Bombay High Court
Mohamad Hanif Papa Shaikh vs Union Of India And Anr on 22 July, 2024
Author: N.J.Jamadar
Bench: N.J.Jamadar
2024:BHC-AS:28763
aba 3577 of 2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO.3577 OF 2023
Mohammad Hanif Papa Shaikh ... Applicant
versus
Union of India and Anr. ... Respondents
Dr. Sujay Kantawalla with Mr. Anupam Dighe, Ms. Chandani Tanna, Mr. Prathamesh
Chavan i/by India Law Alliance, for Applicant.
Ms. Nitee Punde, Special PP with Mr. Siddharth Chandrashekhar, for Respondent
No.1.
Mr. A.A.Naik, APP for State.
CORAM: N.J.JAMADAR, J.
DATE : 22 JULY 2024
P.C.
1. The applicant apprehends arrest in connection with the investigation
carried out in respect of mis-declared goods covered under Bill of Entry No.8569554
dated 1 November 2023 for the offencces punishable under Sections 135(1)(a) and
135(1)(b) of the Customs Act, 1962.
2. In the month of November 2023, Special Investigation and Intelligence
Branch (Import) carried out the inspection of alleged mis-declared goods covered
under Bill of Entry No.8569554. It transpired that the declared goods under the said
consignment were the table, sofa, chair etc., along with industrial constant
temperature Oven with standard accessories having assessable value of Rs.16,86,315/-
and involving duty of Rs.5,66,247/-. However, a detailed examination under
Panchanama dated 5 November 2023, resulted into recovery of 64084 pieces of E-
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cigarettes along with 8 unbranded bottles (10 ml each) and 113 bottles (60 ml) of
"Tokyo brand" liquid refill of e-cigarettes having total market value of
Rs.5,64,62,328/-. Those goods were concealed within the body structure of the
industrial constant temperature oven. E-cigarettes are prohibited for import as per the
Prohibition of Electronic Cigarette (Production, Manufacture, Import, Export,
Transport, Sale, Distribution, Storage and Advertisement) Act, 2019.
3. M/s. Shreeji Corporation was the importer. It is the case of Respondent
No.1 that Prashant B. Nalawade was one of the key conspirator who imported the
prohibited items. In his statement recorded under Section 108 of the Customs Act,
1962, the complicity of Manoj Borhade was revealed. Prashant B. Nalawade further
disclosed that the applicant was the owner of M/s. Dinshaw Shipping Agency,
Customs brokerage firm. Manoj Borhade had informed Prashant Nalawade that it was
the applicant who had contacted Manoj Borhade for clearance of shipment of e-
cigarettes and the applicant was one of the key persons behind the said import. Manoj
Borhade came to be apprehended. In the statement recorded under Section 108 of the
Customs Act, Manoj Borhade has stated that the applicant had told him that his
customs brokerage firm M/s. Dinshaw Shipping Agency was on alert, and, therefore,
he could not have filed the documents through his firm. Manoj Borhade had received
amounts of Rs.40,000/- and Rs.50,000/- from the account of the applicant for
clearance charges of the subject consignment. Thereafter, the said amounts were
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transferred to the account of M/s. Shreeji Shipping Agency.
4. It is, thus, alleged that, the statements of Prashant B. Nalawade and
Manoj Borhade along with the money trail, clearly established that the money paid
towards delivery charges in respect of the consignment in question, was from the
account of the applicant. In substance, it is the allegation of Respondent No.1 that
though the applicant was neither the importer, CHA or IEC holder of the subject
consignment, the applicant has an active role in the import of the subject consignment
containing prohibited goods i.e. e-cigarettes.
5. Mr. Kantawalla, learned Counsel for the Applicant submitted that the
applicant has appeared before the SIIB (Import) on a number of occasions. The
statements of the applicants have been recorded. The applicant has, thus, rendered
requisite cooperation in the investigation. Till date, the investigating agency has not
succeeded in demonstrating the role of the applicant in the alleged offences. Inviting
the attention of the Court to the replies filed before the Court of Session, Mr.
Kantawalla would urge that the investigating agency had claimed as late as on 2
January 2024 that the investigating agency was to find out the beneficial owner and/or
importer of the subject consignment. The Respondent No.1 is opposing the prayer for
bail on the specious ground that the applicant has not rendered cooperation in the
investigation, in the sense, that the applicant has not confessed the guilt. That cannot
be the expectation of the investigating agency from an accused who is directed to
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cooperate with the investigation, urged Mr. Kantawalla.
