Rajasthan High Court - Jaipur
Arpit Jain vs Union Of India on 14 February, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Miscellaneous 2nd Bail No. 1659 / 2018
Arpit Jain S/o Shri Anil Kumar Jain, Aged About 22 Years, R/o Plot
No. 36, Ramdwara Colony, Mahaveer Nagar, Durgapura Railway
Station, Jaipur (raj.) (presently Confined At Central Jail, Jaipur)
----Petitioner
Versus
Union of India Through Superintendent (AIU), Customs,
International Airport, Sanganer, Jaipur (raj.)
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. S.S. Hora.
For Respondent(s) : Mr. R.D. Rastogi, Addl. Solicitor General
assisted by mr. Chandra Shekhar Sinha.
_____________________________________________________
HON'BLE MR. JUSTICE DEEPAK MAHESHWARI
Order
Judgment reserved on : 07.02.2018
Judgment pronounced on : 14/02/2018
BY THE COURT :
Heard learned counsel for both the sides. This second bail application has been preferred on behalf of accused-petitioner Arpit Jain in Case No.F.No.VIII(48)AP/12/2017 registered by the Customs Department for the offences under Sections 132, 135(1)(a)(b)(c) of the Customs Act, 1962.
Learned counsel for the accused-petitioner submits that earlier bail application was rejected by this Court vide order dated 18.12.2017 when the investigation was in progress. Now, the same has been completed and the complaint for the aforesaid offences has been filed against the accused-petitioner in the Court of Chief Metropolitan Magistrate, Jaipur Metropolitan on (2 of 7) [CRLMB-1659/2018] 11.01.2018. He submits that in this changed circumstance this second bail application has been filed.He further submits that no offence under Sections 132 & 135 of the Customs Act is made out against the accused-petitioner. Some foreign currency notes and Indian currency were seized from his possession when he was in departure hall of Jaipur Airport. No boarding pass was issued to him. His further argument is that even if some infraction of the rules was made by the accused, it was only with regard to the provisions of the Foreign Exchange Management (Export and Import of Currency) Regulations, 2015. Foreign currency is not excise dutiable item. The Foreign currency which was seized from him on 12.11.2017 was only worth Rs.96,24,012/- in Indian rupees which is less than Rs.1 crore and therefore, the offence is bailable one.
But the allegation has been levelled against the accused- petitioner for taking the total currency worth Rs.5,89,35,511/- including the amount which is said to have been taken by him during last three months period. Counsel submits that the print outs taken from Samsung Galaxy Note-3 mobile of the accused- person are not the documents admissible in evidence. No certificate required under Section 65B of the Indian Evidence Act has been produced in regard to such print outs. Earlier transaction, if any, cannot be counted for the calculation of the foreign currency allegedly taken by the accused, as it is not a continuing offence.
In regard to the contentions stated above, counsel for the petitioner has placed reliance on the following judgments :-
(3 of 7) [CRLMB-1659/2018] (I)- Sanjay Chandra Vs. Central Bureau of Investigation, reported in (2012) 1 SCC 40. (II)- Anil Mahajan Vs. Commissioner of Customs & Anr., reported in 2000(53) DRJ 501.
(III)- Anvar P.V. Vs. P.K. Basheer & Ors., reported in (2014) 10 SCC 473.
(IV)- Central Bureau of Investigation Vs. V.C. Shukla & Ors., reported in (1998) 3 SCC 410.
(V)- Common Cause (A Registered Society) & Ors. Vs. U.O.I., reported in 2017 Cri.L.J. 1625. (VI)- Udai Shankar Awasthi Vs. State of Uttar Pradesh & Anr., reported in (2013) 2 SCC 435.
(VII)- State of Bihar Vs. Deokaran Nenshi & Anr., reported in (1972) 2 SCC 890.
(VIII)- M/s. Usha Spinning & Weaving Mills Pvt. Ltd. Vs. Regional Provident Fund Commissioner, Haryana, reported in 2012(2) RCR (Cri.) 427.
(IX)- Gyanchand Jain Vs. Commissioner of Customs (Airport), reported in 2017(352) ELT 53(Tri.-
Mumbai).
(X)- Sh. T.Soundrarajan Vs. Commissioner of Customs, reported in 2008(221) ELT 258 (Tri.-Chennai). (XI)- Prem Kumar Vs. Customs, reported in (2016) SCC OnLine Del 705.
