Calcutta High Court (Appellete Side)
The Commissioner Of Customs (Airport) ... vs Mr. Jose Marcio Barreto Ramires & Anr on 23 April, 2008
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No. J (1) IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side Present:
The Hon'ble Justice Ashim Kumar Roy C.R.R. NO. 1326 of 2008 The Collector of Customs now known as The Commissioner of Customs (Airport) Kolkata.
versus Mr. Jose Marcio Barreto Ramires & Anr.
For Petitioner : Mr. Biswa Ranjan Ghoshal
Mr. Ujjwal Dutta
Mrs. S. Bhattacharjee
For O.P. No. 1 : Mr. Joymalya Bagchi
Mr. Siladitya Sanyal
Mr. B. Basu Mullick
Mr. Sirsendu Sinha Roy
For State : Mr. Asimesh Goswami
Heard On : April 17, 2008.
Judgment On : 23-04-2008.
Aggrieved by an order passed on April 7, 2008, by the Learned District and Sessions Judge, Barasat, North 24-Parganas, in connection with Criminal Revision No. 86/2008 directing the Customs Authority to return the accused/opposite party no. 1, Jose Marcio Barreto Ramires, his Brazilian Passport No. C.O. - 740121, withheld in connection with the Customs Case No. C-384/2008 relating to the offences punishable under Section 132/135 of the Customs Act, the petitioner moves the instant criminal revision.
2. Mr. Biswa Ranjan Ghoshal, the learned Senior Counsel appearing with Mr. Ujjwal Dutta, advocate on behalf of the petitioner, submitted that the order of returning the Passport to the accused/opposite party is wholly illegal and erroneous and vehemently urged that the learned Court below should not have made the order for return of Passport to the accused/opposite party no. 1 due to the following reasons;
(a) The investigation of the case is at a very nascent stage and the presence of the accused/opposite party no. 1 is very much necessary to work out the information transpired from his statement recorded under Section 108 of the Customs Act, to identify the racket operating in illegal and unauthorized dealing of foreign exchanges and to apprehend the miscreants involved.
(b) This is a revenue related offence and the accused/opposite party no. 1 was caught red-handed while trying to leave the country with foreign exchange without necessary permission and authority.
(c) Allowing the accused/opposite party no. 1 to leave the country would tantamount to stay of the investigation of the case which is not permissible in law at this stage.
(d) The accused/opposite party no. 1 is still required to submit several documents in support of his legal acquisition, possession and exportation of the foreign currency recovered from his possession. The Passport in question is a document which is very much relevant in connection with the aforesaid case against him.
(e) The accused/opposite party no. 1 is a holder of a tourist Visa and in the event he did not turn up during the adjudication proceedings and trial, there is no efficacious and adequate process available in law to ensure his attendance.
(f) The Learned Sessions Judge has no jurisdiction to pass an order for release of Passport.
(g) The Passport in question has been directed to be returned on execution of a bond by the Secretary, Mohan Bagan Athletic Club however the said Club Secretary has no machinery to control the movement of the accused and to ensure his return in India during trial.
(h) Further interrogations of the accused/opposite party no. 1 is still necessary to ascertain and recover the documents in support of his legal acquisition, possession and exportation of the foreign currencies in question.
(i) There is no effective guarantee that the accused/opposite party no. 1 would come back to India and shall face his trial.
(j) The accused has met the Investigating Officer only twice once on March 24, 2008 and again on April 8, 2008 and on April 11, 2008 when the department officials had been to his residence at around 2.00 P.M. to serve a summon under Section 108 of the Customs Act, whereby he was required to appear before the Investigating Officer on the self-same day at around 4.00 P.M. he was not available at his residence.
(k) His further interrogation is necessary as he not yet disclosed the particulars of the places and identity of the person from whom such foreign exchange were purchased.
Lastly, Mr. Ghoshal contended that the submissions of the Learned A.P.P. of the Customs Authority before the Learned Chief Judicial Magistrate, Barasat that the accused/opposite party no. 1 is a person of good fame and not a smuggler and he did not have any objection in the matter of his bail as well as the submissions of the Learned P.P. before the Learned Sessions Judge that if the Court passes an order for return of Passport that should be for a limited period are absolutely their personal opinions and such an undue concession given by them without the consent of the Customs Authority and thus is not binding on the department. Further to his aforesaid submissions Mr. Ghoshal referred the self-same decisions relied in the Court below on behalf of the Customs Authority which are as follows;
(i) P.O. Thomas & Ors. Vs. Union of India, reported in 1999 Cri. L.J. 1028, (ii) Remo Paul Altoe Vs. Union of India, reported in 1977 Cri. L.J.1933, (iii) Haradhan Das & Anr. Vs. Collector of Customs, reported in 1987 C Cr Lr (Cal) 10, (iv) Randhir Singh Vs. Directorate of Revenue Intelligence, reported in 1986 Cri. L.J. 1208.
