Gujarat High Court
Shantilal vs State on 25 November, 2010
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
Gujarat High Court Case Information System
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CR.MA/10862/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 10862 of 2010
In
CRIMINAL
MISC.APPLICATION No. 4884 of 2002
In
CRIMINAL MISC.APPLICATION No. 4884 of 2002
======================================
SHANTILAL
JAVERCHAND JAIN - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
======================================
Appearance :
MR
CHETAN K PANDYA for Applicant(s) : 1,
MS ML SHAH APP for
Respondent(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 2,
MR
RJ OZA for Respondent(s) : 2,
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH
H.SHUKLA
Date
: 22/11/2010
ORAL
ORDER
1. Present application has been filed by the applicant for deletion of condition by which the applicant was directed to hand over the passport. The conditions were imposed by the learned Chief Judicial Magistrate at Bhuj while passing order dated 17.04.2002 in File No.D.R.I.:G.R.U/ INT-6/2001. Condition No.1 was with regard to marking of presence which admittedly has been modified and the applicant is permitted to mark his present at Mumbai itself. Therefore, the only condition No.8 with regard to passport, which has been surrendered to the learned Chief Judicial Magistrate, remains, which is sought to be now deleted on the grounds stated in the application.
2. Learned counsel Mr.Pandya has referred to the papers and submitted that as per the scheme of Customs Act, 1962, the applicant was first called for the purpose of inquiry and thereafter arrested under section 104 of the Customs Act. He emphasized the phrase, "reasons to believe" and submitted that person can be arrested for the reasons to believe about the commission of offence. However, learned counsel Mr.Pandya submitted that the applicant was arrested on 13.02.2002 and thereafter has been released on bail as per order dated 17.04.2002 passed in File No.D.R.I.:G.R.U/ INT-6/2001 where the conditions were imposed.
3. Learned advocate Mr.Pandya therefore submitted that offences are cognizable offences for which he made reference to sections 137 and 135 of Customs Act, 1962 and submitted that purpose for which applicant was arrested is over as the arrest was limited at that time for the purpose of inquiry or investigation which is over. He emphasized and submitted that arrest and prosecution are two separate distinct and it are not interlinked. He emphasized and submitted that proceedings have been initiated, appeal has also been disposed of under the Customs Act, and, therefore, there is no reason now to continue this condition as it would affect his fundamental right to travel abroad. Though he fairly submitted that it has been modified or suspended suitably when the applicant was required to go abroad. However, there is no reason now to continue this condition, and, therefore, present application may be allowed.
4. Learned advocate Mr.R.J.Oza appearing for respondent submitted that as directed earlier the respondents were required to take decision and the decision has been taken to launch prosecution. The said decision dated 20th October,2010 has been placed on record by learned Advocate Mr.Oza. He, therefore, submitted that once the condition is already imposed, there is no reason to modify. He submitted that application is filed for limited purpose with regard to deletion of condition and not for the examination of the facts whether the arrest or prosecution is justified or not. He, therefore, submitted that it can be examined and suitable condition may be considered by the trial Court once the prosecution is already launched, and, therefore, this Court may not exercise its discretion.
5. In view of the rival submissions, it is required to be considered whether present application can be entertained or not.
6. As it transpires from the facts, the goods were imported for the purpose of victim of earth quake at Gujarat which was admittedly found to have been transported outside Gujarat. Applicant has been arrested in year 2002 and has been released as stated above thereafter subject to the conditions. The conditions have been remained in force during all this time and in fact now on the contrary prosecution has been launched which would imply that the presence of applicant is required to be secured which would on the contrary justify such conditions. Further, where the arrest was for the purpose of investigation and the prosecution and the conditions which have been remained in force for long period are not secured by this application. The fact that prosecution which is not launch is pending. The proceedings for evasion of Customs duty have been initiated and appeal has been disposed of as a separate than prosecution for breach of violation of the Act which involves the mens rea. Therefore, without any further elaboration the submissions or premises for submissions that everything is over as appeal under the Customs Act is disposed of and there is no need of such condition is misconceived. Similarly, submission that there is no link between the arrest and the prosecution is also misconceived as the person is arrested for the purpose of inquiry/investigation and subsequently on the basis of further materials appropriate steps are taken. In the facts of the present case, these conditions have remained in force which cannot be deleted. As a matter of fact, the conditions imposed are not merely a formality which cannot be deleted admitted when the applicant desires to visit abroad. The condition has been suspended as it can be transpired from the record, and, therefore, it cannot be said that any prejudice has been caused to him. The submission made by learned counsel Mr.Pandya that he has fundamental right to visit abroad is also misconceived as such liberty or right or the freedom is subject to reasonable restriction under the law of the land including the Customs Act and the Criminal Procedure Code where suitable conditions could be imposed while releasing the person on bail. Therefore, the submissions made cannot be accepted as one cannot claim an absolute right as even under Article 21 of the Constitution of India as the person who is facing prosecution or the charges, his right would be put to reasonable restriction, and, therefore, these submissions also cannot be accepted. However as the prosecution has now been rightly launched, it is rightly submitted that it cannot be justified in entertaining application regarding deletion of condition no.8 imposed while releasing the applicant on bail.
7. In view of above, present application deserves to be rejected and accordingly it stands rejected. Rule is discharged.
(RAJESH H. SHUKLA, J.) Amit Top