2024 (7) TMI 1081 - HC - Customs

Seeking grant of bail under Section 439 of Cr.P.C. - recovery of diamonds and the foreign currencies - HELD THAT - The Hon'ble Apex Court referred to its earlier decision in Lallubhai Jogibhai Patel v/s Union of India Ors 1980 (12) TMI 182 - SUPREME COURT to re-iterate the position of law that the grounds of detention must be communicated to the detenue in writing, in the language which could be understood by him. It is specifically held that, if the grounds are verbally explained, it infringes the constitutional mandate of Article 22 (5) of the Constitution of India. Therefore, the contention of the learned counsel for the respondent that the order in Prabir Purkayashta 2024 (5) TMI 1104 - SUPREME COURT was delivered only on 15.05.2024 and therefore, non-compliance of the same while apprehending the accused on 19.05.2024 may not vitiate the arrest and detention of the petitioner, cannot be accepted. The requirement of communicating the grounds of arrest and detention to the accused in writing, in the language known to him is the requirement of law and there cannot be any compromise in the same. Even though there are prima facie materials against the petitioner in support of the case of the respondent, since there is non-compliance of the mandate of law while apprehending and detaining the petitioner, it is opined that the petitioner is entitled to be enlarged on bail subject to conditions, which will take care of the interest of the prosecution. The petitioner is ordered to be enlarged on bail subject to fulfiment of conditions imposed - petition allowed.

Summary

Issues:
Grant of bail under Section 439 of Cr.P.C. in a case under Sections 135 (1) (b) (A), 135 (1) (c) (A), and 135 (A) of the Customs Act, 1962.

Analysis:
The petitioner, accused No. 3, sought bail claiming innocence and false implication, arguing he handed over items as per travel agent's instructions. The travel agent, not accused, instructed the petitioner to deliver goods to accused Nos. 1 and 2, raising questions on the agent's exclusion. The petitioner alleged verbal communication of arrest grounds, citing a recent Supreme Court ruling on the necessity of written communication under Section 104 of the Customs Act.

The respondent contended that accused Nos. 1 and 2 were delivery agents, with the petitioner being the main accused. Evidence suggested the petitioner transferred funds to book tickets for accused Nos. 1 and 2, supporting the respondent's case. The respondent highlighted the admissibility of statements under Section 108 of the Customs Act and the petitioner's involvement in smuggling activities.

The court considered the circumstances of the petitioner's arrest, emphasizing the need for written communication of arrest grounds, as per recent Supreme Court decisions. Despite prima facie evidence against the petitioner, non-compliance with legal requirements during arrest and detention led to the conclusion that the petitioner should be granted bail. The court ordered the petitioner's release on bail, subject to specified conditions to safeguard prosecution interests.

In conclusion, the court granted bail to the petitioner based on the failure to comply with legal mandates during arrest and detention, despite prima facie evidence against the petitioner. The court emphasized the importance of written communication of arrest grounds and set conditions for the petitioner's release on bail.