Anticipatory bail cannot be granted under any circumstance in UAPA cases: Kerala High Court

The Kerala High Court on Friday held that the bar on the grant of anticipatory bail contained in the provisions of the Unlawful Activities (Prevention) Act (UAPA) is absolute. [Ahammedkutty Pothiyil Thottiparambil v Union of India].A division bench of Justices PB Suresh Kumar and CS Sudha thus went on to hold that applications for anticipatory bail moved under Section 438 of the Code of Criminal Procedure (CrPC) are not maintainable when the offences fall under the UAPA."The exclusion of the application of Section 438 of the Code to any case involving any person accused of having committed an offence punishable under the UAP Act is absolute," the bench stated in its judgment..The bench reasoned that if anticipatory bail is allowed in UAPA cases, it would create an absurd position where the accused could get anticipatory bail unconditionally, while grant of regular bail would be subject to restrictions."If the scheme of the UAP Act is that no person accused of an offence punishable under Chapter IV and VI of the UAP Act shall be released on bail unless the twin conditions referred to in sub-section (5) of Section 43D are satisfied, there cannot be any doubt that the Statute does not contemplate grant of anticipatory bail to accused under any circumstance whatsoever, for if the provision is interpreted to hold that the Statute does not bar absolutely the application of Section 438 of the Code, in the absence of any restriction in the Statute in the matter of granting anticipatory bail, it would lead to an anomalous and absurd position that anticipatory bail can be granted to a person accused of an offence punishable under the UAP Act unconditionally and restrictions would apply only in the matter of claiming regular bail," the Court explained.Another reason for taking this view is because the right to seek anticipatory bail is not a fundamental right, the Court made further held."We take this view also for the reason that the right to seek anticipatory bail is not part of the fundamental right guaranteed to the accused under Article 21 of the Constitution. Having regard to the present dimension and impact of international terrorism on civil society, the UAP Act being a Statute intended for the prevention of, and for coping with terrorist activities, we are also of the view that the Statute is framed excluding the application of Section 438 of the Code to the offences punishable under the UAP Act, consciously," the bench added..The judgment was passed on an appeal moved by a man accused in the infamous 2020 gold smuggling case in which the customs department had seized a significant amount of gold that was smuggled from the UAE through diplomatic channels. The prime accused in the case are P Sarith and Swapna Suresh. Some of the accused were granted regular bail. The appellant in the present case had moved an application for anticipatory bail under Section 438 of the CrPC before a special court under the the National Investigation Agency (NIA) Act. The special court rejected the application given the serious allegations against him prompting him to approach the High Court with the present appeal. .The appellant relied on the judgment of the High Court in Muhammed Shafi P v. National Investigation Agency in which a division bench of Justices A Hariprasad (now retired) and MR Anitha (now retired) had penned a judgement holding that the mere act of gold smuggling, covered under the Customs Act, will not amount to a terrorist act under the provisions of the UAPA unless the same is done with the intention to threaten the economic security of the nation.In other words, gold smuggling simpliciter with mere profit motive will not fall within the ambit of UAPA, the February 2021 judgment had held. In the case of the present appellant, it was argued by his counsel advocate Babu S Nair, that he had participated in the smuggling only to make some money even as per the NIA's final report and, therefore, the essential ingredients to attract UAPA charges would not prima facie stand against him..Deputy Solicitor General of India (DSGI) S Manu countered the arguments contending that the application for anticipatory bail is not maintainable since Section 43(D)(4) of the UAPA explicitly excludes the application of Section 438 of the CrPC in cases involving charges under the UAPA. .The Court went through the provisions of the UAPA, especially Section 43(D)(4) that deals with the bar on anticipatory bail and the twin conditions necessary to grant regular bail. It also looked at the objectives of the UAPA and opined that the Act was enacted in order to combat terrorism, in alignment with the resolutions adopted by the United Nations in this regard. .In the case of the appellant in the present case, the Court noted that the final report has not been filed and one of the reasons for the delay is that he has been evading arrest. As such, there is no fault on the part of the NIA for insisiting that his custodial interrogation is necessary. "This is not an exceptional case in which the court could exercise the power to grant pre-arrest bail if at all such power could be exercised in a case of this nature involving an offence punishable under the UAP Act," the Court said as it dismissed the appeal. .[Read Judgment]