Calcutta High Court (Appellete Side)
Directorate Of Revenue Intelligence vs Unknown on 14 May, 2014
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
14.05.2014 C.R.M. No. 4830 of 2014
Re: An application for cancellation of bail under Section 439(2) of the Code of Criminal Procedure filed on
2nd April, 2014.
And
In the matter of : Directorate of Revenue Intelligence, Calcutta Zonal Unit ---Petitioner.
Mr. Dipak Kr. Sengupta
Mr. Kaushik Dey ... for the Petitioner.
Mr. Farook M.Razack
Mr. Rana Mukherjee
Mr. Manoj Malhotra
Mr. L. Sarkar
Mrs. Priyanka Bhutoria ... for the O.P.
.
On March 12, 2014 the learned Metropolitan Magistrate granted bail to the accused-opposite parties, viz. Barik Biswas and Moksed Mondal, who were arrested in connection with a case relating to an offence punishable under Section 135 of the customs Act, on the allegation of recovery of 292 pieces metal bars and biscuits, found to be gold of foreign origin from their possession, weighing 44.659 kgs and worth Rs. 13.65 Crores approximately.
Now, the DRI, the investigating agency, invoking Section 439 (2) read with Section 482 Cr.P.C, has approached this Court, challenging the said order and seeking cancellation of their bail.
2. Mr. Dipak Sengupta, Senior Advocate appearing on behalf of the petitioner submitted on March 8, 2014 after a specific intelligence was developed by the officers of the DRI that the accused Barick Biswas was going to bring huge quantity of gold of foreign origin to Kolkata from Basirhat through Taki Road, smuggled to India from Bangladesh before hand, and likely to cross Beliaghata Bill area of Taki Road, in a Toyota Fortuner Car, they kept a close watch in the vicinity being accompanied by two independent witnesses. At around 1.30 p.m they noticed one Toyota Fortuner car was coming from the side of Basirhat and moving towards Kolkata. The car was, at once, intercepted, when the driver of the vehicle identified himself as Moksed Mondal and other passenger in the car as Barick Biswas. After repeated asking ultimately both of them admitted that they were carrying in 5 bags about 40 Kgs. of gold of foreign origin in the form of Biscuits and Bars, which were kept hidden inside the car cavities. The Barick Biswas was also found to have been carrying one loaded pistol with spare ammunition. Since the open road was not conducive for search and seizure formalities and considering the question of safety and security and law and order, they were summoned to the office of the DRI to which they agreed. At around 3.30 p.m on 8.3.2014 the team of the DRI officers with the accused persons along with the Toyota car reached their office. After thorough search, in presence of two independent witnesses, two bags from the cavity between the driver seat and front passenger seat and another three bags from the luggage boot of the vehicle were recovered. On further search from those bags total 280 pieces of gold biscuits each weighing 116.64 gms and 12 gold bars each weighing 1 kg were recovered. Those biscuits and bars had marks and inscription of foreign origin. The total weight was 44.659 kgs. and worth Rs. 13.65 crores approximately. The said gold bars were then seized following all legal formalities and copy of the seizure list were handed over to the accused persons against proper receipts. The entire process of search and seizure was completed by 10.30 p.m. Thereafter, recording of their voluntary statement under Section 108 of the Customs Act was started and after a gap of few hours, when those two accused were allowed some rests, on the next day recording of their statement was completed. While the statement of Barik Biswas was recorded in his own handwriting, since Moksed Mondal claimed that he was not well conversant in writing, his statement was recorded in the hand of one Ram Chandra Boral. In their statement when both the accused persons admitted their guilt and confessed that they were fully aware that they were carrying gold in their car to Kolkata which were of foreign origin and smuggled to India illegally and earlier they were also involved in similar kind of smuggling, the DRI officers arrested both of them under Section 104 of the Customs Act and immediately grounds of arrest was furnished to both them against proper acknowledgement and as desired their, they were allowed to intimate their chosen relatives about their arrest over mobile phone.
