TMI Blog2021 (11) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 accused - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggling 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 ₹ 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 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 N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... national forces been unearthed. The distinction drawn between the various accused apprehended; ie: front-liners and back-liners, hence pales into 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 custod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over 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). 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 there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '. 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 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 Reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thal 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 not a purposeless one in order to defeat the intention of the legislators wholly or in part. When the court (appa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterfeiting can also be for purposes other than terrorism. It need not necessarily be associated with terrorism. That is 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 clause 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. 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 Comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 investigation. (5) They shall not commit any offence while on bail, including that of like nature; i.e; smuggling. (6) They shall a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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