2018 (2) TMI 90 - HC - Customs

Bail application - Offence punishable u/s 135 of the Customs Act, 1962 - in the instant case the muddamal allegedly belonging to the petitioner was seized on 01.08.2017 when the petitioner was already in custody in respect of other offence - Section 108 of the Customs Act - Held that - True it is that, Sanjay has retracted the said statements; but at this stage of the proceedings, this Court would not discount the statements made by the said accused on the mere ground of retraction; inasmuch as, retraction of a statement can be no impediment for investigation of a case on such statement. It cannot be disputed that statements under Section 108 of the Customs Act are admissible in evidence and under what circumstances the said statements were made and retracted can only be appreciated during the trial, if at all, the case goes to trial. For the present, the revealations under Section 108 of the Customs Act are relevant for the respondent to carry on the investigation. It is within the domain of the investigator to seek remand of a person. The requirement of the remand would depend upon the facts and circumstances concerning the individual / accused. The investigator may decide not to obtain remand if he is satisfied with the information he required for prosecuting a person has formed the record. Therefore, petitioner has no right to contend that in absence of remand of co-accused, the respondent has no case to plead against the petitioner. Bail application fails.

Summary

Issues:
Bail under Section 438 of CrPC for offence under Section 135 of Customs Act, 1962.

Analysis:
- Issue 1: Arrest based on co-accused statement
- The petitioner sought bail based on the co-accused's retracted statement implicating him.
- Petitioner argued delay in action post-seizure of muddamal until his release, alleging harassment.
- Respondent claimed petitioner's involvement in smuggling activities through various entities.

- Issue 2: Relevance of co-accused statements
- Court noted the importance of the co-accused's statements under Section 108 of Customs Act.
- Despite retraction, the statements were considered relevant for investigation.
- Factual revelations in the statements necessitated custodial interrogation of the petitioner.

- Issue 3: Custodial interrogation necessity
- Respondent argued for custodial interrogation to gather material from petitioner.
- Court emphasized the need for custodial interrogation based on the statements' content.
- Previous default bails did not preclude the necessity of custodial interrogation.

- Issue 4: Investigative purpose vs. harassment
- Respondent's intention to investigate, not harass, was upheld by the court.
- Disputed facts regarding petitioner's voluntary appearances for statement were not considered.
- Investigator's discretion in seeking remand based on individual circumstances was highlighted.

- Issue 5: Discretion under Section 438 of CrPC
- Court declined bail under Section 438 due to the seriousness of smuggling allegations.
- Petitioner's willingness to deposit amount not a decisive factor in granting bail.
- Previous cases of smuggling and tax evasion added weight to the decision.

- Issue 6: Extension of interim relief
- Court extended protection to petitioner for two weeks to prevent arrest.
- Respondent clarified delay in action was due to information obtained from co-accused's statement.
- Application for bail under Section 438 was rejected, and the rule was discharged.