Sri Shihabuddin Thadathalli vs Senior Intelligence Officer on 24 March, 2020

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Karnataka High Court

Sri Shihabuddin Thadathalli vs Senior Intelligence Officer on 24 March, 2020

Bench: John Michael Cunha

                                1

        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 24TH DAY OF MARCH 2020

                             BEFORE

         THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA

              CRIMINAL PETITION NO.1882 OF 2020

BETWEEN:

SRI SHIHABUDDIN THADATHALLI
AGE ABOUT 44 YEARS
S/O SRI MOHAMMED
RESIDENT OF THADATHIL HOUSE
NELLAMKANDY, VAVAD P.O
KODUVALLY
KERALA-673 572                          ... PETITIONER

(BY SRI: MOHAMMED MUJASSIM, ADVOCATE)


AND:

SENIOR INTELLIGENCE OFFICER
DIRECTORATE OF REVENUE INTELLIGENCE
BANGALORE ZONAL UNIT
OPPOSITE TO BDA SHOPPING COMPLEX
1ST STAGE, 3RD BLOCK
HBR LAYOUT, BANGALORE-560 043
REPRESENTED BY SPECIAL PUBLIC PROSECUTOR

                                       ...RESPONDENT

(BY SRI:JEEVAN J. NEERALGI, SPL.PP )


      THIS CRL.P IS FILED U/S.439 CR.P.C PRAYING TO ENLARGE
THE PETITIONER ON BAIL IN DRI.NO.61/2018 FILED BY THE SENIOR
INTELLIGENCE OFFICER, DRI, BANGALORE FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 104(6)(a), 104(6)(c) OF THE
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CUSTOMS ACT AND UNDER SECTIONS 135(1)(a)(b), 135(1)(i)(A),
135(1)(i)(B) OF CUSTOMS ACT.


     THIS CRL.P COMING ON FOR ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:-


                              ORDER

Heard learned counsel for petitioner and learned Spl.PP appearing for respondent.

Petitioner is seeking his release under section 439 Cr.P.C. The application filed by him before the Trial Court has been rejected. He is accused of being involved in an offence punishable under sections 104(6)(a), 104(6)(c) of the Customs Act, 1962 and under sections 135(1)(a)(b), 135(1)(i)(A), 135(1)(i)(B) of the Customs Act, 1962. Petitioner is arrayed as accused No.18.

2. The case of the prosecution is that, petitioner has been organizing Indian Operations based in Kerala and has been involved in illegal smuggling of gold in the form of compound gold pieces.

3. Learned counsel for petitioner submits that petitioner has sought for his release on the ground that accused Nos.1 to 17 are already enlarged on bail. Secondly, Hon'ble Supreme Court in a Suo Motu Writ Petition (C) No.1/2020 dated 23.03.2020 has directed the State/Union Territory to consider release of prisoners who have been convicted or undertrial for offences for which prescribed punishment is upto seven years or less. Thirdly, no incriminating evidence has been available in proof of involvement of the petitioner in the alleged offences.

4. None of these grounds, in my view, entitle the petitioner for his release on bail at this stage for the following reasons:-

The accusations made against the petitioner are serious in nature. The matter is under investigation. It is premature to state that no incriminating material is available in proof of the said offence. From the material on record, it cannot be said that the petitioner is no way involved in the alleged smuggling activity. In the objection statement, the respondent has contended that the petitioner has been carrying on the 4 smuggling activity through WhatsApp conversation from his mobile phone numbers +971529175555 (Dubai Number) and 94400155555, with accused No.1 Shri.N.T.Jamsheer. From his voluntary statement made on 18.02.2020 and also from the Digital forensic analysis report, it is evident that the petitioner is still in possession of both the mobile numbers stated above and the respondent has gathered ample evidence viz., WhatsApp chats, WhatsApp audio calls and other details shared by the petitioner through the above said mobile to accused No.1 Shri.N.T.Jamsheer. It is further contended that more incriminating data, evidence is suspected to be stored in the above said two mobile phones, which is presently with the petitioner and he is not cooperating to furnish the same to the respondent to do the investigation smoothly. Hence there is every possibility of the petitioner damaging/destroying the digital/material evidence if he is enlarged on bail. Respondent contends that, to safeguard the sensitive evidence and to continue the efforts to trace the above said mobile handsets, the petitioner may not be enlarged on bail.

5. Having regard to the above facts and as the investigating agency is required to unearth the ramifications of the offences, release of the petitioner at this stage is likely to hamper the investigation and hence, I am not inclined to allow the petition.

6. Insofar as the orders of the Hon'ble Supreme Court in the Suo Motu Writ Petition (C) No.1/2020 is concerned, the same does not help the petitioner. By the said order, direction is issued to the State/Union Territory to constitute a High Powered Committee comprising of (i) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation is known as,

(iii) Director General of Prison(s), to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. For instance, the State/Union Territory could consider the release of prisoners who have been convicted or are undertrial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of 6 years than the maximum. The said order does not furnish a ground for the petitioner to seek his release on bail. In the said circumstances, I do not find any reason to allow the petition.

Petition is dismissed.

Sd/-

JUDGE Bss

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