Article Published in Live Law.
The Delhi High Court has held that mere smuggling of gold without any connection whatsoever to threatening economic security or monetary stability of India cannot be a terrorist act under the Unlawful Activities (Prevention) Act.
A division bench comprising of Justice Mukta Gupta and Justice Mini Pushkarna granted bail to nine accused persons who had approached the Court by way of filing an appeal challenging the Trial Court order denying bail to them in a matter involving offences under sec. 16, 18, 20 of the UAPA and under sec. 120B, 204, 409 and 471 of IPC.
The allegations of the prosecution against the appellants were that eight of them, excluding one Vaibhav Sampat More, were intercepted by the Delhi Zonal Unit of the Directorate of Revenue Intelligence while travelling from Assam to Delhi in a Train. It was alleged that 504 gold bars weighing 83.621 kilograms, which were smuggled were recovered from them at the New Delhi Railway Station.
After the DRI carried out its investigation, an RC was registered by the National Investigation Agency (NIA) for alleged commission of criminal conspiracy, furthering terrorist activities and also threatening the economic security and damaging the monetary stability of India as provided under sec. 15(1) (a) (iiia) of UAPA being a terrorist act punishable under sec. 16 of the UAPA.
It was argued by the appellants that the prosecution had no evidence against them except the purported statements under sec. 108 of the Customs Act recorded by the Customs Officer which cannot be considered and were inadmissible in a trial under the UAPA for which separate procedure for trial has been prescribed. It was also argued that there was no material on record to come to the conclusion that the gold bars allegedly possessed by the appellants were procured from outside the country.
In respect of the ninth appellant Vaibhav Sampat More, it was claimed that he was not arrested at the spot and that there was no evidence against him except the disclosure statement of the co-accused.
On the other hand, the prosecution argued that all the eight accused acted in conspiracy which was evident from the fact that they were all travelling together and their travel tickets were booked by a common travel agency. It was further stated that the eight accused travelled in a train under dummy names thereby demonstrating their culpable mens-rea.
The prosecution also relied on the Statement of Objects and Reasons of bringing the amendment to sec. 15 of the UAPA by introducing sec. 15(1)(a)(iiia). It was shown that the amendment was made to the definition of “terrorist act” by bringing in facets of terrorist acts by disturbing the economic stability of the country.
It was thus claimed that a larger conspiracy to commit a terrorist act was committed by the appellants by disturbing the economic stability of this country and in view of the seriousness of the offence no bail be granted to the appellants.
Noting that the said amendment was made pursuant to the recommendations of the Financial Action Task Force (in short FATF), the Court observed thus:
“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.”
The Court also noted that the main evidence with the prosecution to show that the gold bars recovered were smuggled gold, were the statements of the accused recorded under sec. 108 of the Customs Act by the officers of the Customs.
The Court was of the view that all the appellants except Dileep Laxman Patil and Vaibhav Sampat More were in custody since 21st September, 2020 and had spent more than 20 months in custody.
“The trial is likely to take some time, also for the reason that some of the appellants have filed petitions challenging the order granting sanction claiming that an alleged offence under the Customs Act cannot be brought in the realm of provisions of the UAP Act,” the Court said.
Accordingly, bail was granted by the Court to the nine accused persons.
Case Title: VAIBHAV SAMPAT MORE v. NATIONAL INVESTIGATION AGENCY THROUGH ITS CHIEF INVESTIGATION OFFICER