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TMI Blog2000 (2) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. According to the respondents, on 30.7.1999 smuggled synthetic fabrics of foreign origin and assorted colour bearing foreign markings and measuring 128745.80 meters and valued at ₹ 1,28,74,580/- were recovered and seized from the business premises and godowns of M/s. New India Agencies which is a proprietary concern of the accused Shri Anil Mahajan. At the time of raid by the officers of the Customs department the co-accused Shri Naresh Mittal was present. Shri Naresh Mittal was the Executive/Authorized Signatory of M/s. New India Agencies and was in charge of its day to day affairs. The petitioner Shri Anil Mahajan and the co-accused Shri Naresh Mittal could not produce any document in support of the legal import of the above mentioned seized goods. The seized goods are notified goods and are covered under Section 123 of the Act. As per a notification issued by the Central Government under Section 123 of the Act, fabrics made wholly or mainly of synthetic yarns are covered under Section 123 of the Act and hence the burden of proving that the seized goods are not smuggled goods is on the accused. However the accused completely failed to produce any evidence to prove tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods. According to the petitioner the seized goods were imported from Singapore, Korea and Japan in container loads and were cleared at Mumbai, Goa and Delhi. They are stated to be non-standard and odd lengths of different varieties of fabrics in assorted colours and widths which are left out of regular length rolls. They are called 'stocklot' and is a cheep product bought in bulk. According to the petitioner the value of the goods has been highly exaggerated. It is stated that the goods are covered under Open General Licence Scheme and are neither prohibited nor restricted for the purpose of import. Any person can import any quantity on payment of customs duty. There is no restriction on the sale or purchase of the said fabrics. It is also stated that the seized goods are not goods notified under Section 11B of the Act and that there is no statutory requirement of record keeping in respect of purchase, sale, stocks etc. It is further stated that the goods attracted ad-valorum customs duty and the Bills of Entry provide all the relevant information. When the searches/raids started the petitioner was abroad. Learning about the searches/raids he returned to India and reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er valid import documents. However according to the respondents the seized goods could not be co-related with the import documents produced by the petitioner. The question whether the seized goods are actually covered by the import documents produced by the petitioner cannot be decided in these proceedings. Similarly, the question whether the offence alleged to have been committed by the petitioner is punishable under Section 135(1)(b)(i) or under 135(1)(b)(ii) cannot be decided without recording evidence in the case and without deciding whether Section 123 of the Act applies to the seized goods and whether the market price of the said goods exceeds ₹ 1 lakh. In other words the contention of the petitioner regarding the maximum sentence that can be awarded to him in the event of his conviction is premature at this stage. Hence for considering this application for grant of bail, I shall presume that, as contended by the respondents, the offence, if proved, will attract the punishment under Section 135(1)(b)(i) of the Act i.e. imprisonment for a term which may extend to seven years and fine, provided that, in the absence of special and adequate reasons to the contrary to be rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gjit Singh held that whenever an application for bail is made to a Court, the first question that it has to decide is whether the offence for which the accused is being prosecuted is bailable or otherwise. If the offence is bailable, bail will be granted without more ado. But if the offence is not bailable, further considerations will arise and the Court will have to decide the question of grant of bail in the light of those further considerations such as nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, a reasonable apprehension of witnesses being tampered with, the larger interest of the public or the State and similar other considerations which arise. The Supreme Court also held that even though the powers of the High Court in the matter of granting bail were very wide, various considerations such as those indicated above had to be taken into account before bail was granted in a non-bailable offence. 8. In Gurcharan Singh Others Vs. State reported in AIR 1978 Supreme Court 179, the Supreme Court considered the power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there could not be an inexorable formula in the matter of granting bail and that the facts and circumstances of each case would govern the exercise of judicial discretion in granting or cancelling bail. The Supreme Court also opined that the general observations contained in the judgment in The State Vs. Captain Jagjit Singh (supra) with regard to the principles that should govern the grant of bail in the case of a non-bailable offence under the provisions of the Criminal Procedure Code 1898 equally applied to the grant of bail under Section 439 of the Criminal Procedure Code 1974 and that the legal position was not different under the new Code. 9. In Gudikanti Narasimhulu and Others Vs. Public Prosecutor, , V.R. Krishna Iyer, J., observed that Bail or Jail? - at the pre-trial or post-conviction stage - largely hinged on judicial discretion. The learned Judge held that personal liberty was too precious a value of our constitutional system recognised under Article 21 that the crucial power to negate it was