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TMI Blog1988 (11) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... this metropolis under different styles and names. They are the licence dealers and therefore come under the fold of the provisions of the Gold (Control) Act and the rules framed thereunder. In substance the allegations are that on account of the intelligence received by the Customs (Preventive) Incharge Gold Control Department these various shops came to be raided and certain registers and other documents as also vouchers came to be attached under various panchanamas. The suspicion echoed at that time was that certain bogus vouchers were created or manufactured by the respective persons connected with the said shops purporting to show that certain persons either in this metropolis or outside have sold to their respective shops gold ornaments or other gold articles which they accepted under the vouchers for which those customers were duly paid the requisite amounts and ultimately those ornaments were converted by sending those to the mint and thereafter utilised. It is alleged that it was very much apprehended that most of the persons mentioned in the said vouchers were actually fictitious so much so that entirely a camouflage was created by giving false names as also false address ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther sources from whom the gold was obtained and it is necessary to tap those sources and it would take quite some time to collect the necessary clue. 5. In some of the matters the petitioners came to be arrested on 30th of October, 1988 while in one matter they were arrested on 14 th of September and 21st of September, 1988. They were produced before the learned Additional Chief Metropolitan Magistrate, Esplanade Bombay on the 31st of October, 1988 when remand was taken from time to time on 4th of November, 7th of November, 16th of November and it was ultimately extended up to 29th of November, 1988. 6. In most of the matters the initial bail application came to be rejected by the learned Magistrate on 2nd of November, 1988 while the review application was also rejected on 16th of November, 1988. To be precise and to complete the circuit it may be mentioned that Criminal Appeal No. 986 of 1988 relates to the accused who is a partner in M/s. R. Kishin and Company and his remand application is No. 944 of 1988 and he was arrested on 31st of October, 1988. Criminal Application No. 2231 of 1988 relates to the person connected with M/s. Karendrakumar and Company and his remand appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t count that he rejected all the bail applications though the order reflects only by way of incidental or cursory reference to a few aspects though the tenor does indicate that there has not been application of mind on the facets of the merits at all. 8. No doubt it was contended on behalf of the petitioners that the construction of Section 437 of the Code as made by the learned Magistrate was not correct. However the petitioners further submitted that when they have now approached this Court there is obviously no such impediment which was available on the first forum when the entire field is left open and at large this Court can examine the merits apart from deciding the question about the correct interpretation of Section 437 of the Code. The validity of this submission was obviously acceptable since the decision on the provisions of Section 437 of the Code at this stage was more academic as no benefit can be derived by the petitioners. Under the circumstances both the parties agreed to this procedure to be adopted and argued the matter on merits with the net result that the merits which were not exhaustively examined by the learned Magistrate are being examined on this forum. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be permissible for this Court to embark on a detailed inquiry especially on the finer shades it would not be equally permissible to indulge in any process of appreciation of evidence. The well settled principles governing bail will have to be adhered to. 11. In that behalf it is worth noting that in the remand application given under the signature of the officer of the department it is specifically observed as : "It is humbly submitted that in Gold Control cases an accused is normally not arrested. Even on filing a complaint a summons is asked for. In rare and exceptional cases the Gold Control Officers arrest the suspect as such arrest is absolutely necessary." After having ventilated that in the application it is further suggested that this is one of the rare cases where department wants the custody of the petitioners. Obviously, therefore, the department itself accepts in terms that as a rule in such matters the custody of the accused is not necessary and in fact the officers themselves do not arrest the accused. They are obliged to arrest the accused only in rare cases and therefore the department would be obliged at least ex-facie to demonstrate before the Court that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that exercise can go on parallel track by the department. The learned counsel for the petitioners also submitted that even the department comes with a positive allegation that all these persons are fictitious and non existent and further they are confident that they will not be able to contact any such person. If that be so then the question posed is that where is the occasion or question arises of tampering of such evidence. In other words if the persons are not in existence in flesh and blood even to the knowledge of the petitioners then there is no question of these petitioners trying to tamper with these non existing persons. This submission also cannot be said to be unwarranted. 