Exclusion of anticipatory bail under Section 438 of the Criminal Procedure Code is absolute for offences under the Unlawful Activities (Prevention) Act, necessitating prima facie evidence for consideration.

JUDGMENT :

P.B. SURESH KUMAR, J.

1. The moot question in this case is whether the exclusion of the application of Section 438 of the Code of Criminal Procedure (the Code) to the offences punishable under the Unlawful Activities (Prevention) Act, 1967 contained in Section 43D(4) of the said Statute, is absolute.

2. The appellant is accused No.20 in R.C.No.2/2020/NIA, a crime registered under Sections 16, 17 and 18 of the Unlawful Activities (Prevention) Act, 1967 (the UAP Act). The appellant challenges in this appeal, the order dismissing the application preferred by him before the Special Court for Trial of NIA Cases (the Special Court) seeking anticipatory bail in the said case.

3. On 5.7.2020, 30.244 kg of 24 karat gold valued 14.82 crores was seized from an import cargo addressed to the Consulate General of the United Arab Emirates (UAE) in Thiruvananthapuram at the Air Cargo Complex of the Thiruvananthapuram International Airport by Customs (Preventive) Commissionerate, Cochin. It is seen that based on information that the proceeds of the smuggled gold could be used for financing terrorism in India, the Ministry of Home Affairs, Government of India directed the National Investigating Agency (NIA) constituted under the National Investigation Agency Act, 2008 (NIA Act) to investigate into the said transaction and it is on that basis, the crime referred to above was registered on 10.07.2020 initially against P.S.Sarith, a former Public Relations Officer of the Consulate General of UAE and a few others. Later, in the course of the investigation, several others were also arrayed as accused in the case including the appellant. On completion of investigation against 20 accused, a final report has been filed against them before the Special Court, on 06.01.2020 alleging commission of offices punishable under Sections 16, 17, 18 and 20 of the UAP Act. The essence of the case put forward by NIA in the final report against the charge-sheeted accused is that the accused who, in spite of having the knowledge that the act of smuggling of gold into India in large quantity would damage the monetary stability of India and friendly relations with UAE, with the motive to gain money, conspired together, recruited people, formed a terrorist gang, raised funds and smuggled gold from UAE through the import cargo addressed to diplomats at the Consulate General of UAE, in Thiruvananthapuram and thereby caused extensive and irreparable damage to the security and economic stability of the country.

4. It is stated in the final report that investigation is not over in respect of nine accused mentioned separately therein. After submitting the said final report, a petition is seen filed by NIA before the Special Court, invoking Section 173(8) of the Code seeking permission for conducting further investigation against the said nine accused. The name of the appellant was not included in the final report or in the petition filed by NIA before the Special Court seeking permission to conduct further investigation. It is seen that later, another petition has been filed by NIA before the Special Court stating that the appellant who played a major role in the crime was omitted to be shown as an accused in the final report against whom investigation is not concluded and seeking permission of the court for further investigation against the appellant also under Section 173(8) of the Code.

5. It is seen that in the meanwhile, some of the accused in the case who have been arrested, applied for regular bail, and the Special Court granted bail to a few and declined bail to a few others. The NIA challenged the order granting bail to the accused in the case before this court. The accused who were denied bail have also challenged the said decision of the Special Court before this court. The appeals preferred by the parties to the case were disposed of together, as per the judgment reported in Muhammed Shafi P. v. National Investigation Agency, Kochi, 2021 KHC 145. As per the sa