Gujarat High Court
Jayvirsing Samshersing Kaden & vs State Of Gujarat & on 22 December, 2015
Author: A.J.Desai
Bench: A.J.Desai
R/CR.MA/22821/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 22821 of 2015
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JAYVIRSING SAMSHERSING KADEN & 1....Applicants
Versus
STATE OF GUJARAT & 1....Respondents
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Appearance:
MR ND NANAVATI, SR. ADVOCATE with MR CHETAN K PANDYA,
ADVOCATE for the Applicants.
MR HRIDAY BUCH, ADVOCATE for the Respondent No. 1
MR MITESH AMIN, PP for the Respondent No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 22/12/2015
CAV JUDGMENT
1. By way of this application, the applicants have prayed to enlarge them on regular bail in connection with DRI File No.DRI/AZU/GI-02/ENQ-10/2015 of Directorate of Revenue Intelligence, Ahmedabad Zonal Office, Ahmedabad, for the offences punishable under Sections 132 and 135(1) of the Customs Act,1962 read with 120(B) of the Indian Penal Code. The said inquiry proceedings were sanctioned by the authority empowered under Section 137(1) of the Customs Act and accordingly complaint being Criminal Complaint No.118 of 2015 came to be registered in the court of learned Additional Chief Metropolitan Magistrate, Court No.11, Ahmedabad.
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R/CR.MA/22821/2015 ORDER
2. Pursuant to the Notice issued by this Court, the complainant i.e. respondent No.2 through its Deputy Director, DRI, Zonal Unit, Ahmedabad, Mr.Sanket S. Kale, has filed Affidavit-in-reply dated 7/12/2015 and has opposed this application.
3. Brief facts, emerge from the record, are as under:
That the Crime Branch of Ahmedabad city had received a secret and authentic information that huge consignment of gold, is being illegally, going to arrive at Sardar Vallabhbhai Patel International Airport and, therefore, Special Operation Group headed by Police Inspector B.D.Jadeja along with his team, were keeping watch in the airport area i.e. out side of terminal. On 24/02/2015 three accused namely Clifford Antony D'Costa, Virendrasingh and Sapna Vaghela were successful in coming out from the Airport terminal with illegal consignment of 60 bars of gold, weighting 60 Kgs., having worth at Rs.16 Crores. Present two applicants/accused namely, Jayvirsing Kaden and Kapil Jaydevsingh Dagar and one another person namely Dinesh Desai had come to receive those three persons, all of six accused were cough raid handed by the said team while they were trying to load the consignment in a four wheeler. Accordingly Panchnama was prepared and an FIR being C.R.No.I-15 of 2015 was registered on the same day i.e. on 24/02/2015 for the offence punishable under Sections 406, 420, 11 & 120(B) of the Indian Penal Code with DCB Police Station, Ahmedabad. By an application dated 26/02/2015, Investigating Officer of Special Operation Group requested the learned Magistrate to add Sections 467 and 147 of the Page 2 of 11 HC-NIC Page 2 of 11 Created On Wed Dec 23 02:31:37 IST 2015 R/CR.MA/22821/2015 ORDER Indian Penal Code in the said offence on the ground that they have made wrong declaration in the Form, which are required to be filled in by the passengers that they had no goods for which customs duty is required to be paid. Accordingly the said sections were added in the said offence. Since there was evasion of duty and false declaration was made for bringing huge quantity of gold, the authority appointed under The Customs Act,1962, started inquiry in the matter. The applicants came to be arrested on 29/08/2015 by Intelligence Officer of DRI, Zonal Unit, Ahmedabad and thereafter also investigation continued.
During the investigation, statements of accused persons u/s.108 of the Customs Act were recorded by the Agency and ultimately before completion of 60 days from the date of arrest of the applicants, a complaint came to be lodged with learned Magistrate on 29/10/2015. By considering the statements of the accused persons recorded u/s.108 of the Customs Act as well as statements of the witnesses, it was found that the present applicants were indulged in similar activities in past and several such consignments, they had received and huge amount of custom duties have been evaded. It was alleged in the complaint that brother of applicant No.1, who is an Indian National, who is settled at Dubai, who is accused No.6, is handling such illegal transactions and against whom, Red Corner Notice has been issued by the Central Government.
Having received such complaints, the present applicants filed an application u/s.439 of the Code of Criminal Procedure before learned Additional Chief Metropolitan Magistrate being Criminal Misc. Application No.160 of 2015, which was dismissed by learned Metropolitan Magistrate on Page 3 of 11 HC-NIC Page 3 of 11 Created On Wed Dec 23 02:31:37 IST 2015 R/CR.MA/22821/2015 ORDER 7/11/2015. The applicants approached learned City Sessions Judge by way of filing Criminal Misc. Application No.4540 of 2015 and requested that they may be released on bail as investigation is over. The said application came to be rejected by learned Sessions Judge vide order dated 27/11/2015. Hence, this application.
