2022 (12) TMI 1114 - HC - Customs

Seeking grant of Bail - Smuggling of iPhones - allegation is that the syndicate in which the Applicant has played a major role, imported several consignments of iPhones giving misdeclaration and thereby leading to evasion of customs duty - HELD THAT - Upon perusal of the Arrest Memo, it appears that the same does not contain any particulars of the case in which the Applicant was arrested. It does not contain any file number. No particulars of the offence, save and except stating the penal sections, are forthcoming from the Arrest Memo. The Arrest Memo should contain the gist of the offence alleged to have been committed. The Arrest Memo prima facie appears to be bereft of necessary particulars. The contention of the learned Counsel for the first respondent that in the past, the Applicant has suffered penalty under Customs Act, he was absconding for quite some time, he has been non-cooperative in the investigation, bail had been rejected by the Courts below, cannot justify non-compliance with the Constitutional imperatives and statutory obligations. It is a settled principle of law that the remand order does not cure the violation of Constitutional safeguards even to deny bail. This Court is inclined to grant bail to the applicant. Accordingly, the application is allowed.

Summary

Issues Involved:
1. Legality of the Applicant's arrest.
2. Jurisdiction of the Settlement Commission.
3. Compliance with procedural safeguards during arrest.
4. Justification for the Applicant's detention and denial of access to legal counsel.
5. Validity and sufficiency of the Arrest Memo.

Issue-wise Detailed Analysis:

1. Legality of the Applicant's Arrest:
The Applicant sought bail under Section 439 of the Code of Criminal Procedure, 1973, while in judicial custody. The first respondent, Directorate of Revenue Intelligence (DRI), alleged that the Applicant played a major role in a syndicate smuggling iPhones into India by misdeclaring consignments, thereby evading customs duty. The Applicant contended that his arrest was in violation of Article 21 of the Constitution of India, arguing that the arresting officer had no legal authority or jurisdiction. The Applicant was detained from 6.45 a.m. on 2 December 2022 until his production before the Magistrate at 11.00 a.m. on 3 December 2022, without being produced within 24 hours of the arrest, thus violating procedural safeguards.

2. Jurisdiction of the Settlement Commission:
The Applicant argued that once an application under Section 127-B of the Customs Act was allowed to proceed under Section 127-C, the Settlement Commission had exclusive jurisdiction over the matter. The Applicant sought immunity from prosecution for allegations in the show cause notice, which included misdeclaration in 130 past consignments. The first respondent contended that the Settlement Commission's jurisdiction was limited to two specific consignments and did not cover the past 130 consignments. The Court noted that the arrest pertained to matters before the Settlement Commission, thus questioning the prima facie validity of the arrest.

3. Compliance with Procedural Safeguards During Arrest:
The Applicant's counsel highlighted that the DRI officers arrived at the Applicant's residence at 6.45 a.m. without a valid summons, as the Document Identification Number (DIN) on the summons was issued only at 08:09:43 hrs. The Applicant was taken to the DRI office, where his statement was recorded, but he was not produced before the Magistrate within 24 hours. The Court found merit in the Applicant's contention that the arrest was premeditated, as evidenced by the early morning visit of four DRI officers.

4. Justification for the Applicant's Detention and Denial of Access to Legal Counsel:
The Applicant's counsel argued that the Applicant was not allowed to meet his advocate at the DRI office, despite written and oral requests. The first respondent's counsel stated that the Applicant voluntarily appeared at the DRI office and that his son was present throughout. The Court questioned the necessity of a team of four officers to serve a summons and found the denial of access to legal counsel unjustifiable.

5. Validity and Sufficiency of the Arrest Memo:
The Arrest Memo lacked material particulars, including the file number and specific details of the offence, merely stating the penal sections. The Court noted that the Arrest Memo should contain the gist of the offence alleged. The Court found the Arrest Memo deficient in necessary particulars, thereby not complying with constitutional and statutory obligations.

Conclusion:
The Court, after considering the arguments and examining the records, found procedural lapses and constitutional violations in the Applicant's arrest and detention. Consequently, the Court granted bail to the Applicant, subject to conditions, emphasizing that the observations were prima facie and solely for deciding the bail application.

Order:
i) The Applicant was granted bail on furnishing a P.R. Bond of Rs. 25,000 with sureties.
ii) The Applicant was instructed not to tamper with prosecution evidence or threaten witnesses.
iii) The Applicant was required to provide detailed contact information and notify any changes.
iv) The Applicant was prohibited from leaving India without court permission.
v) The Applicant was mandated to cooperate with the investigation and attend the DRI office weekly for two months.

Final Note:
Violation of any conditions would result in bail cancellation, and the observations were made solely for the bail decision. All parties were to act on the authenticated copy of the order.