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2023 (11) TMI 1090 - HC - CustomsSeeking grant of anticipatory bail - bar of Section 82 Cr.P.C. - proclamation issued under Section 82 Cr.P.C. to be published in the manner prescribed under sub Section (2) of Section 82 Cr.P.C. - smuggling of contraband goods of foreign origin like gold - non-cognizable and bailable offence - HELD THAT - There is nothing on record to indicate that the steps mentioned in sub section (2) and (3) of Section 82 Cr.P.C. have been taken in the present case. Therefore, the proclamation issued under Section 82 (1) Cr.P.C. had not been published in the manner provided under sub Section (3) of Section 82 Cr.P.C. No further statement was signed by the Court as provided in sub Section (3) of Section 82 Cr.P.C. There is no bar against the application for anticipatory bail being considered by this Court on its merits, hence, the merits of the present case is examined. Keeping in view the fact that the alleged recovery was made on 19.12.2019 but the F.I.R has been lodged on 10.08.2022 and there is no explanation for the delay in lodging the F.I.R.; that the substantive offence allegedly committed by the applicant is non-cognizable, bailable and carries a maximum punishment of imprisonment up to 3 years; that although the C.B.I. has alleged commission of offences under the Prevention of Corruption Act, 1988, the applicant is not a public servant; that the applicant has no other criminal history and that a co-accused person Ajeet Kumar and Khalid Anwar have already been granted bail and without making any observations which may affect the outcome of the case, the aforesaid facts are sufficient for making out a case for granting anticipatory bail to the applicant. The anticipatory bail application of the applicant is allowed subject to conditions imposed.
Issues involved:
The issues involved in the judgment include the rejection of the first anticipatory bail application due to a proclamation under Section 82 Cr.P.C., the subsequent filing of a second application, the registration of the case based on an F.I.R. regarding smuggling of contraband goods, the specific allegation against the applicant regarding possession of foreign origin gold, the legal provisions under the Customs Act, 1962, the involvement of the C.B.I. based on allegations already subject to a complaint by the Directorate of Revenue Intelligence, and the granting of anticipatory bail to co-accused individuals. Rejection of First Anticipatory Bail Application: The court rejected the first anticipatory bail application due to a proclamation under Section 82 Cr.P.C. issued against the applicant, citing the law laid down by the Supreme Court in Lavesh Vs. State of (N.C.T. of Delhi): (2012) 8 SCC 730. However, the applicant argued that the proclamation was not published in the prescribed manner, leading the court to find no bar against considering the second application on its merits. Allegations and Legal Provisions: The case was registered based on an F.I.R. regarding smuggling of contraband goods, including foreign origin gold, cigarettes, and saffron. The specific allegation against the applicant was the possession of 400 gms. of foreign origin gold, seized under Section 110 of the Customs Act, 1962. The legal provisions under the Customs Act, 1962, provide for punishment in such cases, with the offence being non-cognizable and bailable. Involvement of C.B.I. and Anticipatory Bail: The C.B.I. registered an F.I.R. based on allegations already the subject of a complaint by the Directorate of Revenue Intelligence, alleging offences under the Prevention of Corruption Act, 1988. Despite opposition from the C.B.I., the court granted anticipatory bail to the applicant considering factors such as the delay in lodging the F.I.R., the nature of the substantive offence being non-cognizable and bailable, the applicant not being a public servant, and the granting of bail to co-accused individuals. Grant of Anticipatory Bail: Considering the circumstances, including the lack of criminal history for the applicant, the nature of the alleged offence, and the bail granted to co-accused individuals, the court allowed the anticipatory bail application. The applicant was directed to appear before the Investigating Officer/Trial Court, adhere to specific conditions, and furnish a personal bond and sureties to secure release in the event of arrest or appearance before the Trial Court.
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