6. To this end, Mr. Kantawalla placed reliance on the decision of the
Supreme Court in the case of Santosh s/o Dwarkadas Fafat V/s. The State of
Maharashtra1 wherein the following observations were made :
"7. It appears, the IO was of the view that the custody of the
appellant is required for recording his confessional statement in terms of
what the co-accused had already stated in the Statement under Section 161
of the Code of Criminal Procedure, 1973. The IO was of the opinion that
the appellant was not cooperating because he kept reiterating that he had
not purchased the food-grains. The purpose of custodial interrogation is not
just for the purpose of confession. The right against self-incrimination is provided
for in Article 20(3) of the Constitution. It is a well settled position in view of the
Constitution Bench decision in Selvi and Ors. V/s. State of Karnataka 2 that
Article 20(3) enjoys an "exalted status". This provision is an essential safeguard
in criminal procedure and is also meant to be a vital safeguard against torture
and other coercive methods used by investigating authorities. Therefore, merely
because the appellant did not confess, it cannot be said that the appellant was not
cooperating with the investigation. However, in case, there is no cooperation on the
part of the appellant for the completion of the investigation, it will certainly be
open to the respondent to seek for cancellation of bail."
7. Ms. Punde, learned Special PP for the Respondent No.1, countered the
submissions on behalf of the applicant. It was urged that the mere fact that the
applicant has appeared before the IO on the scheduled dates or thereafter, is of no
significance. It was submitted that not only the applicant did not co-operate with the
1 (2017) 10 SCR 129
2 (2010) 7 SCC 263
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investigation, but the applicant had shown the audacity to question the authority of the
IO to interrogate him with regard to the transactions, which bear upon his complicity.
Insulated by an order of interim protection, the applicant declined to answer the
questions regarding M/s. Dinshaw Shipping Agency, his customs brokerage firm,
submitted Ms. Punde.
8. Inviting attention of the Court to the documents which evidence the
money trail, and the statements of Manoj Borhade, Ms. Punde would urge that the
applicant was the mastermind behind the import of prohibited goods. Therefore, the
custodial interrogation of the applicant is warranted.
9. I have perused the material on record and have given anxious
consideration to the submissions canvassed across the bar. Evidently, the applicant is
not a proprietor of, or otherwise connected with, M/s. Shreeji Corporation, the entity
which had imported the subject consignment. Nor the applicant is connected with
M/s. Perfecto Logistics, the Customs broker. The applicant allegedly operates
M/s.Dinshaw Shipping Agency, another customs brokerage firm.
10. The gravamen of indictment against the applicant is that the applicant
instead of submitting the documents through M/s. Dinshaw Shipping Agency, which
was put on alert list, had imported the prohibited goods through other firms and the
co-accused. Prima facie, it appears that the complicity of the applicant is sought to be
established primarily on the basis of the statements of the co-accused. Evidently, on
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the own showing of Respondent No.1, the applicant is neither an importer, nor CHA
or ICE in respect of the subject consignment. The money trail is pressed into service
as the evidence of the complicity of the applicant. The submission of Mr. Kantawalla
that having regard to the value of the goods imported by mis-declaring the goods
(Rs.5,64,62,328/-), credit of the amounts of Rs.40,000/- and Rs.55,000/- to the
account of Mr. Manoj Borhade from the account of the applicant does not, by itself,
constitutes an incriminating circumstance, appears to carry substance. The element of
proportionality requires consideration.
11. In any event, the material on record indicates that the applicant has
appeared before the IO and his statements have been recorded on 27 December 2023
and 28 December 2023. As enunciated by the Supreme Court in the Case of Santosh
S/o Dwarkadas Fafat (supra) and the fact that the applicant did not concede to the
prosecution version cannot be construed to mean that the applicant did not render the
requisite co-operation in the investigation.
12. The situation which thus obtains is that there is prima facie no material
to show the involvement of the applicant with the subject consignment, either as an
importer or CHS or ICE. The applicant is sought to be roped in on the basis of the
statements of the co-accused. There does not appear such credible material as to
make out a prima facie case against the applicant so as to warrant his custodial
interrogation. I am, therefore, inclined to protect the liberty of the applicant.
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13. Hence, the following order :
ORDER
(i) The Application stands allowed.
(ii) In the event of the arrest of the Applicant - Mohamad Hanif Papa Shaikh in connection with the investigation at Special Investigation Intelligence Branch (Import), Jawaharlal Nehru Customs House, Uran, the Applicant be released on bail on furnishing a PR bond in the sum of Rs.50,000/- with one or two sureties in the like amount.
(iii) The Applicant shall co-operate with the investigation and report to the investigating authority as and when directed.
(iv) The Applicant shall not tamper with the prosecution evidence and/or give threat or inducement to the first informant or any of the prosecution witnesses or any of the persons acquainted with the facts of the case.
(v) The Applicant shall regularly attend the proceedings before the jurisdictional Court.
(vi) The application stands disposed.
( N.J.JAMADAR, J. ) Digitally signed by SWAROOP SWAROOP SHARAD SHARAD PHADKE PHADKE Date:
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