2021 (2) TMI 1218 - HC - Indian Laws

Court dismisses appeals, upholds bail decisions, rules gold smuggling not terrorism. Prosecution can gather more evidence.

The court dismissed the appeals, affirming the trial court's orders granting bail to certain accused and refusing bail to the 7th accused. It found that ... Seeking 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. Issues Involved:1. Competence of appeals filed by NIA.2. Applicability of Section 15 of the Unlawful Activities (Prevention) Act, 1967 (UA(P) Act) to gold smuggling.3. Interpretation of Section 15(1)(a)(iiia) of the UA(P) Act.4. Prima facie evidence against the accused.5. Validity of bail granted to certain accused and refusal of bail to 7th accused.Issue-wise Detailed Analysis:1. Competence of Appeals Filed by NIA:The court examined whether the appeals filed by the National Investigation Agency (NIA) were properly instituted. The appeals were filed by the Union of India, represented by the Superintendent of Police, NIA, Kochi. The defense argued that the appeals should have been filed through the public prosecutor as per Section 24 of the Code of Criminal Procedure (Cr.P.C.). The court referred to Section 15 of the NIA Act and Section 24(8) of Cr.P.C., which allow the Central Government to appoint Special Public Prosecutors. The court found that the appeals were properly laid before it, as they were presented by the public prosecutor appointed by NIA under Section 15 of the NIA Act.2. Applicability of Section 15 of the UA(P) Act to Gold Smuggling:The court analyzed whether gold smuggling could be considered a 'terrorist act' under Section 15 of the UA(P) Act. The prosecution argued that the smuggling of gold could threaten the economic security of India. However, the defense contended that Section 15(1)(a)(iiia) specifically mentions 'high quality counterfeit Indian paper currency, coin or any other material' and does not include gold. The court agreed with the defense, stating that the term 'any other material' should be interpreted in the context of currency and coin, and gold smuggling does not fall within this definition.3. Interpretation of Section 15(1)(a)(iiia) of the UA(P) Act:The court applied the principles of 'noscitur a sociis' and 'ejusdem generis' to interpret Section 15(1)(a)(iiia). It concluded that the words 'high quality counterfeit Indian paper currency, coin or any other material' should be read together, indicating that 'any other material' refers to items related to counterfeit currency or coin. The court found that gold smuggling, covered by the Customs Act, does not fall within the definition of a terrorist act under Section 15 of the UA(P) Act.4. Prima Facie Evidence Against the Accused:The court reviewed the materials presented by the prosecution and found that they did not prima facie indicate that the accused were involved in a terrorist act as defined under Section 15 of the UA(P) Act. The court noted that the accused were involved in smuggling gold for illegal gain but did not act with the intention to damage the economic security of India. The court emphasized that the prosecution could continue to investigate and gather evidence to establish the involvement of the accused in the alleged offenses.5. Validity of Bail Granted to Certain Accused and Refusal of Bail to 7th Accused:The court upheld the trial court's decision to grant bail to certain accused while refusing bail to the 7th accused. The trial court had found that the accused granted bail were primarily involved in funding and conspiring for gold smuggling, without prima facie evidence of involvement in a terrorist act. The 7th accused, however, played a pivotal role in the conspiracy and had direct contact with multiple accused, justifying the refusal of bail. The court affirmed the trial court's decision and dismissed the appeals filed by NIA and the 7th accused.Conclusion:The court dismissed the appeals, affirming the trial court's orders granting bail to certain accused and refusing bail to the 7th accused. The court found that the appeals were competently filed, gold smuggling does not fall under the definition of a terrorist act in Section 15 of the UA(P) Act, and the materials presented did not prima facie indicate involvement in a terrorist act. The court emphasized that the prosecution could continue its investigation and gather further evidence.