2023 (9) TMI 534 - HC - Customs

Seeking grant of anticipatory bail - Proclaimed offender or not - smuggling of contraband goods of foreign origin like gold, reputed foreign brand cigarettes and saffron - proclamation issued requiring the applicant to appear before the Court - proclamation published or not - HELD THAT - The Court issuing the proclamation has not made any statement in writing as provided in Sub-section (3) of Section 82 Cr.P.C. to the effect that the proclamation was duly published in the manner specified in clause (i) of sub-section (2) - When the proclamation has not even been published as per the law, the occasion for the applicant being declared a proclaimed offender under Sub-section (4) of Section 82 Cr.P.C has not yet arisen. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts, more particularly when the facts are not even remotely similar. As the applicant has not been declared to be a proclaimed offender as yet and the bar created by the principle of law laid down by the Hon ble Supreme Court in Lavesh 2012 (8) TMI 1190 - SUPREME COURT does not apply to the present case, the preliminary objection raised by the learned Counsel for the respondent is rejected. Sanatan Pandey 2021 (11) TMI 590 - SUPREME COURT was decided after taking into the facts of the case and present case also proceeded to be examined on the merits of the application. 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 upto 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 has 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 applicants is allowed. In the event of arrest / appearance of applicant- Khalid Anwar Alias Anwar Khalid before the learned Trial Court in the aforesaid case crime, he shall be released on bail on his furnishing personal bond and two solvent sureties, each in the like amount, to the satisfaction of Officer/Court concerned on the fulfilment of conditions imposed.

Summary

Issues involved:
The judgment deals with the issue of anticipatory bail in a case involving charges under Sections 120-B, 419, 420 I.P.C., and Section 7 (c), 13(1)(a) read with 13(2) of Prevention of Corruption Act, 1988. The key issues include the issuance of a proclamation under Section 82 Cr.P.C against the applicant, the application of legal principles laid down by the Hon'ble Supreme Court in Lavesh v. State, and the consideration of merits for granting anticipatory bail.

Proclamation under Section 82 Cr.P.C:
The Court noted that a proclamation had been issued against the applicant under Section 82 (1) Cr.P.C, requiring appearance before the Court. However, it was observed that the proclamation had not been properly published as mandated by law. The Court highlighted the lack of evidence indicating public reading of the proclamation or its publication in a newspaper, essential for compliance with Section 82 Cr.P.C.

Legal Principles from Lavesh v. State:
The judgment referenced the legal principle established in Lavesh v. State, emphasizing that anticipatory bail is typically not granted to absconding individuals declared as proclaimed offenders. As the applicant had not been declared a proclaimed offender, the bar set by the Lavesh case did not apply in this instance, allowing for a consideration of anticipatory bail.

Merits for Granting Anticipatory Bail:
The Court examined the allegations against the applicant, involving possession of foreign origin gold and a complaint filed by the Directorate of Revenue Intelligence. It was noted that the substantive offence was non-cognizable and bailable, with a maximum punishment of three years. Considering the lack of criminal history, the Court granted anticipatory bail to the applicant, emphasizing the need for personal appearance before the trial court and adherence to specified conditions.

Significant Legal References:
The judgment also referred to the legal precedent set in Sanatan Pandey Vs. State of Uttar Pradesh, highlighting the Court's stance on granting anticipatory bail to individuals not cooperating with investigating agencies and absconding. The Court emphasized the importance of factual analysis in determining the applicability of legal principles to specific cases, reiterating the need for compliance with legal procedures and considerations of individual circumstances.