2019 (4) TMI 601 - HC - Customs

Grant of Anticipatory bail - Imposing of condition to keep an amount of ₹ 3 crores in a fixed deposit in some bank and to undertake to surrender that amount for payment of legally adjudicated demand - Held that - The anticipatory bail has been allowed and made absolute subject to the condition that as and when the demand is raised by the investigating agency, the petitioner is required to meet out with the demand in legal manner and in order to ensure compliance, the petitioner has been ordered to keep an amount of ₹ 3 crores in fixed deposit in some bank. While granting bail, it has been ordered to undertake to surrender the fixed deposit for payment of legally adjudicated demand with the department towards payment of duty. Meaning thereby the petitioner has been directed to keep an amount of ₹ 3 crores in fixed deposit in his name and to furnish copy of the FDR to the department. It clearly shows that the condition has been imposed to have the FD of said amount in the name of the petitioner. It is settled law that economic offence constitute a class apart and such like offence having deep rooted conspiracy by causing huge loss of public funds affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. At the time of granting bail, the Court has to consider and keep in mind the nature of allegations, severity of punishment, the character of the accused, circumstances which are peculiar to the accused and also the reasonable possibility of securing presence of the accused during trial as well as reasonable apprehension of the witnesses being tampered with. The offences are cognizable and non-bailable and the matter is under investigation. In the present case, the petitioner has not cooperated in the investigation and just to ensure his availability during ongoing investigation, such condition was imposed - The condition for depositing amount is not unconditional but just to ensure to deposit said amount in case in the investigation he is found to be involved for evasion of the duty. The amount so deposited would be for the purpose of recovery. No financial loss has been caused in any manner to the petitioner as the same has been ordered to deposit by attracting interest. Petition dismissed.

Issues:
1. Setting aside the order imposing conditions on the petitioner for anticipatory bail.
2. Legality and reasonableness of the conditions imposed by the Additional Sessions Judge.

Issue 1: Setting aside the order imposing conditions on the petitioner for anticipatory bail

The petitioner sought to set aside the order dated 26.07.2018 passed by the Additional Sessions Judge, Ludhiana, which required the petitioner to keep an amount of ?3 crores in a fixed deposit in a bank and surrender it for payment of legally adjudicated demand towards duty. The petitioner, accused in a Customs Act case, had filed for anticipatory bail after being asked to deposit ?2 crores towards duty liability. The respondent-department opposed the bail application, citing lack of cooperation from the petitioner during the investigation. The duty demand against the petitioner was substantial, including inadmissible cenvat credit and excise duty amounts. The Additional Sessions Judge confirmed the bail but imposed the condition of keeping ?3 crores in a fixed deposit for future duty payment.

Issue 2: Legality and reasonableness of the conditions imposed by the Additional Sessions Judge

The petitioner's counsel argued that the condition of keeping ?3 crores in a fixed deposit was harsh and unreasonable, especially considering the petitioner's cooperation in the investigation. It was contended that the condition was beyond the scope of Section 438 Cr.P.C. and contrary to Article 21 of the Constitution of India. The petitioner had already deposited a significant amount, and imposing such a condition would cause irreparable loss as the money was needed for business purposes. However, the Court observed that the offence of evading customs duty was grave, causing substantial loss to the public exchequer. Economic offences like these pose a serious threat to the financial health of the country. The Court noted that the condition was imposed to ensure the petitioner's availability during the investigation, as he had not cooperated fully and had failed to provide necessary details despite assurances.

The Court emphasized that economic offences require special consideration due to their impact on public funds and the economy. Granting bail in such cases must consider the severity of the offence, the accused's character, and the likelihood of witness tampering. The conditions imposed, including the fixed deposit requirement, were deemed necessary to secure the presence of the accused and prevent potential loss of funds. The Court clarified that the deposit was conditional and meant for recovery purposes, with the petitioner entitled to interest on the amount. Ultimately, the Court found the petition devoid of merit and dismissed it, upholding the conditions imposed by the Additional Sessions Judge.

This detailed analysis of the judgment highlights the issues involved, the arguments presented by the parties, and the Court's reasoning in upholding the conditions imposed for anticipatory bail in a Customs Act case.

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