Calcutta High Court (Appellete Side)
Kapil Shroff vs Unknown on 7 March, 2012
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
1 495. 07.03.2012
m.b C.R.M. 3350 of 2012 In Re.: An application under Section 439(1)(b) of the Code of Criminal Procedure, 1973.
And In the matter of: Kapil Shroff .............Petitioner Mr. Amit Bhattacharya, Mr. Ayan Bhattacharya, Mr. Amitabh Roy, Mr. Anurag Bagaria........................for the Petitioner Mr. Kaushik De..............................for the O.P. This application under Section 439(1)(b) of the Code of Criminal Procedure has been filed praying for relaxation of conditions to the bail granted to the petitioner/accused by the learned Chief Judge, City Sessions Court at Calcutta on 10.02.2012 in Criminal Misc. Case No. 68/2012.
The petitioner was permitted to import goods worth Rs.40 crores by exempting import duty to the tune of Rs. 8 crores on condition that he would make export after manufacturing finished products in its Unit situated within Palta Special Economic Zone, but the petitioner allegedly has exported very meagre amount of goods and also fake goods only for the purpose of making wrongful gain and thereby committed offence not only under Customs Act but other provisions of the Indian Penal Code. 2 Investigation into the case was taken up by the Directorate of Revenue Intelligence. When the bail application was moved before the learned Chief Judge, It was opposed by the Directorate of Revenue Intelligence. The learned Chief Judge, however, accepted the fact that offences allegedly committed by the petitioner/accused under the Customs Act, have been declared by the Hon'ble Apex Court as bailable offences. The learned Chief Judge observed that in view of the decision in Om Prakash Vs. Union of India, reported in 2011 (272) E.L.T. 321 (S.C.), the Directorate of Revenue Intelligence is not empowered to detain a person in custody for the purpose of investigation of offences of the Indian Penal code.
Mr. Amit Bhattacharyya, learned advocate for the petitioner, submits that the principle offences allegedly committed by the petitioner/accused are under the Customs Act. The offences under Section 193/420/471 of the Indian Penal Code are ancillary offences, which cannot be investigated into by the Directorate of Revenue Intelligence in view of the decision of the Hon'ble Apex Court. Mr. Bhattacharyya also submits that since the major or principle offences under the Customs Act are bailable in nature, the Magistrate or the Court is to act in accordance with the provisions of Section 436 of the Indian Penal Code. Under Section 436 of the Code of Criminal Procedure, a Magistrate is supposed to 3 grant bail without imposing any condition. In support of his contention, Mr. Bhattacharyya refers to some decisions of the Hon'ble Apex Court in Vaman Narain Ghiya vs. State of Rajasthan, reported in (2009)2 SCC 281, Azeez vs. State of Kerala, reported in Crimes 1884(2) 413, Hanumanthegowda & Anr. vs. State of Karnataka, reported in (1997) CRR 121 and Sh. Anup S. Khosla Vs. The State, reported in 2000(1) JCC (Delhi) 206.
Mr. Dey, learned advocate for the Directorate of Revenue Intelligence, submits that this petitioner/accused is a habitual offender of like nature and already caused huge amount of revenue loss of this country. He further submits that once he gets an opportunity to go beyond the jurisdiction of West Bengal, his attendance cannot be procured. Therefore, while granting bail, the learned Chief Judge was very cautious and put some conditions to the bail, which cannot be relaxed on the grounds taken by Mr. Bhattacharyya.
I have bestowed my serious thought over the issue. No doubt, under Section 436 of the Code of Criminal Procedure a Court can grant bail without putting any condition. But, herein the bail application before the learned Chief Judge was under Section 439 of the Code of Criminal Procedure. Amongst the offences, there is an offence under Section 420 of the Indian Penal Code. The investigation is still going on. Whether the investigating agency 4 has power to investigate into the offence under the Indian Penal Code or not; or whether the investigating agency will continue the investigation or not is a fact, which cannot be questioned for the purpose of relaxation of condition to the bail. Offence under Section 420 of the Indian Penal Code is a non-bailable offence. Whether it is ancillary to the offence under the Customs Act or not is to be decided afterwards. At this stage, it can well be said that no bail order was passed under Section 436 of the Code of Criminal Procedure and the accused/petitioner has allegedly committed an offence under Section 420 of the Indian Penal Code, which is non-bailable in nature. Therefore, the proposition of law propounded by Mr. Bhattacharyya cannot be accepted, although this Court does not dispute the decisions of the Hon'ble Apex Court and other Courts as referred to above.
However, on perusal of the order in question, I find that the learned Chief Judge put three conditions. The first conditions is that the petitioner will not leave territorial jurisdiction of the State of West Bengal without the permission of the Senior Intelligence Officer, Directorate of Revenue Intelligence, Kolkata Zonal Unit; the second condition is that the petitioner will surrender his passport before the Senior Intelligence Officer, Directorate of Revenue Intelligence, Kolkata Zonal Unit with immediate effect, and the third condition is that the accused/petitioner shall make 5 himself available for interrogation before the Senior Intelligence Officer, Directorate of Revenue Intelligence, Kolkata Zonal Unit as and when call for. The Condition no. 4 is a general condition for which no relaxation has been sought for.
On careful reading of the conditions of bail, so imposed by the learned Chief Judge, this Court finds that all the conditions are closely related to each other. If one is fulfilled, other two are not necessary. In case permission is required to leave the jurisdiction of West Bengal, question of going abroad by using pass-part does not arise. At the same time, if he goes to abroad by using passport, the petitioner will not make himself available before the investigating authority. Such being the stand, I think that the condition No. 1 can well be waived while other two conditions will continue considering the nature and gravity of the case.
Therefore, I allow the prayer in part. The condition no. 1 is relaxed while other two conditions to the bail will continue.
In view of the above directions, this application stands disposed of.
(Kanchan Chakraborty, J.)