Kerala High Court
Anob T.R vs Union Of India on 19 October, 2020
Author: Ashok Menon
Bench: Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
MONDAY, THE 19TH DAY OF OCTOBER 2020 / 27TH ASWINA, 1942
Bail Appl.No.5824 OF 2020
(O.R.No. 10/2020 of Customs Preventive and Narcotics Unit,
Palakkad)
PETITIONER/S:
ANOB T.R.,
AGED 42 YEARS, SON OF LATE T.S.RAMAN,
THEKKEMELPULLI HOUSE, PERINCHERRY P.O,
THRISSUR DISTRICT - 680306.
BY ADV. SRI.NIREESH MATHEW
RESPONDENT/S:
1 UNION OF INDIA,
REPRESENTED BY SUPERINTENDENT OF CUSTOMS,
CUSTOMS PREVENTIVE UNIT, PALAKKAD - 678001.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
KOCHI-682031.
BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR, SC
BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
19.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bail Appl.No.5824 OF 2020
2
O R D E R
Dated this the 19th day of October 2020 The applicant apprehends arrest in a case allegedly registered by the Customs Preventive and Narcotics Unit, Palakkad as O.R.No.10/2020 and approaches this Court for anticipatory bail under Section 438 of the Cr.P.C.
2. The prosecution case, in brief, is that during the routine vehicle checking at Meenakshipuram Check Post, the Excise officials intercepted a tourist permit car in which accused 1 and 2 were allegedly travelling. They had with them gold weighing 3645.800 grams worth Rs.1,74,33,122/- in the form of cut pieces, coins and ornaments and a sum of Rs.6 lakhs in cash was also recovered. The gold and cash were handed over to the Customs Department for investigation under the premise that it was smuggled gold and that the accused were in possession of gold in violation of Section 135 of the Customs Act. The accused 1 and 2, who were Bail Appl.No.5824 OF 2020 3 apprehended, in their statement to the Customs officials, stated that they are working for the applicant, who is the owner of M/s A.V.Gold, Thrissur. It is on the basis that the applicant has been implicated as 3rd accused and proceeded against him. The applicant has been served with a notice under Section 108 of the Customs Act and is expected to appear before the Customs Department for further investigation. The applicant also states that he had in fact appeared before the Customs Department at Palakkad, but he was not questioned stating that the present application for anticipatory bail is pending and they would proceed only after the application is disposed of. The applicant further states that he is innocent and the allegations are all untrue and he is manufacturing ornaments in Thrissur and for the purpose of manufacturing of gold ornaments, he collected gold in raw forms from various dealers in Coimbatore and that his employees were collecting gold to be handed over to the applicant in Thrissur and after making of Bail Appl.No.5824 OF 2020 4 gold ornaments it is given back to different places of jewellery in Coimbatore. The applicant has produced various documents in support of his contention regarding handing over of the gold and to indicate that prima facie it is not smuggled gold as alleged by the Customs Department.
3. On production of accused 1 and 2 before the Chief Judicial Magistrate (Economic Offences), Ernakulam, it was found that no offence punishable under Section 135 of the Customs Act is attracted because the gold which was seized from them apparently does not fall under the definition of smuggling under Sections 2(39) of the Customs Act, and therefore, it does not appear to be gold which is liable for confiscation under Section 111 or 113 of the Customs Act. The tax invoices and bills are produced for prima facie indicate that the dealing in gold which is legally possessed by different persons and handed over to the applicant for the purpose of making gold ornaments to be handed over to the above mentioned Bail Appl.No.5824 OF 2020 5 different persons. It is on the basis of that the jurisdictional court granted bail to accused 1 and 2 vide Annexure 22 order. The applicant is willing to cooperate with the investigation and appeared before the Customs Department under Section 108 of the Customs Act. But it is also pointed out that he is a sick man undergoing treatment in Amrutha Hospital for various ailments and comorbidities and in case he is confined to prison, there is every possibility of his contracting the contagious disease COVID-19 and succumbing to it. He has produced Annexures 19 to 21 in support of his contention that he is suffering from a co-morbid situation pertaining to his liver transplantation in the year 2011.
4. Heard the learned Counsel for the applicant and the learned Public Prosecutor.
5. Considering all these facts and also the fact that the granting of bail to accused 1 and 2 has not been challenged by the Customs Department and has now become final, there is no point in the applicant being Bail Appl.No.5824 OF 2020 6 incarcerated for the purpose of investigation as long as he is willing to cooperate with the investigation. Hence, the applicant is entitled to pre-arrest bail.
In the result, the bail application is allowed and the applicant is directed to surrender before the Customs Department in pursuance of Section 108 notice, which he has received and cooperate with the investigation and he shall be subjected to such interrogation keeping in view his health condition as evidenced by Annexures 19 to 21. In the event of his being arrested, he shall be released on bail on the execution of a bond for Rs.1,00,000/- (Rupees one lakh only), with two solvent sureties for the like amount each, to the satisfaction of the investigating officer, and on the following conditions:
(i) He shall not influence or intimidate witnesses or tamper with evidence;
(ii) He shall appear before the investigating officer as and when called for; and Bail Appl.No.5824 OF 2020 7
(iii) During the bail period, he shall not get involved in any similar offences.
In case of breach of the bail conditions, the prosecution shall be at liberty to apply for cancellation of the bail before the jurisdictional court.
dkr ASHOK MENON
JUDGE