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TMI Blog2021 (2) TMI 1218X X X X Extracts X X X X X X X X Extracts X X X X ..... e directed against the orders passed by the learned Judge presiding over the Special Court for trial of NIA Cases, Ernakulam on applications for bail submitted by various accused in R.C. 2/2020/NIA/KOC. It is seen that two common orders are passed by the learned Judge of the Special Court. Bail was granted to accused 8, 9, 11, 14, 16, 17, 18, 19, 21, 22, 23 and 24 as per order dated 15.10.2020 and to accused 17 and 18 as per order dated 23.10.2020. Both the orders are challenged before this Court by the Union of India represented by the National Investigation Agency, Kochi ("NIA", in short). 7Th accused, whose bail plea was rejected, has preferred a separate appeal challenging the order dated 15.10.2020. Since identical factual and legal questions arise in all these cases, they are heard together. We dispose them by this common judgment. 2. Heard Shri Surya Prakash V. Raju, learned Additional Solicitor General of India (ASG) and Shri Arjun Ambalapatta, learned prosecutor for NIA and Shri S. Sreekumar, Shri Vipin Narayan, Shri V.T. Raghunath, Shri M. Balagopal, Shri Babu S. Nair, Shri Nireesh Mathew, Shri E. Ahamed Fazil and Shri Manu Tom, learned counsel appearing for the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used 13 and 14 is that they had associated with accused 1, 4, 5, 6 and 7 to smuggle gold 21 times in various forms and after November 2019, they assisted other accused persons for exchanging the smuggled gold at various places. 16th accused had conspired with 8th accused and arranged funds for smuggling gold multiple times in June 2020 through the diplomatic channel. 19th accused had funded Rs. 65 lakhs for smuggling gold since June 2020 and obtained 1.5kgs of smuggled gold at Thiruvananthapuram on multiple occasions. He did so by conspiring with accused 5, 6, 7 and 16. It is further alleged that 21st accused had conspired with accused 8, 16 and 23 and handed over Rs. 70 lakhs during June 2020 for purchasing smuggled gold. He had also travelled to Thiruvananthapuram along with accused 16 and 23 to receive the smuggled gold from accused 4 and 5 in the month of June 2020. Accusation against 22nd accused is that he had funded Rs. 1.25 crore each on three occasions for obtaining smuggled gold through the above said channel. It is further alleged that he had associated with accused 7, 17 and 22. 23rd accused also conspired with accused 8, 16 and 21 since June 2020 and handed over Rs. 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot have granted bail to some of the accused persons. 7. Per contra, learned counsel appearing for the accused contended that despite consuming much time, the investigating agency could not find out any reason justifying further detention of the accused persons. It is also contended that Section 15 of the UA(P) Act is totally inapplicable to the facts of this case. In the appeal filed by 7th accused, he questioned the legal and factual reasons stated by the trial court for denying bail. 8. Learned ASG contended that the court below viewed the matter as a simple case of smuggling. According to him, the inconsistent views taken by the learned Judge can be seen on a conjoint reading of paragraphs 2 to 6, wherein the facts have been mentioned, and in paragraph 19, it is indicated that the case on hand is a mere act of smuggling gold without attracting the offence of "terrorist act" as defined under Section 15 of the UA(P) Act. 9. At the outset, the learned counsel appearing for the accused persons canvassed a proposition that the appeals filed by NIA are incompetent as they were not properly instituted before this Court. It is seen from the cause title to the appeal memoranda that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithan and another (2019 KHC 737). In Krishnan's case, the Division Bench noticed the admitted fact that the State had filed appeals against an acquittal through Additional Advocate General at a time when admittedly there was no public prosecutor appointed for the High Court. Therefore, the question was whether the State Government could have directed the Advocate General or Additional Advocate General to present an appeal under Section 378(1) of Cr.P.C. without appointing them as public prosecutors under Section 24(1) of Cr.P.C. in view of Article 165 of the Constitution of India and the Rules framed by the Government under Clauses 2 and 3 of Article 165. The Bench, after an elaborate consideration, refused leave to appeal sought for by the State finding that the appeals were not filed by the public prosecutor as required under Section 378(1) of Cr.P.C. Following this decision, another Bench in Benny P. Jacob held that the appeal preferred by the State could be treated as defective as it was not preferred by the State public prosecutor. It is therefore forcefully argued that the appeals filed by NIA should be dismissed in limine finding that they are incompetent. 