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CLIFFORD ANTONY D'COSTA Versus STATE OF GUJARAT AND 1

2016 (3) TMI 559 - GUJARAT HIGH COURT

Seeking grant of bail - Consignment of gold seized - No procedure under Chapter XIV of the Act, has been initiated for confiscating the goods - Held that:- the applicant was arrested on 24.02.2015 and was in judicial custody pursuant to the lodgment of FIR by the police department, the Custom Department has arrested the applicant on 28.08.2015 i.e. after more than six months. There might be some investigation during this period, however it is desirable to comment anything about the reasons for n .....

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y had sufficient time to complete the investigation. By relying upon the decision rendered by Apex Court in the case of State of Kerala V/s. Raneef [2011 (1) TMI 1396 - SUPREME COURT] and in the case of Sanjay Chandra[2011 (11) TMI 537 - SUPREME COURT], the applicant is behind bar since more than 10 months which is considered as long period and it is equally true that investigation is almost over. Therefore, this is a fit case to exercise the discretion and enlarge the applicant on regular bail .....

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of Revenue Intelligence, Ahmedabad Zonal Office, Ahmedabad, for the offences punishable under Sections 132 and 135 (1) of the Customs Act, 1962 read with 120 (B) of the Indian Penal Code. The said inquiry proceedings were sanctioned by the authority empowered under Section 137(1) of the Customs Act and accordingly, complaint being Criminal Complaint No.118 of 2015 came to be registered in the Court of learned Additional Chief Metropolitan Magistrate, Court No.11, Ahmedabad. 2. Pursuant to the N .....

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ng with his team, were keeping watch in the airport area i.e. outside the terminal. On 24.2.2015, three accused i.e. Virendrasingh, the present applicant Clifford Antony DCosta and Sapna Vaghela were successful in coming out from the Airport terminal with illegal consignment of 60 bars of gold, weighting 60 Kgs., having worth at ₹ 16 Crores. Two accused, namely, Jayvirsing Kaden and Kapil Jaydevsingh Dagar and one another person namely Dinesh Desai had come to receive those three persons, .....

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add Sections 467 and 147 of the Indian Penal Code in the said offence on the ground that they have made wrong declaration in the Form, which are required to be filled in by the passengers that they had no goods for which customs duty is required to be paid. Accordingly the said sections were added in the said offence. Since there was evasion of duty and false declaration was made for bringing huge quantity of gold, the authority appointed under The Customs Act,1962, started inquiry in the matter .....

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ms Act as well as statements of the witnesses, it was found that other two accused had indulged in similar activities in past and several such consignments, they had received and huge amount of custom duties have been evaded. It was alleged in the complaint that brother of one of the accused, who is an Indian National, who is settled at Dubai, who is accused No.6, is handling such illegal transactions and against whom, Red Corner Notice has been issued by the Central Government. 3.3 Having recei .....

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ected by learned Sessions Judge vide order dated 11.1.2016. Hence, this application. 4. Mr. Chetan Pandya, learned advocate appearing for the applicant vehemently submitted that respondent - Customs Authority has deliberately prolonged investigation and, therefore, though he is behind the bar pursuant to an offence registered by DCB Police Station on 24.2.2015, the applicant was arrested for the present offence after more than six months. He would submit that it is an undisputed fact that the pr .....

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as allegedly had came to receive them, the respondent - Customs authority did not care to arrest him immediately and waited for considerable long time i.e. for more than six months. He would further submit that even after his arrest, the respondent agency has deliberately filed the complaint on the last date of limitation as provided u/s.167(2) of the Code of Criminal Procedure. He would submit that the gold, which has been brought by other three accused, has been already seized by the departmen .....

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XV of the said Act and, therefore, he would submit that the Investigating Agency is interested in prolonging the proceedings with regard to evasion of customs duty and keeping the applicant behind the bar for endless time. He would submit that the statements of the witnesses relied upon by the Investigating Agency with regard to the activities allegedly carried out by the applicant in past, no supporting material is collected by the Investigating Agency. He would submit that investigation is ov .....

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used as well as securing his presence. He has relied upon the judgement delivered by Honble the Apex Court in the case of Sanjay Chandra v/s. Central Bureau of Investigation reported in (2012)1 SCC 40. By taking me through the various paras of the said judgement, he would submit that after considering the landmark judgements of the Supreme Court itself, Honble Apex Court has held that certain aspects are required to be considered while an application of bail is under consideration by the court i .....

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015. He would submit that co-accused at whose instance goods alleged to have been imported, have been enlarged on regular bail by this Court vide order dated 22.12.2015 in Criminal Misc. Application No.22821 of 2015. 5. On the other hand, Mr. Hriday Buch, learned Standing Counsel appearing for respondent No.2 has opposed this application by taking me through the statements of witnesses namely Pravinbhai, Yogeshbhai Patel, etc. as well as statements of other accused recorded u/s.108 of the Act. H .....

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fore, this application may be rejected. 6. I have heard learned advocates appearing on behalf of the respective parties and perused the papers of investigation and submissions made by learned advocates appearing on behalf of the respective parties. 7. It is an undisputed fact that three persons, namely, Virendrasingh, the present applicant Clifford Antony DCosta and Sapna Vaghela arrived from Dubai to Ahmedabad Internal Airport on 24.2.2015. It is also an undisputed fact that they have cleared c .....

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all the persons were arrested by DCB Crime on 24.02.2015. This Court would not like to express any opinion about the manner and method by which entire raid has been carried out by the Special Operation Group i.e. by not informing the Officers of the Customs Department stationed at Airport itself, who have vide and different persons for dealing with such crime. This would be subject matter of trial and Officer, who had secret information and found the accused outside the airport, raided is one o .....

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e long time. The complaint has also been filed on 60th day from his arrest. This also suggests that customs department has sufficient time to investigate the case i.e. from 24.02.2015 to 27.10.2015 i.e. date of filing the complaint before the learned Magistrate. It is true that huge consignment of gold i.e. more than ₹ 16 Crores were seized by the customs department but it also fact that no procedure under Chapter XIV of the Act, has been initiated for confiscating the goods. Furthermore, .....

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ndra (supra) as well as in the case of Kalyan Chandra Sarkar V/s. Rajesh Ranjan reported in 2004(7) SCC 528, wherein the Hon'ble Supreme Court has held that the factors, which are required to be considered for granting bail would be : (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the c .....

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is equally true that investigation is almost over. 8. Considering the overall facts and circumstances of the case and ratio laid down by the Honble Apex Court in the case of Sanjay Chandra (supra), in my opinion, this application requires consideration. 9. In the facts and circumstances of the case and considering the nature of allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exerci .....

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