[Gold smuggling] Kerala High Court grants bail to Swapna Suresh, 7 others in UAPA case

The Kerala High Court on Tuesday granted bail to eight persons including Swapna Suresh in the gold smuggling matter with respect to cases registered against them by the National Investigation Agency (NIA) under Unlawful Activities Prevention Act (UAPA) [ Swapna Prabha Suresh v. Union of India].

. A Division Bench of Justices K Vinod Chandran and C Jayachandran observed that the Court could not find any prima facie evidence that would attract the provisions of the Unlawful Activities (Prevention) Act (UAPA)

"We also do not find any allegation or accusation, from the records now before us, of the profit generated having been used in for any terrorist activities as spoken of in Sections 15 to 18 of the UA(P)A. The prima facie truth of the accusation under S.43(D)(5) has to be, regarding an offence under the special enactment, the UA(P)A. That being not discernible, as of now from the available records, we cannot but set aside the order impugned and allow the bail applications of all the accused", the order stated

. Therefore the Court allowed the bail applications subject to the following conditions:

They shall execute a bond for a sum of ₹25 lakh each with two solvent sureties each for the like-sum to the satisfaction of the Special Court;

They shall deposit their passport, if they have one, before the Special Court within three days of release from custody;

They shall not leave the State of Kerala without the permission of the Special Court;

They shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence, coerce or threaten any witness or other persons related to the investigation;

They shall not commit any offence while on bail, including that of like nature i.e. smuggling;

They shall appear before the SHO of the local police station in whose limit they reside, between 10 am and 11 am on every Sunday, until further orders;

They shall not change their place of residence without prior information to the Investigating Officer.

. The order was passed on a batch of appeals filed by Swapna Suresh , Mohammed Shafi P, Jalal AM, Rabins Hameed, Ramees KT, Sharafudeen KT, Mohammad Ali and Sarith PS challenging their continued detention for the offences alleged against them by the NIA.

With this order, Swapna Suresh is expected to walk out of jail. Advocate Sooraj T Elenjickal , who appeared for Suresh confirmed the same to Bar and Bench .

. The matter was posted first on May 25, 2021 and adjourned many times until it was finally heard at length on October 25 after which the Court reserved its verdict.

. In July 2020, pursuant to the investigation conducted by various agencies into money laundering, illegal financial transactions and massive gold smuggling through diplomatic channels, suspected offenders including Swapna Suresh, were arrested and interrogated in Kerala.

The NIA filed a charge-sheet against 20 persons accused in the case under various sections of UAPA.

On March 22, 2021, a Special Court for offences under the NIA Act had rejected the bail plea moved by the accused leading to the present appeal before the High Court.

. The Court had recorded the submissions Additional Solicitor General SV Raju , ASGI P Vijayakumar, instructed by standing counsel for NIA Arjun Ambalapatta, that a crucial Division Bench decision on the present issue, which was relied on by the appellants, is currently under challenge before Supreme Court.

. In February 2021, a Division Bench of Justices A Hariprasad (now retired) and MR Anitha 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 Unlawful Activities Prevention Act 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.

Therefore, 12 of the other accused persons in this case were granted bail.

. Later, a similar case of gold smuggling came up for hearing before the Rajasthan High Court where the accused was denied bail as the Court held a contrary opinion to that of the Kerala High Court. Thereafter, the accused in that case, one Mohammad Aslam approached the Supreme Court challenging the order.

. The Central Government and the National Investigating Agency (NIA) also filed an appeal at the Supreme Court, submitting that there was confusion in legality of the application of UAPA in gold smuggling case after the two High Courts, Kerala and Rajasthan, had come to divergent conclusions on the issue.

The top court, refused to allow the plea of the NIA seeking direction to cancel the bail granted by the Kerala High Court to 12 accused allegedly caught in the smuggling case.

The Bench comprising Chief Justice N V Ramana and Justices A S Bopanna and Hrishikesh Roy agreed to examine whether gold smuggling is covered entirely under the Customs Act or if would fall within the definition of terrorist act under Section 15 (1) (a) (iiia) of the UAPA .

. However, the counsel appearing for the appellants before the High Court submitted that the parties in the case appearing before the Supreme Court and the appellants before High Court are involved in the same transaction and that the offences charged against them are almost similar.

The respondents before the Supreme Court were released on bail but the appellants in the instant are still languishing in jail, it was pointed out.

Moreover, the Supreme Court had declined to revoke the bail granted to the respondents in the case before it or to stay the previous decision of the Kerala High Court in the matter.

It was also argued on that the case is not likely to go to trial in the near future as there are 267 witness, 329 docs, 194 material objects to be looked into; Going by the judgement of the Supreme Court in Union of India v. KA Najeeb in the hand-chopping case, accused persons who are under-trial cannot be kept incarcerated due to delay in disposal of cases, even when it involves offences under UAPA.

. Considering all these aspects, the Court had said, " We think that what Justices Hariprasad and Anitha said was correct. According to us, what needs to be shown to us to say allegation is prima facie true is that the profit they obtained through smuggling was channeled to some terrorist organisation. Otherwise, there is no question of finding it prima facie true, and you(the accused) will be released ".

. They were represented by Senior Advocates S Sreekumar and Gopakumanran Nair as well as Advocates Nireesh Mathew, Martin Jose, Manu Tom, Sooraj T Elenjickal and Ashwin Kumar MJ.

. A Division bench of the Court had earlier allowed bail to 12 of the accused and only 8 were denied bail after they were identified as "front-runners.

In July 2021, Suresh had moved the Court challenging the verdict of the Special NIA Court and her continued preventive detention under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA).

The Court had quashed the detention order under COFEPOSA but Suresh continued to remain in jail since she was in custody in the NIA case.

The case is still being probed by the Enforcement Directorate (ED), NIA and the Customs department.

. [Read Judgment]

[Gold smuggling] Kerala High Court grants bail to Swapna Suresh, 7 others in UAPA case

Giti Pratap

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