3. The learned Counsel for the DRI then submitted that after their arrest on March 9, 2014 on the same day accused persons were produced before the Court of learned Chief Metropolitan Magistrate, in- charge, Calcutta, when the learned Magistrate rejected the petitioners prayer for bail considering the gravity of the offence and remanded both of them to the jail custody till March 12, 2014. He then added that on March 12, 2014 when the accused persons were produced in Court on their behalf two applications were filed, whereby they retracted from their earlier statement made in between March 12, 2014 and March 13, 2014. He further submitted simultaneously, they also prayed for bail on the ground they were absolutely innocent and the gold in question were belonging to one Azizul Sarkar, who took a lift in their car from Basirhat bridge for Beliaghata Bill area and in those bags the said Azizul Sarkar was carrying gold was never known to them and he managed to flee away when the DRI Officers intercepted the vehicle and their confessional statements were obtained by the DRI Officers by coercion and physical assault and same were never voluntary. He then contended, even assuming that it was Azizul Sarkar boarded the car with as many as 5 bags full of gold bars and biscuits, but it is unbelievable that the same escaped the notice of the accused persons and the accused have no knowledge about the same, more particularly when those bags were found concealed inside the cavity between the driver seat and front passengers seat and in the luggage boot of the vehicle. He further submitted as soon as the accused persons were arrested immediately they were allowed to intimate their relations about their arrest over phone, whom they desired to contact and the same were duly recorded on the grounds of arrest in their own hand. He further submitted that the content of their retraction statements are result of afterthought and manufactured and the allegations that they were tortured physically and thereby the statements were obtained, were also false. He then added after arrest and before they were produced in Court both of them were got examined by a Medical Officer at a Government Hospital but when they were medically examined no sign of tortured was found in their person and they had also made no complain to the medical officer about any torture. He further submitted similarly on, their first physical production in the Court they never pointed out that they were tortured in the custody of DRI and their confessional statements were extracted after physical assault. He further submitted the learned Magistrate without considering the gravity of the case and the clinching materials on record pointing to their guilt in the commission of such serious offence of high magnitude and more particularly when the recovery of huge quantity of gold of foreign origin from the car, where both of them were there was not denied, the learned Magistrate should not have released them on bail at that stage. He further submitted the learned Magistrate failed to appreciate that when the written grounds of arrest were at once furnished to the accuseds after their arrest and the factum of arrest was allowed to be intimated to their relations, as they desired, there can not be any lapse on the part of the DRI to comply with the guidelines framed by the Hon'ble Apex Court in the Case of the D.K. Basu Vs. The State of West Bengal reported in (1997) 1 SCC 416. Merely because no memo of arrest was prepared and at the time of arrest no independent witness was present cannot be the ground of releasing those accuseds on bail at the early stage, when the investigation was just commenced three days before and it was a case of huge ramifications. He submitted even assuming that formality of arrest was not complied with to the extent, memo of arrest was not prepared in presence of any independent witness, at best that may be an irregularity but on the face of the overwhelming materials against them, the accuseds were never entitled to be released on bail at such an early stage of investigation in a case of this nature.
It is vehemently contended from the side of the DRI that this is a very serious case where gold of foreign origin is smuggled from Bangladesh to India by the accused persons illegally and thereby huge revenue was evaded. It is further contended that this kind of offence is a serious threat not only to the economy of the Country but also to its safety and security. It is then contended both the petitioner have confessed their guilty in their statement recorded under Section 108 of the Customs Act and when the investigation was just commenced and the DRI Officers are trying to locate all other accused persons involved in this case, the learned Magistrate without giving any importance to the gravity of the offence and its ramification granted bail to the accused - petitioner at the very early stage of investigation and it is contended that the bail, at once be cancelled and they be taken into custody otherwise the investigation of the case will be seriously jeopardized.
