Bombay High Court
Rajeev Bhatia vs Abdulla Mohmed Gani And Another on 28 June, 1991
Equivalent citations: 1991(3)BOMCR46, 1992CRILJ2092
ORDER
1. Issues of some interest as also of considerable importance arise in this criminal application, which are summarized as follows :-
a) Whether it is open to an accused to pray for variation of the essential conditions on which he has been released on bail after the bail order has been availed of by him and a considerable period of time has elapsed.
b) Whether the principles analogous to res judicata would be applicable in a case where certain conditions of a bail order passed by a subordinate Court have not been challenged before the High Court and only certain other parts of that order were appealed against and, consequently, whether the original order can thereafter be regarded as the subsisting order of the trial Court and consequently varied by the Sessions Court at the instance of the applicant.
c) In a case where an accused has exercised an option of furnishing cash bail and desires to thereafter change over to the security of a surety, whether the Customs Authorities are within their right in objecting to the refund of the case amount pending the trial.
d) Whether the bail order once passed by the High Court ought to be modified at a point of time long after the same has been availed of.
2. The applicant before me, Rajeev Bhatia, who is the Assistant Collector of Customs, has challenged an order dated 10-5-1990 passed by the learned Additional Sessions Judge, Greater Bombay in Criminal Miscellaneous Application No. 314 of 1990. The learned Additional Sessions Judge had effectively reduced the bail amount of the applicant therein, respondent No. 1 to this application from Rs. 75,00,000/- to Rupees 30,00,000/- and had also permitted respondent No. 1. Accused the refund of the cash amount of Rs. 25,00,000/- deposited by him in the trial Court in his furnishing the requisite surety/sureties for the aggregate amount of Rs. 30,00,000/-. The applicant was also permitted to travel to Calicut on his giving prior intimation to the Customs Authorities. In addition to this, the applicant was also permitted to travel to any other place in India on his giving 48 hours' prior intimation to the Customs Authorities about the place of his destination, mode of travel to that destination and the period for which he would be at the proposed destination. The applicant was directed to deposit his passport or any fresh passport acquired by him with the Customs Authorities and there was a general direction that the applicant was to make himself available to the Authorities within a prescribed time on being called upon to do so or on notice to this effect being served on his advocate. One more condition of consequence is that the applicant had earlier been directed to deposit with the Customs Department the title-deeds in respect of all properties owned by him and his wife which direction the applicant had complied with. The learned Additional Sessions Judge, however, imposed a further condition to the effect that the applicant was required to give an undertaking to the trial Court not to dispose of or create any third party interest in the properties of which the title-deeds had been deposited.
3. As indicated above, the learned Additional Sessions Judge passed the aforesaid order on 10-3-1990 and the present applicant on behalf of the Customs Department filed the present Criminal Application before the High Court on 16-5-1990 and obtained ad interim stay of the order of the Sessions Court. The recitals in the petition are to the effect that the present application has been preferred to the High Court "in its inherent revisional powers." Such confusion is not readily execusable on the part of a Government Authority, particularly the Customs Department, which has the assistance of a legal department and a host of penal of standing Counsel. The petition could either be for revision of the order of the Sessions Court or for quashing of that order in exercise of the inherent powers of this Court. The powers of the High Court under S. 397 of the Code of Criminal Procedure and S. 482 of the Code of Criminal Procedure are distinct, different and mutually exclusive and ought not to be equated. Mr. Gupte, learned counsel appearing on behalf of the Department, has explained that the petition was hurriedly drafted and has requested that it be treated as being one under S. 482 of the Code of Criminal Procedure.
4. This application was once part heard before me prior to the summer vacation at which time after hearing the parties, by an order dated 3-5-1991, I had granted to the petitioner permission to leave Bombay under certain conditions. Being a part-heard matter, the application has been heard by me on the last four dates of hearing when Mr. A. R. Gupta, learned counsel on behalf of the applicant, and Mr. M. K. Pathare have advanced detailed submissions.
