Patna High Court - Orders
Sachhu Prasad vs The Union Of India Through Directorate ... on 30 August, 2022
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.34824 of 2022
Arising Out of PS. Case No.-1 Year-2022 Thana- D.R.I District- Patna
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Sachhu Prasad, S/o Late Rajeshwar Prasad, Resident of Kulhariya Complex
(Colony), P.S.- Pirbohore, District- Patna.
... ... Petitioner/s
Versus
The Union of India through Directorate of Revenue Intelligence, Regional,
Patna Bihar
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. S.D. Sanjay, Sr. Advocate
Mrs. Priya Gupta, Advocate
Mr. Mohit Agrawal, Advocate
For the Opposite Party/s : Mr. K.N. Singh, Addl.S.G.
Mr. Anshuman Singh, CGC
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL ORDER
5 30-08-2022Learned counsel for the petitioner is permitted to remove the defect(s), as pointed out by the office, within a period of four weeks from today.
2. Heard Mr. S. D. Sanjay, learned senior counsel appearing on behalf of the petitioner, duly assisted by Mrs. Priya Gupta and Mr. Mohit Agrawal, Dr. K. N. Singh, learned Additional Solicitor General, Directorate of Revenue Intelligence, Patna, duly assisted by Dr. Anshuman Singh.
3. The petitioner seeks regular bail, who is in custody in connection with Special Case No. 344 (O) of 2022, arising out of Unit Case No. 1/2022-23 registered for the offences punishable under Sections 135(1)(a) and 135(1)(b) of the Patna High Court CR. MISC. No.34824 of 2022(5) dt.30-08-2022 2/19 Customs Act, 1962.
The prosecution case is based on a written complaint filed by the Intelligence Officer, Directorate of Revenue Intelligence (hereinafter referred to as 'the DRI') alleging, inter alia, that on a confidential information regarding smuggling of Foreign Origin Gold from Dubai (UAE) into India through Bangladesh, the officers of the DRI, Patna intercepted three persons including the petitioner, who were coming in a Eco Sports Car at around 8.30 A.M. on 04.04.2022 at Saguni More, Masaurhi on NH-22. It is further alleged that on interrogation, they admitted the possession of smuggled Gold bars/Bullions and also jewelery concealed in a cavity/box built in the dickey of the said car. Thereupon notice under Section 102 of the Customs Act 1962 were served upon to all the three apprehended persons. The apprehended persons and the seized car were brought to the DRI Office, Patna and in presence of independent witnesses/gazetted officer search of the car was made and in course of search the cavity built in the dickey of the said car was noticed and upon opening the said cavity, two bars/bullions of yellow coloured metal in rectangular shape believed to be Gold Bars/bullions of foreign origin and other various types of jewellery were recovered from the said cavity Patna High Court CR. MISC. No.34824 of 2022(5) dt.30-08-2022 3/19 built in the car. It is further alleged that the said recovered bars/bullions and jewelleries believed to be made of smuggled gold bars were examined by a Government Registered Valuer, who certified the purity of Gold and issued a certificate containing the details of description, purity, weight and value of the recovered gold bars, bullions and gold jewelleries. Weight of gold recovered Bars was 2000.000 Gms valued at Rs.1,05,56,000/- and the recovered Gold jewellery was found 2405.300 Gms, valued at Rs.1,02,99,633/-. Thus, total weight and value of recovered gold bars/bullions and jewelleries were found as 4405.300 Gms of Rs.2,08,55,633. It is also alleged that the apprehended persons admitted their involvement and conscious possession of carriage of foreign gold jewelleries/ bullions smuggled from Dubai (UAE) to India.