11. Refuting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Cr.P.C. specifically says that the State Government may direct the public prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court. Interpreting this provision, in Krishnan and Benny P. Jacob (supra) it was held that what is important is the presentation of criminal appeals under Section 378 of Cr.P.C. through a public prosecutor appointed under Section 24 of Cr.P.C. Section 15 of NIA Act is extracted hereunder as it is also relevant for our purpose: "Public Prosecutors.-(1) The Central Government shall appoint a person to be the Public Prosecutor and may appoint one or more persons to be the Additional Public Prosecutor or Additional Public Prosecutors: Provided that the Central Government may also appoint for any case or class or group of cases a Special Public Prosecutor. (2) A person shall not be qualified to be appointed as a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor under this section unless he has been in practice as an Advocate for not less than seven years or has held any post, for a period of not less than seven years, under the Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorized 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. The first ground on which the appeal was dismissed is affirmed by the Supreme Court. However, in respect of the second ground the following observations are made: "6. This submission of the learned Additional Solicitor-General requires to be accepted. Section 24(8) CrPC specifically empowers the Central Government or the State Government to appoint a Special Public Prosecutor for conducting any case or class of cases. Such Special Public Prosecutor would be Public Prosecutor for all the purposes under the Act. It cannot be said that the Special Public Prosecutor is not a Public Prosecutor. Hence, the second reason recorded by the High Court cannot be justified." 14. 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 contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India, any State Government or any of their agencies; or (b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or (c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an international or inter-governmental organization or any other person to do or abstain from doing any act; or commits a terrorist act. Explanation.-For the purpose of this sub-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 Indian 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. (2) The terrorist act includes an act which constitutes an offence within the scope of, and as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... untry. 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 quality counterfeit Indian paper currency, coin or of any other material, then also it will amount to a terrorist act. 19. In this context, we shall consider Explanation (b) to the above Section, wherein high quality counterfeit Indian curren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule.". The Bill was passed by the Parliament and Act 3 of 2013 came into force. Section 15(1)(a)(iiia) was inserted by the Amending Act with effect from 01.02.2013. Relevant portion of the statement of objects and reasons to the Bill reads thus: "The Unlawful Activities (Prevention) Act, 1967 has been enacted to provide for the more eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned counsel for the accused that Section 15(1)(a)(iiia) cannot be invoked in the facts of the case to hold that the alleged activities by the accused amounted to a terrorist act. According to them, a smuggling activity simplicitor cannot amount to a terrorist act under the scheme of UA(P) Act. Forcefully it is argued that NIA has no authority to investigate into an offence of smuggling defined under Section 2(39) of the Customs Act, 1962 ("Customs Act", in short). It is pointed out that in the Schedule attached to the NIA Act, dealing with specified enactments, the Customs Act is not included. Specific case advanced by the learned counsel for the accused is that the materials on record do not justify the contention raised by NIA that the accused are liable to be proceeded under Chapter IV of UA(P) Act dealing with punishment for terrorist activities since no terrorist act as defined under Section 15 of UA(P) Act has been attracted in this case. 23. Per contra, learned ASG and the Prosecutor contended that the investigation at that time was gradually progressing in various directions. It may be too premature to form an opinion as to whether a terrorist act, as defined u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oluminous evidence recovered in the paper form and also decoded from the electronic gadgets. It is true that the case involves a lot of transactions connecting various accused persons and accomplices. We are of the view that the investigating agency is justified in taking time for completing a threadbare investigation into all the aspects. 24. At the same time, the contention of the accused persons that the materials placed before the court at the time of considering their bail applications did not reveal any of the offences charged against them has also to be considered to assess the legality of the impugned order. 