5. To beings with, Mr. Gupte desired that this Court should go through the relevant statements and averments contained in several of the earlier applications and affidavits filed by the respective parties before different Courts as also the orders passed by the different Courts from time to time. It is unnecessary to burden the record with a detailed account of the background of this case, but I am summarizing such of it as is relevant.
6. It is alleged against the present respondent No. 1 (hereinafter referred to by me as "the Accused") that in the month of November, 1988, the Customs Authorities effected a seizure of a consignment of gold valued at Rs. 2,82,46,350/- and that this seizure indicated an ingenious plan for smuggling large quantities of gold into the country. It was alleged that a clearing agent at Bombay had applied for the clearing of certain goods on behalf of one Bhaskaran, who is alleged to have returned to India from the gulf on a transfer of residence and had consequently brought various household good with him. An examination of the consignment indicates that a substantial quantity of gold had been concealed in the compressor of an air-conditioner. The investigation revealed that, in fact, it was the Accused who had devised a clever plan to obtain the passports from various persons in Kerala and on the strength of these passports to import goods into the country and get them cleared on the false ground that these persons had come on transfer of residence when, in fact, they had not and, furthermore, that gold of substantial quantity was being smuggled concealed in various gadgets which, in the present instance, was an air-conditioner. The accused and his wife are alleged to be partners in business. Though residents of Calicut in Kerala, they were supposed to be the owners of hotel "SANDS" at Bombay. It was alleged that the accused and his wife, who is also a co-accused before the trial Court, own substantial properties and that they also have foreign connections. The Department further alleged that the investigations reveal that the accused had travelled on more than one passport. It was also the charge of the Department that for a considerable period of time, the accused and his wife could not be traced by the Department either at Bombay or at Calicut and that they initially applied to the Nagpur Bench of this Court on 26-12-1988 for grant of anticipatory bail, which was granted to them in the sum of Rs. 1,00,000/-. The learned Judge, who heard the application, had observed that there was nothing to connect the present accused with the seizures and accordingly passed the bail order. The Department applied to the High Court for cancellation of that order and any my brother Suresh, J. by his order dated 10-1-1989 set aside the order of anticipatory bail as far as the present accused was concerned and directed that the bail amount as far as his wife was concerned be enhanced to Rupees 10,00,000/- with one surety in the like amount. Mr. Gupte has pointed out at this stage that, according to him, both the accused could not be traced right from January, 1989 up to December, 1989.
7. As a sequel to this situation in the month of February, 1989, my brother Suresh, J. cancelled the bail order dated 10-1-1989 in favour of the wife and it appears that the Supreme Court rejected the Special Level Petition filed against the High Court order.
8. The Customs Authorities on completion of their investigations filed a complaint, being C.C. No. 742/CW/1989 before the trial Court on 1-8-1989 against both the accused. On that day, the Court issued a non-bailable warrant against accused No. 1 and a warrant in the sum of Rs. 30,00,000/- or Rupees 25,00,000/- cash deposit against the wife, accused No. 2, principally on the ground that both the accused were not available in spite of cancellation of the anticipatory bail order earlier passed by the Nagpur Bench. The wife surrendered to the trial Court on 12-9-1989, and after considering her application, she was released on cash deposit of Rs. 20,00,000/-. She thereafter preferred Writ Petition No. 1193 of 1989 for quashing of the proceedings against her, which petition was rejected by the High Court on 20-10-1989. The present accused filed a petition before the Nagpur Bench of the High Court and obtained stay of the non-bailable warrant issued by the trial Court which stay was subsequently vacated and the accused thereafter surrendered to the trial Court on 12-12-1989. The learned Chief Metropolitan Magistrate, after hearing detailed arguments on behalf of the accused and the department, by a speaking order dated 10-12-1989. Directed that the accused be released on bail in the sum of Rs. 75,00,000/- with one surety in the like amount or cash deposit of Rs. 50,00,000/- in lieu of the security. This order was challenged before the High Court and my brother Guttal, J. on 22-12-1989 rejected the application made by the Prosecution for cancellation of bail. By a separate order dated 22-12-1989 passed on the application filed by the accused for reduction of the cash bail amount, the High Court reduced the cash bail amount of the accuse on the following terms and conditions :-
"(i) The Applicant shall deposit a sum of Rs. 25 lakhs instead of the amount of Rs. 50 lakhs ordered by the learned Magistrate. Upon such deposit, he shall be released.
