Gold Smuggling Can't Be Treated As 'Terrorist Act' Under UAPA: Rajasthan High Court

The court examined the question 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'.

Notably, the single bench of this court in Mohammad Aslam v. Union of India & Ors had held that gold is a vulnerable material, smuggling of which can be done with intent to threaten or likely to threaten the economic security of the country and thus considered to be a 'terrorist act'.

A division bench of Justice Pankaj Bhandari and Justice Anoop Kumar Dhand, while allowing the appeals and releasing the accused-appellant on bail, observed,

"Customs Act is not included in Schedule-II of the UA(P)A, thus smuggling of gold and that too of a quantity, which is bailable under the Customs Act cannot be treated as a Terrorist Act."

Facts

On 03.07.2020, 10 accused persons were apprehended by Custom Officers at Jaipur Airport, while attempting to smuggle gold into India from Riyadh, Saudi Arabia at Jaipur Airport and a case was registered under Section 135 of the Customs Act. As the gold seized from each of these accused was valued at less than Rs. 1 Crore and the tax or the custom duty thereon was less than 50 lakh and therefore, all of them were released on bail in the Customs Act case.

On akin facts, an FIR was registered for offence u/s 17 of UA(P)A and S. 120B of IPC by National Investigation Agency (NIA). The accused-appellants moved bail application u/s 439 CrPC, which were rejected by the Special Judge (N.I.A. Cases), Jaipur, aggrieved by which, present appeals have been preferred before this court.

Court's Observations

Placing reliance on Kerala High Court's decision in Mohammad Shafi v. National Investigation Agency, Kochi, the court stated that if the argument of the Union is to be accepted, then any smuggling would constitute an offence, which can threaten the economic security of the country. Had it been the intention of the Legislature, they would have mentioned that smuggling of any material is a threat to the economic security of the country, added the court.

In Mohammad Shafi, the Kerala High Court had held that Section 15(1)(a)(iiia) of the UA(P)A is not attracted when gold is smuggled in the country. The Kerala High Court had observed that 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 noted,

"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 concussion that they intended to commit any terrorist act so as to damage the economic security of the country."

The court clarified that while deciding these appeals, anything observed herein shall not be construed as an expression on merits of the case. Further, the court clarified that observations made while deciding these appeals are simply the arguments advanced by both parties and the same shall, not in any way, affect the learned trial judge in forming his independent opinion based on the testimony of witness during the course of trial.

Arguments Before the Court

The counsel for the accused appellants argued that the amendments sought to be made in the Act were referred to the Joint Parliamentary Committee and from the meeting of the Joint Parliamentary Committee, it can be concluded that the Legislature never intended to include 'gold' under Section 15(1)(a)(iiia) under the term 'other material' as it pertains to other material, which is required for minting counterfeit currency notes, coins, bonds, stamp papers etc. He also argued that after grant of bail under Customs Act, the N.I.A. purposely arrested the accused appellants without there being any evidence that the accused appellants are involved in any terrorist act.

The NIA's counsel submitted that smuggling of gold has a direct impact on the economic security of the country and therefore the same is covered under Section 15(1)(a)(iiia) of the UA(P)A. He also argued that the gold is purposely distributed among the passengers and the value thereof is kept below Rs. 1 Crore as then then offence is bailable.

The counsel for the Union of India argued that although Kerala High Court's judgment has persuasive value, but when there is a judgment of Rajasthan High Court, then the same has to be followed. He contended that only when the trials has protracted and the accused has remained in custody for a long period, then the Apex Court has given the benefit or has affirmed the order of the High Court whereby the bail has been granted. He also contended that the appellants are in custody for a period of only one and a half years and the sentence under the UA(P)A ranges from minimum five years to life imprisonment.

Counsels for Appellant(s): Sr. Adv. V.R. Bajwa assisted by Adv. Amar Kumar, Adv. Manish Parmer. Sr. Adv. R.B. Mathur assisted by Adv. Nikhil Samlot, Adv. Muzaffar Iqbal, Adv. Mohd. Saeed, Adv. Prateek Kedawat, Adv. Vinay Pal Yadav

Counsels for Respondent(s): Sr. Adv. R.D. Rastogi ASG, assisted by Adv. Anand Sharma, Adv. Akshay Bhardwaj. Adv. Tej Prakash Sharma Special PP

Case Title: Azaz Khan v. N.I.A. through Special PP and other connected matters

Citations: 2022 LiveLaw (Raj) 159

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