Calcutta High Court (Appellete Side)
Kapil Shroff vs Additional Director General on 16 May, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
1
16.5.2013 C.R.M. 3350 of 2012
CRAN No. 437 of 2013
Kapil Shroff
Vs.
Additional Director General,
Directorate of Revenue Intelligence
Mr. Sekhar Basu
Mr. Sandipan Ganguly
Mr. Ayan Bhattacharya
Mr. Anurag Bagaria
...............For the
Petitioner
Mr. Kaushik Dey
............ For the
Respondent
This CRAN application arose out of order dated 7.3.12 passed in CRM No. 3350 of 2012 under Section 439(1)(b) of the Code of Criminal Procedure, 1973. On or about 24.2.12, the petitioner filed an application being CRM No. 3350 of 2012 challenging the order No. 3 dated 10.2.12 passed by the learned Chief Sessions Judge in connection with DRI.F No. 19/Kol/APP/20120/392 under Section 104/132/135/135A of Customs Act read with Section 193/420/471 IPC read with Section 120B IPC when the learned Judge imposed certain conditions while granting bail to the petitioner.
The petitioner is a citizen of India and one of the Directors of the Company Space Matrix Pvt. Ltd. The said company is a unit in a special economic zone at Falta, West Bengal. On 4.2.12, 2 the petitioner was arrested by Customs Officer in purported exercising power conferred under Section 104 of the Customs Act, 1962 in connection with a consignment of export made by the said company. The petitioner was arrested for commission of offence under Section 104/132/135/135A of the Customs Act read with Section 193/420/471 IPC read with Section 120B IPC. Ground of arrest was communicated to the petitioner. The offences under Customs Act, 1962 are bailable and non-cognizable.
An Officer of Customs is not a Police Officer. Section 104 of the Customs Act authorizes an Officer to arrest a person if he has reason to believe that any person in India has committed an offence punishable under Section 132/135/135A/136 of the Customs Act. The Officer of Customs has no right to investigate any offence under Section 193/420/471 120B IPC. The petitioner was produced before the learned Metropolitan Magistrate on 4.2.12. The petitioner was sent to the judicial custody contrary to the law laid down by the Supreme Court in the case of Om Prakash vs. Union of India reported in 272 ELT Page 321 (Supreme Court). The petitioner preferred an application before the learned court of Sessions for bail. On 10.2.12, the petitioner was granted bail by the 3 learned Sessions Judge with the condition that he would not leave the territorial jurisdiction of the State of W.B. and that he would surrender his passport before the Senior Intelligence Officer and that the petitioner would be made available for interrogation before the Senior Intelligence Officer before the Director of Revenue Intelligence, Calcutta and that he would not directly or indirectly threaten the person so as to dissuade him from disclosing the fact to the said Officer. The petitioner obtained bail and surrendered his passport to the respondent. Thereafter, the petitioner filed an application under Section 439(1)(b) of the Code of Criminal Procedure assailing the condition imposed at the time of granting bail. On hearing on 7.3.12, His Lordship modified the order of bail that the petitioner would not leave the territorial jurisdiction of State of W.B. without permission of the Senior Officer of the Directorate of Revenue Officer of Calcutta. The other conditions of bail remained. The petitioner states that the offence under Customs Act being a non- cognizable offence could not be investigated without the permission from the learned Magistrate. No complaint has yet been filed against the petitioner. Further, the offence under Section Customs Act has been compounded. The 4 petitioner filed application for quashing proceedings and investigation under Section 226 of the Constitution of India in the Hon'ble Court in WP No. 315 of 2012. The petitioner states that the business of the petitioner is connected with the foreign trade. Since last 12 months the petitioner is not permitted to go abroad. The company of the petitioner is suffering immense loss and injury because of the wrongful action on the part of the respondent. The petitioner filed an application being CRAN No. 2168 for relaxation of condition bail on 27.6.12. He has a fundamental right of foreign travel. The present restriction on foreign travel would cause immense hardship to the petitioner by withholding passport and forbidding him from travelling overseas. Foreign travel is essential part of his business based on export and import. Since February, 2012, the business has been in stand still. So, the petitioner prayed for permitting him to visit overseas between 25.2.13 to 15.4.13 on such terms and conditions as the Hon'ble Court may deem fit and proper and accordingly, prayed for modification of the condition of bail.
In support of his contention, the learned counsel for the petitioner submitted before me written argument which has been kept as a part 5 of the record. It was prayed therein subsequently for permitting him to go abroad from 15th May, 2013 to 15th June, 2013 on executing a bond as the Hon'ble Court may think fit and proper.
Further, it was contended that the offence being bailable no condition can be imposed regarding movement of the present petitioner as held in by the Hon'ble Supreme Court in the case of Vaman Narayan Ghiya vs. State of Rajasthan reported in 2009 (2) SCC 281. Further, personal liberty as envisaged in Art. 21 of the Constitution of India includes right to go abroad and without due process of law merely on account of unfounded apprehension of the prosecution that an accused may abscond, passport of the accused cannot be impounded nor any restriction can be put on the movement of the person in view of the authoritative pronouncement of the Hon'ble Supreme Court as held in Maneka Gandhi vs. Union of India reported in 1978 (1) SCC 248.
Strongly such argument was challenged by the learned counsel for the Customs i.e. Opposite Party.