12. It is a matter of record that the registers in this case have attached long back and have been under the microscopic scrutiny of the department right from September 1988. In some cases that was before the arrest of the accused. They had also taken charge of the vouchers and tried to co-relate all the documents. Therefore, if in spite of this margin of time that was available and if no tangible clue qua the said persons and vouchers if available to the department then the repercussions thereof can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity was given to the petitioners to demonstrate and therefore de hors of these provisions fair play requires that such an opportunity should have been given to the petitioners. Giving such an opportunity would not have caused any prejudice to the department but on the contrary it would have done immense good to the petitioners so that they could, if possible, demonstrate about the genuineness of the alleged transactions. In my opinion this submission made on behalf of the petitioners cannot be lightly brushed aside. Nothing would have been lost if the petitioners were asked to establish the genuineness of those transactions. On the contrary that would have served the ends of justice more effectively. 15. It was no doubt submitted that this might be an outcome of a conspiracy and the sources of collection of this gold is yet to be tapped or revealed by the department. It is in that behalf significant to note that even uptil now except recording the statements of the accused and sending of summons on the addresses as found in the vouchers nothing tangible has been done by the department. When questioned the department could not show any material to substantiate that plea even infer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whether the accused after being enlarged on bail would indulge in any manner to tamper with the prosecution evidence. In some of the remand applications it has not been so firmly reflected about this so-called apprehension. As stated, all the documents are already in possession of the department and thus there is no question of tampering with those documents. Shri Patwardhan, the learned Senior Counsel for the department, submitted that in one case about 22 names find place in the vouchers and they have been luckily traced by the department, and in their case at least the non genuineness of the transactions is exposed because the statements of those persons revealed that they have not effected any transaction with those firms nor did they sign the documents. It may be so, but on the contrary as rightly submitted by the learned counsel for all the petitioners that this is really a pointer in favour of the petitioners that even though 22 persons have been contacted, they stuck up to the story as acceptable by the department and they did not support the defence on any count. In other words there was no process or exercise of tampering with these witnesses and to say that this may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny employed in their shops if of course their addresses are known to the petitioners or other partners and in fact at least in one petition names of two such employees are being furnished to the department. This would, therefore, answer the contention of the department that the identity of the employees is yet to be traced. 21. To say that the offence has been committed and formulated under the Gold (Control) Act and the Indian Penal Code is one thing and to say that the custody of the accused is necessary at this stage for the investigation is another thing. As stated, if the vouchers are found bogus and if the offence is formulated under the relevant provisions of the Gold (Control) Act then certainly the petitioners would face the trial and the department would be entitled to prosecute the petitioners. Assessing the documents and the purported forged vouchers for the purpose of formulating the offence and prosecuting the petitioners will have to be placed on different tracks while considering the application for bail on the basis of the same material. This, therefore, in my opinion this would be a fit case where notwithstanding the launching a prospective prosecution against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or a term extending up to ten years and for that purpose he relied on a decision of this Court and he was not inclined to accept the submissions on behalf of the other side that this is not a case where the offence is made punishable with death or imprisonment for life and they disputed the soundness of that ratio which was relied upon by the learned Magistrate. According to the learned counsel for the petitioners having regard to the scheme of the Code and the object behind enacting Section 437 of the Code in the context of other provisions in that chapter the Magistrate would be empowered to entertain bail application if the offence is punishable either with imprisonment for life or for any lesser term and it would be the harmonious reading to construe that it is only in a case that an offence is punishable either with death or imprisonment for life that the jurisdiction of the Magistrate would be snatched away and it is further contended on behalf of the petitioners that significantly the offence under Section 467 of the Indian Penal Code is not exclusively triable by the Court of Sessions. The petitioners, therefore, contended that it may become necessary to re-consider the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting to the facts of this case it becomes manifest that already enough time was granted for the department to investigate into the alleged allegations and even the learned Magistrate had indicated at the time of remand that normally he could have released the petitioners on bail but for the constraint which he felt was imposed by virtue of the provisions of Section 437 of the Code. Therefore, for the reasons already discussed, in the instant case a proper ground has been made out for granting bail to the petitioners. The apprehensions expressed by Shri Patwardhan, therefore, are not well founded because those are more speculative than real. It would be proper if no final opinion is expressed in that field as such a speculative exercise would not be permissible. It, however, cannot be undermined that the investigating officers have been thinking on right direction and had a reasonable suspicion at least to have further probe that the gold might have been received by the petitioners in dubious transactions and not through the bona fide customers and if that be so then it would obviously formulate serious dimensions to the entire transactions. The allegations that bogus vouchers are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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