Mere Gold Smuggling Not A 'Terrorist Act' Unless Done With Intent To Threaten Economic Security Of India: NIA Court [Read Order]

The Special NIA Court at Kochi on Thursday granted bail to ten persons who were under the custody of the National Investigation Agency in connection with the sensational gold smuggling case of Kerala.

The Court observed that the mere act of smuggling of gold from abroad will not amount to "terrorist act" as per Section 15 of the Unlawful Activities Prevention Act, unless there are materials to show that the act was done with the intent or likely to threaten the economic security of India.

"...it is beyond any dispute that mere act of smuggling gold would not attract the offence of terrorist act, unless it is coupled with certain other elements, which at least suggest the broad probability of an intentional act to threaten the economic security of India", observed judge P Krishnakumar in the bail order.

"...a careful reading of section 15 of the UA(P) Act leaves no doubt that the act of smuggling of gold to India from abroad would attract the said provision only if it was done 'with intent to threaten or likely to threaten the economic security of India'", the Court added.

The Court did not accept the argument of the Assistant Solicitor General that the use of the words "likely to threaten the economic security" should be interpreted to mean that mere knowledge that the act is likely to threaten the economic security of the country is sufficient to attract Section 15.

The Court said that the Section clearly used the word "intent" and intention to threaten the economic security of the nation was required to be proved.

"If the interpretation canvassed by the learned Assistant Solicitor General is accepted, it amounts to supplementing the term 'with knowledge' into the said penal provision, which is actually enacted to deal with a very grave crime", the Court stated.

The Court however said that there are three factors that distinguished the present case from an ordinary gold smuggling case which is prosecutable under the Customs Act.

 (a) the involvement of huge quantity of gold that was brought to India in multiple times consequent to a conspiracy of large number of accused persons

(b) it was done by using the diplomatic channel, which may even affect the friendly relationship between India and another country

(c) the apprehension entertained by the Agency that the proceeds of gold might be used for terror funding.

These factors necessitated the NIA investigation in the case. However, the agency has not been able to produce materials to prima facie show these aspects with respect to the ten accused persons.

"After investigating for a period of more than 90 days, the Agency is not able trace out any material to substantiate the said suspicion(of terror funding)", the Court said.

The case diary only revealed that these 10 accused persons got involved in gold smuggling only for-profit motive. So they have to treated differently from other frontline accused who are alleged to be part of the larger criminal conspiracy.

"NIA has every justification to proceed against few persons who have main role in the conspiracy of smuggling gold for various persons through diplomatic channel and to further probe into the chance of involvement of any terrorist organisations behind them. But in the case of the other petitioners who are so far shown only as persons who individually or together with some of the accused persons smuggled gold for their personal benefit, the court cannot detain them any further, unless there are some materials which prima facie show that they have any live link with the apprehended terror forces. Hence, in the absence of such materials, this court cannot, at this stage, find that there exists reasonable grounds for believing that the accusation made against these petitioners is prima facie true".  

The NIA also submitted that the custody of the accused was necessary for the purposes of effecting recovery under Section 27 of the Indian Evidence Act in relation to the mirror images of the digital devices seized from them by the Customs.

In this regard, the Court referred to the Constitution Bench decision in Gurbaksh Singh Sibbia vs State Of Punjab (AIR 1980 SC 1632), which held that a person, who has been released on bail, appears before the investigating agency, he is under "deemed custody" for the purposes of Section 27.

Accordingly, the Court granted bail to Said Alavi(A8), Abdu P.T(A9), Muhammed Ali Ebrahim (A11), Muhammeed Shafeeq(A14), Mohamed Anwar T.M(A16), Hamjad Ali (A19), Jifsal C.V(A21), Aboobaker Pazedath (A22), Muhammed Abdul Shameem(A23) and Abdul Hameed P M (A24).

Granting bail to the ten accused with stringent conditions, the court directed them to execute a bond for ₹10 lakh each with two solvent sureties each for the like-sum. They were also ordered to surrender their passports, not to leave the state without the court's permission and not make any attempt to contact any of the prosecution witnesses.

Directing the accused to appear before the Investigating Officer as and when required by him, the court said they shall also present themselves before the station house officer (SHO) of their respective local police station between 10 am and 11 am on every Sunday until further orders.

However, the Court dismissed the bail applications of three accused - Mohammad Shafi(A7), Muhammad Ali(A12) and Sharafuddeen (A13). The Court noted that the case diary revealed that Shafi had a deeper role in the international conspiracy.

NIA alleged that Ali had links with extremist groups and that his mobile phone had an image of two persons who were sympathisers of SIMI, a proscribed group. Another image in his phone was that of a Malayalam news item that a person of Indian origin was killed in Syria, who was an ISIS terrorist. NIA pointed out that Sharafuddeen is a person who has close nexus with Ramees(A5) and he went along with him to Tanzania, from where also A5 has smuggled gold to UAE. The agency also told the Court that Ramees(A5) might have some connections with the proscribed terrorist Dawood Ibrahim, as a person named Firoz Oasis, a South Indian, is known to be in his company.

Taking into account those aspects, A12 and A13 were held not entitled to be released on bail, at the present stage of the investigation.

The prime accused, Swapna Suresh and P R Sarith, had withdrawn their bail applications.

The case relates to the seizure of 30 kg of 24 carat gold worth ₹14.82 crore at Thiruvananthapuram airport on July 5 by the Customs (Preventive) Commissionerate, Kochi, which was sought to be brought through the diplomatic consignment sent to UAE consulate at the State capital.

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