4. Mr.N.D.Nanavati, learned Senior Counsel assisted by Mr.Chetan Pandya, learned advocate appearing for the applicants vehemently submitted that respondent- Customs Authority has deliberately prolong the investigation and, therefore, though they are behind the bar pursuant to an offence registered by DCB Police Station on 24/02/2015, the applicants were arrested for the present offence after more than six months. He would submit that it is an undisputed fact that the present applicants were arrested on 24/02/2015 by DCB Crime and were in judicial custody up to 29/08/2015 when the applicants were formally arrested by the respondent authority. He would submit that even if prima facie, it is believed that the case put forward by DCB Crime that 60 gold bars worth Rs.16 Cores was illegally taken out from the airport terminal by those three accused, who had traveled from Dubai to Ahmedabad and were found with the same, it is the case of the prosecution the applicants were allegedly had came to receive them, the respondent - Customs authority did not care to arrest them immediately and waited for considerable long time i.e. for more than six months. He would further submit that even after their arrest, the respondent agency has deliberately filed the complaint on the last date of limitation as provided u/s.167(2) of the Code of Criminal Procedure. He would submit that the gold, which has Page 4 of 11 HC-NIC Page 4 of 11 Created On Wed Dec 23 02:31:37 IST 2015 R/CR.MA/22821/2015 ORDER been brought by other three accused, has been already seized by the department of customs. He would submit that it is an undisputed fact that the applicants have not travelled from Dubai, however, caught along with those three accused persons, who have passed through custom channel at the terminal without paying custom duty of the gold, which they have allegedly imported from Dubai. He would submit that till today, no proceedings provided under Section XIV of the Act, have been initiated by the Department of Customs against any of the accused. Procedure prescribed under this Act including issuance of show cause notice before confiscating the goods, etc., which has yet not commenced. There are other alternative remedy available under Chapter XIV A and XV of the said Act and, therefore, he would submit that the Investigating Agency is interested in prolonging the proceedings with regard to evasion of customs duty and keeping the applicants behind the bar for endless time. He would submit that the statements of the witnesses relied upon by the Investigating Agency with regard to the activities allegedly carried out by the applicants in past, no supporting material is collected by the Investigating Agency. He would submit that investigation is over and, therefore, there is no question of tampering with the evidence. He would further submit that the witnesses referred in the complaint, are all government officers and, therefore, there is no question of influencing those witnesses. He would further submit that maximum punishment prescribed u/s.135 of The Custom Act, is seven years and, therefore, considering the gravity of the offence, the applicants may be released by imposing appropriate conditions i.e. by restraining the mobility of accused as well as securing their presence. He has relied Page 5 of 11 HC-NIC Page 5 of 11 Created On Wed Dec 23 02:31:37 IST 2015 R/CR.MA/22821/2015 ORDER upon the judgement delivered by Hon'ble the Apex Court in the case of Sanjay Chandra V/s. Central Bureau of Investigation reported in (2012)1 SCC 40. By taking me through the various paras of the said judgement, he would submit that after considering the landmark judgements of the Supreme Court itself, Hon'ble Apex Court has held that certain aspects are required to be considered while an application of bail is under consideration by the court i.e. nature of accusation and punishment; nature of supporting evidence, apprehension of tampering with witnesses or apprehension of threat to the complainant, etc. He therefore would submit that the applicants may be released on bail during pendency of the trial.
5. On the other hand, Mr.Hriday Buch, learned Standing Counsel appearing for respondent No.2 has opposed this application by taking me through the Affidavit-in-reply filed by the department as well as through the statements of witnesses namely Pravinbhai, Yogeshbhai Patel, etc. as well as statements of applicants-accused recorded u/s.108 of the Act. He would submit that brother of applicant No.1, who is an Indian National, has settled at Dubai, who is regularly dealing with such illegal activities like sending gold bars in huge quantity without paying custom duties. He would submit that Red Corner Notice has been issued against brother of applicant No.1. He would further submit that as per their own statements recorded u/s.108 of the Act, in past also, he has received about 12 consignments, for which, investigation is yet to be carried out. By taking me through the Affidavit, it is explained that how the money has been transferred through different type of Angadiya services with regard to illegal Page 6 of 11 HC-NIC Page 6 of 11 Created On Wed Dec 23 02:31:37 IST 2015 R/CR.MA/22821/2015 ORDER smuggled gold.He therefore, would submit that the applicants are involved in serious crime and, therefore, these applications may be rejected.