3. On the other hand, Mr. Joymalya Bagchi appearing with Mr. Siladitya Sanyal, the learned advocate on behalf of the accused/opposite party no. 1 submitted that the order for return of the Passport does not suffer from any illegality or impropriety and same is fully justified, and does not deserve any interference by this Court. In support of his contention Mr. Bagchi further submitted as follows;
(a) The accused/opposite party no. 1 immediately after being intercepted by the customs officials at the Airport Lounge confessed the amount of foreign currency, had in his possessions in excess of the permissible limit and further disclosed the place and the source wherefrom he acquired those foreign currencies.
(b) The accused/opposite party no. 1 not only co-operated with the investigating agency from the beginning, in his voluntary statement he also disclosed the truth immediately after his arrest then again in terms of condition of bail he met the Investigating Officer of the case and disclosed everything as regards to the occurrence. He always co-operates with the investigating agency in every possible way and there is no allegation to the contrary.
(c) The accused/opposite party no. 1 has acquired the aforesaid foreign currencies out of his hard earn income which he received by playing football for a particular local football club of Kolkata.
(d) The accused/opposite party no. 1 has no criminal antecedent either in India or at his native country.
(e) The Passport in question was never seized by the Customs Authority but he voluntarily handed over the same to them.
(f) The accused/opposite party, a professional football player who is in India for pretty long time along with his family including his wife and two minor daughters and both of his daughters are studied in a school at Calcutta and during his long stay in India, was never involved in any crime.
(g) The accused/opposite party no. 1 has paid necessary taxes against his income.
(h) The accused/opposite party no. 1 after his long stay in India was going to his native country to join his wife and two minor daughters, who left India a couple of days earlier for a short holiday and was supposed to return back to this country on or before 25th of May, 2008 as under an agreement with a particular football club of Calcutta he is bound to play for them in the coming sessions.
(i) The apprehension of the customs authority that if he is permitted to go to his native place at Brazil and if he does not return there is no scope for the customs authority to secure and compel his attendance in the Court during the trial is without any foundation inasmuch India has signed an Extradition Treaty with Brazil which will ensure his presence before the Court during the trial of the aforesaid case, if he does not return to India on his own.
(j) There is no reason for avoiding due process of law by the accused/opposite party no. 1 and he is willing and agreeable to furnish any kind of security which this Court may seem fit and proper against the return of his passport for a limited period.
(k) Lastly, Mr. Bagchi submitted that before the Learned Chief Judicial Magistrate, Barasat it was the admitted case of the customs authority that the accused/opposite party no. 1 is not a smuggler or a criminal and his prayer for bail was not opposed and similarly before the District and Sessions Judge, Barasat the Learned Public Prosecutor representing the customs authority also openly submitted that if the passport is returned to him that may be for a limited period. Mr. Bagchi vehemently urged before this Court that at no point of time the customs authority disowned such submissions of their Counsels and thus they cannot now be permitted to contradict and dispute the same for the first time before this Court after long lapse of time just to maintain this application. Mr. Bagchi in support of his contention relied upon two decisions of the Hon'ble Apex Court one in the case of Miss Marie Andre Laclerc Vs. State (Delhi Administration) & Ors., reported in (1984) 2 SCC 443, where the Apex Court returned the Passport for a limited period against the security money and personal bonds to a foreign nationals who had been serving life sentence and facing trials in other criminal cases. Similarly, in the case of Gian Singh Vs. State of Rajasthan, reported in (1999) 5 SCC 694, the Apex Court directed return of Passport to a British Citizen settled down in England, on his executing a bond with two sureties.
4. I have given my anxious and thoughtful consideration to the submissions made on behalf of the respective parties. Perused the materials on record as well as the case docket produced by the Learned advocate appearing on behalf of the Customs Authorities as well as the decisions relied upon by the parties.
The only question that arises for decision in this criminal revision whether the impugned order of return of Passport seized in connection with a case punishable under Section 132/135 of the Customs Act is legally sustainable or not, both in fact and in law.
