Gujarat High Court
Rajiv Shyamlal Sharma S/O Shri Shyamlal ... vs State Of Gujarat on 25 April, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/7632/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7632 of 2018
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RAJIV SHYAMLAL SHARMA S/O SHRI SHYAMLAL SHARMA
Versus
STATE OF GUJARAT
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Appearance:
ANANDODAYA S MISHRA(8038) for the PETITIONER(s) No. 1
MS SHRUTI S PATHAK(5619) for the RESPONDENT(s) No. 2
MR RAKESH PATEL, APP(2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 25/04/2018
ORAL ORDER
1. By this application under Section 439 of the Code of Criminal Procedure, 1973, the applicant - original accused prays for bail.
2. The prosecution against the applicant accused herein is one for the offence punishable under Section 135 of the Customs Act, 1962. The applicant herein came to be arrested by the officers of the DRI on 03.03.2018. The Arrest Memo is extracted hereunder: "I, Ajeet Singh Choudhary, Intelligence Officer of Directorate of Revenue Intelligence Ahmedabad Zonal Unit, Ahmedabad, in exercise of the provisions of Section 104 of the Customs Act, 1962, do hereby arrest you today on 3rd March 2018, at 17:00 hours at Ahmedabad as there are reasons to believe that you are the person who has committed offence punishable under Section 135 of the Customs Act, 1962, in as much as you have knowingly concerned yourself in the act of aiding & abetting in the imports of Multi function digital devises contrary to the restriction imposed on the imports of the said goods as provided in the Notification No.35(RE2012)/20092014 dated 28.2.2013, and also by misdeclaring the same as Used MFD's parts and accessories/Multifunction Printers Parts etc. In the said process of importing the said restricted goods you have assisted and abetted the importers in getting the restricted goods cleared from Customs, Page 1 of 5 R/CR.MA/7632/2018 ORDER Pipavav Port.
Thus, you have knowingly concerned yourself in the import of the aforesaid goods having conservative estimated market value of more than Rs. 7.00 Crores(Approx) by the various importers which you knew or had reasons to believe were liable for confiscation under Section 111 of the Customs Act, 1962. By the above act of omission and commission on your part, you have indulged yourself in aiding & abetting in the smuggling of imported goods which you knew or had reasons to believe that the said goods were liable to confiscation under Section 111 of the Customs Act, 1962. The evidence on record clearly establish the offence committed by you in this case. In view of the above, the goods so imported are to be treated as 'smuggled goods' as defined under Section 2(39) of the Customs Act, 1962, "prohibited goods" as defined under Section 2(33) of the Customs Act, 1962 and the offence committed by you is punishable under Section 135 of the Customs Act, 1962. "
3. It appears that the applicant was produced before the Additional Chief Metropolitan Magistrate, Ahmedabad, on 03.03.2018. The applicant preferred a bail application in the Court of the Additional Chief Metropolitan Magistrate Magistrate, Ahmedabad, which came to be rejected vide order dated 16.03.2018. Thereafter, the applicant preferred a bail application before the City Civil and Sessions Court at Ahmedabad. The bail application filed before the City Civil and Sessions Court, Ahmedabad, also failed. In such circumstances, the applicant is here before this Court, praying for bail.
4. The learned advocate appearing for the applicant submitted that :
(a) The petitioner is working as an Operation Manager in CFS of Contrans Logistics Pvt. Ltd., Pipavav. He helps various importers, CHA person in customs clearance work for various imported cargoes. He was arrested on 03.03.2018 by DRI for the offence U/s. 135 of Customs Act. However, there is no allegation of evasion of duty.
(b) The DRI is relying on a Notification No.35(RE2012)/2009
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2014 dated 28.02.2013 and has stated in the Arrest Memo itself dated 03.03.2018 that the goods are restricted for the purpose of import.
(c) The goods in question are old and used photocopier machine (even as per the case of DRI). They are clearly 'restricted' even as per the aforesaid notification relied upon by the DRI. Section 135 of the Customs Act may cover 'Prohibited Goods' and such goods which could be confiscated u/s 111 of Customs Act. An offence is committed u/s 135 if a person dealing with imported goods believes or has a reason to believe that the goods are liable to be confiscated u/s 111 of the Act.
d. However, the "old and used photocopier" are imported dayin and dayout in India. Instead of confiscating such goods, they are released by various competent authorities / courts. Even in the present case, the custom officers had examined the goods, not confiscated them but cleared them after generating the Bill of Entry and collecting duty from the importers.
(e) Thus, the submission is that even if it is assumed that the goods could have been confiscated u/s. 111 of the Act, even in that case, since the goods are released, the applicant may be released on bail.
5. The learned APP appearing on behalf of the respondentState has opposed grant of regular bail looking to the nature and gravity of the offence.
6. The principal argument of the learned counsel appearing for the applicant is that the goods in question are not prohibited, but the same are restricted. I would not like to go into this issue at this stage.
7. I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and Page 3 of 5 R/CR.MA/7632/2018 ORDER considered the allegations levelled against the applicant and the role played by the applicant.
I have also taken into consideration the following aspects :
(i) The offence is under Sections 135 of the Customs Act.
(ii) The maximum punishment on conviction can be upto seven years.
(iii) No complaint has been lodged till this date by the Department.
(iv) The applicantaccused is in judicial custody past 40 days.
(v) No apprehension that the applicant is likely to abscond or tamper with the prosecution witnesses or evidence.
8. I take notice of the fact that even if the goods are to be treated as prohibited goods, the maximum punishment would be upto seven years. The offence is otherwise triable by the Court of the Additional Chief Metropolitan Magistrate.
9. This application is allowed. The applicant accused is ordered to be released on regular bail in connection with the FIR F.No.DRI/ AZU/GI/ENQ06(INT09)/2018 on executing a personal bond of Rs.1,00,000/ (One Lac Only) with solvent surety of the like amount, subject to the conditions that he shall;
[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injurious to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within a week;
[d] not leave the State of Gujarat without prior permission of
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the Sessions Judge concerned;
[e] mark presence at the concerned Department once in a
fortnight for a period of six months between 11:00 a.m. and 2:00 p.m. till the filing of the complaint;
[f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
10. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the authority concerned will be free to issue warrant or take appropriate action in the matter.
11. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.
12. At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(J.B.PARDIWALA, J) aruna Page 5 of 5