Kerala High Court Denies Bail To Two Foreigners Caught On Indian Waters Aboard Srilankan Boat With Heroine, Bulk Arms

The Kerala High Court on Wednesday (November 19) dismissed the bail pleas of two Srilankan nationals, who were caught by the Indian Coast Guard in 2021 near Lakshadweep aboard the Srilankan fishing vessel 'Ravi Hansi' carrying 300 kg of heroine, and rifles with 1000 rounds of Pakistani ammunition. It also denied bail to the Indian citizen, who is accused of being involved in the transnational smuggling.The Division Bench of Justice Sushrut Arvind Dharmdhikari and Justice P.V. Balakrishnan observed that since the materials collected by the investigating agency constitute a prima facie case against the accused person and the trial is set to begin in February next year, there are no grounds to grant bail to the accused.The prosecution allegation was that on March 18, 2021 the Indian Coast Guard had intercepted 'Ravi Hansi' near Minicoy Island of Lakshadeep and recovered the contraband from 6 Srilankan nationals. They were brought to the Vizhinjam Harbour in Thiruvananthapuram on 25.03.2021 and a confidential FIR submitted to the Narcotics Control Bureau. The Bureau arrested the accused on 27.03.2021 after a crime was registered at Vizhinjam Police Station for the offences under Sections 120B, 125, 465 and 471 of the Indian Penal Code, and Sections 18, 20,38, 39 & 40 of Unlawful Activities (Prevention) Act, 1967, Section 7 r/w 25(IAA) of the Arms Act, 1959 and Sections 8(C) and 21(C), 23(C), 24, 25 & 27A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.After the NIA Court, Ernakulam denied bail to them, they have come before the High Court in appeal.The appellants argued that the prosecution case is based on suspicion and that they had no intention to commit any illegal activities since they mistakenly came into Indian waters after their vessel and navigation broke down.It was further argued that there was violation of the fundamental rights under Articles 21 and 22(2) of the Constitution, and procedural lapses since they were not brought before a Magistrate within 24 hours. According to them, though there were three court complexes in Lakshadweep, they were made to travel miles to reach Vizhinjam in Thiruvananthapuram. They further urged that since 4 ½ years already passed since their arrest and trial has not yet commenced but 206 prosecution witnesses, there was no chance for completion of trial in the near future.They also relied on various Supreme Court decisions that had held that the right to speedy trial overrides the statutory bar under Section 43D(5) of the UAPA, which provides that an accused shall be enlarged on bail if the Court finds that the allegations are prima facie true.Vehemently opposing the bail, the Union of India argued that the offences alleged are serious in nature and constitutes a threat to the integrity and peace of the nation. It was argued that the respondents were caught red-handed with the contraband and since the vessel was intercepted in Indian waters with specific prior intelligence, it cannot be said that there was no intention or the vessel was drifting.It was also brought to the Court's notice that the approvers in the case had given statements to the effect that there was larger conspiracy to conduct transnational smuggling operation. The Union also argued that since the accused included Sri Lankan nationals, they are high flight risk.The Court was also told that the trial is scheduled to begin on 02.02.2026 by the Special NIA Court and the same would be conducted with priority over other matters.Countering the precedents relied on by the appellants, it was argued that these do not apply in the present case where foreign nationals are involved in view of the specific provision under Section 43D(7). According to the provision, bail ought not be granted except in very exceptional circusmtances if the accused is not an Indian citizen and has entered India unauthorisedly or illegally.After hearing the parties, the Court went on to look at the precedents set by the Apex Court with respect to the scope of Section 43D of the UAPA and observed:“If the above principal is considered more precisely, there are two conditions for granting bail to accused under trial in UAPA; first, if the Court is satisfied that the entire material collected by the investigation agency do not constitute prima facie case against the accused person and investigation agency has failed to show as to whether there are reasonable grounds for believing that the accusation against the accused is prima facie true, and secondly, a timely trial would not be possible and the accused has suffered incarceration for a significant period for a substantial part of prescribed sentence which amounts to violation of his Fundamental Rights.”Analysing the materials collected by the investigating agency, the Court came to the conclusion that there was sufficient material to prima facie show that the appellant had actively participated in the commission of the offences. It also was of the opinion that...

Kerala High Court Denies Bail To Two Foreigners Caught On Indian Waters Aboard Srilankan Boat With Heroine, Bulk Arms

K. Salma Jennath

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