In the instant case, Azaz Khan v. N.I.A., the Division Bench held that Schedule II of the UAPA Act does not include the Customs Act, and the smuggling of gold, that too of a quantity bailable, does not pose threat to economic security and hence can not be deemed as a terrorist act.
The Custom Officer procured about 18kg gold bar from the possession of 10 alleged accused from Jaipur Airport and the case was registered for offense u/s 135 of Customs Act.
On similar facts, an FIR was also registered for offense u/s 16 of Unlawful Activities (Prevention) Act, 1967 and u/s 120B IPC by the National Investigating Agency, New Delhi.
Subsequently, bail was granted as the value of gold seized from each accused was less than Rs. 1 crore and the customs duty payable was less than Rs. 50 lakh. The main contention for the appellant/accused was after being released on bail, the NIA registered the FIR u/s 16 of UA(P)A.
The accused specified in their statement that they were labourers abroad and due to the pandemic, they lost their job and were forced to return back to India. As they did not have any means to come back, they agreed to carry gold in exchange for free air tickets.
Therefore, it was affirmed by the petitioner though they were carrying gold with them, the appellant/accused were not involved in any terrorist activities.
The petitioner placed relied on Mohammad Shafi v NIA, 2021 judgment by Kerala HC where it was interpreted that u/s 15(1)(a)(iiia) of UA(P)A smuggling of gold cannot be treated as a terrorist act unless the circumstances were found to be otherwise.
The respondent vehemently opposed and contended that Jaipur was turning into a hub of smuggling and that passengers are being treated as scapegoats in smuggling activities. It was also argued that the Apex Court has taken a very stringent view in dealing with economic offenses.
The Division Bench in the present case upheld the decision of Mohammad Shafi v NIA, Kerala HC where it was held that Section 15(1)(a)(iiia) of UA(P)A was not attracted when gold is smuggled into the country.
Even from the Joint Parliamentary Committee, it was sought that no deliberation took place to consider gold as material u/s 15(1)(a)(iiia) of UA(P)A.
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