2016 (2) TMI 894 - HC - Customs

Seeking grant of bail - Consignment of gold seized - No procedure under Chapter XIV of the Act, has been initiated for confiscating the goods - Held that - the applicant was arrested on 24.02.2015 and was in judicial custody pursuant to the lodgment of FIR by the police department, the Custom Department has arrested the applicant on 28.08.2015 i.e. after more than six months. There might be some investigation during this period, however it is desirable to comment anything about the reasons for not arresting the applicant for considerable long time. The complaint has also been filed on 60th day from his arrest. This also suggests that customs department has sufficient time to investigate the case i.e. from 24.02.2015 to 27.10.2015 i.e. date of filing the complaint before the learned Magistrate. As far as allegations that in past also, the applicant had indulged in similar activities, which is under investigation, that would not be the ground to reject the application, since the authority had sufficient time to complete the investigation. By relying upon the decision rendered by Apex Court in the case of State of Kerala V/s. Raneef 2011 (1) TMI 1396 - SUPREME COURT and in the case of Sanjay Chandra 2011 (11) TMI 537 - SUPREME COURT , the applicant is behind bar since more than 10 months which is considered as long period and it is equally true that investigation is almost over. Therefore, this is a fit case to exercise the discretion and enlarge the applicant on regular bail and hence the applicant is ordered to be released on regular bail. - Decided in favour of appellant

Issues Involved:
1. Application for regular bail.
2. Allegations of illegal import of gold.
3. Delay in arrest and investigation by Customs Authority.
4. Consideration of bail under Section 439 of the Code of Criminal Procedure.
5. Previous criminal activities and apprehension of tampering with evidence.
6. Conditions for granting bail.

Issue-wise Detailed Analysis:

1. Application for Regular Bail:
The applicant sought regular bail in connection with DRI File No.DRI/AZU/GI-02/ENQ-10/2015 for offences under Sections 132 and 135(1) of the Customs Act, 1962, read with Section 120(B) of the Indian Penal Code. The application was initially dismissed by the learned Additional Chief Metropolitan Magistrate and subsequently by the learned Sessions Judge.

2. Allegations of Illegal Import of Gold:
The case involved the illegal import of 60 gold bars weighing 60 kgs, valued at Rs. 16 Crores, which were seized at Sardar Vallabhbhai Patel International Airport. The applicant, along with other accused, was allegedly involved in smuggling the gold from Dubai to Ahmedabad. The applicant was purportedly present to receive the consignment.

3. Delay in Arrest and Investigation by Customs Authority:
The applicant was arrested by the DCB Crime on 24/02/2015 and remained in judicial custody until the Customs Authority formally arrested him on 28/08/2015. The complaint was filed on the 60th day from his arrest, suggesting that the Customs Department had ample time to investigate from 24/02/2015 to 27/10/2015. The delay in arrest and the timing of the complaint filing were highlighted as points of contention.

4. Consideration of Bail under Section 439 of the Code of Criminal Procedure:
The applicant argued that the investigation was deliberately prolonged and that he had already been in custody for a significant period. He cited the Supreme Court judgment in Sanjay Chandra v. Central Bureau of Investigation, which emphasized factors to be considered for bail, such as the nature of accusation, severity of punishment, and the likelihood of tampering with evidence.

5. Previous Criminal Activities and Apprehension of Tampering with Evidence:
The prosecution alleged that the applicant had indulged in similar activities in the past. However, the court noted that the investigation had sufficient time to gather evidence and that the applicant's past activities should not be a ground to reject bail. The court considered the statements of witnesses and the fact that the applicant had been in custody for over ten months, with the investigation nearly complete.

6. Conditions for Granting Bail:
The court granted bail, considering the overall facts and circumstances, and the ratio laid down by the Supreme Court. The applicant was ordered to be released on a personal bond of Rs. 1,00,000 with two sureties of Rs. 50,000 each. Conditions included not taking undue advantage of liberty, not acting against the prosecution's interest, surrendering the passport, not leaving Gujarat and Haryana without permission, marking presence at the police station, and furnishing the latest address. The court emphasized that the trial court should not be influenced by preliminary observations made during the bail consideration.

Conclusion:
The application for regular bail was allowed, subject to specific conditions to ensure the applicant's compliance and prevent any misuse of liberty. The decision balanced the applicant's right to liberty with the need to ensure the integrity of the ongoing investigation and trial.

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