[Gold Smuggling case] Kerala High Court reserves judgement in bail pleas by Swapna Suresh, other accused

The Kerala high court on Monday reserved its judgement in a batch of petitions filed by several accused persons in the gold smuggling case seeking bail in the cases registered against them by the National Investigation Agency (NIA).Among these are Swapna Suresh, Sarith PS, Mohammed Shafi, Jalal AM, Rabins Hameed, Ramees KT, Sharafudeen KT and Mohammed AliA Division Bench of Justices Vinod Chandran and C Jayachandran presided over an elaborate hearing and reserved judgement in the matter The Court also said that it would pronounce judgement expeditiously, within a week.The arguments made on behalf of the appellants at the hearing today were based primarily on the following: The charges against the accused under Section 15 of Unlawful Activities (Prevention ) Act (UAPA) will not be attracted in this case. UAPA only contemplates smuggling of high quality currency, coins or other materials with the intention of destabilising the economic security of the country;The final report of the charges laid against the accused only prove gold smuggling with profit motive which can only be punished under the provisions of the Customs Act;A Division Bench of the Kerala High Court had previously allowed bail to 12 of the accused and only 8 were denied bail after they were identified as "front-runners" . However, final report was filed only after the Division Bench had reserved judgement in the matter which means the Bench couldn't peruse all the details;The previous Division Bench judgement had denied bail to the present appellants on the basis that the allegations against them needed further probe at that stage;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. .Additional Solicitor General SV Raju, appearing for the respondents contended that bail must not be granted to the appellants as the previous Division Bench decision of the Kerala High Court is under challenge before the Supreme Court. He further pointed out that high quality refers only to currency and coins is referred to separately in the UAPA and it is in such context that the Act must be applied. .The Bench, however, made it clear that the previous decision of the Kerala High Court is binding on them as the Supreme Court has neither stayed it, nor revoked the bail granted to the other accused by way of said judgement.To this, the ASG argued that the Division Bench had denied bail to several of the accused and the yardstick used by the Division Bench would apply to the Bench in the instant case as well.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 in the Rajasthan High Court where the accused was denied bail as the Court took a view contrary to that of the Kerala High Court. Thereafter, the accused in that case, one Mohammad Aslam approached the Supreme Court challenging the order. .Supreme Court to examine whether gold smuggling can fall within the scope of ‘terrorist activity’ under Unlawful Activities Prevention Act .The Central government and the National Investigating Agency (NIA) also filed an appeal before the Supreme Court, which submitted 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.However, 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..In July 2020, pursuant to investigations 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, including the petitioners who approached the Court today, under various sections of the Unlawful Activities (Prevention) Act..[Gold Smuggling case] NIA Court rejects bail plea moved by Swapna Suresh, Sandeep Nair, others.On March 22, 2021, a Special Court for offences under the NIA Act had rejected the bail plea moved by them..In July 2021, Suresh had moved the Court challenging the verdict of the Special NIA Court. .The appellants 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.The respondents were represented by Additional Solicitor General SV Raju, Assistant Solicitor General, P Vijayakumar instructed by Advocate Arjun Ambalappatta, NIA Special Public Prosecutor.