4. On the other hand, Mr. Farook M. Razack learned Counsel appearing on behalf of the accused persons submitted that they were absolutely innocent of the victim of situation. In fact, out of good faith they allowed a local person to board their car but it was not known to them the bags he was carrying containing gold bars and biscuits. He further submitted that the Azizul Sarkar fled away when the car was intercepted but at once those gold bars and biscuits were discovered they intimated the DRI Officers as to the facts that the same were belonging to Azizul Sarkar. He further submitted since the DRI Officers could not extract any statement from the accused persons as per their choice, both the accused persons were subjected to inhuman and barbaric torture and were assaulted with fists and blows and were kept unfed for hours together and were not permitted to attend natures call. It is then added finally the accused persons broke down and they were forced to write a statement as dictated by the DRI Officers, which was never a voluntary one, no seizure list was issued nor any arrest memo was supplied and were not allowed to consult his Advocate. It is also submitted that DRI Officers out of mala fide allowed the real offender to get away and implicated falsely the opposite party no. 1 and 2 in the case. It is then also submitted that on the day the petitioner was first produced before the learned Court that was a Sunday and no lawyer was available and thus no instruction could be provided to the lawyer. He then refer the decision of the Hon'ble Apex Court in the case of D. K. Basu Vs. State of West Bengal reported in AIR 1997 SCC 610 and invited the Courts attention to the guidelines prescribed therein, in case of arrest, and then invited the attention of this Court to paragraph 36 thereof. He then pointed that at the time of arrest the memo of arrest must be prepared and the same ought to be attested by at least one witness, who may be a member of the family of the arrestee or a respectable person of the locality from where the arrest was made and be counter signed by the arrestee but in this case such legal requirements not being followed their arrest has been entirely vitiated. Therefore, the learned Court very rightly released the opposite party nos. 1 and 2 on bail. He vehemently contended that the petitioners were released on bail on stringent conditions and no allegation has been forthcoming that they have misused their liberty of bail. Accordingly, the question of cancellation of their bail does not at all arises. In this regard, the learned Counsel for the opposite parties relied on the decision of the Apex Court in the case of The State through the Delhi Administration Vs. Sanjay Gandhi reported in AIR 1978 SC 961, Manjit Prakash & Ors. Vs. Shobha Devi and Anr. reported in AIR 2008 SC 3032, and in the case of Dolat Ram and Ors. Vs. State of Haryana reported in (1995) 1 SCC 349. Then relying on the decision of the Apex Court in the State of Gujarat Vs. Salimbhai Abdulgaffar Shaikh & Others reported in (2003) 8 SCC 50, it was urged according to the said decisions while hearing of application for cancellation of bail under Sub-Section 2 of Section 439 of the Code, the Court generally do not examine the merits of the order of granting bail and submitted that the grant of bail is one thing and cancellation of bail already granted is altogether different. The consideration would also be completely different in both such situations. Bail once granted cannot be cancelled unless the accused appears to have been interfering or interfered with or evading or attempting to evade the due process of law and abusing the concessions granted to him. He also relied on a decision of the Apex Court in the case of OM Prakash and Anr. Vs. Union of India and Anr. reported in (2011) 3 C Cr. LR (SC) 710 and pointed out as has been held therein all offences punishable under the Customs Act are not only non-cognizable but bailable. At the same time, he added by amending Section 104 of the Customs Act, such offence has now been made non-bailable. He vehemently urged, having regards to the fact that there is no allegation of misuse of liberty of bail by the petitioners, the question of the cancellation of their bail does not deserve any consideration.
5. This Court has been moved by the DRI seeking cancellation of bail of the petitioners not on the ground that their post bail conduct are not conducive for proper investigation, and the accused persons on being released on bail are misusing their liberty, but on the ground the order of granting bail by itself suffers from serious infirmities and illegalities resulting in miscarriage of Justice.
The only question thus arises for consideration as to whether bail once granted can be cancelled by entering into the merit of the order of granting bail, in absence of any allegation of misuse of their liberty by the accused persons in the post bail period.
6. In the case of Puran Vs.Rambilas and Another reported in (2001) 6 SCC 338 a two Judge bench of the Apex Court in para 10 and 11 held as follows:-
"10. Mr. Lalit next submitted that once bail has been granted it should not be cancelled unless there is evidence that the conditions of bail are being infringed. In support of this submission he relies upon the authority in the case of Dolat Ram Vs. State of Haryana. In this case it has been held that rejection of bail in a bon-bailable case at the initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. It has been held that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. It has been held that generally speaking the ground for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner."
11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of canceling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurchuran Singh Vs. State (Delhi Admin.). In that case the Court observed as under: (SCC p. 124 para 16) " If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that court. The State may as well approach the High Court being the superiors court under Section 439 (2) to commit the accused on custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the court of Session vis-à-vis the High Court.
Subsequently, another Division Bench of the Apex Court in the case of Brij Nandan Jaiswal Vs. Munna Alias Munna Jaiswal And Another reported in (2009) 1 SCC 678 at para 12 in a similar situation held as follows:-
"12.It is now a settled law that the complainant can always question the order granting bail if the said order is not validly passed. It is not as if once a bail is granted by any court, the only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also. In our opinion, therefore, the complainant could question the merits of the order granting bail."
In the case of Kanwar Singh Meena Vs. State of Rajasthan and Another reported in (2012) 12 SCC 180 the similar was the observation of the Apex Court.
