Gujarat High Court
Ravindra Chandrakantbhai Patel vs State Of Gujarat on 11 September, 2020
Author: B.N. Karia
Bench: B.N. Karia
R/CR.MA/22910/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 22910 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAVINDRA CHANDRAKANTBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR BM MANGUKIYA(437) for the Applicant(s) No. 1
MS BELA A PRAJAPATI(1946) for the Applicant(s) No. 1
KSHITIJ M AMIN(7572) for the Respondent(s) No. 2
MS. M.H. BHATT, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE B.N. KARIA
Date : 11/09/2020
CAV JUDGMENT
By preferring this application under Section 438 of the Criminal Procedure Code, 1973 ("Code" for short), the Page 1 of 11 Downloaded on : Sun Feb 14 02:49:49 IST 2021 R/CR.MA/22910/2019 CAV JUDGMENT applicant has requested to enlarge him on anticipatory bail in the event of his arrest in connection with the summons bearing Sr. No.9919 dated 06.11.2019.
This Court, on 11.12.2019, was pleased to issue rule returnable on 15.01.2020 and further was pleased to pass an order that the applicant may not be arrested till the returnable date.
Heard learned advocate for the applicant.
It is submitted by learned advocate for the applicant that the applicant has never imported the goods nor sold in the Indian Market. That, the said goods are for the reexport purpose only. That, the applicant is doing repairing and refurbishing work and the machines were provided to the applicant for the purpose of repairing and/or refurbishing. That, the applicant has no role to play in the commission of the alleged offence as the applicant is not the importer of the said machines. That, the applicant is sought to be implicated in the commission of the alleged offence for the reasons best known Page 2 of 11 Downloaded on : Sun Feb 14 02:49:49 IST 2021 R/CR.MA/22910/2019 CAV JUDGMENT to the department. That, the applicant is innocent person and primafacie there is no case against the present applicant to implicate him in the commission of the alleged offence. That, the inquiry was initiated against M/s.PVD Enterprise and letter was received by the applicant from said M/s.PVD Enterprise asking to handover their goods within seven days. That, summons were issued to the applicant dated 18.10.2019 and 22.10.2019 by the DRI to remain present for giving evidence and recording statement in the inquiry. That, the applicant remained present before the office of DRI on different dates. That, he was against served with another summons dated 06.11.2019 to remain present on 11.11.2019 before the office of DRI. That, however, the importer is someone else, the applicant is wrongfully treated by the DRI and the applicant would be falsely implicated in the import of the said machinery for which the applicant has no role to play. That, the applicant apprehends his arrest, and therefore, he has approached this Court as bail application preferred before the learned City Session Court, Ahmedabad being Criminal Misc. Application Page 3 of 11 Downloaded on : Sun Feb 14 02:49:49 IST 2021 R/CR.MA/22910/2019 CAV JUDGMENT No.7991 of 2019 was dismissed. Learned advocate for the applicant referred to contents of the quashing petition preferred by M/s.PVD Enterprise before this Court and affidavit filed by the respondent no.2 in the aforesaid petition and submitted that the respondent no.2 has also admitted the nature of business. That, the applicant was sufficiently interrogated by the DRI and yet no complaint is registered against the applicant. That, this is a fit case to exercise the power under Section 438 of the Code. In support of his arguments, learned advocate for the applicant has relied upon the judgment in the case of Siddharam Satlingppa Mhetre Vs. State of Maharashtra and others, 2011(1) SCC 694. Ultimately, it was requested by him to allow this application.
From the other side, learned advocate for the respondent no.2 has strongly opposed the arguments advanced by learned advocate for the applicant and submitted that it is a premature application preferred by the applicant as the investigation is under process. That, right now, no complaint is registered by the department against the applicant. It is further submitted Page 4 of 11 Downloaded on : Sun Feb 14 02:49:49 IST 2021 R/CR.MA/22910/2019 CAV JUDGMENT that since only summons were issued to the applicant for recording the evidence in the inquiry, anticipatory bail application is a premature, and therefore, powers cannot be exercised in favour of the applicant by this Court. It is further submitted that under Section 104 of the Customs Act, 1962, an officer of custom is empowered in this behalf by general or special order of the Commissioner of Custom where he has reason to believe that any person in India or within the Indian Customs Waters has committed an offence punishable under Section 132 or Section 133 or Section 135 or Section 135(A) or Section 136 to arrest such person. It is further submitted that power to arrest a person by a Custom Officer is statutory in character and cannot be interfered with. That, such power of arrest can be exercised only in those cases where the Custom Officer has reason to believe that a person has been guilty of an offence punishable under Sections 132, 133, 135, 135A or 136 of the Act. Relying upon the judgment of the Hon'ble Apex Court in Criminal Appeal No.1575 of 2008 arising out of Special Leave Petition (Criminal) No.2075, Page 5 of 11 Downloaded on : Sun Feb 14 02:49:49 IST 2021 R/CR.MA/22910/2019 CAV JUDGMENT learned advocate for the respondent no.2 has further argued that in a similar issue, Hon'ble Apex Court has opined in anticipatory bail that no directions can be issued against the department restraining to arrest the person without issuing notice to them. Considering the facts of the case, learned advocate for the respondent no.2 has requested to dismiss the present application as this is a premature at this stage.
Learned APP for the respondentState has supported the arguments advanced by learned advocate for the respondent no.2.
