2020 (11) TMI 895 - HC - Customs

Second Bail application - Jurisdiction - applicants were intercepted on Faizabad Road but search proceedings were conducted at the office of Lucknow which is much away from the place of interception - HELD THAT - Considering the facts that the accused are in jail since 7.12.2018, offence is punishable upto seven years of imprisonment, charges have not been framed till date, trial in the case has not proceeded, the department has not been able to produce the punch witnesses before the adjudicating authority and also the fact that in Covid-19 situation, trial is held up which may take sufficient time, case for bail is made out. Let the applicants Manoj Kumar Soni and Sameer Gadtaula involved in Case Crime No. 06/2018 under Sections 104, 110, 111, 135 Customs Act, 1962, registered at Directorate of Revenue Intelligence, Lucknow Zonal Unit, U.P. Lucknow be released on bail on their furnishing a personal bond and two heavy sureties including one local surety, each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice - Application allowed.

Summary

Issues: Bail application based on non-existence of panch witnesses and procedural irregularities in recovery proceedings.

Analysis:
1. Background: This is the second bail application, with the first being rejected earlier. The applicants were intercepted on Faizabad Road, but the search proceedings were conducted at a different location, raising concerns about procedural irregularities.

2. Non-Existence of Panch Witnesses: The crux of the bail application revolves around the non-existence and false identity of the panch witnesses, Kallu Ram and Ajay Kumar, crucial to the recovery proceedings. Various documents, including certificates from authorities, attest to the unavailability and incorrect addresses of these witnesses, undermining the credibility of the prosecution's case.

3. Legal Provisions: The applicants argue that the absence of panch witnesses violates Section 102(4) of the Customs Act, 1962, which mandates the presence of witnesses during search proceedings. The provision is deemed mandatory, and the non-appearance of panch witnesses could significantly impact the trial proceedings in favor of the accused.

4. Defense and Prosecution Arguments: The defense contends that the non-examination of panch witnesses, especially when they are non-existent, is a critical issue that affects the validity of the recovery proceedings. The prosecution, represented by D.R.I., did not dispute the factual contentions raised by the defense.

5. Judicial Consideration: After considering the arguments from both sides, the court acknowledged the prolonged detention of the accused, the severity of the offense, the absence of framed charges, and the delay in trial proceedings exacerbated by the Covid-19 situation. Consequently, the court found merit in granting bail to the applicants.

6. Bail Conditions: The court granted bail to the applicants, subject to stringent conditions to ensure their cooperation with the trial process and prevent any interference with evidence or witnesses. The conditions include provisions to prevent tampering with evidence, intimidating witnesses, and absconding, emphasizing the importance of upholding the integrity of the legal process.

This detailed analysis of the judgment highlights the key issues surrounding the bail application, focusing on the non-existence of panch witnesses and the procedural lapses in the recovery proceedings, leading to the court's decision to grant bail to the applicants.