The diplomatic baggage that reached the Air Cargo Complex in Thiruvananthapuram on July 5 was a polythene-wrapped cardboard carton, consigned to Rashed Khasmi Ali Musaiqri Al Ashmia, who has been identified as the Consulate Charge d’Affairs of United Arab Emirates Consulate in Thiruvananthapuram, Kerala.
Due to restrictions in handling diplomatic or consular bags, the customs department sought permission from the UAE Ambassador to India as well as the Ministry of External Affairs (MEA) to open the carton following suspicion over its contents. They then opened the bag in the presence of the consignee, the UAE Consulate officer.
Apart from the nine items of food packets (oats, noodles, dates, milk powder), cylindrical yellow-coloured shining metal (gold) concealed in steel pipes were recovered from the carton. The recovered gold of 24-carat purity has been valued at Rs 14,82,00,010.
When the customs enquired with the UAE Consulate officer, he confirmed that the food items belonged to him and were sent by his family in the Arab country. However, he denied any claim over the 30 kg gold and said, “Sarith is the person who will be able to enlighten more about this import consignment.”
Incidentally, as per the remand report submitted by the Superintendent of Customs (Preventive) Commissionerate to the Additional Chief Judicial Magistrate of Economic Offences, the UAE Consulate officer said he relied on Sarith PS, a former public relations officer at the UAE Consulate in Thiruvananthapuram, for “odd jobs”. Sarith, who was reportedly fired from the UAE Consulate, is the main accused in the controversial gold smuggling case in Kerala.
“The Consulate Charge d’Affairs informed the Assistant Commissioner that Sarith is the person who had helped in the clearance of goods in India, that Sarith is no longer the staff, however, he (the diplomat) takes the help of Sarith for odd jobs as he is not familiar with the rules and procedures of India. Sarith has been helping him in a personal capacity,” the remand report read.
However, the UAE Consulate officer’s statement raises pertinent questions.
Can a diplomat or consular officer rely on a former Consulate staff for any official or odd jobs? Three former Indian diplomats told TNM that the Consulate officer can seek help from a former staff member for personal reasons but it is ideally wrong, especially if it is to carry out official work.
According to a former Indian Ambassador, diplomatic bags should be collected by staff from the Embassy or Consulate directly, not outsourced to a non-staff member.
“Diplomatic or consular cargos should not be handed over unless it is confirmed that the person is a representative of the Embassy or Consulate, by verifying the person’s identity card or a letter issued by the MEA or the diplomat or Consular General himself,” said the former Indian diplomat.
Another former Indian Ambassador and writer based out of Delhi explained that earlier, for a Consulate staff to enter the airport, he/she needs to get passes, which will be issued by the local government to the foreign Consulates. These passes are often without names on it.
“But why was he using that pass or the id even after he left the Consulate? Besides, as per protocols, the Consulate General is supposed to inform the state government that the person is no longer working for them? We do not know if the CG informed the Kerala government about this,” he said, adding that there could be involvement of someone in the airport that allowed Sarith to walk in and collect the diplomatic baggage.
According to the former Indian diplomats, the Consulate Officer holds the rank of a Consul, and that he is not a diplomat. While the website of the UAE Consulate in Thiruvananthapuram shows that Jamal Husein Rahma Husein al Zaabi is the Consul General, the remand report shows Rashed Khasmi Ali Musaiqri Al Ashmia as the Consulate Charge d’Affairs, which also means acting Consul General.
While both the diplomatic and consular ranks guarantee immunity, protection is higher for diplomats than Consulate officers. The Consulate officers are also protected under the UN Conference on Consular Relations.
“To question the Consulate officer, India needs UAE Ministry’s permission because this can be argued as a duty. They cannot arrest him even though he is not a diplomat and only a Consulate officer,” said a former diplomat who has worked closely with an Indian Consulate in the Middle East.
According to an Indian diplomat in UAE, "The Indian government cannot do anything in this matter since he has consular immunity. The maximum it can do is ask for persona non grata, which rarely happens. But this (case) can be overlooked as a lapse of judgment rather than a crime.”
Another source said, “An ordinary bag becomes a diplomatic or consular bag only when it carries the tamperproof stamp of the foreign office when it left UAE. If the seal was not tampered with, then the responsibility is entirely on the UAE government."
According to the preliminary investigation, the customs department said that Sarith was completely involved in the clearance of cargo, claiming to be the PRO of the UAE Consulate.
He used to allegedly collude with Fazil, who runs a shop in UAE, for supplying packing and forwarding the diplomatic cargo, which is not the legal practice.
According to the customs department, cargos meant for the Consulate are to be taken by the vehicles belonging to the Consulate. In this case, Sarith came to take the delivery himself in his car. Besides, customs clearing charges pertaining to the cargo meant for the Consulate are made to the Customs Brokers by the Consulate via RTGS (real-time gross settlement). In this case, Sarith paid in cash.
Incidentally, the Customs (Preventive) Commissionerate said that the diplomatic cargo and the supporting documents enclosed with the bill of entry (a document by importers or customs agent on or before the arrival of a good) were not in the prescribed format as stipulated under the Foreign Privileged Persons (Regulation of Customs Privileges) and not signed as stipulated.
“My impression is that this was done deliberately, sending gold as part of the diplomatic cargo to get away with the crime. But, the other possibility is that this man (Sarith), without the knowledge of the acting Consulate General, thought to send the gold and so that it gets cleared. A staff member can also open the bag and there will be no suspicions,” said the former diplomat based out of Delhi.
The UAE Consulate officer told the Customs Commissioner that neither he nor the UAE Consulate has any legal claim over the gold. He also said that the Indian government can take legal action on the gold seized, other than the food stuff, under the provisions of the Indian laws.
Sarith was arrested on July 6 by the Customs (Preventive) Commissionerate in Cochin, under section 104 (power to arrest) of the Customs Act, 1962 for being liable for action under section 135 (Evasion of duty or prohibitions) of the same Act.