2020 (10) TMI 1006 - HC - Customs

Grant of Anticipatory Bail/pre-arrest Bail - Smuggling - Gold - Cash - Section 135 of the Customs Act - HELD THAT - Considering all the facts and also the fact that the granting of bail to accused 1 and 2 has not been challenged by the Customs Department and has now become final, there is no point in the applicant being incarcerated for the purpose of investigation as long as he is willing to cooperate with the investigation. Hence, the applicant is entitled to pre-arrest bail. The bail application is allowed - the applicant is directed to surrender before the Customs Department in pursuance of Section 108 notice, which he has received and cooperate with the investigation and he shall be subjected to such interrogation keeping in view his health condition as evidenced by Annexures 19 to 21. In the event of his being arrested, he shall be released on bail on the execution of a bond for ₹ 1,00,000/-, with two solvent sureties for the like amount each, to the satisfaction of the investigating officer, and on the following conditions.

Summary

Issues: Applicant seeking anticipatory bail under Section 438 of the Cr.P.C. for alleged possession of smuggled gold and cash, accused 1 and 2 granted bail, applicant's health condition and cooperation with investigation.

Analysis:
1. The applicant approached the Court seeking anticipatory bail under Section 438 of the Cr.P.C. in a case registered by the Customs Preventive and Narcotics Unit. The prosecution alleged that accused 1 and 2 were found in possession of gold and cash during a routine vehicle check. Accused 1 and 2 claimed to be working for the applicant, who owns a gold manufacturing business. The applicant denied the allegations, stating that the gold was legally obtained for manufacturing ornaments. He provided documents to support his claim, asserting innocence and cooperation with the investigation.

2. The Chief Judicial Magistrate found that the seized gold did not fall under the definition of smuggling under the Customs Act. Tax invoices and bills indicated legal possession of gold by various individuals for making ornaments. Accused 1 and 2 were granted bail, which was not challenged by the Customs Department. The applicant, citing health issues and the risk of contracting COVID-19, sought pre-arrest bail. The Court considered the facts, the willingness of accused 1 and 2 to cooperate, and the finality of their bail, concluding that the applicant should not be incarcerated if willing to cooperate.

3. The Court allowed the bail application, directing the applicant to surrender before the Customs Department, cooperate with the investigation, and maintain certain conditions. These conditions included not influencing witnesses, appearing before the investigating officer when required, and refraining from similar offenses during the bail period. Any breach of these conditions would allow the prosecution to apply for bail cancellation before the jurisdictional court. The applicant was granted bail on the execution of a bond and sureties, considering his health condition and cooperation with the investigation.