2025 (5) TMI 1540 - HC - Customs

Recall Order for cancellation of Bail - Bail granted on the basis of the young age of the Respondent - gravity of the offence - factors relevant and material to be noted before granting bail - Smuggling of prohibited goods - Offences punishable under Section 132 and 135 of the Act - statement under Section 108 the Act recorded of the four other co-accused persons - HELD THAT - It is pertinent to consider that the Ld. Trial Court has rightly observed that Respondent-Khushant Nagpal was a young boy of 20 years engaged as a Cleaner on the Truck to which he agreed as he was in need of money. It was further observed that he was not the main mastermind of the alleged offence. Confining such youthful offender in Jail is neither psychologically nor mentally conducive for such young boy and there is likelihood of physical abuse if remanded to judicial custody as he would get criminalised by being in the company of other criminally active persons. The role of the Respondent-Khushant Nagpal was not that of a main conspirator. Therefore taking into consideration the gravity of the offence and the allegations against the Respondent-Khushant Nagpal along with his age bail was granted. Another factor which is relevant and material to be noted is that because the Complaint was not filed in the Court within the statutory period all four accused had been granted Statutory Bail. Moreover the Complaint already stands filed. No grounds were brought forth by the Petitioner/DRI to justify that the Order dated 14.12.2020 suffers from any apparent anomaly or that all relevant factors had not been duly considered while granting bail to the Respondent-Khushant Nagpal. There is no merit in the present Petition which is hereby dismissed. The Petition is disposed of.

Summary

1. ISSUES PRESENTED and CONSIDERED

- Whether the bail granted to the Respondent under Section 482 Cr.P.C. by the learned Chief Metropolitan Magistrate (CMM) was erroneous and liable to be recalled on grounds of gravity of offence and involvement in smuggling of prohibited goods.

- Whether the young age of the Respondent and the psychological impact of custodial detention were adequately considered in granting bail.

- Whether the pendency of investigation and trial stage justified recall of bail.

- Whether the Respondent's role in the offence was that of an active conspirator or a minor participant used as a tool by others.

- Whether any violation of bail conditions or likelihood of re-offence existed to justify cancellation or recall of bail.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Validity of Bail Granted in Light of Gravity of Offence and Respondent's Involvement

The legal framework invoked includes Section 132 and 135 of the Customs Act, 1962, which criminalize smuggling and prescribe stringent penalties. The Petitioner, Directorate of Revenue Intelligence (DRI), challenged the bail granted to the Respondent, arguing that the offence involved smuggling of 66.40 kg of gold, a prohibited item, with a market value exceeding Rs. 33 crores, indicating grave criminality. The Petitioner contended that the Respondent was an active accomplice, as evidenced by his statement under Section 108 of the Customs Act, and that the learned CMM overlooked the gravity of the offence and the Respondent's role.

The Court examined the statements recorded under Section 108, which revealed that the Respondent was engaged as a helper cum driver (Khalasi) on one of the trucks transporting the smuggled gold. He admitted to accompanying the truck from Guwahati to Patiala for monetary consideration but denied masterminding the offence. The Court noted that the Respondent's involvement was at a subordinate level and that the main conspirators were others, including his maternal aunt and her husband.

The Court applied the principle that bail decisions must balance the gravity of offence with individual circumstances, including the role played by the accused. It was recognized that while smuggling is a serious offence, the Respondent's limited role and lack of evidence indicating he was a mastermind or principal conspirator mitigated the gravity attributed to him personally.

Competing arguments were considered: the Petitioner emphasized the high value and prohibited nature of the goods and the Respondent's admission, while the Respondent's counsel highlighted his minor role and lack of criminal intent. The Court concluded that the bail was not granted in disregard of the offence's seriousness but with due consideration to the Respondent's limited involvement.

Issue 2: Consideration of Respondent's Age and Psychological Impact of Custodial Detention

The Respondent was 20 years old at the time of arrest. The learned CMM had granted bail partly on the ground of his young age and the adverse mental and psychological effects of incarceration on a youthful offender. The Court considered precedents emphasizing the need to avoid unnecessary incarceration of young persons, which may lead to criminalization through association with hardened criminals.

The Court noted that the Respondent was brought up by his maternal aunt and uncle, who were implicated as main conspirators, and that he was used as a tool without full knowledge of the smuggled goods. The Court found that the learned CMM's observations regarding the psychological impact and the Respondent's non-mastermind role were well-founded.

The Court applied the principle that bail should not be denied merely on the basis of offence gravity if the accused is young and not a flight risk or danger to society. The competing argument from the Petitioner that gravity of offence should outweigh age considerations was addressed by balancing factors, resulting in the conclusion that bail was appropriately granted.

Issue 3: Status of Investigation and Trial and its Impact on Bail

The Petitioner argued that investigation was at a crucial stage and the complaint had not been filed, justifying recall of bail. The Respondent countered that the charge sheet had been filed in 2021 and the trial was pending at the pre-charge evidence stage.

The Court observed that the investigation was complete and the complaint was pending trial, rendering the Petitioner's ground regarding incomplete investigation infructuous. It was also noted that statutory bail had been granted to all accused due to delay in filing the complaint, further diminishing the Petitioner's contention.

The Court applied the settled legal position that pending investigation or trial does not per se justify recall or cancellation of bail unless there is a violation of bail conditions or fresh material indicating risk of flight or tampering with evidence.

Issue 4: Respondent's Role as Active Accomplice or Minor Participant

The Petitioner asserted that the Respondent was an active accomplice, based on his statement under Section 108. The Respondent's counsel and the Court's analysis revealed that he was engaged as a helper cum driver, motivated by monetary gain and opportunity to learn truck driving, without knowledge of the smuggled goods' nature.

The Court found that the Respondent was used by his maternal aunt and uncle, who were the main conspirators, and that he did not have a dominant role in the offence. This was supported by the absence of evidence of his involvement in planning or orchestrating the smuggling.

The Court balanced the Petitioner's argument of active complicity with the Respondent's limited role and the possibility of being a tool exploited by others. This distinction was pivotal in upholding the bail.

Issue 5: Violation of Bail Conditions or Likelihood of Re-offence

The Petitioner did not allege any violation of bail conditions or present material suggesting the Respondent was likely to commit further offences while on bail. The Respondent's counsel emphasized the absence of such allegations and the pending appeal against the adjudication order related to confiscation of goods.

The Court noted that in the absence of any breach of bail conditions or fresh incriminating material, there was no justification for recalling the bail. Precedents cited by the Respondent underscored that bail should not be disturbed without cogent reasons.

3. SIGNIFICANT HOLDINGS

- "Confining such youthful offender in Jail is neither psychologically nor mentally conducive for such young boy and there is likelihood of physical abuse if remanded to judicial custody, as he would get criminalised by being in the company of other criminally active persons."

- The Court established the principle that the gravity of offence, while significant, must be balanced against the accused's role and personal circumstances, especially youth and vulnerability.

- The Court held that the Respondent's role as a helper cum driver, without evidence of masterminding or active conspiracy, justified grant of bail despite the serious nature of smuggling offence.

- The pendency of investigation or trial, without violation of bail conditions or fresh incriminating material, does not warrant recall of bail.

- The Court concluded that the bail order dated 14.12.2020 was correctly passed considering all relevant factors and that no apparent anomaly or oversight justified its recall.