5. It is the allegations against the accused/opposite party no. 1, Jose Marcio Barreto Ramires that he was intercepted by the Officers of the Customs Department attached to the Air Intelligence Unit at Netaji Subhash Chandra Bose International Airport, Kolkata while he was proceeded towards the security hold area after completion of the immigration, customs and security formalities. It is further alleged on being intercepted by the Officers of the Customs, the said accused declared to have in his possession about 15,000 US Dollar in excess of permissible limit and admitted that he had no documents in his possession in support of licit possession, acquisition and exportation of the said foreign currency. According to him the foreign currency in question was purchased by him out of his remuneration paid by a local football club of Kolkata for playing football match on their side and he purchased those foreign currencies from New Market area and from an unknown person. It further appears the said accused/opposite party no. 1 has not pleaded his innocence but by admitting his guilt prays for leniency. Subsequently in response to a summon issued under Section 108 of the Customs Act the accused/opposite party no. 1 made a voluntary statement and in such statement he confessed his guilt by repeating and reiterating the aforesaid facts. When the entire foreign currency, valued at Rs. 8 lakhs and odd in Indian currency along with his trouser, wallet and bags, inside which the same were kept, were seized. The Customs Authority also seized the Boarding Pass and Air Ticket of the accused/opposite party no. 1 on reasonable belief that those documents would be relevant and useful in connection with the proceeding and investigation against the said accused/opposite party no. 1. However, the Passport in question being voluntarily produced by the accused/opposite party no. 1 the same was kept and held by the Customs Authority. Subsequently when the accused/opposite party no. 1 was forwarded to the Court of the Learned Chief Judicial Magistrate, Barasat the Investigating Officer made a prayer to hold the Passport in question till the completion of investigation. On the self-same day i.e. on March 20, 2008 the accused/opposite party no. 1 was granted bail by the Learned Chief Judicial Magistrate, Barasat on a bond of Rs. 10,000/- with two sureties of Rs. 5,000/- each and on condition to meet the Investigating Officer of the case once a week and it was further directed the Passport be retained as prayed for. It appears that the Learned Counsel appearing on behalf of the Customs Authority admitted that the accused/opposite party no. 1 is a man of good fame and not a smuggler and did not raise any objection against his release on interim bail. It does not appear from the materials on record, when the accused/opposite party no. 1 was released on bail the Customs Authority made any prayer before the Court for restricting the movement of the accused/opposite party no. 1 or to forbid him from leaving India. However, the stands of the Learned Counsel of the Customs Authority in the Court below has been seriously disputed by Mr. Biswa Ranjan Ghoshal, Senior Counsel appearing on behalf of the Customs who submitted that such a submission was made by their Counsel without the consent of the Customs Authority and the same was his personal opinion. After being released on bail the accused/opposite party no. 1 on March 24, 2008 met the Investigating Officer, when once again he was interrogated by the Investigating Officer and his statement under Section 108 of the Customs Act was recorded. Subsequently, on April 3, 2008 the interim bail of the accused/opposite party no. 1 was confirmed and the condition to report to the Investigating Officer was relaxed to once in fortnight. However, the Learned Magistrate rejected his prayer for return of Passport on the ground the Learned Magistrate has no jurisdiction to pass such an order. Thereafter, again on April 8, 2008 the accused/opposite party no. 1 reported to the Investigating Officer of the case and on that day also his statement under Section 108 of the Customs Act was recorded. On that day the accused/opposite party submitted the documents viz. Address Proof Document, Identity Proof Document, Pan Card, TDS Certificate as well as his agreement with the club for playing football matches executed on 17th March, 2008 for 10 months in the ensuing sessions. In his statement recorded under Section 108 of the Customs Act on that day the accused/opposite party no. 1 repeated whatever he stated in his earlier statement recorded under Section 108 of the Customs Act and further submitted that this was his first offence and he may be dealt with leniently. In the meantime the accused/opposite party no. 1 moved a criminal revision being the Criminal Revision No. 86 of 2008 before the Learned Sessions Judge, North 24-Parganas against the order passed by the Learned Chief Judicial Magistrate, Barasat rejecting his prayer for return of the Passport. In connection with the said criminal revision the Customs Authority i.e. the petitioner herein filed a written objection before the Learned Court below being Annexure P-2 to this criminal revision and from the perusal of the said written objection it appears in Paragraph 10 thereof the Customs Authority highlighted the reasons for opposing the prayer for return of Passport, which is quoted below;
"The investigation of this case is at a very nascent stage and Mr. Jose Marcio Barreto Ramires, the subject accused is required to submit several documents in support of his legal acquisition, possession and transportation/exportation of foreign currency notes so recovered and accused person has violated several provisions of Customs Act, 1962 as mentioned above as well as relevant provisions of Foreign Exchange Management Act, 1999 and Foreign Exchange Management (Export and Import of Currency) Regulation, 2000 and RBI Notification No. FEMA - 6/ 2000-RB dated May 3, 2000 and hence department needs more time to complete the investigation."
