Kerala High Court
K.P.Anto vs Superintendent Of Customs on 15 October, 2014
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 15TH DAY OF OCTOBER 2014/23RD ASWINA, 1936
Bail Appl..No. 6646 of 2014
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O.R.NO.01/2014 - CCP/HQ, COCHIN.
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PETITIONER/ACCUSED:
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K.P.ANTO, S/O K.K.OUSEPH, AGED 54 YEARS,
KALLARACKAL HOSUE, ANGAMALI SOUTH P.O.,
ANGAMALI.
BY SRI.P.VIJAYA BHANU (SENIOR ADVOCATE)
ADVS.SRI.M.REVIKRISHNAN
SRI.VIPIN NARAYAN
RESPONDENT/COMPLAINANT:
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SUPERINTENDENT OF CUSTOMS,
CUSTOMS PREVENTIVE UNIT,
COMMISSIONERATE OF CUSTOMS PREVENTIVE,
COCHIN-682031.
(REPRESENTED BY THE STANDING COUNSEL).
BY SPECIAL PUBLIC PROSECUTOR SRI.P.C.IYPE
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 15-10-2014, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
mbr/
K. Ramakrishnan, J.
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B.A.No.6646 of 2014
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Dated this, the 15th day of October, 2014.
O R D E R
This is an application for anticipatory bail filed by the petitioner anticipating arrest in O.R.No.01/2014 of CCP/HQ, Cochin under Section 438 of Code of Criminal Procedure.
2. The petitioner apprehends that he is likely to be arrested in connection with O.R.No. 01/2014 - CCP/HQ, Cochin. He is conducting a jewellery in the name 'Kallarakkal Jewellery' at Angamali and he is also having a branch of the shop at Cochin Special Economic Zone, Kakkanad (hereinafter known as in short 'CSEZ'). He is having licence for import 100 Kgs of primary gold from Dubai branch of Bank of Nova Seotia for for manufacturing gold ornaments used to export his manufactured articles to Al Salam jewellery, UAE. He was maintaining proper accounts and he has been conducting business since long time without any blemish. He came to understand that on 10 and 11th of August, 2014, the Customs Preventive Unit, Kochi had conducted a raid in the premises of M/s Aswin Gold (P) Ltd in CSEZ, Kakkanad and found deficiency of 20.5 Kgs of primary gold imported by that firm B.A.No.6646 of 2014 : 2 : and the Managing Director of that firm was taken into custody. It appears that he had given a statement before the customs officials stating that 10 Kgs of primary gold imported was handed over to Jeeson Davis who is one of the members of staff of Kallarakkal jewelery owned by the petitioner. He is not having any knowledge or information about the same. On 11.08.2014, the customs officials came to his jewellery and at that time, he was not available there as he had to accompany his wife, who was undergoing treatment in Amrita Institute of Medical Science, Ernakulam in connection with her heart ailment. He was served with a notice by the customs officials to appear on 12.08.2014 at 2.00 p.m and since his wife had to undergo a major operation, he had submitted an application to grant some time. On 12.08.2014, some customs officials had came to his jewellery and at that time, Jeeson Davis, his employee was under their custody. Though a search was conducted, they could not find out any material or irregularity in the transactions of the petitioner. They are now trying to implicate the petitioner in the case. He apprehends arrest and detention which is not required. So, he prayed for allowing the application.
B.A.No.6646 of 2014 : 3 :
3. The application was opposed by the Senior Government Pleader appearing for the respondent on the ground that he has not been made an accused so far and in fact, he had played active role in smuggling the primary gold imported for making gold ornaments and for export in respect of CSEZ. One Sunjay Subarao Nikam who represents M/s Aswin Gold (P) Ltd and the petitioner had diverted about 15 Kgs of primary gold imported in the name of Kallarakkal Jewellers. So, they believe that the petitioner had committed the offence punishable under Section 135(1) of the Customs Act. So, at present, they have only issued notice and they only after interrogation, may be able to ascertain as to whether he has to be implicated in the case or not. Granting anticipatory bail at this stage will affect the investigation. So, he prayed for dismissal of the application.
4. Heard both sides and perused the records.
5. It is an admitted fact that petitioner is the owner of Kallarakkal jewellery at Angamali and he is also having an outlet in CSEZ, Kakkanad. It is also an admitted fact that the primary gold imported has to be used only for manufacture of gold ornaments and those gold ornaments will have to be B.A.No.6646 of 2014 : 4 : exported to the foreign countries through the CSEZ regulations. It is also an admitted fact that on 10.08.2014, they found that one of the jewelleries by name Aswin Jewellery in that zone had misused about 15 Kgs of gold so imported and made gold ornaments without paying any customs duty etc., in violation of the regulations and the Customs Act and so, on questioning the owner of that jewelery, it was revealed that 10kgs of primary gold so imported was handed over to the petitioner also. It is seen from the case diary file that the petitioner is also involved in import of primary gold for the purpose of manufacture and export of gold ornaments and it was also revealed that he had also diverted the gold ornaments so imported. So, for that purpose, a notice under Section 108 of Customs Act has been issued to him and earlier, he filed an application for extension of time for his appearance on the ground that his wife has been admitted for major operation in Amrita Medical Institute, Ernakulam. He had also earlier moved an application for anticipatory bail before the Sessions Court as Crl.M.C.No.1530/2014 and that petition was dismissed by the Sessions Judge, Ernakulam on 20.08.2014 and it is thereafter, that the present petition has B.A.No.6646 of 2014 : 5 : been filed by the petitioner and this court, by oral direction the petitioner was directed not to be arrested and thereafter, again a notice has been issued to him and he appeared before the customs officials and a statement was seen recorded. But, even in that statement, he had not divulged the entire thing and he wants to be relieved quickly as his wife is in the hospital after a major operation. Further, Section 104 of Customs Act gives power of arrest. Further, in sub-section (2) of Section 104 says that every person arrested under sub- section (1), shall, without unnecessary delay, be taken to a magistrate and the magistrate will have to consider the bail application if any filed. Further, sub-section (3) of the same Section says that except the offences mentioned under Section 104(1), the customs officials are empowered to exercise all the powers of an officer-in-charge of a police station in grant of bail. Further, only those acts mentioned under sub-section 6 of 104 are made non bailable and other offences are bailable offences as well. So, only after the interrogation, it can be possible for the customs officials to come to a conclusion as to the nature of offences committed by the petitioner.
6. Further, in the decision reported in Union of India B.A.No.6646 of 2014 : 6 : Vs. Padam Narain Aggarwal [AIR 2009 SC 254], the Honourable Supreme Court has held that merely because a notice under Section 108 of Customs Act has been issued is not a ground to grant anticipatory bail and it is for the customs authorities, after recording the statement of the suspected accused, have to decide the nature of offences committed and to grant bail or produce him before the magistrate etc., only thereafter, he will become an accused in a case. Further, it is seen from the allegations that it is an economic offence committed dealing with evasion of huge amount to the Government. Merely because he was questioned once is not a ground to grant anticipatory bail to the petitioner as even going through the statement given, it appears that he had not divulged the entire thing and his further interrogation under Section 108 will be required as well. So, under the circumstances and also considering the nature of the allegations and being an economic offence affecting the revenue of the Government, this court feels that it is not a fit case to grant anticipatory bail invoking the power under Section 438 of Code of Criminal Procedure at this stage and the application is liable to be rejected.
B.A.No.6646 of 2014 : 7 :
In the result, the application is rejected.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge