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2022 (5) TMI 817 - HC - CustomsInterpretation of statute - smuggling of Gold - Whether Section 15(1)(a)(iiia) of the UA(P)A, which was inserted in the year 2012, was meant to include the smuggling of gold in the category of other material as mentioned in Section 15(1)(a)(iiia) of the UA(P)A or not? - HELD THAT - Single Bench of MOHAMMED ASLAM SON OF ABDUL RASHID VERSUS UNION OF INDIA, NATIONAL INVESTIGATION AGENCY 2021 (2) TMI 124 - RAJASTHAN HIGH COURT held that gold is a valuable material, smuggling of which can be done with intent to threaten or likely to threaten the economic security of the country and was thus considered to be a terrorist act . However, in MOHAMMED SHAFI P., JALAL A.M., RABINS KARIKKANAKUDIYIL HAMEED, RAMEES K.T., SARITH. P.S., SWAPNA PRABHA SURESH, SHARAFUDEEN K.T., MOHAMMED ALI VERSUS NATIONAL INVESTIGATION AGENCY, KOCHI, UNION OF INDIA, STATE OF KERALA, 2021 (11) TMI 288 - KERALA HIGH COURT , Division Bench of Kerala High Court held that Section 15(1)(a) (iiia) of the UA(P)A is not attracted when gold is smuggled in the country. Evidence of conspiracy and smuggling of gold does not prima facie give credence to an allegation of threat to economic security or irreparable damage to economic security of the country and thus cannot be deemed to be a terrorist act. The Court observed that counterfeiting, that too of high quality currency notes or coins and any material so to do is the only specie included under Section 15(1)(a)(iiia) of the UA(P)A. From the discussion, which took place before the Standing Committee, it is evident that no deliberation took place for considering gold as a material under Section 15(1)(a)(iiia) of the UA(P)A. From the relevant record as produced on behalf of the N.I.A., it is evident that except accused appellant Amzad Ali, all the accused had gone to earn their livelihood and due to COVID, they were not able to continue to work at Saudi Arabia and therefore, were waiting to return back to India. As per the prosecution case, they were approached by some persons and they were made carriers for carrying the gold and free tickets were provided to them for smuggling gold into India. There is no material to suggest that the accused appellants intended to threaten the economic security of India. No material was seized from Amzad Ali, his name did not appear in the statements of the co-accused during investigation by Custom Officers and for the first time appeared in statements recorded by N.I.A. Prima facie there is no material against Amzad Ali. The other accused persons, who as per the investigation, were labourers and lost their employment due to COVID, were asked to carry gold in lieu of the tickets. There is no material whatsoever to come to the conclusion that they intended to commit any terrorist act so as to damage the economic security of the country Appeal allowed.
Issues Involved:
1. Whether smuggling of gold constitutes a "terrorist act" under Section 15(1)(a)(iiia) of the Unlawful Activities (Prevention) Act (UA(P)A). 2. Validity of the bail rejection by the Special Judge (N.I.A. Cases), Rajasthan, Jaipur. 3. Applicability of Section 25 of the Evidence Act to statements recorded by N.I.A. Officers. 4. Interpretation of legislative intent regarding the inclusion of gold under Section 15(1)(a)(iiia) of the UA(P)A. Issue-wise Detailed Analysis: 1. Whether smuggling of gold constitutes a "terrorist act" under Section 15(1)(a)(iiia) of the UA(P)A: The primary question was whether the smuggling of gold falls under the category of "other material" as mentioned in Section 15(1)(a)(iiia) of the UA(P)A, which pertains to acts that damage the monetary stability of India. The court referred to the Kerala High Court's judgment in *Mohammed Shafi vs. N.I.A.*, which concluded that gold smuggling does not constitute a terrorist act unless it points towards terrorist funding. The Rajasthan High Court agreed with this interpretation, emphasizing that the legislative intent behind Section 15(1)(a)(iiia) was to address counterfeit currency and not valuable metals like gold. The court held that smuggling gold, which is bailable under the Customs Act, cannot be treated as a terrorist act under the UA(P)A. 2. Validity of the bail rejection by the Special Judge (N.I.A. Cases), Rajasthan, Jaipur: The accused appellants were initially granted bail under the Customs Act as the value of the seized gold and the payable custom duty were below the threshold making the offense bailable. However, their bail applications were rejected by the Special Judge (N.I.A. Cases) under the UA(P)A. The High Court found no material evidence suggesting that the accused intended to threaten the economic security of India. The court noted that the accused were laborers stranded abroad due to COVID-19 and were lured into carrying gold to cover their flight expenses. Consequently, the High Court quashed the bail rejection orders and directed the release of the accused on bail. 3. Applicability of Section 25 of the Evidence Act to statements recorded by N.I.A. Officers: The counsel for the accused argued that statements recorded by N.I.A. officers are inadmissible under Section 25 of the Evidence Act, as N.I.A. officers are considered police officers. The court did not delve deeply into this argument, as the primary focus was on the nature of the offense and the legislative intent behind the UA(P)A provisions. 4. Interpretation of legislative intent regarding the inclusion of gold under Section 15(1)(a)(iiia) of the UA(P)A: The court examined the legislative history and the discussions of the Joint Parliamentary Committee, concluding that there was no intent to include gold under the term "other material" in Section 15(1)(a)(iiia) of the UA(P)A. The court emphasized that the term was meant to address materials used for counterfeiting currency and not valuable metals like gold. The court's interpretation was aligned with the Kerala High Court's judgment in *Mohammed Shafi vs. N.I.A.* Conclusion: The Rajasthan High Court allowed the appeals, quashing the orders of the Special Judge (N.I.A. Cases) and directing the release of the accused on bail. The court clarified that smuggling gold does not constitute a terrorist act under the UA(P)A and emphasized that the observations made in the judgment should not influence the trial court's independent assessment of the case's merits.
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