Gujarat High Court
Dharmeshbhai Devchandbhai Pansuriya vs State Of Gujarat & on 11 August, 2014
Author: A.J.Desai
Bench: A.J.Desai
R/CR.MA/10930/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 10930 of 2014
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DHARMESHBHAI DEVCHANDBHAI PANSURIYA....Applicant Versus STATE OF GUJARAT & 1....Respondents ================================================================ Appearance:
MR PM THAKKAR, LD.SENIOR COUNSEL WITH MR DILIP B RANA, ADVOCATE for the Applicant.
MR HRIDAY BUCH, ADVOCATE for the Respondent No. 2 MR RC KODEKAR, LD.ADDL.PUBLIC PROSECUTOR for Respondent No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 11/08/2014 CAV ORDER
1. By way of the present application u/s.439 of the Code of Criminal Procedure, the applicant has prayed to release him on regular bail in connection with the proceedings of DRI. F.No.DRI/AZU/SRU/C/INV-05/2014 dated 13/06/2014 initiated by the Directorate of Revenue Intelligence, Surat alleging that the applicant has committed an offence punishable under Section 135(1)(i) of the Customs Act,1962.
2. As per the production report and arrest memo dated 13/06/2014 submitted in the Court of learned Chief Judicial Magistrate, Surat, brief facts emerge are as under:
That intelligence was received by the Surat Regional Unit, DRI Surat, to the effect that one unit namely Page 1 of 8 R/CR.MA/10930/2014 ORDER M/s.Okay Impex having its office at Unit No.442/249/SEZ, Sachin, Surat established in Surat Special Economic Zone (hereinafter referred to as "SEZ"), who is importing gold as per the licence issued to him, in contravention of SEZ Act,2005, the Customs Act,1962 and Rules framed thereunder and the RBI guidelines with respect to import of gold, is in contravention with the aforesaid Acts and Rules and Guidelines, is trying to sold the gold imported by him in open market, which is otherwise treated as duty free gold.
3. Having received such information, surveillance was kept by the DRI Officers at nearby gate of Surat SEZ on 11/06/2014. A vehicle was intercepted by the Officers and gold worth 25 Kgs. (each of 1 Kg. Gold bar) were found from the said car. It was found that the above referred gold was taken out side SEZ area, contrary to the provisions, law and guidelines. It was found that it belongs to M/s.Okay Impex.
The present applicant is a proprietor of M/s.Okay Impex. After preliminary investigation, it was found that the Company had imported 50 Kgs. of gold Bars from Dubai and which is for export to Hongkong. Out of the said quantity of gold, 25 Kgs. Bars of gold have taken out of SEZ area without prior permission of the authority. Hence, the petitioner, who is proprietor of the Company, was arrested. His statement was recorded and thereafter he was produced before the learned Magistrate on 13/06/2014. Learned Chief Judicial Magistrate, Surat by order dated 13/06/2014, asked the applicant to be taken into judicial custody. The applicant submitted an application u/s.439 of the Code of Criminal Procedure, being Criminal Misc. Application No.1764 of 2014 in the Court of learned Sessions Judge, Surat and the learned 8 th Additional Page 2 of 8 R/CR.MA/10930/2014 ORDER Sessions Judge, Surat vide order dated 05/07/2014 rejected the application of the applicant. Hence, this petition.
4. Pursuant to issuance of Notice, the respondent authority has filed its Affidavit-in-reply and opposed this application.
5. Mr.P.M.Thakkar, learned Senior Counsel assisted by Mr.Dilip Rana, learned advocate, would submit that only allegation against the present applicant is that he has committed breach of certain Guidelines issued by the RBI by taking out part of the gold, which is legally imported by him, out of the SEZ area. He would submit that in past he had imported 700 Kgs. of gold and has been legally again exported to another country and no offence or irregularity has been found out against the present applicant, though the respondent has exhaustively gone through the details provided by the applicant. He would further submits that the authority has failed to establish even prima facie that the applicant is indulging in such activities. He would further submit that the applicant is behind the bar since 13/06/2014. However, the authority has failed in getting material against the present applicant, which would establish that the applicant has committed the offence, as alleged by the respondent authority.
He would submit that the maximum punishment, which can be imposed for the offence alleged against the applicant is of seven years. He would further submit that the authority may compound the offence or may impose fine only and, therefore, in absence of any material against the present Page 3 of 8 R/CR.MA/10930/2014 ORDER applicant, the adjudicating authority may take appropriate decision in the matter on later stage i.e. after completion of investigation.
He would further submit that the gold is seized by the respondent authority and the authority has already undertaken the steps for cancellation of licence issued to the applicant for export/import gold and, therefore, the applicant would not be able to carry on his business even if he is released on bail. Therefore, he would submit that by imposing appropriate condition, the applicant may be released on bail. He submits that till date no complaint is filed against him.
