July 26, 2021

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Revisiting the federal structure of India in light of the case of Enforcement Directorate v. Kerala Police

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This article has been written by Sneha Jaiswal currently pursuing BA LLB (Hons.) from CHRIST (Deemed to be University), Delhi NCR. This article provides an insight into the Kerala gold smuggling case with respect to the case of Enforcement Directorate v. Kerala police and how a link has been created with the federal structure of India.

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India has a long history of adoration for gold. India had gained the moniker “golden bird” even though it lacked vast gold deposits in its mines. The infatuation with gold in Kerala is widely known. With its historical, cultural, religious, and economic significance, the yellow metal’s lustre refuses to fade from the Malayali mind. The Kerala gold smuggling case has brought the focus on India being a safe haven for illicit trade in the yellow metal. Criminals frequently use gold as an alternative to paper currency for money laundering and illicit commerce. It’s a high-value, easy-to-transport mineral, making it a prime target for armed organisations and vulnerable to smuggling.

Federalism, in its simplest sense, is the separation of legislative and executive authority between the federal government and state governments, allowing each to operate autonomously within its own domain. Various people from diverse origins and traditions live together in a country like India, and federalism is extremely important. It is not conceivable nor desirable for a single government to enact laws for the entire country in the interests of individuals of many cultures, languages, and origins. As a result, the Central government may create laws for the entire and any part of India’s territory, while state governments may develop and enforce laws based on the social, economic, and political situations of people living in various places.

Federalism entails the distribution of constituent and political authority, i.e., the ability to rule at two levels, although local governments may exist inside a state. Every federal system necessitates a separation of powers between the federal and state governments, with each being autonomous in its area and not submissive to the other. Power has been split between the Centre and the states to avoid anarchy and conflict between the two contending jurisdictions, and division of power is one of the most significant characteristics of federal constitutions. Each level of the polity has its own set of authorities and responsibilities and its governing structure. A written constitution usually contains the details of this federalism or dual system of administration. The written Constitution is regarded as paramount and the source of authority for both branches of government. The union or central government is in charge of some matters that affect the entire nation, such as defence and currency. Regional or local issues, on the other hand, are the responsibility of the regional or state government. If there is a disagreement between the centre and the state on any matter, the judiciary has the authority to settle it.

The Constitution of India clearly distinguishes between issues that are within the exclusive jurisdiction of the Union and those that fall within the exclusive jurisdiction of the States. Similarly, the Constitution defines three lists: the Union List (subjects dealt with only by the central government), the State List (subjects dealt with usually by the states), and the Concurrent List (subjects dealt with by both the central government and the state government).

The smuggling of over 167 kg of gold through the import cargo intended to diplomats at the Consulate General of the United Arab Emirates in Thiruvananthapuram between November 2019 and June 2020 is the subject of the Kerala gold smuggling case. The smuggling operation was discovered when customs confiscated 30 kg of gold from the United Arab Emirates consulate’s diplomatic luggage in Thiruvananthapuram on July 5, 2020. Following that, customs detained around fifteen persons, including Swapna Suresh, a consultant for the State government’s Ministry of Information Technology. Separate investigations into the racket are being conducted by the National Investigation Agency, the Enforcement Directorate, and Indian Customs. Several high-profile figures, including Kerala Chief Minister Pinarayi Vijayan’s senior secretary Sivasankar, are being investigated by customs for their suspected involvement in the case.

The National Investigation Agency (NIA) said that the accused plotted to smuggle gold to threaten India’s economic security. Significantly, the primary suspect in this investigation intended to transport additional gold from Bahrain, Saudi Arabia, and Malaysia. On July 10, 2020, the NIA registered a lawsuit under Section 16, Section 17, and Section 18 of the Unlawful Activities (Prevention) Act,1967 against Sarith PS Swapna Prabha Suresh, Faisal Fareed, Sandeep Nair, and others, following the seizure of around 30 kg of gold worth Rs 14.82 crores at Trivandrum International Airport by Customs (Preventive) Commissionerate, Cochin, from the import cargo addressed to the Charge D’ Affaires at the Consulate General of the United Arab Emirates (UAE) in Thiruvananthapuram.

It was discovered in a diplomatic cargo that is exempt from routine inspection by customs personnel at airports and enjoys immunity from regular examination by the customs department officials at airports. There was specific information regarding gold being hidden in the container in order to smuggle it into Kerala. It was part of Dubai’s diplomatic cargo. The sender was Al-Za’atar Spices, a Sharjah-based company, and the cargo was specified as bathroom fixtures, noodles, biscuits, and dates.

The fact that a former United Arab Emirates Consulate local PRO was claiming the package heightened the suspicions of the customs authorities. Sarith Kumar had previously worked for the Consulate General until being fired in 2019. Sarith Kumar was no longer authorised to accept cargo on behalf of the Consulate, according to the customs agency. The customs agents refused to give Sarith Kumar the cargo and instead opted to open it in front of Consulate authorities, as is required when assessing a diplomatic shipment.

In this regard, Sarith Kumar, an employee of the UAE Consulate, was detained. Swapna Prabha Suresh, aka Swapna Mohammed, a Dubai citizen who worked at the Consulate for three years until being fired in 2019, was the target on which he pointed fingers. Swapna has been identified as the main suspect in the gold smuggling case. She headed the investigating agencies, the National Investigation Agency, and the Enforcement Directorate after Kerala Chief Minister Pinarayi Vijayan wrote to Prime Minister Narendra Modi requesting an investigation by central agencies against IAS officer M Sivasankar, who is currently suspended.

Sivasankar was the principal secretary to Chief Minister Pinarayi Vijayan and the head of the Kerala State Information Technology Infrastructure Limited (KSITIL). Probe subsequently discovered that he had suggested Swapna for a post with the KSITIL that needed a degree, even though she was not qualified. The heat was turned on Chief Minister Vijayan when Sivasankar’s link was discovered in the gold smuggling case. Sivasankar was fired as principal secretary. The three central agencies, the National Investigation Agency, the Enforcement Directorate, and the Customs Department, interrogated Sivasankar multiple times. On October 27, he was ultimately apprehended on allegations of money laundering in the smuggling case. Furthermore, in November last year, the Pinarayi Vijayan government had withdrawn general consent accorded to the Central Bureau of Investigation (CBI) for registering cases in the state.

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In the Kerala gold smuggling case, a special Kochi court extended the Enforcement Directorate’s (ED) custody of M Sivasankar, the former chief minister’s senior secretary, by a day. The Enforcement Directorate, the National Investigation Agency, and the Customs Department are investigating a case involving the smuggling of gold into the state through diplomatic channels.

The National Investigation Agency (NIA) is investigating possible linkages between gold smuggling and terror networks in India. Former key officials in the United Arab Emirates (UAE) consulate in Thiruvananthapuram investigated gold smuggling and discovered the involvement of top officials and politicians in Kerala, exposing an unholy connection of local politicians, officials, and gold traders in the state with the international gold mafia.

In this case, Sarith Kumar, who worked in the United Arab Emirates Consulate, was detained. According to reports, he informed Customs about Swapna Suresh, an ex-Consulate employee who now works as the manager of Kerala State Information Technology Infrastructure Limited.

It’s one of the state’s largest gold hauls, and it’s the first time in the country, according to customs, that gold was attempted to be smuggled by using a person’s identity with diplomatic immunity.

These are the matters at hand in the Kerala gold smuggling case. As a result, it may fall under the control of the central government. The proposed investigation would not violate the country’s federal values. The investigation was launched to see if the agencies investigating the gold smuggling case went beyond their authority and whether there were any attempts to wrongly incriminate political officials in the case.

The Kerala government is defying the federal structure of the Constitution by ordering a judicial probe into central agencies investigating gold smuggling and other smuggling cases, according to Union Defence Minister Rajnath Singh. In addition, he announced a judicial investigation of personnel from the Enforcement Directorate (ED) who are investigating the dramatic gold smuggling case. Singh told reporters in the state capital that the government’s move was unexpected and would damage the country’s federal framework.

The administration has announced a judicial panel to investigate the ED, claiming the central agency was planning to incriminate the CM in the gold smuggling case and cast a negative image on the administration. Sandeep Nair, another accused in the case, said that Enforcement Directorate (ED) personnel had compelled him to designate Vijayan as a suspect. Following a continuing investigation into many cases, including the Kerala gold smuggling case, the Kerala Cabinet requested a judicial probe against central investigation agencies, subject to Election Commission’s permission.

Chief Minister Pinarayi Vijayan presided over the virtual cabinet meeting that made the decision. The state government does not have the power to take such a lawsuit, United Democratic Front (UDF) convenor MM Hassan, who called it an election stunt. This is being done in order to sabotage the ongoing inquiry.

Kerala’s experience over the previous seven to eight months demonstrates that various central authorities are being abused rather than being utilised to uncover the truth about gold smuggling. We have a right to know the truth. Agencies have utterly failed. Vijayaraghavan, the leader of the Communist Party of India (Marxist), asserted that these agencies have always functioned with political motivations.

Retired Judge KV Mohanan has been designated as the Commissioner by the Cabinet. He’ll look at a letter sent by co-accused PS Sarith and a contentious audio recording of Swapna Suresh, the prime suspect in the gold smuggling case.

Sitaram Yechury, the Communist Party of India (Marxist) general secretary, who has been camping in the state for the past few days, has chastised the defence minister. He knows nothing about the constitution or the federal government. He questioned how a federal agency could conduct an inquiry in a state without gaining the confidence of the government.

The Customs department is currently looking into whether more people were participating in the smuggling network and whether other employees at the consulate general’s office aided the scam. The gold smuggling matter has erupted as the newest bone of contention between the central and state governments.

For many years, smuggling has been a lucrative business in India. Many worldwide criminal syndicates, such as the Mafia, are responsible for these illicit activities. There is no doubt that smugglers have amassed enormous money through unlawful activities. For years, international smugglers had been bringing gold and other illegal products into India. As a result, smuggling is not only a social problem but also a financial one.

India is a large country with an extensive coastline. It’s tough to maintain a continual eye on its sprawling borders. As a result, law enforcement agencies must evaluate their techniques for combating smuggling and outwitting smugglers. Smuggling should be outlawed completely. In this regard, the laws must be vigorously enforced. People must be taught not to purchase smuggled items. Smuggling can be reduced as a result of this.


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