2024 (7) TMI 1175 - HC - Customs

Seeking grant of bail - import of prohibited goods - e-cigarettes - mis-declared goods - recovery of 64084 pieces of E- cigarettes along with 8 unbranded bottles (10 ml each) and 113 bottles (60 ml) of Tokyo brand liquid refill of e-cigarettes - HELD THAT - Evidently, the applicant is not a proprietor of, or otherwise connected with, M/s. Shreeji Corporation, the entity which had imported the subject consignment. Nor the applicant is connected with M/s. Perfecto Logistics, the Customs broker. The applicant allegedly operates M/s.Dinshaw Shipping Agency, another customs brokerage firm. The gravamen of indictment against the applicant is that the applicant instead of submitting the documents through M/s. Dinshaw Shipping Agency, which was put on alert list, had imported the prohibited goods through other firms and the co-accused. Prima facie, it appears that the complicity of the applicant is sought to be established primarily on the basis of the statements of the co-accused. Evidently, on the own showing of Respondent No.1, the applicant is neither an importer, nor CHA or ICE in respect of the subject consignment. The money trail is pressed into service as the evidence of the complicity of the applicant. The situation which thus obtains is that there is prima facie no material to show the involvement of the applicant with the subject consignment, either as an importer or CHS or ICE. The applicant is sought to be roped in on the basis of the statements of the co-accused. There does not appear such credible material as to make out a prima facie case against the applicant so as to warrant his custodial interrogation. In the event of the arrest of the Applicant Mohamad Hanif Papa Shaikh in connection with the investigation at Special Investigation Intelligence Branch (Import), Jawaharlal Nehru Customs House, Uran, the Applicant be released on bail on furnishing a PR bond in the sum of Rs.50,000/- with one or two sureties in the like amount. Bail application allowed.

Summary

Issues:
Apprehension of arrest in connection with mis-declared goods under Customs Act, 1962; Allegations of involvement in import of prohibited goods; Cooperation in investigation; Necessity of custodial interrogation; Prima facie case for custodial interrogation.

Analysis:
1. The applicant faced arrest due to alleged involvement in mis-declared goods under the Customs Act, 1962, specifically Sections 135(1)(a) and 135(1)(b). The investigation revealed concealed e-cigarettes within an industrial oven, prohibited for import under the Prohibition of Electronic Cigarette Act, 2019.

2. The importer, M/s. Shreeji Corporation, implicated the applicant through statements of key conspirators. Money trail evidence suggested the applicant's involvement in clearing the prohibited goods, despite not being the importer, CHA, or IEC holder, raising suspicions of active participation in the import.

3. The applicant's counsel argued for bail, citing cooperation in investigations and lack of evidence linking the applicant directly to the offenses. Reference was made to a Supreme Court case emphasizing the right against self-incrimination and the need for cooperation without confession during investigations.

4. The Respondent contended that the applicant lacked cooperation, refused to answer critical questions, and was the mastermind behind the import of prohibited goods, justifying custodial interrogation based on the money trail and statements of co-accused.

5. Upon review, the Court found no direct connection of the applicant with the importing entity or customs broker. The case against the applicant relied mainly on co-accused statements. The Court noted the lack of substantial evidence to establish a prima facie case for custodial interrogation, protecting the applicant's liberty.

6. Consequently, the Court allowed the application, granting bail upon arrest, with conditions of cooperation in the investigation, non-tampering with evidence, attending court proceedings, and refraining from threats or inducements. The decision was based on the absence of compelling evidence linking the applicant to the alleged offenses, warranting protection of the applicant's liberty.