In yet another blow to the National Investigation Agency (NIA), probing the controversial Kerala gold smuggling case, the High Court upheld the order of the NIA trial court that granted bail to 12 accused in the case. Significantly, the High Court also stated that gold smuggling alone would not account for a ‘terrorist act’ under sections of the Unlawful Activities (Prevention) Act (UAPA).
The 12 accused who were granted bail by the NIA court in Kochi include none of the key accused persons and were allegedly involved in the funding for the smuggling, hawala operators and offering other assistance. All of them had been charged with various sections of the UAPA, including charges of being involved in ‘terrorist acts’.
The controversial case pertains to smuggling of gold through diplomatic baggage from UAE to Thiruvananthapuram. Dismissing the NIA’s arguments against granting them bail, the Kerala High Court in its order detailed the provisions of what constitutes a terrorist act as per the Unlawful Activities (Prevention) Act and pointed out how gold smuggling alone does not come under its purview.
“..We are unable to hold that smuggling of gold simpliciter will fall within Section 15(1)(a)(iiia) of UA(P)Act. In other words, gold smuggling clearly covered by the provisions of the Customs Act will not fall within the definition of terrorist act in Section 15 of UA(P) Act unless evidence is brought out to show that it is done with the intent to threaten or it is likely to threaten the economic security or monetary stability of India,” the order by a bench of Justices A Hariprasad and MR Anitha said on Thursday.
The section cited by the court, defines a terrorist act as one “done 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 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 — 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.”
The HC said that what was made an offence under the section was causing damage to the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or any other material relatable to currency or coin, adding that it does not include gold smuggling.
While the prosecution appearing for the NIA argued and submitted that “other material relatable to currency or coin” could encompass gold as well, the court after considering various Supreme Court and High Court orders and statutes, concluded that gold smuggling would not encompass a terrorist act.
Upholding the trial court order, the HC said that investigation materials on record did not prima facie indicate anything that showed the accused released on bail had an ‘intention to damage economic security of India’.
“The materials on record revealed that the accused, who are enlarged on bail, were indulging in smuggling activity for illegal gain. Of course, they were using a diplomatic channel for committing the offence of smuggling. On going through the materials placed before us, we are of the view that the court below is justified in entering such a finding,” it said.
In another notable observation, the High Court also raised questions about the jurisdiction of NIA in an offence that falls within Customs Act.
While the High Court’s observation has posed questions on the NIA for booking the accused under the UAPA, the court also added that its observations will not in any way preclude the agency from collecting more evidence and establishing the alleged involvement of the accused persons.
“Likewise, the investigating agency is free to take all steps to convince the trial court that the accused are liable for all the offences alleged in the final report. Moreover, we caution the court below not to be influenced by any of the observations in this judgment at the time of trial,” HC stated.
Meanwhile, the HC did not grant bail to seventh accused Muhammed Shafi, stating that allegations against him are certainly graver than those against the accused who were enlarged on bail. He was also not granted bail by the trial court.
Despite the present HC order, it is to be noted that the trial court itself had earlier considered the bail plea of key accused Swapna Suresh and had stated that UAPA charges against her would sustain.
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