2020 (9) TMI 1208 - HC - Customs

Seeking grant of anticipatory bail - Used Foreign Origin Printing Machine - import of machinery for re-export after repairing and/or refurbishing - applicant was sufficiently interrogated by the DRI and yet no complaint is registered against the applicant - power under Section 438 of the Code to be exercised or not - HELD THAT - It appears that M/s. PVD Enterprise imported 211 numbers of Used Foreign Origin Printing Machine for repairing and refurbishing. 114 numbers were imported vide Bill of Entry No.4361330 dated 05.08.2019 and 97 numbers were imported for which they filed Bill of Entry No.4814912 dated 07.09.2019. In M/S PVD ENTERPRISE VERSUS ADDITIONAL DIRECTOR GENERAL 2021 (9) TMI 834 - GUJARAT HIGH COURT preferred by M/s. PVD Enterprise affidavit in reply was filed by the respondent no.2 before this Court on 10.01.2020. The dispute between M/s.PVD Enterprise and the respondent no.2 is pending before this Court on judicial side in respect of machine imported for the purpose of repairing and refurbishing. In connection with this dispute inquiry was initiated by the department and the applicant was issued summons time and again to remain present before the office. The Hon ble Apex Court in the case of SIDDHARAM SATLINGAPPA MHETRE VERSUS STATE OF MAHARASHTRA AND OTHERS 2010 (12) TMI 1085 - SUPREME COURT has held that under Section 438 of the Code it is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. A great ignominy humiliation and disgrace are attached to arrest. In cases where the Court is of considered view that the accused has joined investigation and he is fully cooperating with the Investigating Agency and is not likely to abscond in that event custodial interrogation should be avoided and anticipatory bail should be granted which after hearing public prosecutor should ordinarily be continued till end of the trial. There cannot be any dispute regarding the law settled down by the Hon ble Apex Court or any observations made in the judgment - In the similar facts of the case on the identical issue the Hon ble Apex Court has set aside the order of the Hon ble High Court directing the custom authorities restraining to arrest a person when summons under Section 108 of the Customs Act for recording the evidence was issued. Application dismissed.

Summary

Issues:
1. Application under Section 438 of the Criminal Procedure Code for anticipatory bail.
2. Premature application due to ongoing investigation.
3. Power of arrest by Custom Officer under Section 104 of the Customs Act, 1962.
4. Interpretation of legal provisions regarding arrest and bail.

Analysis:
1. The applicant sought anticipatory bail under Section 438 of the Criminal Procedure Code, stating innocence and lack of involvement in alleged offences. The applicant argued that he was wrongfully implicated by the Department of Revenue Intelligence (DRI) in a case related to the import of machinery for refurbishing purposes only, not for sale in the Indian market. The applicant cited a previous judgment and requested the court to grant bail.

2. The respondent opposed the bail application, labeling it premature due to the ongoing investigation and absence of any registered complaints against the applicant. Referring to Section 104 of the Customs Act, the respondent highlighted the statutory power of a Custom Officer to arrest a person suspected of specific offenses under the Act. Citing a Supreme Court judgment, the respondent argued against interfering with the powers of the Custom Officer during investigations.

3. The court noted the ongoing dispute between M/s. PVD Enterprise and the respondent, involving the import of machinery for repair and refurbishing. The applicant had been summoned by the DRI for inquiry purposes, with no formal charges or complaints registered against him. The court referenced a Supreme Court case emphasizing the statutory nature of a Custom Officer's power to arrest based on objective facts of an offense.

4. In its decision, the court dismissed the anticipatory bail application as premature, following the principles outlined in the Supreme Court judgments. The court emphasized the importance of not obstructing the statutory powers of Custom Officers during investigations and the need for objective considerations before arrest. The court highlighted the seriousness of arrest and the need for cooperation with investigating agencies to avoid custodial interrogation when the accused is cooperating and not likely to abscond.

This detailed analysis covers the issues raised in the judgment, including the arguments presented by both parties and the court's decision based on legal provisions and precedents cited during the proceedings.