" Thus Section 439 of the Code confers very wide powers on the High Court and the Court of Session regarding bail. But, while granting bail, the High Court and Sessions Court are guided by the same consideration as other courts. This is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other ground are required to be taken into consideration. Each criminal case present its own peculiar factual scenario and, therefore, certain ground peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While canceling the bail under Section 439(2) of the code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or taken into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in canceling the bail. Such orders are against the well- recognized principles underlying the power to grant bail. Such orders are illegally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from canceling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing the accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this Court are much wider, this Court is equally guided by the above principles in the matter of grant or cancellation of bail."
In the meanwhile a three judges bench of the Apex Court in the case of Dinesh M.N. ( S.P.) Vs. State of Gujarat reported in (2008) 5 SCC 66 paragraph 25 amongst others held as follows:-
"25. The perversity as highlighted in Puran case can also flow from the fact that as noted above, irrelevant materials have been taken into consideration adding vulnerability to the order granting bail. The irrelevant materials should be of a substantial nature and not of a trivial nature. In the instant case, the trial court seems to have been swayed by the fact that Soharbuddin had shady reputation and criminal antecedents. That was not certainly a factor which was to be considered while granting bail. It was nature of the acts which ought to have been considered. By way of illustration, it can be said that the accused cannot take a plea while applying for bail that the person whom he killed was a hardened criminal. That certainly is not a factor which can be taken into account."
In the light of the aforesaid decisions of the Hon'ble Supreme Court, even when no case is made out that while on bail the accused misused his liberty, it is still open to the investigating agency to challenge an order of granting bail highlighting perversity arises from consideration of irrelevant materials, adding vulnerability to the order granting bail and on account of ignoring the relevant materials, the seriousness of the allegation, gravity and magnitude of the offence materials collected during investigation against the accused and the stage of investigation.
Thus, as the law stands, the interference with an order of granting bail by its cancellation is not restricted only when there are supervening circumstances showing that on being enlarged on bail the accused has misused his liberty by interfering with the course of justice namely viz. by tampering the evidence, threatening the witnesses, not available during the trial and absconding or indulging in similar kind of offences etc. The order of granting bail can also be interfered with when there is manifest perversity in the order due to the reason the Court granting bail founded its decision on consideration of irrelevant and extraneous materials and did not looked into the case of the prosecution i.e. the nature of the allegations gravity of the offences nature of the materials collected during investigation magnitude of offence stage of investigation and impact of the society. While considering the question of bail although the liberty of a citizen plays an important role but that does not necessarily mean the only case of the defence is to be considered and not that of the prosecution.
In this regard two passages from the paragraphs 34 and 35 from the decision of the Apex Court, in the case of CBI Vs. V. Vijay Sai Reddy reported in (2013) 7 SCC 452 be quoted below.
"34.While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words "reasonable grounds for delivering" instead of " the evidence" which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.
35. We have highlighted the above aspects to show that the High Court has mistakenly taken into account the irrelevant materials and kept out the relevant materials, which had to be considered for the grant of bail."
8. Now, to reach to a just conclusion in the matter, it would be first necessary for this court to look into the order impugned, the relevant portion thereof is extracted below.
" Heard both sides.
I have perused Section 104(3) of Customs Act whereby it appears that the officers of Customs shall have the same powers as that of Officers-in-charge of any Police Station and is subject to the same provisions under the Code of Criminal Procedure. I have gone through the ground of arrest as contained in the CD. It may be mentioned that there is no separate memo of arrest prepared by the customs Authority. If ground of arrest is taken to be memo of arrest then it appears that a copy of the same is being handed over to the respective accused persons and the news of arrest has also been communicated over telephone but I do not find any name of attesting witness who may be a member of a family or a respectable member of the locality where the arrest was being made. This is construed serious lapse on the part of the Customs Authority. This Court is of the view that the arrest is not n in accordance with law as laid down by the Hon'ble Supreme Court in D.K. Basu Vs. State of West Bengal and later engrafted in the provisions of Section 41 (b) Cr.PC. Besides the statement of the accused persons has already been taken and investigation can proceed in the usual course without hindrance even if the accused persons are in bail."
9. On a plain reading of the aforesaid order it appears that the Court below very rightly proceeded without differentiating the grounds of arrest from the memo of arrest. The whole object of memo of arrest as well as the ground of arrest is to communicate the arrestee the case against him, which led to his arrest. However, one of the reasons which essentially persuaded the Court below to grant bail to the accused persons at a very nascent stage of investigation, that too within three days of their arrest, in a case where DRI nabbed them with smuggled golds of foreign origin, worth Rs.13.65 Crores (Approx), was the absence of endorsement in the ground of arrest by any independent witness, which according to it a serious lapse on the part of the DRI in contravention of the guidelines prescribed by the Apex Court in the case of D. K. Basu Vs. The State of West Bengal (Supra) and codified in Section 41B of the Code of Criminal Procedure.
