TaxTMI 
TaxTMI 
2022 (6) TMI 220
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.... Singh, Advocates. MUKTA GUPTA, J. 1. Aggrieved by the impugned order dated 10th May, 2021 in all the appeals and the order dated 27th November, 2021 in Crl. Appeal No.115/2022 declining to grant bail to the appellants in RC32/2020/NIA/DLI dated 16th September, 2020 registered under Sections 16/18/20 of the Unlawful Activities (Prevention) Act, 1967 (in short 'the UAP Act') and under Sections 120B/204/409/471 IPC at NIA Headquarters, New Delhi, appellants prefer the present appeals. 2. Briefly the allegations of the prosecution against the appellants is that on 28th August, 2020 eight accused namely Ravikiran Balaso Gaikwad (A1), Pawan Kumar Mohan Gaikwad (A-2), Sachin Appaso Hasabe (A-3), Yogesh Hanmant Rupnar (A-4), Abhijeet Nand Kumar Babar (A-5), Avadhut Arun Vibhute (A-6), Saddam Ramjan Patel (A-7) and Dileep Laxman Patil (A-8) i.e. the appellants herein except appellant Vaibhav Sampat More were intercepted by the Delhi Zonal Unit of the Directorate of Revenue Intelligence (DRI) while travelling from Assam, Guwahati to Delhi in Train No.02423 and it is alleged that 504 gold bars weighing 83.621 kilograms, which were smuggled were recovered from them at the New Delhi R....
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....e ipse dixit that there is an erasing of the mark no presumption can be raised that the gold was smuggled. Further even the smuggling of gold will not be attracted as a terrorist act as defined under Section 15(1) (a) (iiia) of the UAP Act firstly, on the count that the Customs Act is not a scheduled offence under the UAP Act and secondly, in the term smuggling or circulation of high-quality counterfeit Indian paper currency, coin or of any other material, the words 'of any other material' cannot be deployed to include smuggling of gold. Two High Courts, that is, the High Court of Kerala in the decision reported as 2021 SCC OnLine Ker 902 Muhammed Shafi P. vs. National Investigation Agency and the Division Bench of the Rajasthan High Court in Crl.Appeal No.22/2021 Rashid Qureshi vs. National Investigation Agency while granting bail to the accused therein has held that smuggling of gold will not be included in the term 'other material' as used in Section 15(1) (a) (iiia) of the UAP Act. If smuggling of gold was to be included as a terrorist activity while amending Section 15 of the UAP Act the Legislature in its wisdom would have also amended the Schedule to the UAP Act to include t....
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.... by a common travel agency namely Maya Tour & Travels. It is further stated that the eight accused travelled in a train under dummy names thereby demonstrating their culpable mens-rea. The mobile phones of the accused recovered showed photos of fake Aadhar cards, train tickets and gold bars. Besides the statement recorded under Section 108 of the Customs Act the further evidence by the prosecution against the appellants is that the eight accused travelled on fake names and image of fake Aadhar card was found in the data extracted from the mobile phones besides the images of Indian rupee notes which are used as token for purposes of hawala transactions. Images of the accused persons, images of smuggled gold etc. were also found in the mobile phone. 8. Learned Additional Solicitor General also relies on the Statement of Objects and Reasons of bringing the amendment to Section 15 of the UAP Act by introducing Section 15(1)(a)(iiia). Further this amendment was brought due to the recommendations of the Financial Action Task Force (FATF). Even in the said report it is clearly stated that gold is a universally accepted currency. Further gold can be traded anonymously and such transacti....
