AHAMMEDKUTTY POTHIYIL THOTTIPARAMBIL Vs. UNION OF INDIA

JUDGEMENT

(1.) The moot question in this case is whether the exclusion of the application of Sec. 438 of the Code of Criminal Procedure (the Code) to the offences punishable under the Unlawful Activities (Prevention) Act, 1967 contained in Sec. 43D(4) of the said Statute, is absolute.

(2.) The appellant is accused No.20 in R.C.No.2/2020/NIA, a crime registered under Ss. 16, 17 and 18 of the Unlawful Activities (Prevention) Act, 1967 (the UAP Act). The appellant challenges in this appeal, the order dismissing the application preferred by him before the Special Court for Trial of NIA Cases (the Special Court) seeking anticipatory bail in the said case.

(3.) On 5/7/2020, 30.244 kg of 24 karat gold valued 14.82 crores was seized from an import cargo addressed to the Consulate General of the United Arab Emirates (UAE) in Thiruvananthapuram at the Air Cargo Complex of the Thiruvananthapuram International Airport by Customs (Preventive) Commissionerate, Cochin. It is seen that based on information that the proceeds of the smuggled gold could be used for financing terrorism in India, the Ministry of Home Affairs, Government of India directed the National Investigating Agency (NIA) constituted under the National Investigation Agency Act, 2008 (NIA Act) to investigate into the said transaction and it is on that basis, the crime referred to above was registered on 10/7/2020 initially against P.S.Sarith, a former Public Relations Officer of the Consulate General of UAE and a few others. Later, in the course of the investigation, several others were also arrayed as accused in the case including the appellant. On completion of investigation against 20 accused, a final report has been filed against them before the Special Court, on 6/1/2020 alleging commission of offices punishable under Ss. 16, 17, 18 and 20 of the UAP Act. The essence of the case put forward by NIA in the final report against the charge-sheeted accused is that the accused who, in spite of having the knowledge that the act of smuggling of gold into India in large quantity would damage the monetary stability of India and friendly relations with UAE, with the motive to gain money, conspired together, recruited people, formed a terrorist gang, raised funds and smuggled gold from UAE through the import cargo addressed to diplomats at the Consulate General of UAE, in Thiruvananthapuram and thereby caused extensive and irreparable damage to the security and economic stability of the country.