2023 (8) TMI 424 - HC - Customs

Seeking grant of Anticipatory Bail - evasion of Customs Duty - reasons to believe - non-appearance, even once, inspite summons were issued many time - HELD THAT - Despite issuance of at least five previous summons, the applicant did not attend even on one occasion. That apart, despite having assured the DRI that he would appear on 12.07.2023 without fail, the applicant did not do so. Having regard to the fact that the applicant had never appeared before the SIO, even once, to give his voluntary statement, as contemplated under Section 108 of the Act, it is not within the authority of the applicant to contend that there is any real apprehension that the applicant would be arrested. The non appearance of the applicant even once before the DRI, disentitles the applicant from urging any such apprehension, which apparently, is without any basis. Moreover, this Court has also considered the contents of the summons just to satisfy itself, however, the word investigation is pre qualified with the words inquiry which should be sufficient to come to a conclusion that as on those dates, it was a mere summon issued by the DRI and nothing more. Thus, this submission of the learned senior counsel is untenable in law. Apprehension, arising from the contents of the reply filed by the DRI and supported by an officer of the rank of Deputy Director - HELD THAT - The contents of the reply, at best, could be what one can plainly construe as what the inquiry uptill that date have revealed. The applicant not having participated in the inquiry as contemplated under Section 108 of the Act cannot be heard to say that on the one hand he will not appear, and on the other use the same to his advantage to say that the inquiry uptil that date prejudices his stand and therefore, is a clear pointer to the apprehension of arrest. The apprehension or reasons to believe are believed by the fact that the DRI, as of now, has neither any proposal nor has applied for sanction for the arrest of the applicant. That apart, this Court is also of the considered opinion that unless the applicant appears before the DRI and offers himself for tendering voluntary statement or otherwise, there cannot be any question of any real time apprehension of being arrested. This Court is of the considered opinion that there is no merit in the application seeking anticipatory bail - the bail application stands dismissed.

Summary

Issues Involved:
1. Whether the applicant should be granted anticipatory bail under Section 438 Cr.P.C., 1973.
2. Whether the Directorate of Revenue Intelligence (DRI) has sufficient grounds to arrest the applicant.
3. Whether the applicant's non-appearance before the DRI affects his entitlement to anticipatory bail.

Issue-wise Summary:

1. Whether the applicant should be granted anticipatory bail under Section 438 Cr.P.C., 1973:
The applicant sought anticipatory bail under Section 438 Cr.P.C., 1973, fearing arrest by the DRI in connection with the investigation of M/s. Green Globe Enterprises for alleged duty evasion. The applicant argued that he was not a key managerial person of the entity and that the case was based on documentary evidence already in DRI's possession. The applicant cited previous judgments to support his claim of having "reasons to believe" he might be arrested.

2. Whether the Directorate of Revenue Intelligence (DRI) has sufficient grounds to arrest the applicant:
The DRI contended that the applicant had not appeared in response to multiple summonses issued under Section 108 of the Customs Act, 1962, and had evaded inquiry. The DRI argued that no proposal or sanction for the applicant's arrest had been sought from the competent authority, making the applicant's apprehension of arrest unfounded. The DRI emphasized that the applicant's non-appearance disqualified him from seeking anticipatory bail.

3. Whether the applicant's non-appearance before the DRI affects his entitlement to anticipatory bail:
The court noted that the applicant's failure to appear before the DRI despite multiple summonses and assurances undermined his claim of apprehension of arrest. The court found no material basis for the applicant's fear of arrest, as no arrest sanction had been sought. The court also observed that the applicant's argument regarding the use of the term "investigation" in summonses was untenable, as the context indicated an "inquiry."

Conclusion:
The court dismissed the anticipatory bail application, citing the applicant's non-appearance before the DRI and the lack of a real apprehension of arrest. The court held that the applicant's conduct and the absence of any proposal for his arrest by the DRI disentitled him from seeking anticipatory bail. The court clarified that its observations did not reflect on the case's merits.