(ii) The applicant shall deposit with the office of the Collector of Customs, Airport, Bombay, the title deeds including the share certificates of the co-operative Society Society in respect of the residential flat at 51. Swarna Apartments, Chapel Road, Santacruz (West), Bombay.
(iii) The applicant shall deposit with the office of the Collector of Customs, Airport, Bombay, the title deeds including the share certificates in respect of flat at 28, Ground Floor, Eroleite Co-operative Housing Society, Juhu Tara Road, Bombay.
(iv) The Applicant shall deposit with the office of the Collector of Customs, Airport, Bombay, the share certificates in respect of the 50% shares held by him together with the share certificates of 25% shares held by his wife, in Hotel Sands Pvt. Ltd.
(v) The applicant shall deposit with the office of the Collector of Customs, Airport, Bombay, the title deeds in respect of the farm House and the land at Thalakulathur Post Kozhikode (Calicut), Kerala bearing Survey No. V/163.
5. The title deeds and documents referred to at Sr. Nos. (ii) to (v) shall be deposited with the Office of the Collector of Customs, Airport, Bombay, on or before 5th January 1990. Meanwhile, the applicant shall be released on bail upon his depositing Rs. 25 lakhs.
If the applicant fails to deposit the documents and title-deeds referred to at Sr. Nos. (ii) to (v) in paragraph 4 above within the period stipulated above, this Order in its entirety shall cancelled forthwith and in that event this application shall stand rejected."
The accused thereafter availed of this order and came to be released on bail. As indicated earlier, his wife had already been released on bail in the sum of Rs. 20,00,000 cash deposit on 12-9-1989. Thereafter it appears that Criminal Application No. 448 of 1990 was preferred by the wife before the High Court for review, which came to be rejected save and except with regard to certain minor modifications regarding her being permitted to visit Calicut, etc. However, as far as the present accused with whom, we are concerned, it is pointed out by Mr. Gupte that application No. 490 of 1990 variation of the terms and conditions of his bail was filed before the High Court, to which application the Department filed their affidavit-in-reply, but on the very day, i.e. on 9-3-1990, the application was withdrawn. Mr. Gupte contends that this is a circumstance of some importance because the accused himself gave up the application for modification of the terms and conditions filed before the High Court in the month of March 1990 and thereafter could not have, under any circumstances, moved the subordinate Court for variation. Mr. Gupte submits that if at all any such application was to be preferred at a subsequent point of time that it could only have been preferred to the High Court because it was only this Court which had imposed the original terms and conditions and that under these circumstances the sessions Court had no jurisdiction to entertain any such application.
9. As against this position, Mr. Pathare states that the need to approach the High Court normally arises in cases where one comes up against an order of refusal to grant bail and after this stage is over even if certain terms have been granted on to the bail order passed by the Magistrate that the correct forum for variation of those conditions would be the Trial Court because the order of the High Court has merged in the order of the Trial Court. This submission is wholly untenable on the facts of the present case because the conditions imposed of the accused were conditions imposed by the High Court on 22-12-1989 and a variation of that order could only be done by an application to this Court. It is a total misconception of law to argue that such an order has merged in the original order of the subordinate Court, the correct position in law being that the order of the subordinate court stands varied or modified by the order of the High Court and it would, therefore, not be open to any subordinate Court to thereafter alter that order.
