2017 (11) TMI 309 - HC - Customs

Bail Application - offence punishable under Section 135(1)(i)(A) of the CA 1962 - quantum for bailable offence - Held that - indisputably the charge-sheet in the matter is yet to be filed and the investigation is in progress however it is also not in dispute that the substantial part of the investigation is over. Moreover the custodial interrogation of the applicant also appears to have been over as the applicant is in custody since his arrest i.e. 27/09/2017 for almost for 40 days. In the event the evaluation comes below Rs. 1 crore subsequently the offence would be bailable. Further a perusal of the e-mail dated 02.10.2017 at Annexure E to the application prima facie reveals that the goods in question were wrongly sent to the applicant. Besides the father of the applicant has filed the affidavit stating therein that they are not the import of the other container and they have nothing to do with the same. Further it is also not in dispute that the applicant is the resident of Surat and has roots in Surat town having responsibility towards family and has established business and hence his presence can be secured as and when required during the investigation as well as during the trial by imposing certain conditions. This Court is of the opinion that discretion is required to be exercised in favour of the applicant for grant of bail. Moreover the applicant assures that he will abide by the terms and conditions that may be imposed by the Court and shall not commit any breach. Hence the application is allowed and the applicant is ordered to be released on regular bail on executing a personal bond of Rs. 10, 000/- with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions imposed - application allowed.

Summary

Issues Involved:
1. Application for regular bail under Section 439 of the Criminal Procedure Code, 1973.
2. Alleged offence under Section 135(1)(i)(A) of the Customs Act, 1962.
3. Grounds for arrest not served to the applicant.
4. Valuation of goods involved in the offence.
5. Applicant's connection to the goods and the alleged offence.
6. Applicant's likelihood to flee or tamper with evidence.
7. Compliance with guidelines for arrest and bail under the Customs Act, 1962.

Issue-wise Detailed Analysis:

1. Application for Regular Bail:
The applicant filed for regular bail under Section 439 of the Criminal Procedure Code, 1973, in connection with an offence under Section 135(1)(i)(A) of the Customs Act, 1962. The applicant was arrested on 27/09/2017 by the Directorate of Revenue Intelligence (DRI) for allegedly importing Chinese firecrackers without a license.

2. Alleged Offence under Section 135(1)(i)(A) of the Customs Act, 1962:
The applicant was accused of importing 877 cartons, including 466 cartons of "Party Popper" and the remaining of "Chinese Firecrackers," without a license. The maximum punishment for this offence is imprisonment for seven years, and the offence is triable by a Magistrate.

3. Grounds for Arrest Not Served:
The applicant contended that the grounds of arrest were not served to him in writing, which is a legal requirement. The applicant's advocate provided specimen copies of Grounds of Arrest issued in similar cases to support this claim. The respondent's counsel countered by stating that the grounds were explained to the applicant, as endorsed in the Arrest Memo.

4. Valuation of Goods:
The applicant argued that the valuation of the goods at Rs. 1.07 crore was questionable and could potentially be lower, making the offence bailable if the value falls below Rs. 1 crore. The respondent's counsel maintained the valuation and highlighted the applicant's preplanned actions to import the firecrackers without a license.

5. Applicant's Connection to the Goods and the Alleged Offence:
The applicant claimed that the fireworks were wrongly supplied to him along with "Party Popper" and presented an email dated 02.10.2017 to substantiate this. The applicant's father also filed an affidavit stating they were not the importers of another container. The respondent's counsel argued that the applicant's conduct and the importation of Chinese firecrackers without a license indicated a preplanned offence.

6. Applicant's Likelihood to Flee or Tamper with Evidence:
The applicant's advocate emphasized that the applicant is a resident of Surat with established business and family ties, making him unlikely to flee. The respondent's counsel argued that the investigation was ongoing, and there was a risk of the applicant tampering with evidence. The Court noted that the applicant had been in custody for 40 days, and substantial investigation was complete.

7. Compliance with Guidelines for Arrest and Bail:
The applicant's advocate referred to the revised guidelines for arrest and bail under the Customs Act, 1962, and argued that the applicant's arrest did not comply with these guidelines. The respondent's counsel maintained that the arrest was justified given the gravity of the offence and the applicant's conduct.

Judgment:
The Court considered the principles laid down by the Supreme Court in Sanjay Chandra Vs. Central Bureau of Investigation, emphasizing the presumption of innocence, the rule of bail, and the seriousness of charges. The Court noted that the charge-sheet was yet to be filed, and substantial investigation was complete. The offence was triable by a Magistrate, and the maximum punishment was seven years. The valuation of goods was questionable, and the applicant had roots in Surat, making him unlikely to flee.

The Court granted bail to the applicant on executing a personal bond of Rs. 10,000 with one surety of the like amount, subject to conditions including not taking undue advantage of liberty, not leaving Surat till 30/11/2017, marking presence before the respondent No. 2 department, and surrendering the passport. The Court also directed that the applicant be released only if not required in connection with any other offence and allowed for the modification of conditions by the lower Court. The trial Court was instructed not to be influenced by the observations made during the bail proceedings.

Conclusion:
The application for bail was allowed, and the applicant was granted bail with specific conditions to ensure his presence during the investigation and trial. The Court emphasized the principles of presumption of innocence and the rule of bail while considering the application.