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....tances (whether biological radioactive, nuclear or otherwise) of a hazardous nature, the unity, integrity, etc. of the nation could be threatened or terror could be struck in people or any section of the people in India or in any foreign country. Clause (a) makes it abundantly clear that the illustrations of criminal acts therein are not exhaustive. The effects produced by such acts are dealt with in Sub-clauses (i) to (iv) thereunder. If by using bombs, dynamites, etc, death or injuries to any person or persons occur, it will be a terrorist act under Sub-clause (i). Likewise, under Sub-clause (ii), by using bombs, dynamites, etc. if loss or damage or destruction of property has happened, then also it will fall within the definition of terrorist act. Similarly, the disruption of any supplies or services essential to the life of the community in India or in any foreign country caused by any of the means referred to above will also be a terrorist act. Most importantly, under Sub-clause (iiia) to Section 15(1)(a) by any means of whatever nature if any damage to the monetary stability of India is caused or likely to be caused by way of production or smuggling or circulation of high qua....
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....any act; or" shall be substituted;"; (iv) after clause (c), the following clause shall be inserted, namely:- "(d) demands any bomb, dynamite or other explosive substances or inflammable substances or fire arms or other lethal weapons or poisonous or noxious or other chemicals or any biological, radiological, nuclear material or device with the intention of aiding, abetting or committing terrorism."; (v) for the Explanation, the following Explanation shall be substituted, namely:- 'Explanation.- For the purpose of this section,- (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 currency" means the counterfeit currency as may be declared after examination by an authorized or notified forensic authority that such currency imitates or compromises with the key security features as specified in the Third Schedule.'; (v) after sub-section (1), the following sub-section shall be inserted, namely:- "(2) The terrorist act under sub-section (1) includes an act which constitut....
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....son indulges in acts described in clause (c) of section 15, since the existing provision does not explicitly mention such international or inter-governmental organization. (iii) act of demanding any bomb, dynamite or other explosive substances or inflammable substances or fire arms or other lethal weapons or poisonous or noxious or other chemicals or any biological, radiological, nuclear material or device with the intention of aiding, abetting or committing terrorism; xxxxxx" ....... 42. Sum and substance of the above discussion is that by applying the above mentioned well known rules of interpretation of statutes, we are unable to hold that 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. In our view, what is made an offence under Section 15(1)(a)(iiia) of UA(P) Act is causing damage to ....
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....s made to the definition of "terrorist act" by bringing in facets of terrorist acts by disturbing the economic stability of the country. The said amendment has been made pursuant to the recommendations of the Financial Action Task Force (in short FATF). The said report claims that gold is a universally accepted currency, gold can be transferred anonymously and transactions are difficult to trace and verify. It was noted that gold is a form of global currency and also acts as a medium for exchange in criminal transactions. However, it may be noted that despite the fact that the report specifically deals with gold, the word 'gold' have not been added while amending Section 15(1)(a)(iiia) UAP Act. Further possession, use, production, transfer of counterfeit currency or coin is per-se illegal and an offence, however, production, possession, use etc. of 'gold' is not per-se illegal or an offence. Even import of gold is not prohibited but restricted subject to prescribed quantity on payment of duty. Thus mere smuggling of gold without any connection whatsoever to threatening economic security or monetary stability of India cannot be a terrorist act. 12. As noted above, the main eviden....
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....e offence by the said appellant was bailable in view of the quantum of alleged possession and thus he was released on bail. However, on 16th September, 2020 the above-noted RC32/2020/NIA/DLI was registered and the remaining appellants except Vaibhav Sampat More and Dileep Laxman Patil were arrested by NIA on 21st September, 2020 and thus continued to be in custody in the above-noted RC despite default bail granted to them in customs case on 27th October, 2020. Further Dileep Laxman Patil was arrested by NIA on 20th November, 2020 and Vaibhav Sampat More on 24th March, 2021. It is thus evident that all the appellants except Dileep Laxman Patil and Vaibhav Sampat More are in custody in the above-noted RC since 21st September, 2020 and have spent more than 20 months in custody. The trial is likely to take some time, also for the reason that some of the appellants have filed petitions challenging the order granting sanction claiming that an alleged offence under the Customs Act cannot be brought in the realm of provisions of the UAP Act. 15. Thus, in view of the discussion aforesaid, this Court deems it fit to grant bail to the appellants. Consequently, appellants are directed to be....