10. Another limb of the argument advanced by Mr. Gupte is that the original bail order passed by the learned Chief Metropolitan Magistrate on 18-12-1989 was a composite order whereby the accused had an option of furnishing a surety of Rupees 75,00,000/- or deposit cash of Rupees 50,00,000/-. The application filed by him before the High Court challenging this order does indicate that he had moved the High Court for reduction of the cash bail amount alone. A perusal of the order passed by Guttal, J. 22-12-1989, however, very clearly indicates that the only point canvassed on behalf of the accused before the High Court was with regard to reduction of the cash bail amount of Rs. 50,00,000/- to a reasonable amount and for alteration of conditions imposed by the learned Magistrate. The issue as to whether the surety in the sum of Rs. 75,00,000/- ought to have been reviewed was neither argued nor was it decided by the High Court. In substance, therefore, the peculiar position emerges that the original order of the learned Chief Metropolitan Magistrate in respect of the surety/sureties for Rs. 75,00,000/- remained unaltered and as far as cash bail amount was concerned, the figure stood altered from Rs. 50,00,000/- to Rs. 25,00,000/-. In substance, therefore, after the passing of the High Court order, it was still open to the accused to be released on bail if he produced surety in the sum of Rs. 75,00,000/- as per the original order which remained intact to that extent. The submission of Mr. Gupte, therefore, that neither the Trial Court nor the sessions Court was competent to entertain an application for reduction of surety amount is misplaced and is accordingly rejected.
11. Mr. Gupte advanced another argument of some ingenuity which is to the effect that a order for release of an accused on bail, once availed of, exhausts itself and is, therefore, not capable of thereafter being resurrected and reimplemented. He contends that the accused having exercised one of the two options and having been released on bail, he cannot thereafter ask for change of the option exercised as it is no longer available to him. Elaborating, Mr. Gupte contends that if an accused is permitted to re-approach the Court every now and then that there will be no finality to orders or to their execution. This submission proceeds on a basic fallacy which overlooks the fact that unlike a decree or a final order of a Court, that an order whereby an accused is released on bail is an interim direction incorporating one or more conditions which is capable of reconsideration in an appropriate situation. Mr. Gupte is right in submitting that ordinarily a Court should not and would not reconsider such an order unless good grounds are made out, such as drastic change of circumstances, lapse of considerable time, grave hardship and the like.
12. The essential challenge from the Customs Department to the order of the Sessions Court impugned in this petition proceeds on the ground that the Sessions Court had no jurisdiction to entertain an application from the accused having regard to the background of this case. Mr. Gupte submitted that the conditions imposed on the accused by the High Court on 22-12-1989 could not have been varied either by the learned Magistrate or by the learned Additional Sessions Judge. Mr. Gupte went to the extent of contending that the application No. 448 of 1990 filed by the accused for variation of the terms having been withdrawn that it was not even open to the accused to re-agitate that issue before the High Court it is essential to dispose of this last submission by clarifying that in the first instance the application was neither pressed nor decided on merits and a withdrawal, therefore, could not create any bar even if one were to otherwise exist. Mr. Pathare has stated that the reason behind the withdrawal was because the learned counsel appearing on behalf of the accused felt that the correct forum was to apply to the lower Court. Quite apart from this aspect of the matter, since Mr. Gupte basically contended that the principles principles analogous to res judicata would apply to the case of the present type, that submission will have to be dealt with. An application for the grant of bail or for that matter, for variation of the conditions is essentially an interim application and a decision even on merits would, therefore, be a verdict in relation to what material was before the Court both as regards the factual and legal aspect of the case are concerned. It is well settled law that after the lapse of time or on a fresh set of facts or circumstances which have been altered or changed, it is always open to the party concerned to move the forum for a review or reconsideration of the earlier order. This is not to be misunderstood as conveying a blanket licence to a litigant to burden the already over-worked Courts with repeated applications. Undoubtedly, unless there is cogent and valid grond and unless it can be demonstrated that a de novo consideration is warranted, a further application would certainly be barred. In a given set of circumstances, however, one cannot lay down a total barrier to the entertainment of such an application which as indicated, in special circumstances, would still be maintainable.
