Smuggling of gold, even with intent to threaten economic security, does not constitute a terrorist act under Section 15(1)(a)(iiia) of the UA(P)A.

JUDGMENT

1. Accused appellant - Azaz Khan has preferred D.B. Criminal Appeal No.132/2021 aggrieved by the order dated 23.4.2021 passed by the Special Judge (N.I.A. Cases), Rajasthan, Jaipur; accused appellant - Rashid Qureshi has preferred D.B. Criminal Appeal No.22/2021 aggrieved by the order dated 12.1.2021 passed by the Special Judge (N.I.A. Cases), Rajasthan, Jaipur; accused appellant - Amzad Ali has preferred D.B. Criminal Appeal No.77/2021 aggrieved by the order dated 23.4.2021 passed by the Special Judge (N.I.A. Cases), Rajasthan, Jaipur and accused appellants - Ramchandra and Mukesh has preferred D.B. Criminal Appeal No.105/2021 aggrieved by the order dated 20.11.2020 passed by the Special Judge (N.I.A. Cases), Rajasthan, Jaipur whereby bail applications preferred by the accused appellants were rejected by the Special Judge (N.I.A. Cases), Rajasthan, Jaipur.

2. Succinctly stated the facts of the case are that on 3.7.2020 Custom Officers seized about 18 kg gold bars from the possession of ten persons, namely, Ramchandra, Mohd. Aarif, Sunil Verma, Mohd. Maqbool, Subhash, Mohd. Aalam, Rashid Qureshi, Mukesh, Surendra Kumar and Hetram at Jaipur Airport and case was registered against the above named persons for offence under Section 135 of the Customs Act. On akin facts, an FIR No.RC- 36/2020/NIA/DLI was registered for offence under Section 16 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as "the UA(P)A") and Section 120B of the Indian Penal Code (hereinafter referred to as "the IPC") by the National Investigating Agency, New Delhi (hereinafter referred to as "the N.I.A."). All the accused appellants moved bail application under Section 439 Cr.P.C., which were rejected by the Special Judge (N.I.A. Cases), Rajasthan, Jaipur, aggrieved by which, present appeals have been preferred before this Court.

3. As all the appeals are arising out of FIR No. RC- 36/2020/NIA/DLI dated 22.9.2020, the same are being decided together by this common order.

4. It is contended by the learned counsel for the accused appellants that gold was seized from accused appellants - Azaz Khan, Rashid Qureshi, Mukesh and Ramchandra. The value of the gold seized from each accused was less than Rs.1 crore and the custom duty payable was less than Rs.50 lakhs and therefore, the offence was bailable. Thus, all the accused appellants were released on bail under the Customs Act.

5. It is contended that after the accused appellants were granted bail, the N.I.A. registered the present FIR under Section 16 of the UA(P)A. It is argued that the statements of accused appellants - Azaz Khan, Rashid Qureshi, Mukesh and Ramchandra were recorded under Section 108 of the Customs Act and in their statements, they have specifically stated that they had gone abroad as labourers and due to COVID, they lost their jobs and had no means to return back to India. They were lured by some persons, who agreed to pay their flight charges, subject to carrying gold. It is contended that the accused appellants are not involved in any terrorist act and they only carried gold as they had no other means to return back to India.

6. It is contended by the counsel appearing for accused appellant - Amzad Ali that no recovery was effected from accused appellant - Amzad Ali. In the initial statements of the co-accused, which were recorded under the Customs Act, his name was not even mentioned, however, subsequently when the statements of co-accused - Mohd. Maqbool Sheikh and Subhash were recorded on 7.10.2020 and 8.10.2020, for the first time, name of accused appellant - Amzad Ali was revealed. It is also contended that statement recorded by the N.I.A. Officers is hit by Section 25 of the Evidence Act as N.I.A. Officers are Police Officers. It is further contended that accused appellant - Amzad Ali has been made an accused in the case only because his mobile location was found near the Airport.

7. Counsel for the accused appellants have placed reliance on the judgment of Ke