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TMI Blog2022 (6) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... recommendations of the Financial Action Task Force (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. It is evident that all the appellants except Dileep Laxman Patil and Vaibhav Sampat More are in custody 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tening the economic security and damaging the monetary stability of India as provided under Section 15(1) (a) (iiia) of UAP Act being a terrorist act punishable under Section 16 of the UAP Act. 3. Learned Senior Counsels appearing on behalf of the appellants contend that appellants-Ravikiran Balaso Gaikwad (A-1) in Crl.Appeal Nos.185/2021, Pawan Kumar Mohan Gaikwad (A-2) in Crl.Appeal No.188/2021, Sachin Appaso Hasabe (A-3) in Crl.Appeal No.190/2021, Yogesh Hanmant Rupnar (A-4) in Crl.Appeal No.192/2021, Abhijeet Nand Kumar Babar (A-5) in Crl.Appeal No.191/2021, Avadhut Arun Vibhute (A6) in Crl.Appeal No.189/2021, Saddam Ramjan Patel (A-7) in Crl.Appeal No.186/2021 and Dileep Laxman Patil (A-8) in Crl.Appeal No.187/2021, were arrested on 28th August, 2020 by DRI and though released on bail in the customs case, continue to be in custody because of the above-noted RC. It is stated that the appellant in Crl.Appeal No.187/2021 was released on bail immediately as the alleged recovery from him was gold worth less than ₹50 lakhs, the offence being thus bailable however, was arrested in November, 2020 in the above-noted RC. The other accused were granted default bail by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of appellant Vaibhav Sampat More in Crl.Appeal No.115/2022 it is claimed that the said appellant was not arrested at the spot. There is no evidence against him except the disclosure statement of the co-accused. Admittedly, the appellant Vaibhav Sampat More is a jeweler and even as per the inadmissible statement recorded under Section 108 Customs Act there is no material on record to show that the gold was delivered to him. The best case of the respondent in the supplementary charge-sheet against the appellant Vaibhav Sampat More was that he was involved in collecting the gold consignment from Dileep Laxman Patil (A-8) and has facilitated in his travel for the same. Admittedly, even as per the respondent Dileep Laxman Patil was carrying only three gold bars weighing 497 grams, valued at ₹25.5 lakhs. 6. Countering the arguments of learned counsels for the appellants, learned Additional Solicitor General claims that after the arrest of the appellants by the DRI, their statements were recorded under Section 108 of the Customs Act which statements not being before the Police Officer are admissible in evidence. Reliance is placed on the decision of the Hon'ble Supreme Court re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... economic stability of this country and in view of the seriousness of the offence no bail be granted to the appellants. 9. The main contention of learned counsel for the appellant is that even taking the allegations of the respondent as stated in the charge-sheet, the case of the respondent is that the appellants except appellant Vaibhav Sampat More were allegedly involved in smuggling of gold; the said offence at best can be an offence under the Customs Act which is not a scheduled offence under the UAP Act and cannot be a terrorist activity even as defined under Section 15(1)(a)(iiia). The said provision relates to smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material. It is contended that the word 'or of any other material' has to be read ejusdem generis to the paper currency and coin. Further if the Legislature intended to include 'gold' as 'any other material' it could have specifically stated in Section 15(1) (a) (iiia) and the respondent cannot add words to the said provision by including 'gold' therein. 10. In Mohammed Shafi P. (supra) the Division Bench of the Kerala High Court dealing with a case of smuggling of gold wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s explained. Pertinently, no mention about coin can be seen therein. We quote the explanation- "(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." 23. It will be apposite at this juncture to look into the Third Schedule to UA(P) Act which specifies the security features to define high quality counterfeit Indian currency notes: "THE THIRD SCHEDULE [See clause (b) of Explanation to section 15(1)] SECURITY FEATURES TO DEFINE HIGH QUALITY COUNTERFEIT INDIAN CURRENCY NOTES Watermark(s), Security thread and any one of the following features:- (a) Latent image; (b) See through registration; (c) Print quality sharpness; (d) Raised effect; (e) Fluorescent characteristics; (f) Substrate quality; (g) Paper taggant; (h) Colour shift effect in OVI; (I) Colour shift effect in security thread." 24. Our attention has been drawn to the Unlawful Activities (Prevention) Amendment Bill, 2011 intended to further amend the UA(P) Act. In the Bill, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the more effective prevention of certain unlawful activities of individuals and associations and for matters connected therewith. The scope of the Act was widened in 2004 and the terrorist activities were brought within the scope of the said Act. 2. An Inter-Ministerial Group was constituted to evaluate the existing provisions of the Unlawful Activities (Prevention) Act, 1967 and to recommend necessary amendments to the said Act. In addition to the above, the Financial Action Task Force, an Inter-Governmental organization set-up to devise policies to combat money laundering and terror financing admitted India as its 34th member. On the basis of commitment made by India at the time of admission to the said Financial Action Task Force, various legislative and other legally binding measures were required to be taken on a medium term basis, i.e., by 31st March, 2012. These recommendations were examined and it is proposed to amend the Unlawful Activities (Prevention) Act, 1967 to make it more effective in prevention of unlawful activities and dealing with terrorist activities. 3. The Unlawful Activities (Prevention) Amendment Bill, 2011, inter alia, provides to - (a) increase th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. Besides, we take cognizance of the fact that there can be many other things of enormous value like precious metals and stones that could be smuggled for making an unlawful gain. We do not find any logic to include gold alone along with counterfeit Indian paper currency or coin. 43. One more rule of interpretation of statutes fortifies our view. Casus omissus, meaning a situation omitted from or not provided by statute, cannot be supplied by courts, as to do so will be legislation and not construction. Plethora of case law on this subject need not be menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 108 of the Customs Act was for the purpose of collecting information of the contravention of the provisions of the said Act by concealment of the contraband or avoidance of the duty and for initiation of action thereon. It is in this light that the Supreme Court in K.I. Pavunny (supra) held that the statement recorded under Section 108 of the Customs Act will be admissible in evidence on the complaint laid by the Customs Officers for prosecution under Section 135 or other relevant Statutes. However, the term 'other relevant Statutes' will not include an unconnected Statute which does not even in its schedule include Customs Act as a scheduled offence. 13. There is yet another aspect to the matter. Section 16 of the UAP Act provides for punishment for a "terrorist act" as under: "16. Punishment for terrorist act.- (1) Whoever commits a terrorist act shall,- (a) if such act has resulted in the death of any person, be punishable with death or imprisonment for life, and shall also be liable to fine; (b) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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