13. Mr. Pathare has pointed out that the accused was in a desparate situation in December 1989 when he had surrendered to the authorities and where he was faced with a bail order imposing staggering figures which he could not avail of. While procuring sureties for the sum of Rs. 75 lakhs was virtually impossible, the only option open to him was to collect the requisite funds through loans and avail of the cash bail order provided it was within his reach. When the High Court reduced the cash bail amount to Rs. 25 lakhs in a desparate bid to come out from custody, he had requested friends and business associates to loan him the money which, in turn, came to be deposited with the Court and on which he was required to pay heavy interest. It was his expectation that he would be able to get the necessary sureties provided the bail amount was reduced to a reasonable figure and after making these attampts, that he applied to the sessions Court for reduction of the surety amount of Rs. 75 lakhs and for certain relaxation with regard to the other conditions. Mr. Pathare submitted that the accused was advised that the original order having been passed by the Trial Court, that it was only a superior Court which could vary that order and it was for this reason that the sessions Court was moved. I have already dealt with the objections raised by Mr. Gupte regarding the jurisdiction of the sessions Court with regard to the variation of the question of the surety amount. In so far as the original order for Rs. 75 lakhs was an order passed by the learned Chief Metropolitan Magistrate which order had not been varied by the High Court, it was certainly within the province of the sessions Court to have entertained an application for the revision of that order. To this limited extent, therefore, the Sessions Court did have jurisdiction to entertain the application if it was restricted to the reduction of the surety amount alone. However, having regard to the remaining terms that had been imposed on the accused by the High Court, which were inter-related and of which variance was sought in the same application, the learned sessions Judge ought not to have entertained the application in so far as he did not possess the requisite jurisdiction to vary an order of the superior Court.
14. Mr. Gupte submitted that an order granting a bail which gives an option to the accused either to produce a surety or to deposit cash, exhausts itself once the order has been availed of. To this extent, he submitted that it is not open to the accused thereafter to ask for the refund of the cash if he produces a surety. Mr. Gupte advanced the alternative argument that even if this submission did not find favour with the Court, that on the facts of the present case, under no circumstances should the accused be permitted to withdraw the cash amount and furnish a surety. The reason for this, according to Mr. Gupte, is that the department is anxious to ensure that the accused does not abscond and that one of the factors that would prevent him for doing so is the fact that he would straightway lose that much amount of money which factor would not deter the accused so much if it was some other person, namely, surety who had to pay up that amount. Mr. Pathare tried to counter this argument by immediately retorting that no surety in a case of this type, however well-known to the accused, would take the risk of coming forward on his behalf unless the accused deposited a substantial amount of money with him. This aspect, however, is both irrelevant and incidental. What needs to be borne in mind is that the bail order does not exhaust itself but is an interim order which is operative until the disposal of the trial. Secondly, the option of availing of either of the norms prescribed by the Court is entirely that of the accused and it is not within the province of the Department to either object or to interfere with the exercise of that option. Where the court has given the accused two options and one is availed of initially, nothing prevents the accused from changing over to the other option provided the surety produced by him is so approved.
15. There is considerable substance in the strong grievance projected by Mr. Pathare who had pointed out that the order passed in his favour for reduction of the bail amount dated 10th May 1990 was stayed on the application of the Department on 16th May 1990 and even though over 6 year has clapsed, that the Department has done nothing to have that application disposed of. In the meanwhile, the accused has been virtually crippled because he has borrowed money under pressure on very unfavourable terms and he has not been able to obtain a refund from the trial Court. The operation of a bail order is not intended to act oppresively against a party to a legal proceeding and the principle of fairness would, therefore, require that a reasonable approach be adopted balancing on the one side the requirements of law guided by the rule of caution and tempered on the other by the necessity to be fair to the accused.