6. On the other hand, Mr.Hriday Buch, learned Central Government Standing Counsel has opposed this application. By relying upon the Guidelines and Circulars issued by the RBI and Ministry of Finance of Government of India, would submit that the licence holder are permitted to import the gold exclusively for the purpose of export only in SEZ area and restrained from taking out the gold from the SEZ area. By relying upon the decision rendered by the Kerala High Court in the case of Prashant J. Mehta V/s. Senior Intelligence Officer DRI dated 25/07/2013 in BA No.4770 of 2013, he would submit that in similar facts and circumstances and by relying upon several Guidelines and Circulars of the RBI, Kerala High Court has refused to entertain the application u/s.439 submitted by the accused of that offence.
Mr.Hriday Buch, learned Central Government Standing Counsel would further submit that the authority has called for the details from the firm situated in Hongkong, to Page 4 of 8 R/CR.MA/10930/2014 ORDER which, the gold was exported by the present applicant in past. He would submit that the firm situated at Hongkong is owned by the relatives of the applicant and, therefore, detailed investigation is necessary and if the applicant is released on bail, the investigation would be hampered. He would further submit that the authority is trying to find out the person, to whom, the gold of 25 Kgs., which was seized, intended to be sold at the party of Mumbai but the same is not trace out and, therefore, it would not be desirable to release the applicant on bail at this stage.
7. In reply to the submission made by Mr.Hriday Buch, learned Central Government Standing Counsel, Mr.P.M.Thakkar, learned Senior Counsel appearing for the applicant has submitted that the decision of the Kerala High Court has been challenged before the Hon'ble Apex Court by Prashant J. Mehta by filing Special Leave to Appeal (Crl) No.9370 of 2013 and Hon'ble Apex Court by order dated 29/11/2013 has issued Notice and restrained the Investigating Authority from arresting the accused with regard to the similar offence alleged against that accused. The matter is pending for final hearing before the Hon'ble Apex Court and, therefore, the respondent authority ought not to have relied upon the said decision, which is indirectly stayed by the Hon'ble Apex Court.
8. By relying upon the decision rendered by this Court (Coram: Hon'ble Ms.Justice H.N.Devani) dated 27-28- 29/10/2009 in Special Criminal Application No.1192 of 2009, Mr.P.M.Thakkar, learned Senior Counsel has submitted that the power of Officer established under the Customs Act are Page 5 of 8 R/CR.MA/10930/2014 ORDER limited and cannot ask for remand, etc. and further submitted that the applicant shall co-operate with the investigation if he is released on bail.
9. Heard the learned advocate appearing for the respective parties and perused the papers of investigation and gone through the Affidavit-in-reply filed by the respondent authority. It is an undisputed fact that the applicant is valid licence holder of importing gold in SEZ area and, thereafter, exporting the same. The applicant had exported 700 Kgs. of gold in past, however no offence or irregularity has been recorded against him. Statement of the applicant is already recorded by the authority. The gold is already seized by the authority. The entire evidences like computers, books of accounts, etc. have been collected by the Investigating Authority. That the authority could not gathered material from the Hongkong firm through its Government since last about two months. The authority has failed in getting any clue about the person to whom the alleged gold were intended to be sold. There is no clue whatsoever is found out by the respondent authority about aforesaid parties. It is also a fact that the respondent authority has already initiated the proceedings for cancellation of the licence issued to the unit belongs to the applicant and, therefore, it would not be possible for the applicant to export or import the gold in the SEZ area. In such circumstance, a person cannot be kept behind the bars for undefinate long period.
As advised by the Hon'ble Apex Court, it would not be desirable to discuss the evidence in detail at this stage, which would hamper either side and particularly when the issue, which has been raised by the respondent authority with Page 6 of 8 R/CR.MA/10930/2014 ORDER regard to applicability of the Government Resolutions, RBI Resolutions and Circulars are at large before the Hon'ble Apex Court, as stated hereinabove.
10. In the facts and circumstances of the case and considering the nature of allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with an offence being the proceedings of DRI. F. No.DRI/AZU/SRU/C/INV-05/2014 dated 13/06/2014 initiated by Directorate of Revenue Intelligence, Surat, on executing a personal bond of Rs.1,00,000/- (Rupees One Lac) with one local surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that he shall;
[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injuries 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 the Sessions Judge concerned; [e] mark presence before the concerned Police Station on every Tuesday for a period of six months, between 10:00 a.m. and 2:00 p.m.;
[f] furnish latest address of residence to the
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R/CR.MA/10930/2014 ORDER
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;
11. 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 Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned 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. At the trial, learned 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.
[A.J.DESAI,J.] *dipti Page 8 of 8