4. Mr. S.D. Sanjay, learned senior counsel appearing on behalf of the petitioner submits that the petitioner is a renowned goldsmith and also engaged in wholesale/retail business of purchase and sale of gold jewelleries, carrying on business in partnership in the name and style of M/s Suresh Jewelers. The petitioner's firm is also registered under the Bihar Shop and Establishment Act and the GST Act having valid GST registration number. The firm of the petitioner, namely, M/S Patna High Court CR. MISC. No.34824 of 2022(5) dt.30-08-2022 4/19 Suresh Jewelers is an income tax assesse and has been paying substantial tax to the State exchequer. Learned senior counsel further submits that for the purpose of developing its business, the petitioner is purchasing jewellery from different wholesalers of different States and Cities and the jewelleries are being sold to a retailers in the State of Bihar, Jharkhand and West Bengal etc. The petitioner, who has also been trying to find market in Kolkata to increase his business had earlier visited to Kolkata and on the request of some of the jewelers, the petitioner reached Kolkata on 03.04.2022 in order to display the jewelleries made by its firm to those dealers. It is also submitted that the petitioner had gone in car, as it was safe and since the petitioner was regularly carrying costly jewelleries, therefore, he had also created a Special Chamber/cavity to keep the jewelleries in safe custody carried by the petitioner. It is next submitted that on 31.03.2022, the partner firm of the petitioner was having stock of gold jewelleries to the tune of 33710 Gm. (33 Kg and 710 Gm) and from perusal of the stock register of the firm it would show as to how much purchase and sale has been made during the financial year. The stock register would also show that whenever certain quantity of gold jewelleries were taken out for displaying, it was entered in the stock register Patna High Court CR. MISC. No.34824 of 2022(5) dt.30-08-2022 5/19 as 'transferred out' and when it was return back by the partner, it was entered in the register as 'transferred in'. It is also evident from the stock ledger dated 01.04.2022 that on 02.04.2022, there was a stock transferred out by the petitioner to the tune of 2 Kg. 26 Gm of 18 Karate Gold and 379 Gm of 22 Karate gold. In support of the aforesaid submissions, the photo copy of the stock register of the relevant period has been brought on record by way of Annexure-4. The delivery Challan bearing D.O.-1 dated 02.04.2022 was also prepared and in the said Challan, the prevailing rate and the amount of the weight of the jewelleries that is 2 Kg 405 Gm, as sample for taking it to Kolkata was mentioned for the purpose of transportation. It is also submitted that as this project was just for showing sample, the generation of E-way bill is exempted for the goods covered under this voucher in terms of Rule 138(14) of the CGST Rules, as the goods are not for sale.
5. Learned senior counsel has also drawn the attention of this Court towards some samples tax invoice, showing purchase of jewelleries/ornaments from Delhi, Mumbai, Coimbatore and Kolkata, later on the jewelleries is sold at different place
6. Learned senior counsel has also narrated the entire Patna High Court CR. MISC. No.34824 of 2022(5) dt.30-08-2022 6/19 incidence as to how the petitioner went to Kolkata for displaying the jewelleries to the wholesale and retail shopkeepers and in this connection how he met Shri Mukesh Kumar, one of the Bullion/jewelry dealer of his market and on the request of said Mukesh Kumar how both of them accompanied for Patna. Learned senior counsel has next drawn the attention of this Court towards the Annexure-1, which is said to be a production memo of arrested persons. From bare perusal of which it appears that the petitioner along with others were apprehended at around 8.30 hours on 04.04.2022 and after making all the interrogation they were brought to the office of the DRI, Patna and the written complaint has been lodged on 05.04.2022. It is next submitted that in fact the summons under Section 108 of the Customs Act have been issued after having completed all the formalities of search and seizure and as such there was no compliance of Section 108 of the Customs Act in proper perspective. In course of his submission, he drawn the attention of this Court towards Section 2 (34) of the Customs Act, 1962, which defines "proper officer" as also Section 106, which empowers the proper officer to stop and search conveyances. He vehemently submits that the DRI Officers are not the proper officer, as defined under Section 2 (34) of the Patna High Court CR. MISC. No.34824 of 2022(5) dt.30-08-2022 7/19 Customs Act, 1962 and Section 106 of the Customs Act clearly stipulates "where the proper officer has reason to believe that any aircraft, vehicle or animal in India or any vessel in India or within the Indian Customs waters has been, is being, or is about to be used in the smuggling of any goods or in the carriage of any goods, which have been smuggled, he may at any time stop any such vehicle, animal or vessel or in the case of an aircraft compel it to lend".
7. In support of the aforesaid contention, he relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Canon India Pvt. Ltd. Vs. the Commissioner of Customs, since reported in 2021 SCC Online SC 200, especially paragraph nos. 9, 20 to 24.
8. Learned senior counsel in course of his submission heavily relied on a judgment rendered in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and Another, since reported in 2022 SCC Online SC 825 and submits that the very object of bail is to secure the attendance of the accused at the trial and it is indisputably that Bail is not to be withheld as a punishment. He also submits that an accused person enjoys freedom is in a much better position to look after his case and to properly defend himself, then if he was in Patna High Court CR. MISC. No.34824 of 2022(5) dt.30-08-2022 8/19 custody.
9. In order to buttress his submissions, he drawn the attention of this Court towards the various paragraphs of the aforesaid judgments, which are apposite to reproduce herein below.
ECONOMIC OFFENSES (CATEGORY D)
66.What is left for us now to discuss are the economic offences. The question for consideration is whether it should be treated as a class of its own or otherwise. This issue has already been dealt with by this Court in the case of P. Chidambaram vs. Directorate of Enforcement, (2020) 13 SCC 791, after taking note of the earlier decisions governing the field. The gravity of the offence, the object of the Special Act, and the attending circumstances are a few of the factors to be taken note of, along with the period of sentence. After all, an economic offence cannot be classified as such, as it may involve various activities and may differ from one case to another. Therefore, it is not advisable on the part of the court to categorise all the offences into one group and deny bail on that basis. Suffice it to state that law, as laid down in the following judgements, will govern the field:-
Precedents P. Chidambaram vs. Directorate of Enforcement, (2020) 13 SCC 791:
23. Thus, from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Patna High Court CR. MISC. No.34824 of 2022(5) dt.30-08-2022 9/19 Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of "grave offence" and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence Patna High Court CR. MISC. No.34824 of 2022(5) dt.30-08-2022 10/19 provide so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case-to-case basis on the facts involved therein and securing the presence of the accused to stand trial.
Sanjay Chandra v. CBI (2012) 1 SCC 40:
"39. Coming back to the facts of the present case, both the courts have refused the request for grant of bail on two grounds: the primary ground is that the offence alleged against the accused persons is very serious involving deep- rooted planning in which, huge financial loss is caused to the State exchequer; the secondary ground is that of the possibility of the accused persons tampering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment Patna High Court CR. MISC. No.34824 of 2022(5) dt.30-08-2022 11/19 should be taken into consideration.
40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required.
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46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardise the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge-sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the Patna High Court CR. MISC. No.34824 of 2022(5) dt.30-08-2022 12/19 grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI."
11. He next submits that now the investigation of the crime is already completed and the charge-sheet has been submitted under Section 135(1)(a) of the Customs Act, 1962 and hence the presence of the accused in custody may not be necessary for further investigation.
12. On the other hand, Dr. K. N. Singh, learned Additional Solicitor General appears on behalf of DRI vehemently opposes the bail application and submits that the petitioner along with two other accused persons were caught red handed along with Eco Sports car and on search two smuggled gold bar/bullions of foreign origin wherein 2000 Gms and 2405.300 Gms of different types of Gold jewelleries made of foreign origin were recovered from the secret cavity built in the dickey of the said car and no document in respect of the recovered gold bars/bullions and gold jewelleries could be produced by the apprehended persons. Dr. Singh also drawn the attention of this Court towards the relevant paragraph of the counter affidavit filed on behalf of opposite party (DRI) wherein para wise reply to the statements made in the bail application has been given for appreciation of the matter. He also drawn the Patna High Court CR. MISC. No.34824 of 2022(5) dt.30-08-2022 13/19 attention of this Court towards the statements of the elder brother of the petitioner, Shri Suresh Prasad, who happens to be the partner of the M/s Suresh Jewelers and Sri Ranjan Kumar, son of Shri Suresh Prasad, assisting him in running the establishment. It is submitted that both the aforesaid persons have denied and controverted the statements of the petitioner, as they have stated that in their knowledge, no sample has ever been sent to show to customers outside the State of Bihar. It is also submitted that during the course of investigation, the stock register of last one year was asked to submit for scrutiny, but a fabricated partial stock register was submitted with regard to out ward supply of the gold jewellery wherein attempt was made to include a trial of fabricated delivery challan, to corroborate the story that gold jewelleries were sent out as sample and received back, though upon verification of the GST portal, the same were found to be inaccurate. It is next submitted that at the time of interception neither any challan was recovered from the possession of the petitioner nor the same was produced thereafter. It is also submitted that the statement of the petitioner was recorded under Section 108 of the Customs Act, 1962, which has evidentiary value in the eye of law and he admitted his conscious involvement in possession, carriage, sale and Patna High Court CR. MISC. No.34824 of 2022(5) dt.30-08-2022 14/19 purchase of the smuggled gold bars/bullions and also gold jewelleries made of those smuggled gold bar/bullions. He next submits that as per Section 123 of the Customs Act, 1962 wherein any goods to which this Section applies are seized in this Act in the reasonable belief that they are smuggled goods. The burden of proving that they are not smuggled goods shall be on the person, who claims to be the owner of the goods so seized or from whose possession the goods are seized. He also submits that the petitioner is repeated offender and in the year 2019, an income tax raid was conducted in his shop and residence, in which approx tax evasion of Rs. 5 Crore was detected, out of which around Rs.2 crore has been paid to the income tax Department.