16. Mr. Gupte has very strongly assailed the order of the Additional Session Judge whereby the amount has been reduced from the original amount of Rs. 75 lakhs of Rs. 30 lakhs. The learned Additional Sessions Judge has adopted the reasoning that the courts invariably follow a norm whereby the accused is given the option of producing a surety for a prescribed amount or of providing cash bail for a slightly lower amount. The figures invariably are in close proximity with each other and, consequently, the learned judge took the view that a surety of Rs. 30 lakhs would be closer to the cash bail of Rs. 25 lakhs and would be quite reasonable. Mr. Gupte submitted that the department has over-whelming evidence to indicate that the accused is involved directly in several transactions each worth crores of rupees and that, consequently, it is essential to fix a very high figure in order to prevent a man of that status and of those means from absconding. Mr. Pathare on the other hand insisted that this Court must at this point of time fix the surety figures at a reasonable quantum and one which the accused can avail of. He requested this Court to consider that effectively the accused will have to make arrangements not only for himself but also for his wife which factor was taken into account by the learned single Judge while reducing the bail amount. This aspect has been overlooked by the Learned Sessions Judge. Mr. Pathare requested the Court to take a realistic view and to consider the fact that the Title Deeds in respect of properties worth over Rs. 10 crores were with the authorities and that, consequently, the quantum of the bail amount is not the solitary factor involved. Mr. Pathare, therefore, submitted that the bail should be "nominal".
17. It is necessary for me to record that the Department did not file any reply to the application before the Sessions Court and even with regard to the present proceedings, there is virtually nothing placed on record by the Department in the way of answering Mr. Pathare's submission that the order dated 22-12-1939 must be reviewed at this point of time. It is true that Mr. Gupte has drawn my attention to the various orders that were passed but the all important question before me is the fact that the accused who was released on bail in December 1989 has admittedly complied with all the conditions of the bail and the same applies to his wife. They have also attended the Court whenever required and made themselves available to the authorities. The adjudication proceedings have been completed and I am informed at the Bar that the accused has paid a part of the penalty and that the appeal is pending. Admittedly, with the arrears of work before the Trial Court, it is going to be a long tie before the trial Court, it is going to be a long time before the trial commences and having regard to the heavy record, it will take even longer for the trial to conclude. Under these circumstances, the accused has certainly made on a valid case for reconsideration at this stage and the Department has virtually no ground of objection except the anxiety that the accused may abscond. Even that anxiety to my mind is wholly misplaced because it is demonstrated that the accused and his wife family are permanent residents of Calicut, that he has vast immovable properties and assets both in Bombay and in Kerala and that he is setting up a huge medical complex at his home town. Mr. Pathare submitted that contrary to the anxiety of the Department, that, in fact, the accused genuinely desires to contest the accusations against him and to demonstrate that the charges of his involvement in the importation of the goods from the Gulf and the concealment of the gold therein to totally misplaced. In the special circumstances of the present case, to my mind, the apprehension of the Department that the accused will abscond is misplaced. The arguments that in several customs cases even where the bail amounts have been relatively heavy the accused have abaconded is no argument against the present accused but is only a circumstance which the court will bear in mind while considering the quantum of his bail. It is obviously at the behest of the Department that an inordinately high figures were fixed by the court earlier which proves to be totally unrealistic and, therefore, could not be availed of. It is in the light of these circumstances that I am inclined to take the view that since the accused has already provided security of his properties running into many crores of rupees that one or more sureties in the aggregate value of Rs. 20 lakhs would be sufficient. This order is being passed on the footing that the accused desires to avail of such an order upon which he shall be entitled to the refund of the cash amount deposit by him with the trial Court and, consequently, no option is being provided to the accused to furnish any alternative cash security of the lower amount.
18. Coming to the last head of controversy, the learned Additional Sessions Judge has imposed certain conditions on the accused which, for the sake of convenience, I am reproducing below.
"a-1) The amount of surety required for the bail is reduced to Rs. 30 lacs.
a-2) The petitioner to furnish one surety for the amount of Rs. 30 lacs or more than one sureties for the aggregate of the like amount.
a-3) The applicant to given an undertaking to the trial Court not to dispose of or create any third party interest in the properties of which the Title Deeds have been deposited by the applicant in compliance with the High Court orders; jointly with his wife who is alleged to be joint owner of this property.
b-1) The standing permission to the applicant is granted for going to his native place Calicut at Kerala on condition that he gives prior intimation of his leaving for Calicut to the Cuatom Authorities along with the particulars of his mode of travel to Calicut and period for which he would be residing at Calicut.
b-2) The applicant is granted standing permission to go to any other place than Calicut, within India on condition that he gives at least 40 hours working day prior intimation to the Custom authorities about the place of his destination, mode of travel to that destination and the period for which he would be at the proposed destination.
b-3) The applicant to deposit his passport with the custom authorities if not already deposited and to deposit any fresh passport acquired by him thereafter with the custom authorities when such passport is acquired by the applicant.
c) The applicant to be present within a week at the required place by the customs authorities from the intimation of his presence being delivered to his adv. Miss Vidya Kasele.
c-2) The applicant to give an undertaking that he would remain present within a week from an intimation of his presence being required, being delivered to his adv. Miss Vidya Kasale," Mr. Gupte has contended that, in substance, the conditions for the release of the accused were imposed by the High Court vide its order dated 22-12-1989 which I have referred to earlier. I have already held that it is not open to the subordinate court to vary the order of the superior court and, consequently, the learned Additional Sessions Judge ought not to have varied those conditions. To this extent, therefore, the order of the learned Additional Sessions Judge will have to be set aside.
19. Additionally, Mr. Gupte has contended that there is no warrant for the alteration of any of the conditions imposed on the accused in December 1989. Mr. Pathare, on the other hand, submits that the High Court at that time had taken note of the fact that the accused had stayed away from the proceedings for over 10 months and that it was, therefore, necessary to impose certain stringent conditions. That position is drastically altered now because undisputedly the accused has been available whenever required, but more importantly, he is completely bound down by the terms of the bail order and that the title-deeds in respect of all his properties have been deposited with the Department. Mr. Pathare, therefore, submits that even if on technicality the order of the sessions court is required to be set aside that it is open to this Court to vary the terms of the order earlier passed on the ground submitted by him. He points out that no material has been placed on record in support of the Department's case that the accused must remain in Bombay or that he should not visit any particular place. There is still a presumption of innocence in his favour and his rights as a citizen to travel freely within the country and to do business remain unfettered.
20. The principal anxiety of the Customs Department is that a situation should not arise whereby the accused absconds. Bearing this factor in mind, unlike in many other cases, a special condition has been imposed on him, namely, that the title-deeds in respect of all his properties which are stated to be valued at over Rs. 10,00,00,000/- have been deposited with the Department. The learned Additional Sessions Judge was perhaps right in grafting on the additional requirements to the effect that the accused should be prohibited from alienation and creation of third party rights. Having regard to that particular condition, there can be little doubt that the accused is completely bound down and that there is no scope whatsoever for him to act difficult with the authorities. If at all, having regard to the special condition, the accused himself will display an anxiety to finish the case as soon as possible so that the restrictions placed on all his properties may be lifted.
21. Mr. Gupte has very vehemently opposed the relaxation of the condition relating to the accused leaving Bombay. Normally, the only fetters which a court places on an accused person with regard to his movements while on bail are limited to preventing him from intimidating witnesses or interfering with the course of the trial and, in restricted cases where it is considered desirable that the accused should be be allowed to visit the place of the offence for fear of repraisal or repercusions. None of these factors are present in this case. The fact that there is a criminal charge pending against the accused does not in any way water down the basic presumption of innosance and as a free citizen of ths country until proved guilty by due process of law, the accused is entitled to contend that his movements within the country should not normally be restricted. The exercise of those rights, however, is subject to reasonable restriction because the accused in this case has a criminal proceeding of a serious nature pending against him in which the trial Court has issued process. The Courts are, therefore, fully justified in circumscribing the manner in which these rights can be availed of.
