Merely Smuggling Gold Without Threatening Economic Security Of India Cannot Be Terrorist Act - Delhi High Court

The Delhi High Court has held that the smuggling of gold without threatening the economic security or monetary stability of India cannot be a terrorist act.

In this context, the High Court held -

"...mere smuggling of gold without any connection whatsoever to threatening economic security or monetary stability of India cannot be a terrorist act."

The Division Bench of Justice Mukta Gupta and Justice Mini Pushkarna granted bail to the appellants accused in the offence under Sections 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 and under Sections 120B, 204, 409 and 471 of the Indian Penal Code.

In this case it was alleged that eight persons except one, Vaibhav Sampat More, were intercepted by the Delhi Zonal Unit of the Directorate of Revenue Intelligence (DRI) while travelling from Assam, Guwahati to Delhi and 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 a case 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 Section 15(1) (a) (iiia) of UAP Act being a terrorist act punishable under Section 16 of the UAP Act.

Senior Advocate Saurabh Kirpal, on behalf of appellants argued that even on merits the respondent didn't had any evidence against the appellants except the purported statements under Section 108 of the Customs Act recorded by the Customs Officer which he said cannot be considered and are inadmissible in a trial under the UAP Act for which separate procedure for trial has been prescribed. He further contended that there is no material on record to come to the conclusion that the gold bars allegedly possessed by the appellants were procured from outside the country.

He also submitted that even the smuggling of gold will not constitute a terrorist act as defined under Section 15(1) (a) (iiia) of the UAP Act, on the count that the Customs Act is not a scheduled offence under the UAP Act and secondly, in the term smuggling or circulation of high-quality counterfeit Indian paper currency, coin or of any other material, the words "or any other material" cannot be deployed to include smuggling of gold.

The Counsel for the appellants placed reliance on judgments of the Kerala High Court and Rajasthan High Court where it was held that smuggling of gold will not be included in the term "other material" as used in Section 15(1) (a) (iiia) of the UAP Act.

Countering the arguments of counsels for the appellants, Additional Solicitor General, S.V. Raju, argued that there was sufficient material on record to show that the eight accused had brought smuggled gold to Delhi and the gold markings were erased except in one gold bar.

He 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 bail should not be granted to the appellants.

The prosecution relied on statement of objects and reasons of bringing amendment to Section 15(1)(a)(iiia) of the UAP Act.

The Court noted that the word "gold" has not been added while amending Section 15(1)(a)(iiia) UAP Act and that the 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.

And to that end held that "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 observed that the main evidence with the prosecution to show that the gold bars recovered were smuggled gold, are the statements of the accused recorded under Section 108 of the Customs Act by the officers of the Customs. The Court stated that Supreme Court in the case of K.I. Pavunny Vs. Assistant Collector (HQ), Central Excise Collectorate 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.

The Court further noted that all the appellants except Dileep Laxman Patil and Vaibhav Sampat More were in custody since 21st September 2020 and have spent more than 20 months in custody.

Accordingly bail was granted to all 9 accused persons.

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