13. It is next submitted that there is no procedural irregularities in the search and seizure of the smuggled goods and the DRI officials are authorized and competent to intercept, search and seized the smuggled goods. He further submits that so far the judgment rendered in the case of M/s Canon India Pvt. Ltd (supra) is concerned, a Review Petition (C) 400 of 2021 in C.A. No. 1827 of 2018 (Commissioner Customs Vs. M/s Canon India Pvt Ltd) has been preferred wherein vide order dated 19.05.2022 notices were issued to the party respondents. In Patna High Court CR. MISC. No.34824 of 2022(5) dt.30-08-2022 15/19 course of submissions, learned senior counsel has also placed before this Court certain notifications, drawing the attention to the effect that all officers of the Directorate of Revenue Intelligence (DRI) appointed as officers of the Customs and on the strength of the said notifications, he submits that the DRI officers are, in fact "Proper Officers" empowered under the Act to stop and search conveyance under Section 106 of the Act. He also relies upon the judgment rendered by the Apex Court in the case of Sukhwani Vs. Union of India & Ors, since reported in 1995 SCC Suppl. (4) 663 specially paragraph 4 therein. He next relied upon the judgment in the case of Nimagadda Prasad Vs. C.B.I. & Ors., since reported in (2013) 7 SCC 466 (para. 23 and 24).
14. Dr. Singh, learned senior counsel, lastly submits that there is possibility that if the petitioner is released on bail, he may abscond and abandon from the ongoing trial proceedings and granting to the bail will have a demolishing effect on the opposite party and would on the other hand encourage and lure more people in such illegal activities.
15. Apart from the aforesaid submissions made on behalf of both the sides, various other submissions touching to the merit of the case have been canvassed, which have not been Patna High Court CR. MISC. No.34824 of 2022(5) dt.30-08-2022 16/19 noticed hereinabove, as the same are not essential for consideration of the present bail application.
16. It is no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal of grant bail lies within the discretion of the Court.
17. 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 interest of public/State and other similar consideration.
18. Having heard the rival contentions/submissions made by the learned senior counsels appearing on behalf of the parties and taking into consideration the observations of the Hon'ble Supreme Court as discussed herein above as also the facts that admittedly stock register, delivery challan, tax Patna High Court CR. MISC. No.34824 of 2022(5) dt.30-08-2022 17/19 invoices and other papers have been produced and seized by the DRI authorities and all documents are with them, which are yet to be considered by the learned trial court and, as such, there is no question of tampering of evidence. Further after completion of investigation, the DRI officers had already filed their report and the learned trial court has already taken cognizance of the offence under Section 135(1)(a) of the Customs Act and now there is no requirement of any custodial interrogation and his presence is necessary for further investigation. It is needless to say that the maximum punishment for the offence provided under Section 135(1)(a) of the Customs Act in case of an offence relating to any goods, the market price of which exceed Rs.1 crore or the admitted evasion of duty exceeds to Rs. 50,00,000/-, the punishment may be extended up to 7 years. This Court also takes note of the fact that at no point of time, the recovered gold jewelleries, which was claimed by the petitioner has ever been verified and reported to be of made of smuggled gold bars. It is also not the case of the prosecution that the petitioner has not cooperated during the course of investigation and further his release would cause any hindrance in conclusion of the trial. Moreover, the petitioner having fair antecedent is in custody since 05.04.2022.
Patna High Court CR. MISC. No.34824 of 2022(5) dt.30-08-2022 18/19
19. In view of the aforesaid facts and circumstances, this Court feels it appropriate to enlarge the petitioner on bail, let the petitioner, named above, be released on bail on furnishing bail bonds of Rs.5,00,000/- (Five lacs) with two sureties of the like amount each to the satisfaction of learned Special Judge, Economic Offences, Patna in connection with Special Case No. 344 (O) of 2022, arising out of Unit Case No. 1/2022-23 with the other conditions:
(i) The petitioner shall deposit his passport in the court below and if it does not hold a passport, he shall file an affidavit to that effect.
(ii) The petitioner shall not leave the State of Bihar without prior permission of the learned trial court.
(iii) The petitioner will cooperate in conclusion of the trial.
(iv) He will remain physically present on each and every date of trial till disposal of the case.
(v) He will not try to tamper with the evidence or intimidate the witnesses to delay the disposal of trial.
(vi) In the event of default of two consecutive dates without any cogent reason, his bail bonds will Patna High Court CR. MISC. No.34824 of 2022(5) dt.30-08-2022 19/19 liable to be cancelled.
(Harish Kumar, J) uday/-
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