It must be stated at the outset itself that in a major development with far reaching consequences, the Delhi High Court has in a brief, brilliant and balanced judgment titled Vaibhav Sampat More vs National Investigation Agency Through Its Chief Investigating Officer in CRL.A. 115/2022 and connected appeals that was reserved on May 24 and then finally pronounced on June 3, 2022 has held in no uncertain terms that mere smuggling of gold without any connection whatsoever to threatening economic security or monetary stability of India cannot be a terrorist act and mere smuggling of gold without any connection whatsoever to threatening economic security or monetary stability of India cannot be a terrorist act under the Unlawful Activities (Prevention) Act.

A Division Bench of Delhi High Court comprising of Justice Mukta Gupta and Justice Mini Pushkarna granted bail to nine accused persons who had approached the Court by way of filing an appeal challenging the Trial Court order denying bail to them in a matter involving offences under Section 16, 18, 20 of the UAPA and under Section 120B, 204, 409 and 471 of IPC. No doubt, this extremely commendable ruling will go a long way in ensuring that terror charges are not foisted at the drop of a hat on all those accused who had no intention at any point of time to indulge in terror acts!

To start with, this extremely learned, laudable, latest and landmark judgment authored by Hon’ble Ms Justice Mukta Gupta for a Division Bench of Delhi High Court comprising of herself and Hon’ble Ms Justice Mini Pushkarna sets the pitch in motion by first and foremost putting forth in para 1 that:
Aggrieved by the impugned order dated 10th May, 2021 in all the appeals and the order dated 27th November, 2021 in Crl. Appeal No. 115/2022 declining to grant bail to the appellants in RC32/2020/NIA/DLI dated 16th Sepatember, 2020 registered under Sections 16/18/20 of the Unlawful Activities (Prevention) Act, 1967 (in short ‘the UAP Act’) and under Sections 120B/204/409/471 IPC at NIA Headquarters, New Delhi, appellants prefer the present appeals.

To put things in perspective, the Bench then envisages in para 2 that:
Briefly the allegations of the prosecution against the appellants is that on 28th August, 2020 eight accused namely Ravikiran Balaso Gaikwad (A1), Pawan Kumar Mohan Gaikwad (A-2), Sachin Appaso Hasabe (A-3), Yogesh Hanmant Rupnar (A-4), Abhijeet Nand Kumar Babar (A-5), Avadhut Arun Vibhute (A-6), Saddam Ramjan Patel (A-7) and Dileep Laxman Patil (A-8) i.e. the appellants herein except appellant Vaibhav Sampat More were intercepted by the Delhi Zonal Unit of the Directorate of Revenue Intelligence (DRI) while travelling from Assam, Guwahati to Delhi in Train No.02423 and it is alleged that 504 gold bars weighing 83.621 kilograms, which were smuggled were recovered from them at the New Delhi Railway Station. After the DRI carried out its investigation the above-noted RC was registered by the National Investigation Agency (NIA) for alleged commission of criminal conspiracy, furthering terrorist activities and also threatening the economic security and damaging the monetary stability of India as provided under Section 15(1) (a) (iiia) of UAP Act being a terrorist act punishable under Section 16 of the UAP Act.

On one hand, the Division Bench states in para 5 that:
In respect of appellant Vaibhav Sampat More in Crl. Appeal No. 115/2022 it is claimed that the said appellant was not arrested at the spot. There is no evidence against him except the disclosure statement of the co-accused. Admittedly, the appellant Vaibhav Sampat More is a jeweler and even as per the inadmissible statement recorded under Section 108 Customs Act there is no material on record to show that the gold was delivered to him. The best case of the respondent in the supplementary charge-sheet against the appellant Vaibhav Sampat More was that he was involved in collecting the gold consignment from Dileep Laxman Patil (A-8) and has facilitated in his travel for the same. Admittedly, even as per the respondent Dileep Laxman Patil was carrying only three gold bars weighing 497 grams, valued at Rs 25.5 lakhs.

On the other hand, the Division Bench then notes in para 6 that:
Countering the arguments of learned counsels for the appellants, learned Additional Solicitor General claims that after the arrest of the appellants by the DRI, their statements were recorded under Section 108 of the Customs Act which statements not being before the Police Officer are admissible in evidence. Reliance is placed on the decision of the Hon’ble Supreme Court reported as 1997 (3) SCC 721 K.I. Pavunny Vs. Assistant Collector to contend that a statement recorded under Section 108 of the Customs Act can be used for trial in other statutes as well. Even the Hon‟ble Supreme Court in the decision reported as 2013 (16) SCC 31 Tofan Singh vs. State of Tamil Nadu while dealing with a statement recorded under Section 67 of the NDPS Act held that there was no parallel between a statement recorded under Section 108 of the Customs Act and other recorded under Section 67 of the NDPS Act. There is sufficient material on record to show that the eight accused had brought smuggled gold to Delhi and the gold markings were erased except in one gold bar. In view of the recoveries from the eight accused presumption is required to be drawn against the accused persons.