Having heard learned advocates for the respective parties and considering the controversy raised in the matter and proceedings against the present applicant, it appears that M/s.PVD Enterprise imported 211 numbers of Used Foreign Origin Printing Machine for repairing and refurbishing. 114 numbers were imported vide Bill of Entry No.4361330 dated 05.08.2019 and 97 numbers were imported for which they filed Bill of Entry No.4814912 dated 07.09.2019. In Special Civil Application No.21470 of 2019 preferred by M/s.PVD Page 6 of 11 Downloaded on : Sun Feb 14 02:49:49 IST 2021 R/CR.MA/22910/2019 CAV JUDGMENT Enterprise, affidavitinreply was filed by the respondent no.2 before this Court on 10.01.2020. The dispute between M/s.PVD Enterprise and the respondent no.2 is pending before this Court on judicial side in respect of machine imported for the purpose of repairing and refurbishing. In connection with this dispute, inquiry was initiated by the department and the applicant was issued summons, time and again, to remain present before the office. It appears from the record that the applicant did remain present before the office of DRI in the inquiry and the statement was also recorded by the office of the department. The inquiry is under process at present and admittedly, no offence is registered nor any complaint is registered against the applicant. The Hon'ble Apex Court in Criminal Appeal No.1575 of 2008 arising out of Special Leave Petition (Criminal) No.2075 of 2007 has held that in the identical case where the applicant was summoned under Section 108 of the Customs Act for recording of statement and he approached the High Court under Section 438 of the Code. The High Court disposed of the application holding that the Page 7 of 11 Downloaded on : Sun Feb 14 02:49:49 IST 2021 R/CR.MA/22910/2019 CAV JUDGMENT application was premature, however, directed the applicant to appear before the custom authority and it stated that even if the custom authorities find any nonbailable offence against the applicant, they should not be arrested "without 10 days prior notice to them". The Hon'ble Apex Court held that neither of the above directions can be said to be legal, valid or in consonance with law. The order of the High Court was a blanket one as held by the Constitution Bench of Apex Court in Gurbaksh Singh and seeks to grant protection to the respondents in respect of any nonbailable offence. It is further held that it would be illegally obstruction, interference and curtail the authority of Custom Officer from exercising statutory power of arrest a person said to have committed a nonbailable offence by imposing a condition of giving 10 days prior notice, a condition not warranted by law. The order of the High Court to the extent of direction issued to the concerned authorities was set aside by the Hon'ble Apex Court. In the instant case also, the applicant is also summoned under Section 108 of the Custom Act, 1962 to give his evidence in the Page 8 of 11 Downloaded on : Sun Feb 14 02:49:49 IST 2021 R/CR.MA/22910/2019 CAV JUDGMENT inquiry. The Hon'ble Apex Court, in Paragraph Nos.51, 52 and 53, has observed as under:
"51. From the above discussion, it is amply clear that power to arrest a person by a Custom Officer is statutory in character and cannot be interfered with. Such power of arrest can be exercised only in those cases where the Custom Officer has 'reason to believe' that a person has been guilty of an offence punishable under Sections 132, 133, 135, 135A or 136 of the Act. Thus, the power must be exercised on objective facts of commission of an offence enumerated and the custom officer has reason to believe that a person sought to be arrested has been guilty of commission of such offence. The power to arrest thus is circumscribed by objective consideration and cannot be exercised on whims, caprice or fancy of the officer.
52. The section also obliges the Custom Officer to inform the person arrested of the grounds of arrest as soon as may be. The law requires such person to be produced before a Magistrate 'without unnecessary delay'.
53. The law thus, on the one hand, allows a Custom Officer to exercise power to arrest a person who has committed certain offences, and on the other hand, takes due care to ensure individual freedom and liberty by laying down norms and providing safeguards so that the power of arrest is not abused or misused by the authorities. It is keeping in view these considerations that we have to Page 9 of 11 Downloaded on : Sun Feb 14 02:49:49 IST 2021 R/CR.MA/22910/2019 CAV JUDGMENT decide correctness or otherwise of the directions issued by a single Judge of the High Court. 'Blanket' order of bail may amount to or result in an invitation to commit an offence or a passport to carry on criminal activities or to afford a shield against any and all types of illegal operations, which, in our judgment, can never be allowed in a society governed by Rule of Law."
The Hon'ble Apex Court, in the case of Siddharam Satlingppa Mhetre (supra), has held that under Section 438 of the Code, it is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. A great ignominy, humiliation and disgrace are attached to arrest. In cases where the Court is of considered view that the accused has joined investigation and he is fully cooperating with the Investigating Agency and is not likely to abscond, in that event, custodial interrogation should be avoided and anticipatory bail should be granted which after hearing public prosecutor, should ordinarily be continued till end of the trial. There cannot be any dispute regarding the law settled down by the Hon'ble Apex Court or any observations made in the judgment. In the similar facts of the case on the identical issue, the Hon'ble Page 10 of 11 Downloaded on : Sun Feb 14 02:49:49 IST 2021 R/CR.MA/22910/2019 CAV JUDGMENT Apex Court has set aside the order of the Hon'ble High Court directing the custom authorities restraining to arrest a person when summons under Section 108 of the Customs Act for recording the evidence was issued.
In view of the above observations, prayer made by the present applicant should not be allowed as this application is premature. Hence, present application deserves to be dismissed and the same is dismissed accordingly. Rule is discharged.
(B.N. KARIA, J) A. B. VAGHELA Page 11 of 11 Downloaded on : Sun Feb 14 02:49:49 IST 2021