However, the Learned Sessions Judge by the order dated 7th April, 2008 passed in connection with the aforesaid Criminal Revision No. 86 of 2008 directed that the Passport in question be returned to the accused/opposite party no. 1, on a bond to be executed by the General Secretary of Mohan Bagan Athletic Club to the effect that the accused/opposite party no. 1 will return to India by 25th of May, 2008 and will redeposit the Passport before the Learned Chief Judicial Magistrate, Barasat. It appears from the perusal of the aforesaid order that the Learned Public Prosecutor appearing on behalf of the Customs Authority submitted that if Court passes an order of return of the Passport it should be for a limited period. As earlier Mr. Biswa Ranjan Ghoshal, the learned Senior Counsel appearing on behalf of the Customs Authority seriously repudiated such submissions of the Learned Public Prosecutor appearing on behalf of the Customs Authority and contended that such submissions was made by the Learned Counsel without the consent of the Customs Authority and is based on his personal opinion and the Customs Authority is not bound by the same. Incidentally the Learned Senior Counsel of the Customs Authority, Mr. Ghoshal could not produce anything to show that earlier on behalf of the Customs Authority any objection was raised in any form against such concessions purportedly made on their behalf by their Counsel, once, before the Learned Chief Judicial Magistrate, Barasat on March 20, 2008 and then again before the Learned Sessions Judge, Barasat on 7th April, 2008 or correctness thereof were disputed. In the four corners of the instant criminal revisional application there is no averment that such submissions made before the Learned Court belows by the Counsel of the Customs Authority were their personal view and without the consent of the Customs Authority and the stands so taken by their Counsels are denied and disputed.
6. The principle is well settled that the statements of fact as to what transpired at the hearing and recorded in the order or Judgement of the Court, are conclusive of the facts so stated and it is not permissible to either contradict or dispute the same at a very belated stage, alleging that such statement was recorded wrongly or made by the Counsel showing undue concession to the contending party, unless at the earliest such recording of facts allegedly made on concessions is disputed, by the party concerned drawing the attention of the Court recorded such facts. If no such step is taken by raising a dispute at the earliest opportunity the matter must necessarily ends there and it is not open to the party concerned to contend to the contrary for the first time only when the adversary take recourse to the same. It has already been noticed that the Customs Authority in the instant criminal revision made no statement on affidavit alleging that such submissions were actually made by their Counsel on his own and without their consent and the same is not admitted. Even at the risk of repetition it must be stated that neither of the submissions of the Learned Counsel of the Customs made one after another in the Court belows have been disputed in any way whatsoever nor in the instant criminal revisional application the correctness of such submissions have been disputed even remotely, until the Learned Counsel appearing on behalf of the accused/opposite party no. 1 draws the attention of the Court to such submissions and relied upon the same.
7. Be that as it may, the objection of the Customs Authority against the prayer of the accused/opposite party no. 1 for return of Passport both before the Learned Court below as well as before this Court on the ground that investigation is at a very early stage and accused is required to submit several documents in support of his legal acquisition, possession, exportation/transportation of foreign currency so recovered from him is not at all tenable. It is absolutely beyond comprehension when in one hand it is the case of the Investigating Agency that the accused on being apprehended as failed to produce any document in support of licit possession of the foreign currency in question and then confessed that he has no valid and legal papers in support of having the foreign currencies beyond the permissible limit and those were purchased from an unauthorized source and identity of the person is not known to him and on his failure to produce any valid and licit documents, he was arrested, the foreign currency was seized and a criminal prosecution has been launched against him as to how the accused is still required to submit the document and other necessary papers in support of lawful acquisition of those foreign currencies, as claimed by the Customs Authority. In any event, if the accused submits the documents in support of his licit possession of foreign currencies in question, as required by the Customs Authority, there cannot be any prosecution against him for violating any law.
