 1967. In view of his own statement recorded under
Section 108 of Customs Act and other supporting material he has
not been found only a smuggler but a facilitator also who has
facilitated other persons in smuggling activities. Therefore, the
impugned FIR has been registered against him.
Under Section 15(I)(a)(iiia) of the Act of 1967, the
smuggling of gold with intent to threaten or likely to threaten the
economic security of the country is very much covered under the
smuggling of "any other material" Thus, the contention of the
petitioner in this regard is not tenable.
The offence under the Customs Act for smuggling of gold and
the offence under Section 16 of Act of 1967 are distinct offences,
hence, separate prosecutions are maintainable under the law.
Therefore, merely on the basis of prosecution under Customs Act,
the impugned FIR cannot be said to be violative of the provisions
of Article 20 of the Constitution of India and Section 300 of Cr.P.C.
The offence, herein, is very serious in nature for which
stringent provisions for bail have been made to the effect that no
bail can be granted unless the Court comes to the conclusion that
no case is made out against the accused-petitioner. In the facts of
the case, the petitioner is not entitled for any sort of interim
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protection and the same would have the effect of anticipatory bail
which is not permissible.
The present petition is devoid of any merit and the same
deserves to be dismissed. He has placed reliance on following
judgments:-
1. DB Criminal Writ Petition No. 1078/2018 Pukhraj
Ramdev Padiya Vs. UOI Decided on 18.01.2019, Rajasthan
High Court;
2. Punit Vs. State 2017 SCC Online 4061;
3. State of Telangana Vs. Habib Ahdullah Jilani (2017) 2
SCC 779;
4. Naresh J. Sukhwani Vs. UOI (1995) Supp 4 663;
5. State of Jharkand Vs. Lalu Prasad Yadav (2017) 8 SCC
6. Monica Bedi Vs. State of Andhra Pradesh (2011) 1 SCC
284;
7. Om Prakash Bhatia Vs. UOI (2003) 6 SCC 161;
8. State of Tamil Nadu Vs. S. Martin (2018) 5 SCC 718;
9. UOI Vs. P.P. Sharma (1992) Suppl. 1 SCC 222;
10. Mannu Bhai Najbhai Dhandhal Vs. Commissioner of
Police SCA No. 9651/2019;
11. State Vs. Anil Sharma (1997) 7 SCC 187;
12. State Vs. Bimal Krishna Kandu (1997) 8 SCC 104;
13. Jayendra Saraswathi Swamigal Vs. State (2005) 2 SCC
Above rival submissions have been considered and the
judgments cited by both the sides have been perused.
It is not desirable to meticulously examine the merits of the
case at this stage. Therefore, without expressing any opinion on
merits, suffice it to say that the NIA is empowered to register a
case under Section 16 of Act of 1967 for the Terrorist act as
defined under Section 15 of the Act of 1967 which is reproduced
below:-
15. Terrorist act
1. 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
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strike terror in the people or any section of the
people in India or in any foreign country,
(a) by using bombs, dynamite or other explosive
substances or inflammable substances or firearms or
other lethal weapons or poisonous or noxious gases or
other chemicals or by any other substances (whether
biological radioactive, nuclear or otherwise) of a
hazardous nature or by any other means of whatever
nature to cause or likely to cause
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property;
or
(iii) disruption of any supplies or services essential to
the life of the community in India or in any foreign
country; or
[(iiia) 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; or]
(iv) damage or destruction of any property in India or
in a foreign country used or intended to be used for
the defence of India or in connection with any other
purposes of the Government of India, any State
Government or any of their agencies; or
(b) overawes by means of criminal force or the show
of criminal force or attempts to do so or causes death
of any public functionary or attempts to cause death
of any public functionary; or
(c) detains, kidnaps or abducts any person and
threatens to kill or injure such person or does any
other act in order to compel the Government of India,
any State Government or the Government of a foreign
country or [an international or inter-governmental
organisation or any other person to do or abstain
from doing any act; or], commits a terrorist act.
[Explanation. - For the purpose of this sub-section,-
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(a) "public functionary" means the constitutional
authorities or any other functionary notified in the
Official Gazette by the Central Government as public
functionary;
(b) "high quality counterfeit Indian currency" means
the counterfeit currency as may be declared after
examination by an authorised or notified forensic
authority that, such currency imitates or compromises
with the key security features as specified in the Third
Schedule.]
[(2) The terrorist act includes an act which constitutes
an offence within the scope of, and as defined in any
of the treaties specified in the Second Schedule.]
From the perusal of above provisions, it is clear that the
"Terrorist act" also includes the act done with intent to threaten or
likely to threaten the economic security of the country. Such act
has been further qualified under Section 15(I)(a)(iiia) which may
cause damage to the monetary stability of India by way of
smuggling of any other material. The smuggling of any valuable
material can cause damage to the monetary stability of the nation
which may have impact to threaten or likely to threaten the
economic security, therefore, the legislature in its own wisdom
appears to have not specified particular material in this provision.
The gold is certainly a valuable material, smuggling of which can
be done with intent to threaten or likely to threaten the economic
security of the country. Therefore, the contention of the petitioner
in this regard is not tenable.
The present FIR has been registered on sufficient material
came to the notice of the NIA under the prosecution of the present
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petitioner and others under the Customs act and otherwise. As per
statement of the petitioner recorded under Section 108 of
Customs act and the statements of other co-accused persons and
on the basis of other material, the present petitioner has been
prima facie found to be smuggler of gold as well as the facilitator
of the alleged smuggling. Therefore, it cannot be said that the
present FIR has been registered without any basis or the contents
of FIR prima facie do not constitute the impugned offences which
may warrant quashing of the present FIR. Further, the NIA shall,
after due investigation, present its report (Negative FR/Challan)
before the Trial Court and in case of filing of Challan, the petitioner
shall be at liberty to take legal recourse available to him as per
law.
It is true that every act of smuggling may not be covered
under the definition of Terrorist act and only such smuggling of
any material can be termed as Terrorist act which is done with
intent to threaten or likely to threaten the economic security and
to cause damage to the monetary stability of the country. In this
case, the petitioner has been found to be smuggler of huge
quantity of gold as well as facilitator to other fellow smugglers.
Therefore, it cannot be said that this FIR is a discriminatory act
towards him.
The offences under the Customs Act and the Act of 1967 are
distinct offences prosecution of which can run separately and it
would not be violative of Article 20 of the Constitution of India and
Section 300 of Cr.P.C. in view of the legal position as expounded in
the judgments cited by learned Additional Solicitor General.
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The legal position as expounded in the judgments by learned
counsel for the petitioner cannot be disputed but the facts and
circumstances of this case are quite distinguishable. In none of
them, FIR under Section 16 of the Act of 1967 has been registered
simultaneously to the prosecution under the Customs act and no
such FIR in the similar circumstances has been quashed. Thus, the
above cited judgments do not help the petitioner.
In view of above, no case is made out for quashing of FIR or
stay of its proceedings, resultantly the present petition is hereby
dismissed.
Stay application also stands dismissed.
(SATISH KUMAR SHARMA),J
SAHIL SONI /50
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