9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (2) TMI 1322 - HC - CustomsApplication filed u/s 438 of the Code - seeking pre-arrest bail - found carrying areca or beetle nuts, instead of grinding wheels, as was declared in IGM and bill of lading by its importer - confiscation of goods - Offence punishable u/s 135 of the Customs Act - HELD THAT - Following the decision of the Apex Court in the case of filing of an FIR is not a condition precedent to exercise the powers/jurisdiction u/s 438 of the Code. However, the concerned accused has to show/demonstrate that he has a reasonable apprehension or belief that he may be arrested in connection with a cognizable offence. The Apex Court has further observed that the use of the expression, Reason to Believe in Section 438(1) of the Code shows that the belief, that the applicant may be so arrested, must be founded on reasonable grounds only if there is something tangible to go by, on the basis of which, it can be said that the applicant s apprehension that he may be arrested, is genuine. The present petitioner fails to show or display any well-founded reason to believe/apprehend that he will be arrested. As held by the Hon ble Apex Court in Shri Gurubaksh Singh Sibbia and Others 1980 (4) TMI 295 - SUPREME COURT which was subsequently followed in the case of Sushila Aggarwal and others Vs. State (NCT of Delhi) and another , 2020 (1) TMI 1193 - SUPREME COURT , no blanket orders can be passed to the effect that Not to Arrest the petitioner. In view of the fact that Respondent No. 1-DRI has powers to call the petitioner, by issuing summons u/s 108 of the Customs Act, the petitioner is bound to comply with the same and therefore, none of the decisions/authorities relied on by the learned Senior Advocate for the petitioner in given background of facts shall not help the petitioner s case. There are several vexed questions, viz. Whether, the present petitioner is Aakash or Abbas Gulamhusen Hariyani and as to whether, Aakash is using the identity of the petitioner or the petitioner is using the name of Aakash, and the answers to the same are needed to be found out by the prosecuting agency and therefore also, the petitioner has to comply with the summons issued u/s 108 of the Customs Act. Resultantly, this petition fails and is DISMISSED, accordingly. Interim relief, if any, stands vacated.
Issues Involved:
1. Maintainability of the application under Section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail. 2. Whether the petitioner has a reasonable apprehension of arrest. 3. The validity of summons issued under Section 108 of the Customs Act. 4. The evidentiary value of statements made under Section 108 of the Customs Act. 5. The necessity of custodial interrogation of the petitioner. Issue 1: Maintainability of the Application under Section 438 of the Code of Criminal Procedure, 1973 The court examined the maintainability of the application for anticipatory bail under Section 438 of the Code. It was argued that the petitioner has a reasonable apprehension of arrest due to the summons issued under Section 108 of the Customs Act. The court referred to the decision in 'Shri Gurubaksh Singh Sibbia and Others Vs. State of Punjab', which held that the filing of an FIR is not a condition precedent for exercising powers under Section 438 of the Code, provided there is a reasonable apprehension of arrest. Issue 2: Reasonable Apprehension of Arrest The petitioner argued that he has a genuine apprehension of arrest based on the statement of a co-accused and the repeated issuance of summons under Section 108 of the Customs Act. The court noted that the petitioner must demonstrate tangible grounds for such apprehension. The court found that the petitioner failed to show a well-founded reason to believe that he would be arrested, as the summons were issued for the purpose of recording a statement and producing documents. Issue 3: Validity of Summons Issued under Section 108 of the Customs Act The court referred to the powers conferred under Section 108 of the Customs Act, which allows a customs officer to summon any person to give evidence or produce documents. The court emphasized that the petitioner is bound to comply with such summons and that the issuance of summons does not, by itself, constitute a reasonable apprehension of arrest. Issue 4: Evidentiary Value of Statements Made under Section 108 of the Customs Act The court cited previous judgments, including 'Veera Ibrahim Vs. State of Maharashtra' and 'Naresh J. Sukhwani Vs. Union of India', which held that statements made under Section 108 of the Customs Act are material pieces of evidence and can be used substantively. The court reiterated that such statements are not equivalent to statements made before a police officer under Section 161 of the Code. Issue 5: Necessity of Custodial Interrogation The court considered whether custodial interrogation of the petitioner was necessary. The respondent argued that the petitioner played a central role in the alleged offense and that his personal presence was required to unravel the truth about his alleged dual identity. The court agreed that the petitioner must comply with the summons for the investigation to proceed effectively. Conclusion The court dismissed the petition for anticipatory bail, holding that the petitioner failed to demonstrate a reasonable apprehension of arrest. The court emphasized the petitioner's obligation to comply with the summons issued under Section 108 of the Customs Act and noted that no blanket orders to prevent arrest could be issued. The interim relief, if any, was vacated, and the rule was discharged.
|
