2025 (5) TMI 423 - HC - Customs

Recall of order vide which the Anticipatory Bail has been granted to Respondents - reasonable apprehension of arrest or harassment by the Investigating Agency justifying the grant of Anticipatory Bail under Section 438 Cr.P.C. - smuggling of gold - HELD THAT - The DRI in their reply had stated that summons were repeatedly sent for enquiry under Section 108 Customs Act in connection with smuggling of 57 Kg of gold but the Respondent failed to join the enquiry till date. This aspect was well considered by the learned ASJ to observe that the Respondents assertions established that it was not a mere fear or belief of apprehension without any basis but the apprehension arose since they had been summoned only on the basis of statements of the co-accused and they could have been arrested; such an apprehension was real and could not be termed as fear or without any basis. Therefore the Respondent had reasonable grounds of apprehension of being arrested. Furthermore from the conduct of the DRI it cannot be stated that there was no apprehension of harassment at their end. The learned ASJ in a well reasoned Order had considered all the contentions of the DRI before granting the Anticipatory Bail - Merely because the DRI stated that they had no intention to arrest the Respondents was not sufficient to allay their apprehension of arrest since they were being served with Notices for joining the inquiry. Conclusion - The grant of Anticipatory Bail in the present case was rightly made by the learned ASJ after considering all relevant facts including the Respondents status lack of direct evidence against them and the conduct of the Investigating Agency. There is no merit in the present Application for cancellation/recall of Anticipatory Bail which is hereby dismissed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court were:

• Whether the Anticipatory Bail granted to the Respondents was rightly granted or liable to be recalled on the grounds that the application was not maintainable or premature.
• Whether the Respondents had a reasonable apprehension of arrest or harassment by the Investigating Agency justifying the grant of Anticipatory Bail under Section 438 Cr.P.C.
• Whether the facts and evidence, including the ongoing investigation and recovery of gold, supported the denial or grant of Anticipatory Bail.
• Whether the learned ASJ erred in not considering relevant precedents and legal principles while granting Anticipatory Bail.
• Whether the directions or observations by the lower courts or authorities, including any notice requirements prior to arrest, were legally valid.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Maintainability and Prematurity of Anticipatory Bail Application

Legal Framework and Precedents: The Court referred to the principles laid down in various Supreme Court judgments including the ruling in Union of India vs. Hassan Ali, which emphasized that Anticipatory Bail under Section 438 Cr.P.C is not maintainable unless the applicant demonstrates a reasonable apprehension of arrest or harassment. The Court also relied on precedents such as Parvinderjit Singh vs. State and Gurbaksh Singh Sibba vs. State which clarified that mere fear is insufficient; there must be a founded belief of arrest.

Court's Interpretation and Reasoning: The Court examined whether the Respondents had established a real and reasonable apprehension of arrest. It noted that the Respondents were summoned repeatedly by the Directorate of Revenue Intelligence (DRI) for inquiries related to smuggling of gold, based on statements of co-accused persons. The Respondents contended that they had no role in smuggling and no incriminating material was recovered from them.

Key Evidence and Findings: The investigation revealed recovery of 7 Kg of gold with a market value of over Rs. 2 crores, part of a larger smuggling conspiracy involving 57 Kg gold. Statements under Section 108 Customs Act implicated several persons, including the Respondents' family members. The Respondents had failed to join inquiries despite summons.

Application of Law to Facts: The Court found that the Respondents' apprehension was not a mere fear but was based on summons and the possibility of arrest given the ongoing investigation and statements implicating them. The learned ASJ had considered these facts and concluded that the apprehension was reasonable and justified grant of Anticipatory Bail.

Treatment of Competing Arguments: The Petitioners argued that the Anticipatory Bail application was premature and not maintainable as no arrest was proposed by the competent authority. The Court rejected this argument, noting that the Respondents' apprehension arose from repeated summons and the nature of the investigation. The Court also observed that the learned ASJ had duly considered the submissions of the DRI.

Conclusion: The application for cancellation of Anticipatory Bail on grounds of maintainability and prematurity was found to be without merit.

Issue 2: Reasonable Grounds for Apprehension of Arrest or Harassment

Legal Framework and Precedents: The Court relied on the principle that Anticipatory Bail is justified only if the applicant establishes that they are likely to be arrested and harassed without sufficient cause. The Court cited Enforcement Officer vs. Bher Chand Tikaji Bora and other Supreme Court decisions emphasizing that mere apprehension or fear is insufficient.