Most significantly, the Division Bench then without mincing any words whatsoever holds in para 11 what forms the cornerstone of this notable judgment that, Learned Additional Solicitor General has taken this Court to the statement of objects and reasons for the Amendment Act which shows that the amendment was made to the definition of terrorist act by bringing in facets of terrorist acts by disturbing the economic stability of the country. The said amendment has been made pursuant to the recommendations of the Financial Action Task Force (in short FATF). The said report claims that gold is a universally accepted currency, gold can be transferred anonymously and transactions are difficult to trace and verify. It was noted that gold is a form of global currency and also acts as a medium for exchange in criminal transactions. However, it may be noted that despite the fact that the report specifically deals with gold, the word ‘gold’ have not been added while amending Section 15(1)(a)(iiia) UAP Act. Further possession, use, production, transfer of counterfeit currency or coin is per-se illegal and an offence, however, production, possession, use etc. of ‘gold’ is not per-se illegal or an offence. Even import of gold is not prohibited but restricted subject to prescribed quantity on payment of duty. Thus mere smuggling of gold without any connection whatsoever to threatening economic security or monetary stability of India cannot be a terrorist act.

No less significant is what is then stated in para 12 that:
As noted above, the main evidence with the prosecution to show that the gold bars recovered were smuggled gold, are the statements of the accused recorded under Section 108 of the Customs Act by the officers of the Customs. Learned Additional Solicitor General has relied upon the decision reported as (1997) 3 SCC 721 K.I. Pavunny Vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin. In the said decision, Hon’ble Supreme Court held that it was clear from the objects of the Customs Act that empowering Customs Officers to record the statement under Section 108 of the Customs Act was for the purpose of collecting information of the contravention of the provisions of the said Act by concealment of the contraband or avoidance of the duty and for initiation of action thereon. It is in this light that the Supreme Court in K.I. Pavunny (supra) held that the statement recorded under Section 108 of the Customs Act will be admissible in evidence on the complaint laid by the Customs Officers for prosecution under Section 135 or other relevant Statutes. However, the term ‘other relevant Statutes’ will not include an unconnected Statute which does not even in its schedule include Customs Act as a scheduled offence.

Be it noted, the Division Bench then points out in para 13 that:
There is yet another aspect to the matter. Section 16 of the UAP Act provides for punishment for a terrorist act as under:

16. Punishment for terrorist act:

1. Whoever commits a terrorist act shall:
   1. if such act has resulted in the death of any person, be punishable with death or imprisonment for life, and shall also be liable to fine;
   2. in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
       

It is also worth noting that the Division Bench then postulates in para 14 that, It is thus evident that in the present case as no death has been caused Clause ‘b’ of Section 16 of UAP Act will be applicable which provides for sentence of minimum imprisonment for a period of 5 years which may extend to life imprisonment, thereby providing discretion to the Trial Court to pass a sentence of imprisonment from five years to life based on the facts of the case. As noted above, appellants except Vaibhav Sampat More were arrested by the Customs Department on 28th August, 2020, wherein appellant Dileep Laxman Patil was granted bail by the learned CMM on 15th September, 2020 returning a finding that the offence by the said appellant was bailable in view of the quantum of alleged possession and thus he was released on bail. However, on 16th September, 2020 the above-noted RC32/2020/NIA/DLI was registered and the remaining appellants except Vaibhav Sampat More and Dileep Laxman Patil were arrested by NIA on 21st September, 2020 and thus continued to be in custody in the above-noted RC despite default bail granted to them in customs case on 27th October, 2020. Further Dileep Laxman Patil was arrested by NIA on 20th November, 2020 and Vaibhav Sampat More on 24th March, 2021. It is thus evident that all the appellants except Dileep Laxman Patil and Vaibhav Sampat More are in custody in the above-noted RC since 21st September, 2020 and have spent more than 20 months in custody. The trial is likely to take some time, also for the reason that some of the appellants have filed petitions challenging the order granting sanction claiming that an alleged offence under the Customs Act cannot be brought in the realm of provisions of the UAP Act.

As a corollary, the Bench then deems it fit to hold in para 15 that:
Thus, in view of the discussion aforesaid, this Court deems it fit to grant bail to the appellants. Consequently, appellants are directed to be released on bail on the following terms and conditions:

1. The appellants will furnish a personal bond and a surety bond in the sum of Rs 1 lakh each to the satisfaction of the learned Trial Court.
2. Appellants will surrender their passports, if in their possessions, to the learned Trial Court.
3. Appellants will not leave the country without the prior permission of the learned Trial Court.
4. Appellants will report to the jurisdictional Station House Officer of the Police Station where they reside on the first Monday of every month between 10.00 AM to 5.00 PM for marking their presence.
5. Appellants will submit their residential address and the mobile phones used by them and in case of change, the same will be intimated to the learned Trial Court by way of an affidavit.
6. Mobile phones used by the appellants will be kept in active mode and the appellants will share the live locations of their mobile phones with the Investigating Officers for the next six months.

Furthermore, the Division Bench then directs in para 16 that:
Appeals are disposed of.

Finally, the Division Bench then concludes by directing in para 17 that:
Order be uploaded on the website of this Court.

In essence, this extremely commendable, courageous, composed and cogent judgment by a Division Bench of the Delhi High Court has taken the right stand that mere gold smuggling without threatening economic security of India cannot be termed a terrorist act under UAPA. It is most forthrightly stated in para 11 that, Thus mere smuggling of gold without any connection whatsoever to threatening economic security or monetary stability of India cannot be a terrorist act. Therefore, the accused were thus rightly granted bail for pragmatic reasons as discussed herein aforesaid! No denying or disputing it!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi (Retd), A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh