Rajasthan High Court - Jaipur
Smt. Mithlesh Kumari vs State Of Rajasthan on 20 July, 1989
Equivalent citations: 1989WLN(UC)123
JUDGMENT Mohini Kapoor, J.
1. The petitioner in this case has moved this application under Section 438 Cr.P.C. because a case under Section 135(1)(ii) of the Customs Act, 1962 is pending against her. This case is pending before the Chief Judicial Magistrate (Economic Offences) Jaipur. The petitioner deals in jewels and carries her business in the name of M/s. M.R. Jewellers. She is mainly doing export business and a number of parcels were despatched to M/s. Super Gems, Hongkong. Seven parcels containing precious stones were returned by M/s. Super Gems on the ground that they could not be sold there and when they arrived at Jaipur the Customs Department made a checking and it was found that one parcel containing out emeralds did not tally with the description of the items which had been exported by the petitioner. It appears that the value of the exported material was about Rs. 12,00,000/-but the stones which were returned as unsold were of less than 1/3rd value. Thereafter M/s. Super Gems informed by letter and telegram that by mistake different goods were despatched and that the parcel should be returned so that they could send the actual stones which had been sent by the petitioner. Thus, the case of the prosecution is that under the guise of return of unsold goods the petitioner was evading duty on the goods which had been exported by her and at the same time was importing material for which she did not possess any import licence.
2. The learned Counsel for the petitioner has contended that at the time of export as well as at the time of import the parcels are supervised and checked by the Customs Department and there could be no occasion for escaping the notice of the authorities, because every single parcel is checked thoroughly. It is contended that it was a bona fide mistake on account of which wrong goods were returned by M/s. Super Gems and this they informed telegraphically also. It is contended that what ever may be the position the petitioner will face the case and there is no reason to detain her during the trial of the case. It is contended that the offence is punishable by three years imprisonment and the trial of the case is likely to take more time than the prescribed punishment. Nothing is to be recovered from the petitioner.
3. It has also been contended that the goods received were cut and polished precious stones which are not ordinarily imported in India and had it been the intention of the petitioner to import some precious stones on the pretext of returning unsold goods then they would have asked for uncut rough stones which are normally imported.
4. The learned Counsel appearing for the Customs Department has vehemently contested this application and contended that the offence committed by the petitioner is a socio economic offence. According to him this is a tip of the smuggling ice berg and a lenient View should not be taken in the matter. According to him the petitioner was tying to evade double duty, first by evading duty on export and then by evading duty on import. It is contending that the price of the goods sold abroad has not been brought back to the country and tactics of this type are generating more and more black money and ruining the economy of the country.
5. The learned Counsel for the petitioner has relied upon a few decisions in the matter of grant bail, specially anticipatory bail in matters involving commission of economic offences. In Rajveer Singh and Ors. v. State 1988 (1) RLR 914 it was held by me in a case where the petitioners submitted their income tax return late by two years and two months, that a general principle cannot be laid down that in all cases involving commission of economic offences anticipatory bail is to be refused. The discretion is to be exercised viewing the facts and circumstances of the case. The amount due by way of penalty had already been deposited hence anticipatory bail was granted in this case.
6. In Prahlad Rai Saraf v. State of Rajasthan 1987 Cr. LR (Raj.) 206 anticipatory bail was granted to the petitioner, who was available at all relevant times and had deposited the tax amount as required by the Income Tax Department.
7. In Suresh Chand and Ors. v. State of Rajasthan 1985 Cr. LJ 1750 a Division Bench of this Court has held that Section 438 Cr.P.C. is applicable to Essential Commodities (Special Provisions) Act, 1981 and the High Court is not prohibited from granting anticipatory bail because of Section 12AA of the Act. This power is, how ever, to be exercised sparingly.
8. Mr. Chauhan placed reliance of Suraj Ram v. State of Rajasthan 1977 RLW 505 where in it has been held that anti-social adventures can not claim for their nefarious activities larger regard than for the defence of the society itself, of which they from integral part. It was held that courts should not show undue compliance, and obstruct and hamper the search for the truth by interfering investigation at every stage.
9. In Sombhai Chaturbhai Patel v. State of Gujarat 1977 Cr. LJ 1523 the Gujarat High Court laid down the guide lines for exercise of powers under Section 438 Cr.P.C. and one of ground enumerated is that in cases of economic offences where the likelihood or repetition of the offence whilst on bail cannot be foreclosed, such as smuggling, hoarding profiteering, indulging in manipulations of foreign exchange etc. the Court cannot consider it safe to exercise the powers.
10. In ITO, Central Circle-I v. Gopal Dhamani 1987(1)RLR 859 the bail granted by the Sessions Judge to persons evading tax of very high value was cancelled and the accused were sent to jail. It was observed that 'jail and no bail' is the normal criteria in such serious economic anti-social crimes. It was held that merely because bailable warrants were issued in the first instance by the Magistrate, it did not mean that bail was to be granted.
11. In Vasudeo and Ors. v. State of Rajasthan and Anr. 1987 RCC 370 it has been held that in cases under the Income-tax Act, the purpose of issuing, process at the stage of entering the complaint is to ensure the presence of accused before the court, but once the process has been issued the accused should appear before the court and move a proper application Under Section 437 or 439, Cr.P.C. instead of invoking the provisions of Section 438, Cr.P.C. The mere fact that non-bailable warrants have been issued in the first instance, the accused should not have the apprehension that he would be sent to judicial custody mechanically.
12. The facts of the present case have been looked into. It may be stated that the investigation in the matter is over and case against the petitioner has been lodged. The petitioner is not required for purposes of investigation She has to face the trial and there is no allegation that if released on bail she would abscond. It may also be said that she is a woman. Under the provisions of Section 437 Cr.P.C. special provision has been made for dealing with cases of women. It can also be said that a person should not be sent to jail merely to have abstract satisfaction. In this case the trial is likely to take time. When the offence is punishable with imprisonment for three years only then the detention of the petitioner in custody cannot be said to be appropriate in the circumstances. As stated above, the petitioner is not required for any investigation as the same is over and necessary interrogation of the petitioner has already been made. No useful purpose would be served in this case by sending the petitioner to jail. In the circumstances she can be allowed anticipatory bail on appropriate conditions.
13. It is, therefore directed that the petitioner should appear before the Chief Judicial Magistrate (Economic Offences) Jaipur, with fifteen days and he shall be released on bail provided she furnishes a personal bond in the sum of Rs. 20,000/- with two sureties in the amount of Rs. 10,000/- each to the satisfaction of CJM (Economic Offences) Jaipur for her appearance during; the course of trial on all dales of hearing and as and when she is called upon to do so with the following conditions:
[1] that the petitioner shall make herself available for interrogation by a Police Officer as and when required;
[2] that the petitioner shall not directly on indirectly make any inducement, thereat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer;
13] that the petitioner shall not leave India without the previous permission of the court.