25. Learned senior counsel appearing for 22nd accused contended that no contention regarding a direct communication of this accused with the kingpins has been raised in the remand application filed by NIA. According to him, if Section 15 of UA(P) Act is not applicable, then Sections, 16, 17 and 18 of the said Act will have no application. This argument is opposed by the learned counsel on behalf of NIA contending that there are enough materials to rope the accused persons in the alleged offences. Further, Section 17 deals with punishment for raising funds for terroris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other material" will have to be understood as one class of items intended to be produced or smuggled or circulated in order to damage the monetary stability of India. In other words, it is contended that high quality counterfeit Indian paper currency or coin cannot be disassociated or separated from the words "any other material". According to them, the principle of ejusdem generis should be applied to interpret this provision. 29. In this context, it will be apposite to consider the wafer-thin distinction between "noscitur a sociis" and "ejusdem generis". According to Black's Law Dictionary the expression "noscitur a sociis" means thus: "A canon of construction holding that the meaning of an unclear word or phrase should be determined by the words immediately surrounding it." The expression "ejusdem generis", according to Black's Law Dictionary, means thus: "A canon of construction that when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed. For example, in the phrase horses, cattle, sheep, pigs, goats, or any other barnyard animal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered the interpretation of Section 129-A of the Motor Vehicles Act, 1939 wherein the power to detain vehicles used without certificate of registration or permit had been dealt with. Opening words of the Section showed that any police officer authorized in this behalf or other person authorized in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provision of law, he may seize and detain the vehicle. The words "any police officer authorized in this behalf or other person authorized in this behalf by the State Government may" were interpreted in paragraphs 7 and 9 of the decision. In paragraph 9 the following observations are made: "9. ........... A reading of Section 129-A and Section 133-A of the Act together shows that the "other person" referred to in Section 129-A of the Act, who may be empowered to discharge the powers under that section can only mean an officer of the government, such as the Motor Vehicles Officer appointed under Section 133-A of the Act or of any other department. It could never have been the intention of the Central legislature, while enacting Section 129-A and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have a similar provision in Section 129 of the Act. That section authorizes the State Government to empower any police officer or other person to exercise the powers under that section. Such police officer or other person may, if he has reason to believe that any identification mark carried on a motor vehicle or any licence, permit, certificate of registration, certificate of insurance or other document produced to him by the driver or person in charge of a motor vehicle is a false document within the meaning of Section 464 of the Indian Penal Code (45 of 1860), seize the mark or document and call upon the driver or owner of the vehicle to account for his possession of or the presence in the vehicle of such mark or document. That section also provides that any police officer authorized in that behalf or other person authorized in that behalf by the State Government may, if he has reason to believe that the driver of a motor vehicle who is charged with any offence under the Act may abscond or otherwise avoid the service of a summons, seize any licence held by such driver and forward it to the court taking cognizance of the offence and the said court shall, on the first appearance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ricted by implication with the meaning of the restricted words. This is a principle which arises "from the linguistic implication by which words having literally a wide meaning (when taken in isolation) are treated as reduced in scope by the verbal context". It may be regarded as an instance of ellipsis, or reliance on implication. This principle is presumed to apply unless there is some contrary indication [see Glanville Williams, The Origins and Logical Implications of the Ejusdem Generis Rule. 7 Conv (NS) 119]. 