MOHAMMED SHAFI P Vs. NATIONAL INVESTIGATION AGENCY

JUDGEMENT

(1.) The appellants lament; as the lyrics in a folk song in the vernacular intones, 'we are petty smugglers unduly labelled as terrorists', resulting in their continued incarceration pending investigation and trial, infringing their right to life guaranteed under Article 21 of the Constitution. Accused Nos.1, 2, 3, 4, 5, 8, 10 and 11 as per the Final Report (who are accused Nos.1, 2, 5, 6, 7, 10, 12 and 13 as per the FIR) in S.C.No.1/2021/NIA are the appellants in the Criminal Appeals, which impugn the common order of the Special Court for NIA Cases, Ernakulam, rejecting their bail applications.

(2.) The bulwark of the appellants' contentions is a decision of another Division Bench of this Court in Muhammed Shafi P. v. NIA Kochi, 2021 KHC 145; which is under challenge before the Hon'ble Supreme Court, as appealed against by the National Investigation Agency (for brevity 'NIA'). In the cited decision, the bail granted by the Special Court to the various accused, in the same transaction in which the present appellants were also involved, was affirmed, as was the order declining bail to A7 (now A5), who was again before the Special Court and now in appeal before us.

(3.) Briefly put, the allegations against the accused are of smuggling gold through the diplomatic channel availing the intimate connection, A1 and A2 had with the Consulate of United Arab Emirates at Thiruvananthapuram; wherein the two accused were formerly employed. A particular baggage was detained by the Customs Officials, when 30.422 kgs. of gold worth Rs.14.82 crores were seized. The investigation revealed repeated consignments of contraband having been brought into the country, camouflaged as diplomatic baggage. Muhammed Shafi P.(supra) held that smuggling of gold is covered by the provisions of the Customs Act and will not fall within the definition of a 'terrorist act' as defined under Sec.15 of the Unlawful Activities (Prevention) Act, 1967 (for brevity 'UA(P)A'). It was also held that unless evidence is brought out to show that such smuggling was done with the intent, to threaten or likely to threaten, the economic security or monetary stability of India, by attempting to indulge in any manner in the counterfeiting of high quality notes or coins, then and then alone, Sec.15 would be attracted.