Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In an interesting case the Division Bench comprising of A. Hariprasad and M. R. Anitha, JJ., had granted bail to the accused of terrorist activities. All the accused were booked for gold smuggling with an intention to destabilize the economy of the nation under the Unlawful Activities Prevention Act, 1967 (UAPA).

The instant appeal was filed against the order of Trial Court, whereby the Court had granted bail to all the accused except the accuse 7. National Investigation Agency (NIA) had registered the above-mentioned case alleging offences punishable under Ss. 16, 17 and 18 of UAPA. Accused persons were arrested by NIA on different dates and they had been confined to custody for a considerable time.

Allegations raised by the investigating agency was that on 05-07-2020, the officers of the Customs Department seized 30kgs of 24 carat gold, from International Airport, Thiruvananthapuram, secreted in a consignment camouflaged as diplomatic baggage sent from United Arab Emirates (UAE). It was alleged that the gold was smuggled through the diplomatic channel pursuant to a conspiracy hatched by the accused persons. It had been argued that the smuggled gold could have been used for financing terrorist activities in India or to destabilizing the economic security of India.

Interpretation of “Terrorist Activities”

The Bench interpreted the scope of Section 15 of UA(P) Act. Section 15(1) had mentioned that “whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security or sovereignty of India through any of the modes specified in Clauses (a), (b) or (c) commits a terrorist act.”

Similarly, under Sub-clause (iiia) to Section 15(1)(a) it had been established that “by any means of whatever nature if any damage to the monetary stability of India is caused or likely to be caused by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material, then also it will amount to a terrorist act.”

The Court discerned from Section 15(1)(a)(iiia) that what become a terrorist act thereunder was causing damage to the monetary stability of India by producing high quality counterfeit Indian paper currency, coin or any other material or smuggling of high quality counterfeit Indian paper currency, coin or any other material or circulating high quality counterfeit Indian paper currency, coin or any other material.

Whether “Any other material” under Section 15(1)(a)(iiia) would include gold smuggling?

It was contended by the appellant that high-quality counterfeit Indian paper currency or coin could not be disassociated or separated from the words “any other material”. The Bench while applying statutory rules of interpretation stated that it would be apposite to consider the wafer-thin distinction between “noscitur a sociis” and “ejusdem generic”. High-quality counterfeit Indian paper currency, coin or any other material should be read and understood as anything directly related to currency or coin.

Further, the Bench expressed, the legislature must had been aware of the existence of the Customs Act when it amended Section 15. Non-inclusion of the Customs Act in the Schedule to NIA Act also must be regarded as a conscious act by the legislature. Therefore, the Court said that by applying the above-mentioned rules of interpretation that smuggling of gold simplicitor would fall within Section 15(1)(a) (iiia) of UA(P) Act. The Bench said,

Gold smuggling clearly covered by the provisions of the Customs Act would not fall within the definition of Terrorist Act in Section 15 unless evidence was brought out to show that it was done with the intent to threaten or it was likely to threaten the economic security or monetary stability of India.

  “Other material” could be any material connected to counterfeit Indian paper currency or counterfeit Indian coin, like machinery or implements or high-quality paper or any other material which could be used for producing or circulating fake currency or coin. Noticing the arrangement of words indicating the things mentioned in the provision, the Court refused to accept gold smuggling with a mere illegal profit motive would fall within the aforementioned definition of the Terrorist Act. The Bench stated,

“It does not include gold as the words employed in the Sub-clause specifically mention about production or smuggling or circulation of high quality counterfeit Indian paper currency or coin and therefore gold cannot be grouped along with paper currency or coin even though gold is a valuable substance and has a great potential to get converted into cash.”

 Differentiating the judgment of Rajasthan High Court in Mohammed Aslam v. Union of India, 2021 SCC OnLine Raj 117, wherein it was held that smuggling of gold with intent to threaten or likely to threaten the economic security of the country was covered under the smuggling of “any other material”, the Bench said, it could be made out from the decision that no analysis of the provision was made by the Single Judge. Moreover, no specific reason had been stated for making the aforementioned observations.

Hence, the Bench affirmed the view hold by the Trial Judge that the materials produced before the court at that point of time were insufficient to hold prima facie that the accused persons had committed a terrorist act. Therefore, it had been held that there was no reason to think that the accused to whom bail had been granted will flee from justice or meddle with the investigation. Consequently, the appeal was dismissed and the bail order was affirmed.[Muhammed Shafi P., v. National Investigation Agency, 2021 SCC OnLine Ker 902, decided on 18-02-2021]

Kamini Sharma, Editorial Assistant has put this story together

Case BriefsForeign Courts

Federal Court of Australia: Charlesworth J. confirmed an Interim Control Order (ICO) against a suspected Islamic State (IS) member issued in November, 2019, extending its validity till 21-11- 2020. Having been satisfied on the balance of probabilities that each of the obligations and prohibitions imposed on the respondent are reasonably necessary, the Court confirmed the Order since it satisfied the test under Section 104(1)(d) of the Criminal Code Act, 1995, which required it to “substantially assist in preventing: (a) a terrorist act; or (b) the provision of support for or the facilitation of a terrorist act.”