28. This ejusdem generis principle is a facet of the principle of noscitur a sociis. The Latin maxim noscitur a sociis contemplates that a statutory term is recognized by its associated words. The Latin word "sociis" means "society". Therefore, when general words are juxtaposed with specific words, general words cannot be read in isolation. Their colour and their contents are to be derived from their context. (See similar observations of Viscount Simonds in Attorney General v. Prince Ernest Augustus of Hanover (1957 AC 436:(1957) 2 WLR 1: (1957) 1 All ER 49(HL), AC at p. 461)" 32. A Full Bench decision in State of Kerala v. Amalgamated Malabar Estates (P) Ltd. (1979 KL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly 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 the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or any other material relatable to currency or coin. "Other material" can be any material connected to counterfeit Indian paper currency or counterfeit Indian coin, like machinery or implements or high quality paper or any other material which could be used for producing or circulating fake currency or coin. Illegal acts referred to in the above provision certainly will have a direct impact on the economic security of India. In our opinion, 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 group ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention. It is observed that smuggling of gold with intent to threaten or likely to threaten the economic security of the country is covered under the smuggling of "any other material". It is clear from the decision that no analysis of the provision was made by the learned single Judge. Moreover, no specific reason has been stated for making the aforementioned observations. It is to be remembered that the learned single Judge was examining whether there was any sufficient reason to quash an FIR at the initial stage of the investigation. We do not find any law laid down in the above decision. We are, therefore, not persuaded by the single line observation made by the learned single Judge that "any other material" occurring in Section 15(1)(a)(iiia) of UA(P) Act is intended to cover gold smuggling also. 36. Our attention has been drawn to a Full Bench decision of this Court in Abdul Salam v. National Investigation Agency, Kochi (2018 (3) KHC 1) wherein Sections 15, 16 and 18 of UA(P) Act were interpreted. Facts in the decision would show that a huge quantity of high quality counterfeit Indian paper currency had been brought or imported to India by the 1st accused. At the time whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a specific amendment. Though generally the objects and reasons of a statute cannot be given much weight or value or importance in the process of interpretation, the objects and reasons of the Unlawful Activities (Prevention) Amendment Act, 2012 will clearly indicate that the Parliament inserted words to cover economic security in Section 15 of the U.A. (P) Act because the existing provision did not cover such situations or instances of acts like smuggling or circulation of high quality counterfeit Indian paper currency causing damage to the finance of the country and economic stability of the country. We find that the Parliament in its wisdom inserted the words 'economic security' in Section 15 of the U.A. (P) Act, and also introduced clause (iiia) in Section 15 regarding production or smuggling or circulation of 'high quality counterfeit Indian paper currency', making it an act of terrorism within the meaning of Section 15, only because the existing provision did not take care of such situations and acts, and a provision was felt absolutely necessary by the Parliament to punish production or smuggling or circulation of high quality counterfeit Indian paper curr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned trial Judge is right in holding that the materials presented before the court at the time of considering the bail application did not reveal prima facie that the accused persons released on bail are involved in a terrorist act, as defined under Section 15 of the UA(P) Act. 38. Learned trial Judge has observed that the case diary produced by NIA in six volumes consist of nearly 2500 pages and on scanning through the materials, the court below found that the persons to whom it had granted bail had funded the front line accused persons for smuggling gold through diplomatic channel and they did conspire with some others in this regard. The materials on record prima facie did not indicate that the accused to whom bail had been granted had acted with an intention to damage economic security of India. Trial court took note of the fact that most of the accused persons are businessmen having considerable assets. The materials on record revealed that the accused, who are enlarged on bail, were indulging in smuggling activity for illegal gain. of course, they were using a diplomatic channel for committing the offence of smuggling. On going through the materials placed before us, we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh the involvement of the accused in any of the offences alleged. Likewise, the investigating agency is free to take all steps to convince the trial court that the accused are liable for all the offences alleged in the final report. Moreover, we caution the court below not to be influenced by any of the observations in this judgment at the time of trial. 41. On a perusal of the operative portion of the bail order, we find that 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. Therefore, we find 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. 42. Insofar as the appeal preferred by 7th accused is concerned, the court below for valid reasons declined hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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