6. I have heard learned advocates appearing on behalf of the respective parties and perused the papers of investigation and considered the Affidavit-in-reply filed by the applicants and submissions made by learned advocates appearing on behalf of the respective parties.
7. It is an undisputed fact that three persons namely Clifford Antony D'Costa, Virendrasingh and Sapna Vaghela arrived from Dubai to Ahmedabad Internal Airport on 24/02/2015. It is also an undisputed fact that they have cleared custom procedure and came out of terminal itself. When those three accused were loading the luggage including allegedly 60 gold bars, Special Operation Group of DCB Crime, who had prior information caught raid handed those three accused where the present applicants alleged have came to receive those three accused, who are messengers and who alleged to have deliver the goods to the applicants, who are related to the persons, who have sent the gold bars without paying any duties. It is also an admitted fact that all the persons were arrested by DCB Crime on 24/02/2015.
This Court would not like to express any opinion about the manner and method by which entire raid has been carried out by the Special Operation Group i.e. by not informing the Officers of the Customs Department stationed at Airport itself, who have vide and different persons for dealing with such crime. This would be subject matter of trial and Officer, who had secret information and found the Page 7 of 11 HC-NIC Page 7 of 11 Created On Wed Dec 23 02:31:37 IST 2015 R/CR.MA/22821/2015 ORDER accused outside the airport, raided is one of the witnesses in the complaint, filed by The Customs Department. It is also an admitted fact that though the applicants were arrested on 24/02/2015 and were in judicial custody pursuant to the lodgment of FIR by the police department, the Custom Department has arrested the present applicants on 29/08/2015 i.e. after more than six months. There might be some investigation during this period, however it is desirable to comment anything about the reasons for not arresting the applicants for considerable long time. The complaint has also been filed on 60th day from their arrest. This also suggests that customs department has sufficient time to investigate the case i.e. from 24/02/2015 to 27/10/2015 i.e. date of filing the complaint before the learned Magistrate.
It is true that huge consignment of gold i.e. more than Rs.16 Crores were seized by the customs department but it also fact that no procedure under Chapter XIV of the Act, has been initiated for confiscating the goods.
As far as allegations made by the prosecution that in past also, the applicants had indulged in similar activities, which is under investigation, in my opinion, that would not the the ground to reject the application, since the authority had sufficient time to complete the investigation. I have also considered the ratio laid down by Hon'ble Apex Court in the case of Sanjay Chandra (supra) as well as in the case of Kalyan Chandra Sarkar V/s. Rajesh Ranjan reported in 2004(7) SCC 528, has held that the factors, which are required to be considered for granting bail would be:
(a) The nature of accusation and the severity of punishment in case of conviction and the Page 8 of 11 HC-NIC Page 8 of 11 Created On Wed Dec 23 02:31:37 IST 2015 R/CR.MA/22821/2015 ORDER nature of supporting evidence
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge.
By relying upon the decision rendered in the case of State of Kerala V/s. Raneef reported in (1978)1 SCC 118, Hon'ble Apex Court in the case of Sanjay Chandra (supra) has also considered the important factor, which should be taken into consideration is the delay in concluding the trial. In the said case, accused was in jail about 66 days, which was considered as long period wherein in the present case, the applicants are behind the bar since more than 10 months and it is equally true that investigation is almost over.
8. Considering the overall facts and circumstances of the case and ratio laid down by the Hon'ble Apex Court in the case of Sanjay Chandra (supra), in my opinion, this application requires consideration.
9. In the facts and circumstances of the case and considering the nature of allegations made against the applicants 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 applicants on regular bail. Hence, the present application is allowed and the applicants are ordered to be released on regular bail in Page 9 of 11 HC-NIC Page 9 of 11 Created On Wed Dec 23 02:31:37 IST 2015 R/CR.MA/22821/2015 ORDER connection with DRI File No.DRI/AZU/GI-02/ENQ-10/2015 of the Directorate of Revenue Intelligence, Ahmedabad Zonal Unit, Ahmedabad, on executing a personal bond of Rs.2,00,000/- (Rupees Two Lacs only) with two sureties of Rs.1,00,000/- each to the satisfaction of the learned Trial Court and subject to the conditions that they 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 as well as State of Delhi without prior permission of the Sessions Judge concerned;
[e] mark presence before the concerned Police Station on every Monday for a period of six months and thereafter, on any day of first week of each English Calendar month till trial is over;
[f] furnish latest 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 applicants only if they are 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 Page 10 of 11 HC-NIC Page 10 of 11 Created On Wed Dec 23 02:31:37 IST 2015 R/CR.MA/22821/2015 ORDER 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 applicants on bail. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
[A.J.DESAI,J.] *dipti Page 11 of 11 HC-NIC Page 11 of 11 Created On Wed Dec 23 02:31:37 IST 2015