Per contra, learned Additional Solicitor General appearing for the Union of India has vehemently opposed the contentions raised (4 of 7) [CRLMB-1659/2018] by other side. His main contention is that completion of investigation and filing complaint / charge-sheet is not such a change in circumstances, solely on the basis of which the second bail application can be allowed. He further submits that the contentions presently raised by learned counsel for the petitioner were also raised on behalf of the accused-petitioner, which were elaborately dealt with by this Court while deciding the first bail application on 18.12.2017. He further submits that the foreign currency earlier taken by the accused-petitioner from Jaipur to Dubai during a short span of last three months is justified to be included. Accordingly, foreign currency worth more than Rs.5.89 crores was taken by the accused-petitioner without obtaining required permission from the RBI. This fact was admitted by the accused-petitioner under the statement recorded under Section 108 of the Customs Act, which is admissible as substantive piece of evidence. Counsel further submits that the economic offence as alleged against the accused-petitioner is of a serious nature by which the economy of the State is adversely effected and ruined which needs to be seriously viewed.
To support his contentions, learned ASG has relied upon the following judgments :-
(I)- Virupakshappa Gouda Vs. State of Karnataka, reported in (2017) 3 Supreme 325.
(II)- Saint Shri Asharam Bapu Vs. State of Rajasthan -
S.B. Cr. Misc. 2nd Bail Application No.10115/2013 - decided on 10.02.2014.
(5 of 7) [CRLMB-1659/2018] (III)- Najibullah & Anr. Vs. Union of India - S.B. Criminal Misc. Bail Application No.13466/2014 & Syed Mohammad Zama Vs. State of Rajasthan - S.B. Criminal Misc. Bail Application No.11193/2014 - decided on 05.01.2015.
(IV)- Abdul Ali Jalil Vs. Union of India - S.B. Criminal Misc. Bail Application No.1257/2015 - decided on 26.03.2015.
(V)- Harish Kumar Aalumalani Vs. State of Rajasthan -
S.B. Criminal Misc. Bail Application No.5874/2015 & Om Prakash Dhanwani Vs. State of Rajasthan - S.B. Criminal Misc. Bail Application No.5894/2015 - decided on 23.07.2015.
(VI)- Naresh Sukhawani Vs. Union of India, reported in 1995 Supp.(4) SCC 663.
(VII)- Union of India Vs. Padam Narain Aggarwal & Ors., reported in (2008) 13 SCC 305.
(VIII)- K.I. Pavunny Vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin, reported in (1997) 3 SCC
721. (IX)- State of Gujarat Vs. Mohanlal Jitamalji Porwal & Anr., reported in AIR 1987 SC 1321.
(X)- Nimmagadda Prasad Vs. Central Bureau of Investigation, reported in (2013) 7 SCC 466. (XI)- Y.S. Jagan Mohan Reddy Vs. Central Bureau of Investigation, reported in (2013) 7 SCC 439.
(6 of 7) [CRLMB-1659/2018] I have considered the contentions raised by rival sides and have gone through the order dated 18.12.2017, whereby the first bail application moved by the accused-petitioner was rejected.
On perusal of the order, it appears that all these points which have been presently raised by learned counsel for the accused- petitioner were earlier considered in the said order. I do not feel inclined to discuss these points afresh. It is worth observing that these issues may be relevant at the stage of trial but need not be examined in detail at the stage of consideration of the bail application.
So far as the change in circumstance arising because of completion of investigation and filing of the complaint is concerned, the observation made by the Hon'ble Supreme Court in Virupakshappa Gouda Vs. State of Karnataka (supra) relied upon by learned counsel for the respondent is relevant :-
"13. On a perusal of the order passed by the learned trial Judge, we find that he has been swayed by the factum that when a charge-sheet is filed it amounts to change of circumstance. Needless to say, filing of the charge-sheet does not in any manner lessen the allegations made by the prosecution. On the contrary, filing of the charge-sheet establishes that after due investigation the investigating agency, having found materials, has placed the charge- sheet for trial of the accused persons. As is further demonstrable, the learned trial Judge has remained absolutely oblivious of the fact that the appellants had moved the special leave petition before this Court for grant of bail and the same was not entertained. Be it noted, the second bail application was filed before the Principal Sessions Judge after filing of the charge-sheet which was challenged in the High Court and that had travelled to this Court. These facts, unfortunately, have not been taken note of by the learned trial Judge. ............................................. ............................................................................................................"
Reliance has also been placed by learned counsel for the respondent on the order passed by the Co-ordinate Bench of this Court passed in S.B. Criminal Misc. 2nd Bail Application (7 of 7) [CRLMB-1659/2018] No.10115/2013 (Saint Shri Asharam Bapu Vs. State of Rajasthan), wherein it has been observed that there was no change in the circumstances except that the charge-sheet was filed. Considering the relevant facts, the Co-ordinate Bench again dismissed the second bail application vide order dated 10.02.2014. It goes to show that the factum of filing the charge-sheet is not a circumstance, favouring the accused-petitioner on which the second bail application may be allowed.
In the result, I do not find any reason to allow the second bail application moved on behalf of the accused-petitioner and the same is accordingly dismissed.
(DEEPAK MAHESHWARI)J. Rm/-