Smuggling of gold ‘simplicitor’ isn’t a “terrorist act” under UAPA: Kerala High Court

Published on:

19 Feb 2021, 10:33 am

In a major setback to the National Investigation Agency (NIA) the Kerala High Court upheld grant of bail to 12 persons accused in the gold smuggling case. The court said that the evidence provided was insufficient to prove that the accused smuggled gold to fund terror activities intended to threaten the economic security of the country. MANYA SAINI reports.

—–

THE investigation agencies probing the high-profile Kerala gold smuggling case faced a setback on Thursday when the Kerala High Court declared that smuggling of gold 'simplicitor' did not constitute a "terrorist act" under the Unlawful Activities Prevention Act (UAPA).

It dismissed the plea filed by the National Investigation Agency's (NIA) challenging bail to the 12 accused persons and agreed with the trial judge that materials produced before the court at that point of time were insufficient to hold prima facie that the accused had committed a "terrorist act".

"In other words, gold smuggling clearly covered by the provisions of the Customs Act will not fall within the definition of terrorist act in Section 15 of UA(P) Act unless evidence is brought out to show that it is done with the intent to threaten or it is likely to threaten the economic security or monetary stability of India", the Court said.

A two-judge bench of Justice A Hariprasad and MR Anitha further added that it cannot accept the argument presented by the NIA stating that the evidence presented was insufficient to prove terrorist activity as defined under section 15 of the UAPA.

The bench said if the investigating agency succeeded in digging out material to show the accused's complicity in a terrorist act, it could certainly move the court for cancellation of bail.

The NIA, Enforcement Directorate and Customs Department, probing the case have alleged that the money raised from the gold smuggling was used by the accused persons to fund anti-India terror outfits. The charge sheet filed by the investigation agency claimed that it was a conspiracy to threaten the economic security of India.

Earlier, the trial court had also said that the allegations against the accused based on the available evidence were not substantiated. The court had observed that a majority of the accused were businessmen with considerable assets looking to make a profit not fund terror activity. This was reiterated by the High Court as it said, "On going through the materials placed before us, we are of the view that the court below is justified in entering such a finding."

In line with the lower court's judgement, the high court denied bail to the seventh accused, Muhammad Shafi P, saying that various others involved in the case received gold through him. Further adding that he played a pivotal role in the alleged conspiracy. It also observed that the charges against Shafi were graver than others who were granted bail.

The Kerala gold smuggling case surfaced in July 2020, when 30 kilograms of gold was seized from the Thiruvananthapuram airport camouflaged as diplomatic cargo addressed to the UAE Consulate-General Office. As per law, diplomatic cargo enjoys immunity and remains free of routine customs examinations. Those accused in the case include M Sivasankar, principal secretary to Kerala Chief Minister and Swapna Surena, former executive secretary at the UAE Consulate-General's Office.

Early this month, prime accused and suspended IAS officer, M Sivashankar had been granted bail by the Additional Chief Judicial Magistrate Court in Kochi that handles economic offences. The probe agencies had filed a counter-affidavit against his plea, however, the court held that the investigation failed to produce any convincing evidence.

Since it has been unearthed, the case has created significant upheaval in the Pinarayi Vijayan government. Several opposition parties have demanded the CM's resignation and an independent probe into his possible involvement in the high-profile smuggling operations.

(Manya Saini is a final year journalism student at the Symbiosis Institute of Media and Communication, Pune, and an intern with The Leaflet.)