The next objection of the Customs Authority against the return of Passport on the ground that the presence of the accused is necessary to unearth the racket unauthorisedly dealing in foreign currency does not appear to be very sound and of any substance. This is a case registered on March 20, 2008 and on the self-same day the place wherefrom such foreign currency was purchased by the accused was divulged from his interrogation, but having gone through the case dockets I have found that except recovery and seizure of the foreign currency from the accused and his arrest and then again his interrogation and recording of his statements under Section 108 of the Customs Act, there has been no further development during the period of about a month. Of course it is true as to how and in what way an investigation shall be proceeded is exclusively within the province of the investigation agency, still no Court can remain silent when such a lapse on the part of the investigating agency is apparent from the face of the records and when the investigating agency is trying utilize their own lapse against the accused. There is no material available from the case docket that any attempt has been made by the investigating agency to work out the information they received from the accused to unfold the racket involved. Mr. Ghoshal, the Learned Senior Counsel appearing on behalf of the petitioner also could not able to highlight anything in this regard and in his usual fairness submitted nothing can be imposed beyond what is appearing from the records.
Last but not least on behalf of the petitioner the prayer of return of the Passport was vehemently opposed on the apprehension that there is no legal procedure prescribed in any statute whereby the accused/opposite party no. 1's attendance during the trial can be secured if after leaving India he did not turn up. In course of hearing it has been brought to the notice of this court that during the recent visit of the President of India to Brazil a bilateral Extradition Treaty between the said two countries has been signed on April 16, 2008 providing for extradition of any accused person against whom an warrant of arrest is issued by a competent Court for offences punishable in both the countries with imprisonment of atleast one year or with more severe punishment and in case of a financial or revenue related crime. This fact has not been disputed on behalf of the petitioner. However, there is nothing before this Court that necessary notification in this regard in terms of Extradition Act, 1962 has been issued.
In this connection, in my opinion, it would be very relevant to refer an observation of the Apex Court in the case of State of West Bengal Vs. Jugal Kishore, reported in AIR 1969 SC 1171. Where the Apex Court in Paragraph 28 held as follows;
"One more argument remains to be noticed. It is true under the Extradition Act 34 of 1962 no notification has been issued including Hongkong in the list of the Commonwealth countries from which extradition of fugitives from justice may be secured. The provisions of the Extradition Act, 1962 cannot be availed for securing the presence of More for trial in India. But that did not, in our Judgement, operate as a bar to the requisitions made by the Ministry of External Affairs, Government of India, if they were able to persuade the colonial Secretary, Hongkong to deliver More for trial in this country."
In addition to that the Section 105 (B) of the Code of Criminal Procedure prescribed a procedure as to how in relation to a criminal matter where a warrant of arrest issued against any person be executed in a place outside India.
Thus, I am unable to accept the contention of the Learned Advocate of the petitioner that in the event the accused/opposite party no. 1 did not return to India to face his trial no adequate, efficacious, workable procedure is available to the Investigating Agency to secure his presence.
8. It is on record that all through the accused/opposite party no. 1 admitted his guilt and prayed for leniency, already the subject matter of offence i.e. foreign currency has been seized by the Investigating Agency and according to the accused/opposite party no. 1 he purchased those foreign currencies out of his hard earn money which he received as his professional remuneration from the club after deduction of Income Tax at source.
9. So far as the decisions relied upon on behalf of the petitioner all relates to the power of a Magistrate in directing return of the seized goods liable for confiscation under the Customs Act and have no application in the facts and circumstances of the present case, whereas the decisions relied upon by Mr. Bagchi relates to the cases, where two foreign nationals accused of an offence committed in this country were permitted to leave India under the facts and circumstances of those cases. The decisions relied upon by Mr. Bagchi only shows that a foreigner accused of commission of any offence in this country can also be permitted to visit his native land.
10. For the reasons stated above, I am of the clear opinion the impugned order of return of the Passport to the accused/opposite party no. 1 does not suffer from any impropriety or illegality and accordingly the prayer for interference with the same stands declined. However, I am of the opinion such order of return of Passport to the accused/opposite party no. 1 requires some modification. Accordingly, I direct that the Passport in question be returned to the accused/opposite party no. 1, subject to the satisfaction of the Learned Chief Judicial Magistrate, Barasat upon his furnishing a bank guarantee of Rs. 15 lakhs and on a bond of Rs. 10,000/- of two sureties one of whom must be local. The petitioner herein is directed to forthwith return the Passport to the accused/opposite party no. 1 upon his furnishing of the bond as aforesaid. It is further directed that the accused/opposite party no. 1 must return to India positively within six weeks from date of receipt of his Passport from the Customs Authority and after his return to India he shall surrender his Passport in the Court below within two days thereafter. This application thus stands disposed of.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties, positively by tomorrow.
( Ashim Kumar Roy, J. ) Later.
Prayer for stay of this order made on behalf of the petitioner is considered and rejected.
( Ashim Kumar Roy, J. )