a great trust exerciable not casually but judicially, with lively concern for the cost to the individual and the community. It was further held that deprivation of pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused was whether it was probable that the party would appear to take his trial and that it was indisputable that bail was not to be withheld as a punishment. The Supreme Court also referred to the observation of the Allahabad High Court in K.N. Joglekar Vs. Emperor , that Section 498 of the Old Code which corresponds to Section 439 of the New Code, conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. The Allahabad High Court had also observed that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. The Supreme Court referred also the decision of the Allahabad High Court in Emperor Vs. H.L. Hutchinson , wherein it was held that the principle to be deduced from the various sections in the Cr.P.C. was that grant of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal the Supreme Court observed that social and economic offences stood on a graver footing in respect of punishment and that if judicial institutions were not to be cynically viewed by the community, the Courts must help the process of conviction. In State of Gujarat Vs. Mohanlal Jitamalji Porwal the Supreme Court observed that a murder may be committed in the heat of moment upon passions being aroused but an economicoffence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. The Court also observed that ends of justice are not satisfied only when the accused in a criminal case is acquitted and that the community acting through the State and the Public Prosecutor is also entitled to justice. It was further observed that the entire community is aggrieved if the economic offenders are not brought to book. The observations made by the Supreme Court in the above mentioned two cases were with regard to conviction and sentence and not with regard to grant of bail. In my view those observations may be relevant for assessing the gravity of the offence which is only one of the several aspects to be considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on can be summarised as follows : (a) Personal liberty is too precious a value of our Constitutional System recognised under Article 21 that the crucial power to negate it is a great trust exercisable not casually but judicially, with lively concern for the cost to the individual and the community. Deprivation of personal freedom must be founded on the most serious considerations relevant to the welfare objectives of society specified in the Constitution. (b) As a presumably innocent person the accused person is entitled to freedom and every opportunity to look after his own case and to establish his innocence. A man on bail has a better chance to prepare and present his case than one remanded in custody. An accused person who enjoys freedom is in a much better position to look after his case and properly defend himself than if he were in custody. Hence grant of bail is the rule and refusal is the exception. (c) The object of bail is to secure the attendance of the accused at the trial. The principal rule to guide release on bail should be to secure the presence of the applicant to take judgment and serve sentence in the event of the Court punishing him with imprisonment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused; a reasonable apprehension of witnesses being influenced and evidence being tampered with; the larger interest of the public or the State; the position and status of the accused with reference to the victim and the witness; the likelihood of the accused fleeing from justice; the likelihood of the accused repeating the offence; the history of the case as well as the stage of investigation etc. In view of so many variable factors the considerations which should weigh with the Court cannot be Exhaustively set out. However, the two paramount considerations are: (i) the likelihood of the accused fleeing from justice and (ii) the likelihood of the accused tampering with prosecution evidence. These two considerations in fact relate to ensuring a fair trial of the case in a Court of justice and hence it is essential that due and proper weight should be bestowed on these two factors. (j) While exercising the power under Section 437 of the Criminal Procedure Code in cases involving non-bailable offences except cases relating to offences punishable with death or imprisonment for life, judicial discretion would always be exercised by the Court in favour of granting bail subject to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensure that the accused will be available for facing trial. It cannot be said that an accused will not be granted bail because he is a foreign national. 15. In the light of the principles stated above, I have considered the facts and circumstances of this case and I have come to the conclusion that the petitioner is entitled to bail. The petitioner is accused of offences under Sections 132 and 135(1)(b) of the Customs Act, 1962. On conviction, the maximum sentence that can be imposed on the petitioner is imprisonment for a term which may extend to seven years and fine. The petitioner was arrested on 4th August, 1999 and he has been in judicial custody since than. The investigation in the case has been completed and criminal complaint has been filed in the Court. The goods in respect of which the offence was committed had been seized by the respondents and hence no further recovery is to be effected. The main witnesses in the case are official witnesses and I do not find sufficient reasons to have a reasonable apprehension that the petitioner will tamper with prosecution evidence if he is released on bail. Nothing has been brought to my notice to have a reasonable apprehension th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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