22. I am in agreement with Mr. Pathare when he pointed out that the trial Courts are choked up with work and that there is no Magistrate available to preside over the Court before which the present case is pending at the present point of time and, consequently, having regard to the record of this case it will be many years before the proceedings are concluded. Admittedly, the accused is a businessman whose family is resident in Calicut and it is quite reasonable to accept that he should not be stopped either from goint to his home town or for that matter to any other place in India unless good ground is made out. The insistance on Mr. Gupte's part that the accused must obtain permission from the Court for each such visit is, to my mind, unreasonable and unnecessary on the facts of the present case. If the accused desires to leave India, he will have to obtain prior permission of the High Court, but this shall no longer be necessary if he desires to travel in India. The accused shall, however, inform his learned advocate of his whereabouts both the addresses and telephone numbers, and the accused shall give an undertaking to the trial Court that he shall remain present when required by that Court within a period of 7 days on notice being served in writing on his learned advocate. If the accused proposes to stay out of Bombay for a period of more than one week, the learned advocate shall inform the Customs Department in writing of the place to which the accused has gone and the duration of his absence from Bombay.
23. In the result, the application succeeds. The order dated 10-5-1990 passed by the learned Additional Sessions Judge, Greater Bombay, is set aside. In modification of the order passed by this Court on 22-12-1989, the following order is passed.
a) That the accused shall be released on bail on his furnishing to the satisfaction of the trial Court a surety in the sum of Rs. 20,00,000/-. In the event of the accused being unable to produce a single surety, he shall be permitted to furnish more than one sureties of the aggregate sum of Rupees 20,00,000/-. On acceptance of the surety/sureties and completion of the requisite for-malities, the amount of Rs. 25,00,000/- deposited by the accused in cash shall be refunded to him.
b) That the accused shall file before the trial court an unconditional undertaking to the court to the effect that he shall not dispose of, encumber or create any third party interest in the properties of which the title deeds have been deposited by him in compliance with the earlier High Court orders. This undertaking shall be a joint undertaking to the court furnished by the accused and his wife who is alleged to be joint owner of these properties.
c) That during the period of his bail, the accused shall be at liberty to leave Bombay and to travel within the territory of Indian provided that he shall on every such occasion furnish to his learned advocate his whereabouts, i.e., his addresses, telephone numbers and the places to which he is proceeding, and in the event of the customs department asking for the particulars, the same shall be furnished to them.
d) That the accused shall attend the trial Court personally on every date of hearing unless he is otherwise exempted by the trial Court from doing so. In the event of the presence of the accused being required by the Court or the Customs Department, he shall make himself available within an outer limit of 7 days from the date of service of written notice by the Department on his learned advocate.
e) That the passport of the accused shall continue to remain with the Department.
f) That the accused shall file an affidavit before the trial Court that he does not possess any other passport in any other name and if the accused is in possession of any other passport then the one earlier deposited, the same shall be deposited with the Customs Department. Similarly, if the accused applies/ has applied for renewal or issuance of a new/duplicate passport, these documents shall also be deposited with the Customs Department forthwith.
g) That in the event of the accused desiring to leave India for any length of time, he shall apply to this Court and shall obtain the prior permission of this Court before leaving the country.
h) That the erlier order under which the accused has been released on cash bail of Rs. 25,00,000/- shall continue to remain in force until the accused avails of the present order.
24. No separate orders in Criminal Application No. 1971 of 1990.
25. Mr. Gupta, learned Counsel appearing on behalf of the Customs Department, applies for 4 weeks stay of this order. Having regard to the facts of the case, the stay application is rejected.
26. Before parting with this case, it is essential to record that Mr. Pathere, learned Counsel appearing on behalf of the accused, charged the Customs Department and its learned Counsel with "harassing" the accused through successive litigations. This criticism, to my mind, is misplaced because the accused had given sufficient cause for every step taken by the Department and Mr. Arun Gupta, its Counsel, deserves to be complimented for having followed up every proceeding with a degree of missionary zeal. Both Counsel have done an admirable job in this rather protracted and hotly contested proceeding. Unlike in some other cases where the Department is charged with lethargy or inaction at times, the officers in this instance have displayed a high degree of vigilance and efficiency, both of which are truly refreshing factors.
27. Application allowed.