[Gold Smuggling] 'No Evidence Of Terror Financing; Provisions Of UAPA Not Attracted': Swapna Suresh Tells Kerala High Court; Judgment Reserved

The Kerala High Court on Monday reserved its judgment in the appeals filed by some of the accused, in the infamous gold smuggling case in the State.

A Division Bench of Justice K. Vinod Chandran and Justice C Jayachandran extensively heard the submissions of all parties involved before reserving its judgment today. The Court notified that the judgment will be released within a week's time.    

The applications were preferred for bail under Section 439 of CrPC for offences alleged under the Unlawful Activities (Prevention) Act (UAPA). The appeals were first posted on 21st May 2021 but were adjourned multiple times. The Court had expressed its displeasure at the repeated requests for adjournments during the last hearing.

The primary contention of all the appellants was that the NIA had failed to make a case for prosecuting them under the UAPA. The counsels argued that the offence alleged against them was gold smuggling while UAPA predominantly dealt with the offence of counterfeiting high-quality currency. 

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On that premise, they submitted that even if the prosecution successfully proved the guilt of the appellants in the matter, their offences would only come under the ambit of the Customs Act.

It was added that the Customs Act is well-equipped to handle such cases and that some of them had been released on bail in the Customs matter by the Court in another proceeding:

"The prosecution case even if proved, only amounts to an offence of smuggling of gold, which will come under the Customs Act and not UAPA, so it is only a Customs offence, at the worst. And for the Customs offence, we have already been granted bail."

It is NIA's case that the accused had knowledge that smuggling a huge quantity of gold would destabilise the economic security and affect the friendly relations with UAE.

However, it is the accused persons' case that there is no legal evidence of any expert witness that the alleged activity will lead to a destruction of economic stability u/s 15 of UAPA.

Advocate Sooraj T. Elenjickal, counsel appearing for prime accused Swapna Suresh argued that the NIA investigation was directed by the Central government to probe into the questions of whether proceeds of the smuggled gold are intended for funding terrorism.

However, in the final report filed, there was no evidence whatsoever that such proceeds have been utilised to finance terrorism as alleged. 

The Counsel added that while some of the accused in the matter were released on bail already, the rest were denied bail on the sole ground that a deeper probe was necessary for the facts narrated in the FIR, regarding funding terrorism and involvement of transnational forces. 

It was urged that from the final report it becomes clear that no such links with terrorism or transnational links could be established by the investigating agencies. 

The Counsel also argued:

"She is a lady, a mother of two children, a 19-year-old daughter and a 9-year-old son. She suffers from various ailments like cardiac issues, epilepsy and recurring mental depression. She has a limited role in the case and no criminal antecedents."

It was further pointed out that the trial was highly unlikely to commence in the near future considering the number of witnesses and documents involved in the matter. On this note, the Counsel quoted from Asif Iqbal Tanha v State of NCT of Delhi:

"Should this court wait until appellant has languished in prison for a long enough time to be able to see that it will be impossible to complete deposition of 740 prosecution witnesses in foreseeable future?"

Additional Solicitor General S.V Raju appeared for the NIA and submitted that although a bare reading of the UAPA and the associated Rules would give an impression that the acts of the accused will not be covered by it, one had to look into the legislative intent behind its implementation. 

"From the Rules, it is clear that the threshold for an economic offence is one lakh, but here the gold seized would amount to crores of rupees. We should look at what the legislature intended to execute by the Rules rather than applying it mechanically."

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Similarly, it was argued that despite finding that smuggling of gold did not fall under the ambit of Section 15 of UAPA, the Division bench had refused to grant bail to the accused. The ASG suggested that this yardstick should be applied by this bench as well.

Senior Advocate Gopakumaran Nair appearing for the accused Sarith P.S. submitted that he had resigned from the Consulate in September 2019. Thus, he does not have any connection with the incident.

"The prosecution has to at least prove that there are witnesses who saw me release the smuggled goods. They should also produce the independent authorisation for each such alleged release. I am totally innocent in this case...There are 267 witnesses in this case and I have gone through all of them twice and thrice but no witness says Sarith was seen releasing the smuggled gold," it was submitted.

After hearing the submissions, the Bench reserved its judgment in the matter. 

The appellants were represented by Senior Advocates S. Sreekumar, C.C. Thomas and Gopakumaran Nair. Advocates Nireesh Mathew, Martin Jose, Manu Tom, Sooraj T Elenjickal and Ashwin Kumar are also appearing in the matter.

Case Title: Mohammed Shafi P. v. National Investigation Agency & connected matters.

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