2021 (2) TMI 124 - HC - Customs

Smuggling - Gold - distinct offences or not - impugned FIR has been registered only on the basis of suspicion whereas such FIR can only be registered for prima facie involvement of any person in terrorist activities as defined under Section 15 of the Act of 1967 - HELD THAT - The present FIR has been registered on sufficient material came to the notice of the NIA under the prosecution of the present petitioner and others under the Customs act and otherwise. As per statement of the petitioner recorded under Section 108 of Customs act and the statements of other co-accused persons and on the basis of other material the present petitioner has been prima facie found to be smuggler of gold as well as the facilitator of the alleged smuggling. Therefore it cannot be said that the present FIR has been registered without any basis or the contents of FIR prima facie do not constitute the impugned offences which may warrant quashing of the present FIR. Further the NIA shall after due investigation present its report (Negative FR/Challan) before the Trial Court and in case of filing of Challan the petitioner shall be at liberty to take legal recourse available to him as per law. It is true that every act of smuggling may not be covered under the definition of Terrorist act and only such smuggling of any material can be termed as Terrorist act which is done with intent to threaten or likely to threaten the economic security and to cause damage to the monetary stability of the country. In this case the petitioner has been found to be smuggler of huge quantity of gold as well as facilitator to other fellow smugglers. Therefore it cannot be said that this FIR is a discriminatory act towards him. Petition dismissed.

Summary

Issues:
Quashing of FIR under Section 482 of Cr.P.C. based on alleged abuse of process and discrimination by NIA for registering a second FIR on similar allegations.

Analysis:
The petitioner argued that the NIA's action of registering a second FIR for smuggling of gold, under Section 16 of the Unlawful Activities (Prevention) Act, 1967, was discriminatory and an abuse of process. He contended that the NIA's FIR was based on suspicion and not on prima facie evidence of involvement in terrorist activities as defined under Section 15 of the Act of 1967. The petitioner emphasized that smuggling of gold does not fall under the provision of "any other material" as per Section 15(I)(a)(iiia), thus asserting that the FIR was unjust. He cited various judgments to support his argument.

The Additional Solicitor General, opposing the petition, argued that the petitioner was involved in smuggling a significant amount of gold, intending to threaten the economic security of the country, which constitutes a terrorist act under Section 15 of the Act of 1967. He highlighted that the petitioner's own statement under Section 108 of the Customs Act and other evidence indicated his involvement not only as a smuggler but also as a facilitator. The ASG contended that the FIR was valid under the law.

The Court observed that the NIA has the authority to register a case under Section 16 of the Act of 1967 for terrorist acts, including those threatening economic security. The Court noted that smuggling gold, being a valuable material, could indeed threaten economic security, justifying the FIR. The Court found sufficient material linking the petitioner to smuggling activities, making the FIR valid. It emphasized that the offences under the Customs Act and the Act of 1967 are distinct, allowing separate prosecutions.

While acknowledging the legal principles cited by both sides, the Court distinguished the present case from the judgments provided by the petitioner. It concluded that the circumstances did not warrant quashing the FIR or staying its proceedings, dismissing the petition and the stay application.

In summary, the Court upheld the validity of the FIR registered by the NIA under Section 16 of the Act of 1967, rejecting the petitioner's arguments of discrimination and abuse of process. The Court emphasized the seriousness of the offence and the distinct nature of prosecutions under the Customs Act and the Act of 1967, leading to the dismissal of the petition.