The respondent is a naturalised Australian citizen of Somali origin. Authorities had recovered several incriminating evidences against the respondent, such as multiple online blogs relating to Islamic State, group chats with known terrorists, attempt to conceal her past communications, attempt to travel to Syria to join IS, and recordings and phone calls containing similar extremist content. Based on the severity of the offence and the evidences, the respondent was sentenced to two-and-a-half years’ imprisonment; but was later acquitted. Her acquittal was challenged in the High Court of Australia, but the matter is yet to be heard..

The respondent contended that she does not presently adhere to any extremist ideology, and that the confirmed ICO does not satisfy the test in Section 104(1)(d) of Criminal Code Act, 1995, as no specific terrorist act had been identified by the applicant, who is a member of the Australian Federal Police.

The Court considered evidence adduced during “three critical periods”: before her arrest; during her imprisonment and after her acquittal, up till the date of this judgement. It observed that the respondent understood the material she consumed and her “conduct… was an outward manifestation of her commitment to a radical ideology, including her willingness to play an active role in the use of violent acts to establish a strict fundamentalist society”. The Court noted that she had engaged in multiple communications with members of Clavell Family, many of whom were also imprisoned at that time. The Court observed that ICO satisfies the balance of probabilities test in Section 104(1)(d) as the respondent poses a “real risk,”considering that her commitment to ideologies of the IS cannot be ruled out, and the ICO’s implementation can substantially assist in the prevention of a terrorist act, or its support and/or facilitation. The ICO will “represent a significant incursion on the respondent’s civil liberties,” which is reasonably necessary considering she may again associate with other adherents of the IS and consume extremist materials similar to the evidence found against her. [McCartney v. Abdirahman-Khalif,  (No 2) [2020] FCA 1002, decided on 17-07-2020]

Case BriefsForeign Courts

Islamabad Special Court: A Full Bench of Waqar Ahmed Seth, Nazar Akbar and Shahid Karim, JJ.  sentenced Former President Pervez Musharraf of Pakistan to death for ‘High Treason’, which is defined under Article 6 of the Constitution of the Islamic State of Pakistan, 1973 read with Section 2 which prescribes its punishment and Section 3 thereof which provides for the lodging of the complaint of this nature of the High Treason (Punishment) Act, 1973 falling within the jurisdiction of the Special Court, established under Act XVII of 1976.

Pervez Musharraf had procured the democratically elected Nawaz Sharif’s government by a military coup in 1999. Subsequently, when the latter returned to power, he initiated a case of treason against the former in 2013 after Musharraf had suspended the constitution in 2007.

In this case, the accused has been tried based on the following counts. The first being ‘Proclamation of Emergency Order, 2007’ which was found to be unconstitutional and unlawful, second being ‘Provisional Order No. 1 of 2007’ which not only unconstitutionally empowered him to amend the Constitution but also he suspended the Fundamental Rights enshrined in Articles 9, 10, 15, 16, 17, 19 and 25 of the Constitution, the third being ‘ Oath of Office (Judges) Order, 2007’ which required the judges to abide by the Emergency Proclamation 2007 and also led to the removal of the various Judges of the Supreme Court of Pakistan including the Chief Justice of Pakistan, the fourth being ‘ Constitutional (Amendment) Order, 2007’where Articles 175, 186A, 198, 270B, 270C were unconstitutionally amended and Article 270AA  was unconstitutionally added to the Constitution and the last being ‘Constitutional ( Second Amendment), 2007’ where the constitution was again unconstitutionally amended. In all the above Proclamations the accused had thereby subverted the Constitution-making him punishable under the aforesaid Acts.

The accused had been asked to appear before the Court in the above context and was also allowed to record his statement under Section 342 of Criminal Procedural Code (CrPC) but he failed to do so quoting his medical grounds. After giving notices to him and to his surety, the Court finally issued a non-bailable warrant of arrest against him due to his non-appearances before the Court. Ultimately he was declared a Proclaimed Offender and fugitive on 12th July 2016. Further, his contention to return to Pakistan for recording his statement as soon as his medical condition improves was also considered. And accordingly, a commission was appointed under Section 6 (1) (d) of the Criminal Amendment (Special Court) Act, 1976 for the required.

The Counsel for the defendant Raza Bashir pleaded that the accused bore circumstances like upsurge in terrorist activities, a complete breakdown of government machinery due to the interference of Courts in the name of judicial activism and the poor state of economy justifying his acts. Further, the counsel argued that the accused was advised to do so by the Cabinet of the Prime Minister.

The Court observed that the first plea of the defence counsel does not stand on facts as the accused has been found to have violated Article 5 of the Constitution. The Doctrine of Necessity has been once again misused here. His second plea that he issued such Proclamations on the advice of the Cabinet also cannot stand as the Court opined that the above-said matter has already been decided by the Supreme Court and even the review against the verdict has also been decided unanimously with 14 to nil ratio against the accused in the case of Sindh High Court Bar Association v. Federation of Pakistan, 2009 SCC OnLline Pak SC 4. The Court found that the acts of the accused are in abeyance with the Constitution of the country and he squarely fell in the definition of High Treason as cited in Article 6 of the Constitution.

In view of the facts, the Court with a majority held that the accused be hanged by his neck till death. His death sentence was awarded in absentia.[Federal Government of Islamic Republic of Pakistan v. General (R) Pervez Musharraf, Complaint No. 1 of 2013, decided on 17-12-2019]