On Friday, the Kerala High Court ruled that the prohibition on granting anticipatory bail, as specified in the Unlawful Activities (Prevention) Act (UAPA), is absolute. Justices PB Suresh Kumar and CS Sudha, a division bench, concluded that applications for anticipatory bail under Section 438 of the Code of Criminal Procedure (CrPC) cannot be entertained for offenses falling under the UAPA.
The bench justified its decision by pointing out that allowing anticipatory bail in UAPA cases would lead to an absurd situation, where the accused could obtain anticipatory bail unconditionally while regular bail would still be subject to restrictions.
The Court emphasized that the UAPA's scheme clearly states that individuals accused of offenses punishable under Chapter IV and VI of the UAPA cannot be released on bail unless they meet the conditions mentioned in sub-section (5) of Section 43D. Thus, the statute does not permit anticipatory bail for such offenses under any circumstances.
Additionally, the Court asserted that seeking anticipatory bail is not a fundamental right guaranteed under Article 21 of the Constitution. Considering the dimensions and impact of international terrorism on civil society, the UAPA was enacted specifically to prevent and address terrorist activities, and the exclusion of Section 438 of the CrPC for offenses under the UAPA was a deliberate decision by the legislature.
The judgment was delivered in response to an appeal made by an individual accused in the notorious 2020 gold smuggling case, wherein a substantial amount of gold was seized by the customs department. While some of the accused were granted regular bail, the appellant in this case sought anticipatory bail before a special court under the National Investigation Agency (NIA) Act. However, the special court rejected the application due to the seriousness of the allegations against him, leading him to appeal to the High Court.
The appellant relied on a previous judgment, Muhammed Shafi P v. National Investigation Agency, where the court held that mere gold smuggling, covered under the Customs Act, does not constitute a terrorist act under the UAPA unless it threatens the economic security of the nation. The appellant argued that he was involved in the smuggling for profit and not with any intention to threaten the nation's economic security, making him ineligible for UAPA charges.
The Deputy Solicitor General of India (DSGI) argued against the maintainability of the anticipatory bail application, citing Section 43(D)(4) of the UAPA, which explicitly excludes the application of Section 438 of the CrPC for cases involving UAPA charges.
After carefully examining the provisions of the UAPA and its objectives to combat terrorism, the Court noted that the appellant's final report had not been filed, and he had been evading arrest, justifying the need for his custodial interrogation. Consequently, the Court dismissed the appeal, stating that this case did not warrant the exercise of the power to grant pre-arrest bail, especially considering the offense's gravity under the UAPA.
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TAGS: Kerala High Court anticipatory bail Unlawful Activities (Prevention) Act UAPA absolute bar division bench Code of Criminal Procedure CrPC regular bail international terrorism gold smuggling case Customs Act National Investigation
