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2021 (2) TMI 1218 - KERALA HIGH COURTSeeking grant of Bail - Smuggling - Gold - infamous handchopping case having a linkage to terrorism - offence of "terrorist act" as defined under Section 15 of the UA(P) Act - HELD THAT:- Section 24(8) of Cr.P.C. permits the Central Government or the State Government to appoint for the purposes of any case or class of cases a person who has been in practice as an advocate for not less than ten years as a special public prosecutor. In the matter of appointment of a special public prosecutor under Section 24(8) of Cr.P.C., we find no reason to insist that it should be done in consultation with the High Court as provided under Section 24(1) of Cr.P.C. In other words, the power conferred on the authorities to appoint a special public prosecutor, specified under Section 24(8) of Cr.P.C., could be regarded as a deviation from the procedure prescribed under Section 24(1) - The appeal was dismissed by the High Court for two reasons. First, the appeal for enhancement of sentence under Section 377(2) of Cr.P.C. could be filed by the public prosecutor duly authorized by the Central Government and the special public prosecutor appearing on behalf of the appellant fairly admitted that the complainant was not empowered by the Central Government to file the appeal. Second, the appeal was not filed by the public prosecutor as contemplated under Section 377(2) of Cr.P.C., but it was filed by the special public prosecutor. Admittedly NIA Act is a special law to which Section 4(2) of Cr.P.C. may apply in respect of investigation, inquiry, trial, etc. Viewing the rival contentions in this background, it is found that the challenges raised against maintainability of the appeals are not sustainable, especially when we consider the fact that the appeals were presented by the public prosecutor appointed by NIA under Section 15 of NIA Act. We, therefore, find that the appeals filed by NIA are competent. Smuggling of gold simplicitor 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 - it does not include gold as the words employed in the Sub-clause specifically mention about production or smuggling or circulation of high quality counterfeit Indian paper currency or coin and therefore gold cannot be grouped along with paper currency or coin even though gold is a valuable substance and has a great potential to get converted into cash. Arrangement of words indicating the things mentioned in the provision does not prompt us to think that gold smuggling with a mere illegal profit motive will fall within the aforementioned definition of terrorist act. The trial court has carefully taken enough precautions to see that the accused persons, to whom bail had been granted, are obeying the directions and they do not interfere with progress of the investigation. Similarly, measures have been taken in the bail order by imposing necessary conditions to secure their presence at the time of trial - there are no reason to think that the accused to whom bail had been granted will flee from justice or meddle with the investigation. Moreover, the investigating agency, if succeeds in digging out materials to show their complicity in a terrorist act, certainly can move the court for cancellation of bail. Case diary clearly revealed that 7th accused played a pivotal role in the alleged conspiracy. Various accused persons obtained smuggled gold through 7th accused. Allegations against him are certainly graver than those against the accused who were enlarged on bail. Therefore the court below rightly declined his bail plea - appeal dismissed.
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