The application filed by Swapna Suresh seeking anticipatory bail in the Kerala gold smuggling case is not maintainable, in view of the fact that the National Investigation Agency(NIA) has taken over the probe, submitted the Central Government before the High Court of Kerala on Friday.
Pointing out Section 21 of the NIA Act, Mr. Ravi Prakash, Central Government Counsel, submitted that the High Court has no original jurisdiction to consider the anticipatory bail application, and that only Special Court can consider the same.
The bench of Justice Ashok Menon expressed prima facie agreement with the submission.
The CGC further submitted that custodial interrogation of Swapna Suresh was necessary for the investigation. The Customs acted on the source information that three persons, P S Sarit, Sandeep Nair and Swapna Suresh were involved in gold smuggling misusing the route of diplomatic baggage. Massive recovery of 30 kilograms of gold, worth Rs 15 crores, from the diplomatic baggage addressed to UAE Consulate at Thiruvananthapuram has been made. The CGC further said that statements of Sarit, and Sandhya(wife of Sandeep Nair), have been recorded under Section 108 of the Customs Act. These statements revealed that Swapna Suresh was involved in arranging the diplomatic papers for the delivery of the baggage. That stands corroborated by her statements in the bail application, the CGC said.
"Custodial interrogation of Swapna Suresh is needed to ascertain if her involvement in the delivery of diplomatic cargo was innocent or not", he submitted.
Investigation is in the nascent stage. Substantial recoveries have been made. Statements of witnesses have been recorded, which reveal that Swapna Suresh was involved in arranging diplomatic papers for the smuggling of gold : CGC#KeralaGoldSmugglingCase— Live Law (@LiveLawIndia) July 10, 2020
Investigation is in the nascent stage. Substantial recoveries have been made. Statements of witnesses have been recorded, which reveal that Swapna Suresh was involved in arranging diplomatic papers for the smuggling of gold : CGC#KeralaGoldSmugglingCase
He further said that Suresh's conduct was 'suspicious'. Customs officials have tried to serve summons on her, but without success. She has switched off her mobile phone and is absconding.
He also submitted that Suresh does not have 'clean antecedents' on account of her involvement in a previous offence.
The counsel for the National Investigation Agency submitted that it has registered an FIR under the Unlawful Activities Prevention Act, 1967, on the allegation of "raising funds for terrorist activities".
The bar under Section 43D of the UAPA against the consideration of the pre-arrest bail application is also attracted, submitted the counsel.
Senior Advocate K Ramakumar, appearing for the Central Government, submitted that even if it is assumed that the bail application was maintainable, relief should not be granted as the case was one affecting the "security of the nation and its economic stability".
The bench ultimately adjourned the hearing till next Tuesday, July 14, after Advocate T K Rajesh Kumar, petitioner's counsel, sought for copies of the statement submitted by the Customs and the new FIR registered by NIA.
The case is related to smuggling of 30 kilogram of gold through diplomatic cargo dispatched to UAE Consulate at Thrivananthapuram.
In the bail application, Swapna Suresh, who is on the run, stated that she had worked as an Executive Secretary at the Consulate office from 2016 until her resignation in September 2019.
Even after resignation, she used to assist the Consulate on "Work-on-Request" basis as they had sought her assistance in the light of her experience.
Suresh claimed that she contacted the customs officials regarding the cargo only on the instructions of the Consulate General.
"The petitioner has no connection and no involvement with respect to the smuggled gold. The petitioner has been falsely implicated in the above customs case", she stated.
Suresh has annexed the copies of email communications, stated to have been made between her and the Consulate, along with the bail application with an attempt to show that she was acting only as per the instructions from the Consulate.
She added in the plea that she belongs to a respectable family with no criminal antecedents, and is living with her husband and two children. She also complained that a "media trial" is going on against her. The media is exhibiting her photographs in violation of right to privacy, and has sensationalized the case causing prejudice and harm to her, she stated.
The Customs Preventive Commissionerate, Cochin, has registered a case for offences under Section 104(6)(c) and 135 of the Customs Act 1962 in relation to the illegal import of the stash of gold. They have so far arrested P R Sarit, who used to work as Public Relations Officer at the Consulate Office.
On Thursday, the Ministry of Home Affairs permitted National Investigation Agency to take over the probe, stating that "organised smuggling operation may have serious implications for national security".
Kerala Chief Minister, Pinarayi Vijayan, had earlier written to Prime Minister, Narendra Modi, seeking "effective and coordinated investigation into this incident by central agencies" in the matter.
The case has snowballed into a political controversy due to Swapna Suresh's alleged links with M Sivasankar IAS, who was both the Principal Secretary to the office of Chief Minister and Secretary to the Department of Information Technology.
Following the controversy, Sivasankar was removed from both the posts.
The opposition in Kerala has demanded the resignation of the Chief Minister over the case, alleging that his office was involved in it.