Court's Interpretation and Reasoning: The Court analyzed the conduct of the DRI and the circumstances under which the Respondents sought Anticipatory Bail. It was noted that summons were repeatedly issued and that Kiran Verma was allegedly harassed when she attempted to comply with an order for release of case property. The Court held that such conduct gave rise to a reasonable apprehension of arrest and harassment.

Key Evidence and Findings: The DRI's own reply admitted that summons were issued repeatedly and that the Respondents had not joined the inquiry. The Court found that the Respondents' apprehension was not unfounded, especially considering the ongoing investigation into a serious gold smuggling conspiracy.

Application of Law to Facts: The Court applied the legal standard that reasonable grounds must exist for apprehension of arrest. Given the summons, the nature of the offence, and the investigation, the Court found that the Respondents had established such grounds.

Treatment of Competing Arguments: The Petitioners contended that the DRI had no intention to arrest and that the Respondents were not being harassed. The Court rejected this, holding that the mere statement of no intention to arrest does not negate reasonable apprehension, especially when summons and inquiries are ongoing.

Conclusion: The Court upheld the grant of Anticipatory Bail on the basis of reasonable apprehension of arrest and harassment.

Issue 3: Validity of Directions Regarding Arrest and Notice

Legal Framework and Precedents: The Court referred to the Supreme Court's observations in Union of India vs. Padam Narayan and Department of Customs vs. Arvinder Singh, which held that directions requiring prior notice before arrest in non-bailable offences are not legally valid.

Court's Interpretation and Reasoning: The Petitioners challenged the Anticipatory Bail order partly on the basis that the learned ASJ had relied on judgments that were not mentioned in the order and that the directions regarding notice before arrest were improper. The Court noted that such directions are not legally sustainable and should not influence the grant or cancellation of Anticipatory Bail.

Key Evidence and Findings: The Court observed that the learned ASJ had considered all relevant contentions and that the grant of Anticipatory Bail was based on reasonable grounds of apprehension rather than any invalid directions.

Application of Law to Facts: The Court distinguished the issue of prior notice from the question of reasonable apprehension and maintainability of Anticipatory Bail, holding that the former does not affect the latter.

Treatment of Competing Arguments: The Petitioners' submissions regarding invalidity of directions were noted but found not to undermine the legality of the Anticipatory Bail granted.

Conclusion: The Court affirmed that directions requiring prior notice before arrest are not legally valid but that this did not affect the grant of Anticipatory Bail in the present case.

Issue 4: Impact of Subsequent Complaints and Non-Arraying of Respondents

Legal Framework and Precedents: The Court considered whether subsequent filing of complaints without naming the Respondents as accused affected the maintainability or necessity of recalling Anticipatory Bail.

Court's Interpretation and Reasoning: It was pointed out that complaints filed after the grant of Anticipatory Bail did not array the Respondents as accused persons. This fact was submitted by the Respondents to argue that the Petition for cancellation had become infructuous.

Key Evidence and Findings: The Court noted this submission but did not find it sufficient to recall the Anticipatory Bail, as the apprehension of arrest existed at the time of the application and grant of bail.

Application of Law to Facts: The Court held that the subsequent non-inclusion of Respondents in complaints did not negate the earlier reasonable apprehension of arrest or the propriety of the Anticipatory Bail order.

Treatment of Competing Arguments: The Petitioners did not specifically dispute this point but relied on the ongoing investigation and seriousness of the offence to justify cancellation.

Conclusion: The Court found no merit in the argument that subsequent complaints without naming Respondents rendered the Anticipatory Bail order liable to be recalled.

3. SIGNIFICANT HOLDINGS

"The apprehension of the Respondents was not a mere fear or belief without any basis but was founded on reasonable grounds since they had been summoned repeatedly by the DRI and could have been arrested in the ongoing investigation."

"Mere statement by the Investigating Agency that there is no intention to arrest does not allay the apprehension of arrest when summons and inquiries are ongoing."

"Directions requiring prior notice before arrest in non-bailable offences are neither legal nor valid and cannot be a ground to grant or deny Anticipatory Bail."

"Anticipatory Bail under Section 438 Cr.P.C is not maintainable unless the applicant establishes a reasonable apprehension of arrest or harassment by the Investigating Agency."

"The grant of Anticipatory Bail in the present case was rightly made by the learned ASJ after considering all relevant facts, including the Respondents' status, lack of direct evidence against them, and the conduct of the Investigating Agency."

"The Petition for cancellation/recall of Anticipatory Bail lacks merit and is dismissed."