2019 (12) TMI 484 - HC - Customs

Grant of anticipatory bail - seizure of gold was effected from a shop of petitioner - Section 438 of the Code of Criminal Procedure, 1973 - HELD THAT - Merely filing of an application by any person under Section 438 Cr.P.C. and/or pendency thereof does not mean that the petitioner has been granted any protection by this Court, hence the respondent is not precluded in any manner from taking any action or proceedings in the matters pending before them, as per law until and unless there are specific orders of protection or stay by the Court in favour of a party. It is an admitted case that the petitioner had filed an application under Section 438 of the Cr.PC before the Sessions Court, which was dismissed vide order dated 5.9.2019. There is no doubt that the anticipatory bail may be granted when there is material on record to show that prosecution was inherently doubtful or where there is material on record to show that there is a possibility of false implication. However, when the element of criminality is involved; the custodial interrogation is required and/or the other aspects and facts are required to be unfolded in investigation, the applicant is not entitled for anticipatory bail - It is a well-settled law that, while considering the question of grant of anticipatory bail, the Court prima facie has to look into the nature and gravity of the alleged offence and the role of the accused. The facts of the case demonstrate that the petitioner, despite having been served with various show cause notices, has preferred not to join the investigation - where the accused has failed to join the investigation on false pretexts or sham/farce excuses despite being given opportunities and/or is not fully cooperating with the investigating agency, the anticipatory bail application of such accused should be rejected, solely on this ground. The facts of the present case demonstrate that the petitioner has failed to join the investigation on sham and farce excuses, hence his conduct itself disentitles him for any relief whatsoever from this Court in the matter - Hence, taking into consideration the nature and gravity of the accusations, the stage of the investigation, the alleged role of the accused and the enormity of financial transactions to be investigated, severity of crime and resultant loss to the public as well as nation; non co-operation of the accused in the investigation and requirement of his custodial interrogation, this Court does not find any merit in the anticipatory bail application of the petitioner. The anticipatory bail application is dismissed.

Summary

Issues Involved:
1. Application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973.
2. Seizure of gold and cash from a shop linked to the petitioner.
3. Statements recorded under Section 108 of the Customs Act, 1962.
4. Allegations of smuggling and involvement in hawala transactions.
5. Interim protection and subsequent rejection of anticipatory bail by the Sessions Court.
6. Allegations of mala fide intentions by the Department.
7. Legal arguments regarding the issuance of Show Cause Notices under Section 124 of the Customs Act.
8. Requirement of custodial interrogation.

Detailed Analysis:

1. Application for Anticipatory Bail:
The petitioner filed an application under Section 438 of the Code of Criminal Procedure, 1973, seeking anticipatory bail. The application was initially granted interim protection but was later rejected by the Sessions Court.

2. Seizure of Gold and Cash:
On 6.09.2018, a seizure of gold and cash was made from a shop in Karol Bagh, New Delhi. The lease agreement for the shop was in the name of the petitioner. The seized gold was of foreign origin, sold for cash without bills, and the shop was not registered with VAT/GST Department.

3. Statements Under Section 108 of the Customs Act:
The statement of Rahul Kapoor, recorded under Section 108 of the Customs Act, admitted that the gold was smuggled and sold for cash. He implicated his uncle and cousin, including the petitioner, as partners in the shop.

4. Allegations of Smuggling and Hawala Transactions:
Forensic examination of Rahul Kapoor's devices revealed incriminating material against the petitioner, including involvement in hawala payments and cash transactions with known smugglers.

5. Interim Protection and Rejection of Anticipatory Bail:
The petitioner was granted interim protection by the Additional Sessions Judge but failed to join the investigation despite repeated summons. This non-cooperation led to the rejection of his anticipatory bail application.

6. Allegations of Mala Fide Intentions:
The petitioner alleged that the Department intended to harass and humiliate him. He claimed false implication and argued that the Department's actions, including detaining his father, reflected mala fide intentions.

7. Legal Arguments on Show Cause Notices:
The petitioner argued that after the issuance of a Show Cause Notice under Section 124 of the Customs Act, no further investigation could be conducted. However, the prosecution contended that supplementary Show Cause Notices could be issued under Section 28(7A) of the Customs Act, allowing for further investigation.

8. Requirement of Custodial Interrogation:
The Sessions Court and the High Court emphasized the need for custodial interrogation to uncover the modus operandi, the source of smuggled gold, and the involvement of other individuals. The petitioner’s non-cooperation and the gravity of the accusations necessitated his custodial interrogation.

Conclusion:
The anticipatory bail application was dismissed due to the petitioner’s failure to cooperate with the investigation, the serious nature of the allegations, and the need for custodial interrogation to further the investigation. The court underscored that merely filing an application under Section 438 Cr.P.C. does not grant any protection unless specifically ordered by the court.