Point of Law: Definition restricts it to counterfeiting of high quality currency. Needless to say that neither the charge-sheet nor the learned Special Court speak of any other terrorist act as defined under S.15(1), but for the threat to economic security, which is confined to sub clause (iiia) of clause (a) of S.15(1).

JUDGMENT :

Vinod Chandran, J.

The appellants lament; as the lyrics in a folk song in the vernacular intones, 'we are petty smugglers unduly labelled as terrorists', resulting in their continued incarceration pending investigation and trial, infringing their right to life guaranteed under Article 21 of the Constitution. Accused Nos.1, 2, 3, 4, 5, 8, 10 & 11 as per the Final Report (who are accused Nos.1, 2, 5, 6, 7, 10, 12 & 13 as per the FIR) in S.C.No.1/2021/NIA are the appellants in the Criminal Appeals, which impugn the common order of the Special Court for NIA Cases, Ernakulam, rejecting their bail applications.

2. The bulwark of the appellants' contentions is a decision of another Division Bench of this Court in Muhammed Shafi P. v. NIA Kochi, 2021 KHC 145; which is under challenge before the Hon'ble Supreme Court, as appealed against by the National Investigation Agency (for brevity 'NIA'). In the cited decision, the bail granted by the Special Court to the various accused, in the same transaction in which the present appellants were also involved, was affirmed, as was the order declining bail to A7 (now A5), who was again before the Special Court and now in appeal before us.

3. Briefly put, the allegations against the accused are of smuggling gold through the diplomatic channel availing the intimate connection, A1 and A2 had with the Consulate of United Arab Emirates at Thiruvananthapuram; wherein the two accused were formerly employed. A particular baggage was detained by the Customs Officials, when 30.422 kgs. of gold worth Rs.14.82 crores were seized. The investigation revealed repeated consignments of contraband having been brought into the country, camouflaged as diplomatic baggage. Muhammed Shafi P.(supra) held that smuggling of gold is covered by the provisions of the Customs Act and will not fall within the definition of a 'terrorist act' as defined under Sec.15 of the Unlawful Activities (Prevention) Act, 1967 (for brevity 'UA(P)A'). It was also held that unless evidence is brought out to show that such smuggling was done with the intent, to threaten or likely to threaten, the economic security or monetary stability of India, by attempting to indulge in any manner in the counterfeiting of high quality notes or coins, then and then alone, Sec.15 would be attracted.

4. The Special Court noticed the above decision and has relied on the decision of the Hon'ble Supreme Court in NIA v. Zahoor Ahamad Shah Watali [(2019) 5 SCC 1] to examine whether there are materials suggesting that the accusation against the accused is true; prima facie, as required under sub-sec.(5) of Sec.43D of the UA(P)A. The learned Judge found that there exists materials revealing the conspiracy, multiple manifold endeavors to smuggle gold into the country and plans devised to continue such activities with impunity as prima facie revealed from the voice clips, confession statement and travel details of the accused; which together prevailed upon the Court to reject the bail applications. The appellants herein were found to be front liners in the smuggling operations and hence a distinction was drawn from those released on bail in Muhammed Shafi P. (supra) who, it was held, were only back liners.

5. Sri. S. Sreekumar, learned Senior Counsel, instructed to appear for A5 (now A3)(Crl.A.No.379 of 2021), commenced arguments pointing out that the bail applications rejected are that of accused Nos.1, 2, 3, 4, 5, 8, 10 & 11 as per the Final Report. The offences alleged are under Sections 16, 17 and 18 of the UA(P)A Act. As has been held in Muhammed Shafi P. (supra), the above provisions are attracted only if the alleged actions of the accused amount to a terrorist activity, under Section 15(1) & (iiia) of UA(P)A. In addition to the reasoning of the Division Bench, the definition of 'high quality counterfeit Indian currency' in the Explanation to Section 15 is pointed out along with the Third Schedule of the Act and Investigation of High Quality Counterfeit In