Case BriefsSupreme Court

Supreme Court: In the case where the State Advisory Board had heard a detenu on video conference, without any sufficient prior intimation to the detenu for preparation or arrangement for such hearing, the 3-judge bench of RF Nariman, BR Gavai and Hrishikesh Roy, JJ  has set aside the Detention Order is and has directed the immediate release of the detenu-petitioner. The Court said,

“… it is obvious that no effective hearing was given to the petitioner by the Advisory Board.”

Advocate Saurabh Kirpal, appearing for the petitioner had submitted before the Court that while in the matters of other detenus, the State Advisory Board had suo motu given advance permission to take assistance of a friend to represent their case, in the instant case the written communication of intimation dated 02.02.2021 of the hearing by the State Advisory Board sent by Fax to Jail Authorities was served in jail on or about 03.02.2021, just before commencement of video conference hearing by the State Advisory Board on the same date i.e. 03.02.2021 at 08:40 Hrs (scheduled at 08:30 Hrs).

It was argued that this was against the standard practice followed by the Central Advisory Board to give every detenu a fairly advance written intimation of the date of hearing before them, that too, with an option to keep an Advocate present for effectively representing his case.

Even the denial of specific request for furnishing translated copies and other material and information was also communicated only on or about 03.02.2021 along with the said intimation dated 02.02.2021 of hearing issued by State Advisory Board. Further, despite specific written request made in the representation, even brief reasons for rejecting every request made, were not communicated to the detenu. Nor was the detenu orally informed of the reasons.

“Such empty formality of hearing on video conference, without any sufficient prior intimation to the detenu for preparation or arrangement for such hearing, without permitting any time to seek assistance by any friend or advocate, that too when the detenu has no documents/materials/judgments in his hand, cannot be justified for preventive detention.”

As per the Advisory Board, the proceedings in the present case were conducted in accordance with the provisions of the COFEPOSA Act, 1974 and a memorandum dated 02/02/2021 regarding the hearing to be held on 03/02/2021 through Video Conferencing was communicated to the Superintendent Central Jail with a request to serve a copy to the detenu in accordance with which the  detenu participated in the hearing through Video conference and made his submission before the State Advisory Board.

In Hamida Sarfaraz Qureishi v. M.S. Kasbekar, (1980) 4 SCC 478, no reasonable notice about the date of meeting of the Advisory Board was given to the detenu. It was only about one or two hours before the scheduled time of the meeting of the Advisory Board that a police officer went to the hospital in which the detenu was confined, to inform about the meeting of the Board. Even that information was given only to the wife of the detenu for further transmission to the detenu who was then precariously ill and disabled from doing anything.

In the said case, under Section 11(1) of the PREBLACT, the authority concerned was peremptorily required to afford to the detenu a proper opportunity to be heard in person by the Advisory Board.

In such facts and circumstances, the Court had held,

“The so called opportunity of being heard in person by the Advisory Board, was a farce, and amounted to a negation of the right conferred on him under Section 11(1) of the Act.”

Following this judgment, the Supreme Court in the present case directed the immediate release of the detenu owing to the absence of effective hearing by the Advisory Board.

As per a report published by the Times of India, Bhargav Kanubhai Tanti was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) for his alleged involvement in smuggling of 1300 kgs of Gold[1].

The Central Government after considering the opinion of the State Advisory Board that there is sufficient cause for the detention confirmed the detention order vide Order dated 25.02.2021 for a period of one year from date of detention i.e. from 16/12/2020.

[Sanjay Kanubhai Tanti v. The Superintendent, 2021 SCC OnLine SC 229, decided on 15.03.2021]

Appearance before the Court by:

For petitioner: Advocate Saurabh Kirpal

[1] Absconder in 1.3 tonne gold smuggling case arrested,

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