ABDUL SALAM Vs. NATIONAL INVESTIGATING AGENCY, KOCHI

JUDGEMENT

(1.) We are on a question of law referred by a Division Bench of this Court by the reference order dated 23.6.2017, as to whether production or smuggling or import or circulation of 'high quality counterfeit Indian paper currency' in India, prior to the coming into force of the Unlawful Activities (Prevention) Amendment Act 2012 (Act No.3 of 2013) is punishable as a terrorist act under Section 16 of the Unlawful Activities (Prevention) Act (for short U.A.(P) Act) . While hearing the above appeal, the Division Bench felt the necessity of reconsideration of the decision of another Division Bench of this Court in Shareef v. State, (2013) 4 Kerala Law Times 60) . Accordingly, the question of law was referred to a Full Bench. In Shareef's case, the Division Bench held that import or smuggling or production or circulation of 'high quality counterfeit Indian paper currency' even prior to the coming into force of the Unlawful Activities (Prevention) Amendment Act of 2012 is a terrorist act under the un-amended Section 15 of the U.A.(P) Act, as it stood prior to 1.2.2013. The Act No.3 of 2013, amending the provisions of the U.A.(P) Act came into force on 1.2.2013. Incidentally, the case also involves another constitutional issue as to whether such a prosecution under the amended provisions of Section 15 of the U.A.(P) Act, on the allegation of import or circulation of high quality counterfeit Indian paper currency prior to 1.2.2013, would offend Article 20(1) of the Constitution of India.

(2.) The appellant herein is the 3rd accused in S.C 4/2015 of the Special Court for NIA Cases, Ernakulam. This is a case involving huge quantity of high quality counterfeit Indian paper currency brought to India from U.A.E. The 1st accused was arrested at the Nedumbassery International Airport on 26.1.2013 by the customs officials, and a huge quantity of 'high quality counterfeit Indian paper currency' was seized from his possession. The customs officials detected that it was printed in Pakistan. On the report of the customs officials, a crime was registered at the Nedumbassery Police Station as Crime No.122/2013, and investigation was later transferred to the State Crime Branch, CID Wing. During investigation, the Crime Branch detected the role and involvement of some other persons in the deal, including the appellant herein. Accordingly some other accused including the appellant were also arraigned in the crime. Later, as ordered by the Ministry of Home Affairs, Government of India, investigation was transferred to the National Investigating Agency (NIA) . When examined at the laboratory of the Security Printing and Minting Corporation of India Limited, Nasik, the counterfeit Indian paper currency were proved to be "high quality counterfeit Indian currency notes". The appellant was arrested as accused in the case on 23.12016 at the Indira Gandhi International Airport, New Delhi. During investigation, the accused Nos.1 and 2 gave definite statements revealing the complicity and involvement of the 3rd accused in the alleged import of currency to India. The statement given by the 6th accused under Section 164 Cr.P.C also revealed the complicity of the appellant. After investigation, the NIA submitted final report in court. The appellant herein filed an application before the trial court for regular bail as Crl.M.P. No.60/2017. After hearing both sides elaborately, the learned trial Judge dismissed the application by order dated 4.5.2017. Before the trial court, the appellant argued that he cannot be prosecuted under the U.A.(P) Act for the reason that the alleged import was made prior to the coming into force of the Unlawful Activities (Prevention) Amendment Act of 2012, which came into force only on 1.2013, and so at the best, a prosecution is possible only under the relevant provisions of the Indian Penal Code. The learned trial Judge found against the accused in view of the decision of this Court in Shareef's case. Aggrieved by the said order disallowing bail, the 3rd accused brought this appeal before this Court under Section 21(4) of the National Investigation Agency Act, 2008.

(3.) Before the Division Bench, the appellant projected a legal issue that on the given allegations in this case, a prosecution is possible only under the provisions of the Indian Penal Code, and that a prosecution under the amended provisions of the U.A.(P) Act would offend Article 20(1) of the Constitution of India. The appellant also argued before the Division Bench that the decision of this court in Shareef's case requires consideration, because import or smuggling or circulation of 'high quality Indian paper currency' was not punishable as a terrorist act under the un-amended provisions of the U.A.(P) Act as on 26.1.2013, the date on which such counterfeit Indian paper currency were seized from the possession of the 1st accused, on import to India.