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Delhi High Court - Orders

Naman Kulthia vs Directorate Of Revenue Intelligence on 28 November, 2022

                          $~12
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI

                          +     BAIL APPLN. 3012/2022
                                NAMAN KULTHIA                                ..... Applicant
                                              Through:           Mr. Mohit Mathur, Sr.
                                                                 Adv. with Mr. Sumit
                                                                 Mishra & Mr. Manish
                                                                 Pratap Singh, Advs.

                                                    versus

                                DIRECTORATE OF REVENUE INTELLIGENCE
                                                                 ..... Respondent
                                             Through: Mr. Satish Aggarwala,
                                                      Senior Standing Counsel,
                                                      Indirect Taxes, Dept. of
                                                      Revenue with Mr. Gagan
                                                      Vaswari, Adv.

                                CORAM:
                                HON'BLE MR. JUSTICE AMIT MAHAJAN
                                             ORDER

% 28.11.2022

1. The present application has been filed seeking pre-arrest bail under Section 438 of the Code of Criminal Procedure, 1973 (Cr.P.C.).

2. It is an admitted fact that the one Mr. Sanjeev Verma, who is a co-accused, was arrested on 22.08.2022 by the respondent while exercising power under Section 104 of the Customs Act,1962. Thereafter, Mr. Sanjeev Verma was granted bail on 15.09.2022 by the concerned Court.

3. The Show Cause Notice was, thereafter, issued upon the present applicant asking him to join inquiry/ investigation.

4. On receipt of such Show Cause Notice, the applicant filed the application under Section 438, Cr.P.C., before the concerned Signature Not Verified Court, which was dismissed vide order dated 28.09.2022.

Signing Date:28.11.2022 21:18:22

5. Learned Senior counsel for the applicant states that the entire case of the prosecution is based on the statement made by the co-accused, Mr. Sanjeev Verma, who is already on bail.

6. It appears that Mr. Sanjeev Verma during his statement before the respondent, under Section 108, Customs Act,1962 had stated that he has only been working for the applicant's father, Mr. Kamal Kant Kulthia and was not responsible for the business activities carried on by M/s Life Top that is the company responsible for importing the gym equipment in which alleged gold was hidden.

7. Mr. Satish Aggarwala, learned counsel for the respondent, vehemently argues that the present application is pre-mature. He states that the power under Section 104 of the Customs Act,1962 is statutory in nature and can only be exercised on behalf of the Department under the order of Principle Commissioner of Customs or Commissioner of Customs and only under circumstances when he has reason to believe that any person in India has committed an offence punishable under Sections 132,133,135,135A or Section 136 of the Customs Act, 1962.

8. He submits that at this stage only a notice has been issued for carrying out further inquiry and it would be pre-mature to assume that the applicant will be arrested so as to entitle him to invoke jurisdiction under Section 438 of Cr.P.C.

9. He further submits that the applicant has not joined investigation despite several notices.

10. Mr. Mohit Mathur, learned Senior counsel for the applicant, points out to the stand taken by the Department before the Trial Court as well as the reply filed before this Court and states that the Department has already even without the inquiry Signature Not Verified reached a conclusion, that the applicant is involved in the alleged Digitally Signed By:KAMALDEEP KAUR BAIL APPLN. 3012/2022 Page 2 of 3 Signing Date:28.11.2022 21:18:22 smuggling activity.

11. It is significant to note that the Department had taken a specific stand before the Trial Court while opposing the bail application of Mr. Sanjeev Verma that Mr. Sanjeev Verma is the proprietor of M/s Life Top and all activities related to that firm are the sole responsibility of Mr. Sanjeev Verma.

12. Be that as it may, since the applicant has not joined investigation, this Court considers it apposite to direct the applicant to cooperate with investigation and submit to the jurisdiction of the concerned Officer within 24 hours of such notice being issued and delivered.

13. The applicant is further directed to cooperate and join the investigation as and when required.

14. Put up for consideration on 03.02.2023.

15. In the meantime, the respondent is directed not to take coercive steps against the applicant. The respondent, however, would be at liberty to file an appropriate application for modification of the order in case the applicant does not cooperate with the investigation or in case the respondent feels that the applicant needs to be arrested in exercise of power under Section 104 of the Customs Act,1962.

AMIT MAHAJAN, J NOVEMBER 28, 2022 "SS"