2024 (4) TMI 1277 - HC - Customs

Maintainability of anticipatory bail application - neither any case booked against the accused-petitioner nor any complaint have been filed under Section 135 of the Customs Act 1962 - value of recovered gold is below Rs. 1, 00, 00, 000/- - bailable offence or not - HELD THAT - From the law laid down by the Hon ble Apex Court in The State of Gujarat Etc. v. Choodamani Parmeshwaran Iyer Anr. 2023 (7) TMI 1008 - SUPREME COURT it is apparent that powers under Section 438 of Cr.P.C. cannot be invoked as no complaint or FIR has been registered against the accused-petitioner under Section 135 of the Customs Act. It is not inclined to entertain the present anticipatory application of the accused-petitioner under Section 438 of Cr.P.C. as no case has been registered under the Customs Act against the accused-petitioner - bail application dismissed.

Summary

1. ISSUES PRESENTED and CONSIDERED

- Whether the accused-petitioner is entitled to anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, in connection with allegations under Section 135(1)(A)(B) of the Customs Act, 1962.

- Whether anticipatory bail can be granted when no FIR or complaint has been registered against the accused-petitioner under the Customs Act.

- The applicability of the legal principle established by the Supreme Court regarding the invocation of Section 438 Cr.P.C. in cases where a person is summoned but no FIR is registered.

- The relevance of the accused-petitioner's alleged involvement or non-involvement in the offence, including the recovery of gold from co-accused persons and the nature of the offence under the Customs Act.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Entitlement to anticipatory bail under Section 438 Cr.P.C. in the absence of FIR or complaint

Relevant legal framework and precedents:

The core statutory provision under consideration is Section 438 of the Code of Criminal Procedure, which empowers a person to seek anticipatory bail when apprehending arrest in non-bailable offences. The Customs Act, 1962, under Section 135(1)(A)(B), prescribes offences relating to unlawful import or export of goods, which can be non-bailable depending on the value and nature of goods involved.

The Supreme Court judgment in The State of Gujarat Etc. v. Choodamani Parmeshwaran Iyer & Anr. (2023) is pivotal. The Court held that when a person is merely summoned under a statutory provision (Section 69 of the CGST Act, 2017 in that case) for recording a statement and no FIR or complaint is registered, Section 438 Cr.P.C. cannot be invoked for anticipatory bail. Instead, the remedy lies under Article 226 of the Constitution for protection against arrest.

Court's interpretation and reasoning:

The Court applied the principle from the apex court judgment by analogy to the present case under the Customs Act. Since no FIR or complaint has been registered against the accused-petitioner under Section 135 of the Customs Act, the power of arrest under the relevant provisions has not yet been triggered. The petitioner is only under summons for investigation purposes.

Key evidence and findings:

The petitioner had been summoned multiple times by the Directorate of Revenue Intelligence (DRI) but failed to appear or cooperate. However, no formal case or complaint has been registered against him. The gold was recovered from a co-accused, not from the petitioner, and the value of recovered gold was below the threshold for non-bailable offence.

Application of law to facts:

Given the absence of FIR or complaint and the petitioner's status as a summoned person rather than an accused formally charged, the Court found that anticipatory bail under Section 438 Cr.P.C. was not maintainable. The petitioner's apprehension of arrest was premature and not supported by any formal registration of offence.

Treatment of competing arguments:

The petitioner's counsel argued innocence, lack of involvement, and that co-accused had already been granted bail. The DRI counsel contended that the petitioner avoided cooperation and that anticipatory bail was not maintainable without a registered case. The Court favored the latter, relying on the apex court's authoritative ruling.

Conclusions:

The Court concluded that anticipatory bail under Section 438 Cr.P.C. cannot be granted in the absence of FIR or complaint. The petitioner's anticipatory bail application was dismissed accordingly.

Issue 2: Relevance of petitioner's involvement and recovery of gold from co-accused

Relevant legal framework and precedents:

Section 135(1)(A)(B) of the Customs Act criminalizes unlawful import/export and concealment of goods. The value of goods determines whether the offence is bailable or non-bailable. The petitioner's involvement in loading, unloading, or examination of containers is relevant to establish culpability.

Court's interpretation and reasoning:

The Court noted that gold was recovered from co-accused Rounak Soni, not the petitioner. The value of gold was below Rs. 1 crore, making the offence bailable for the co-accused. The petitioner had no direct or indirect role in the handling of containers or goods.

Key evidence and findings:

Recovery of gold from co-accused and not petitioner; petitioner's non-appearance before DRI despite summons; absence of any formal charge against petitioner.

Application of law to facts:

The petitioner's non-involvement in the physical handling of goods and lack of evidence connecting him directly to the offence weighed against granting anticipatory bail, but since no FIR was registered, this issue became secondary to the maintainability question.

Treatment of competing arguments:

Petitioner's counsel emphasized innocence and lack of involvement; DRI emphasized non-cooperation and investigation status. The Court did not delve deeply into guilt or innocence at this stage but focused on procedural propriety.

Conclusions:

The petitioner's lack of involvement and the nature of recovery from co-accused did not entitle him to anticipatory bail in the absence of a registered case.

3. SIGNIFICANT HOLDINGS

"Thus, the position of law is that if any person is summoned under Section 69 of the CGST Act, 2017 for the purpose of recording of his statement, the provisions of Section 438 of Criminal Procedure Code, 1908 cannot be invoked. We say so as no First Information Report gets registered before the power of arrest under Section 69(1) of the CGST Act, 2017 is invoked and in such circumstances, the person summoned cannot invoke Section 438 of the Code of Criminal Procedure for anticipatory bail. The only way a person summoned can seek protection against the pre-trial arrest is to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India."

This principle, though laid down in the context of the CGST Act, was applied analogously to the Customs Act proceedings in the present case.

Core principles established:

• Anticipatory bail under Section 438 Cr.P.C. is not maintainable where no FIR or complaint is registered against the accused.
• Summons issued for recording statements during investigation do not confer the right to anticipatory bail under Section 438 Cr.P.C.
• Protection against arrest at the summons stage must be sought under Article 226 of the Constitution, not under Section 438 Cr.P.C.
• The value of recovered goods and the accused's involvement are relevant but subordinate to the procedural requirement of a registered case for anticipatory bail.