10. However, on perusal of the grounds of arrest I have no doubt there has been substantial compliance of Section 41B of the Code of Criminal Procedure. The respective grounds of arrest were not only signed by both of them, their relations were, simultaneously, informed over mobile phone by the arrestees about their arrest. Immediately, after arrest both the accused persons were taken to the Hospital, where they were examined by a medical officer in the service of the State Government. Their medical examination report were very much with the case docket and nothing remotely indicates that there was any sign of injury in their persons and the accused persons had no complain of any physical assault against the DRI Officers during their interrogation. Soon thereafter both of them were physically produced in Court and there also no such allegations was forthcoming. The learned Counsel for the accused persons vehemently urged since no proper legal service was available to the accused persons on the very day of their first production in Court, they were unable to inform the Court that the DRI Officers forcibly extracted statement from them and was recorded as dictated by the DRI Officers and such statement was obtained after the accused persons were physically assaulted. I do not find any force in such submissions. No legal advice is at all necessary at least to inform the Court that during the detention of any accused in the custody of any law enforcing agency he was subjected to torture physically and thereby forced to make statement as desired by them. In this regard it is pertinent to note that it is the case of the accused persons only after prolonged interrogation and torture they finally broke down and compelled to give statement implicating them in a case of gold smuggling at the behest of DRI Officers. If, the case now made out from the side of the accused persons is accepted that may justify the claim of the learned lawyer of the DRI that such a plea has been put forth on a legal advice. It is already noted that immediately after arrest the accused persons were produced before a Medical Officer in the service of the Government and during medical examination no sign of torture was found on their persons. At the same time no complain was made by the accused persons in the Court about any physical torture perpetrated upon them by the DRI Officers and only three days after their first production, for the first time, such a plea was taken.
Therefore, in my considered opinion the absence of endorsement of any witness in the grounds of arrest, never adversely touches the very object of the Apex Court's decision. The same at best a mere irregularity which does not vitiate the arrest proceedings.
Only other consideration on which bail was granted, was this, since the statement of the accused persons was already recorded thus investigation can be proceeded in usual course without any hindrance if the accused persons shall remain on bail.
The argument of the learned Advocate of the accused persons that they made them available to the investigating officer of the case for several days, after being released on bail, is not of much relevance. Interrogation while in custody and interrogation while on bail, stands on different footing. Certainly, where in a case the accused persons already retracted from their statement made to the investigating agency, their interrogation if any during bail would never yield any fruitful result. Even assuming, the plea of the accused persons are true that while they are innocent, one Azizul Sarkar was the real smuggler, then in that case reasonable time ought to have been offered to the DRI to ascertain the truth of such claim. In a case of this nature where there is no dispute that more than 14 kgs of gold of foreign origin, smuggled into India, was recovered from the physical possession of the accused persons and they admitted their guilt, in their statement recorded under Section 108 of the Customs Act and not retracted at the earliest opportunity, the court below was not at all justified to grant bail to them. While dealing with the bail application the court below completely lost sight of the basic principle enumerated by the Apex Court in its plethora of decision as regards to the same. It is quite strange the Court below never felt it necessary to consider the materials collected against the petitioner and the gravity of the offence to reach to its decision. There is remote indication in the order the prosecution's case has been considered.
This Court has no doubt that the Court below has ostensibly gone wrong in passing the impugned order. On perusal of the case docket and the materials collected during investigation against the accused persons this Court is of the view that any further loss of time would further impair the effectiveness of the investigation. Considering the nature and seriousness of the allegation and the largeness of the smuggled gold, the instant application for cancellation of bail stands allowed and the impugned order is set aside. The bail bond and surety furnished by the accused in terms of the impugned order stands cancelled and it is directed they will be taken into custody forthwith.
Needless, to add observations touching the merits of the case against the accuseds are purely for the purpose of deciding the instant application and if in future any such application is filed by the accused persons, it shall be considered on its own merit untrammeled by any of this observations.
Office is directed to communicate this order to the Court below at once by special messenger, together with L.C.R. Urgent Photostat copy of this order be given to the parties if applied for.
(Ashim Kumar Roy,J) 14.05.2014 Latter - Prayer for stay is considered and rejected.
(Ashim Kumar Roy,J)