On hearing of both sides, the following facts have emerged so far.
i) Investigation of this case is already complete. ii) during investigation, the present petitioner have filed a writ case, WP No. 316 of 6 2012 challenging the applicability of Customs Act, 1962 and asserting the applicability of Special Economic Zone Act, 2005 under whom the petitioner's unit is one at Falta, West Bengal. In that case, the petitioner prayed for release of capital goods and raw materials seized under the 'Panchnama' dated 29.2.12 and prayed for rescinding the notice to freeze bank accounts; iii) in that writ case WP No. 316 of 2012 His Lordship on 3.7.12 passed order that no money shall be withdrawn from the bank accounts excepting usual course of business for which separate accounts shall be maintained and except for repayment of bank loans or payment of all taxes and duties; iv) the respondent after due inquiry and examination of the petitioner issued show cause notice under Customs Act, 1962 vide letter No. DRI.F No. 19/Kol/APP/2012/431-432 dated 1.2.13 stating inter alia that the petitioner has hatched up a conspiracy to do fraud on public money and government revenue by setting up a unit inside Falta SEZ and his activities have given rise to liability amounting to Rs. 91.30/- Crores alongwith interest and he is liable to penal action under Section 112(a) and 114 of the Customs Act, 1962. So, he was asked to show cause before the Commissioner of Customs (Airport and ADMM) Customs House, 51/1, 7 Strand Road, Calcutta-1 within 30 days from the date of receipt of the notice as to why action shall not be taken against him; and v) so far, the petitioner has not submitted any reply to show cause notice.
Needless to mention that brief fact is based on specific intelligence export and import containers were intercepted and on examination it was found that the containers were loaded with junk CDs and packing boxes stuffed with foam though value of goods was declared as approximately Rs. 49.35/- crores. Further, the case of the respondent is that the amount of revenue involved was Rs. 91.40/- crores.
In the meantime, i) the petitioner has come up with the prayer for modification of condition of bail and relaxation to the extent of permitting him to travel overseas for a month and
ii) his passport may be directed to be returned to him.
The learned counsel for the petitioner further submitted that taking responsibility of his client, he assures the court that only for a month the petitioner is very much required to go abroad for his business purpose and surely he will come back and face trial. He further submitted that the petitioner be allowed to furnish bank guarantee of Rs. 10 lacs/cash deposit of the same with the 8 Office of the Registrar General, High Court Appellate Side Calcutta. He further submitted that the seized materials from the custody of the petitioner are sufficient as security, in addition to the fact that he has left behind his residential property and other properties and his family at Calcutta which are also equivalent to guarantee.
The learned counsel for the respondent raised vociferous objection against such prayer and contended that once the accused petitioner leaves this country with his passport he will never return to face trial here in India. So, by no stretch of imagination his prayer can be conceded to.
I have considered both sides contention carefully.
It is true that the alleged offence is extremely serious in nature and revenue of Rs. 91.40 crores as well as indirect amount of revenue of Rs. 500/- crores are involved. It may be but that is an amount disputed by the present petitioner. Further, this is a case where punishment is maximum for 7 years with fine.
It has not been disputed by the respondent that the petitioner's business does not demand his movement outside India (as revealed from the petitioner's petition) and documents placed by the respondents. So, the question under Art. 21 9 of the Constitution of India i.e. right to life does not come into operation.
The State is definitely within its domain to put restriction about freedom of movement but a balance has to be struck between 'liberty' and 'justice'. On inquiry the learned counsel for the respondent could not give any positive and acceptable answer over the question "whether custody trial is needed in such type of case". Even the respondent cannot give any clear-cut probable time during which the trial may be concluded. So far, the petitioner has not submitted show cause. Then why the respondent sat idle is not clear. The rationality and proportionality of the prayer of the petitioner should be considered. The deprivation of his personal life and liberty has to be taken care of.
Considering entire circumstances, I am of the view that the matter may be disposed of as follows.
The petitioner shall be permitted to take back his passport from the concerned authority to go abroad strictly only for a month according to his requirement subject to the following conditions:
i) he shall furnish his address and his telephone numbers as well as names of the 10 persons to be contacted to collect his whereabouts in the countries he likes to travel;
ii) on every alternate day he shall contact over Cell-phone No. 9433034888 of Sri Suman Kr. Gangopadhyay, Senior Intelligence Officer or in case of non-availability of Sri Gangopadhyay to Cell-phone No. 8902494206 of Sri Saibal Gupta, Intelligence Officer on every alternate day for tracking his movement and other purposes as the investigating authority may require;
iii) he shall deposit cash of Rs. 1 crore with the Registrar General, High Court, Calcutta before getting back his passport;
iv) in terms of supplementary affidavit filed by him today his residential flat measuring 1104 sq. ft. at 5/7, Burosibtala Main Road, Calcutta-700 038, land measuring 37.35 cottahs as per deed No. 14256 of 2006 standing in the name of the petitioner and another land measuring 13.32 cottahs in terms of deed No. 11529 of 2012 shall not be disposed of and those properties should be free from all encumbrances;
v) no prayer should be lodged presently for return of the seized materials; 11
vi) he is permitted to go to abroad with effect from 1.6.2013 and stay there till 30.6.2013.
It must be ensured that he shall come back to India positively by 1.7.2013 and resubmit the passport to the proper authority under whom it is presently lying.
The conditions so imposed above shall remain in force only for a month as indicated above.
Thus, the petition stands allowed and disposed of.
Let a plain copy of this judgment duly countersigned by the Assistant Registrar (Court) be supplied to the parties on usual undertakings.
(Toufique Uddin, J.)