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2015 (12) TMI 1516 - GUJARAT HIGH COURT

2015 (12) TMI 1516 - GUJARAT HIGH COURT - TMI - 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 29.08.2015 i.e. after more than six months. There might be some investigation during this period, however it is desir .....

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nd to reject the application, since the authority 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 discr .....

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in connection with DRI File No.DRI/AZU/GI-02/ENQ-10/2015 of Directorate 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 M .....

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Sardar Vallabhbhai Patel International Airport and, therefore, Special Operation Group headed by Police Inspector B.D.Jadeja along with his team, were keeping watch in the airport area i.e. out side of terminal. On 24/02/2015 three accused namely Clifford Antony D Costa, Virendrasingh 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. Present two applicants/accused namely, Ja .....

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d. By an application dated 26/02/2015, Investigating Officer of Special Operation Group requested the learned Magistrate to 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 wa .....

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d with learned Magistrate on 29/10/2015. By considering the statements of the accused persons recorded u/s.108 of the Customs Act as well as statements of the witnesses, it was found that the present applicants were 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 applicant No.1, who is an Indian National, who is settled at Dubai, who is accused No.6, is handl .....

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No.4540 of 2015 and requested that they may be released on bail as investigation is over. The said application came to be rejected by learned Sessions Judge vide order dated 27/11/2015. Hence, this application. 4. Mr.N.D.Nanavati, learned Senior Counsel assisted by Mr.Chetan Pandya, learned advocate appearing for the applicants vehemently submitted that respondent- Customs Authority has deliberately prolong the investigation and, therefore, though they are behind the bar pursuant to an offence r .....

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s illegally taken out from the airport terminal by those three accused, who had traveled from Dubai to Ahmedabad and were found with the same, it is the case of the prosecution the applicants were allegedly had came to receive them, the respondent - Customs authority did not care to arrest them immediately and waited for considerable long time i.e. for more than six months. He would further submit that even after their arrest, the respondent agency has deliberately filed the complaint on the las .....

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ubai. He would submit that till today, no proceedings provided under Section XIV of the Act, have been initiated by the Department of Customs against any of the accused. Procedure prescribed under this Act including issuance of show cause notice before confiscating the goods, etc., which has yet not commenced. There are other alternative remedy available under Chapter XIV A and XV of the said Act and, therefore, he would submit that the Investigating Agency is interested in prolonging the procee .....

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erred in the complaint, are all government officers and, therefore, there is no question of influencing those witnesses. He would further submit that maximum punishment prescribed u/s.135 of The Custom Act, is seven years and, therefore, considering the gravity of the offence, the applicants may be released by imposing appropriate conditions i.e. by restraining the mobility of accused as well as securing their presence. He has relied upon the judgement delivered by Hon ble the Apex Court in the .....

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or apprehension of threat to the complainant, etc. He therefore would submit that the applicants may be released on bail during pendency of the trial. 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 Affidavit-in-reply filed by the department as well as through the statements of witnesses namely Pravinbhai, Yogeshbhai Patel, etc. as well as statements of applicants-accused recorded u/s.108 of the Ac .....

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ut. By taking me through the Affidavit, it is explained that how the money has been transferred through different type of Angadiya services with regard to illegal smuggled gold.He therefore, would submit that the applicants are involved in serious crime and, therefore, these applications may be rejected. 6. I have heard learned advocates appearing on behalf of the respective parties and perused the papers of investigation and considered the Affidavit-in-reply filed by the applicants and submissi .....

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on caught raid handed those three accused where the present applicants alleged have came to receive those three accused, who are messengers and who alleged to have deliver the goods to the applicants, who are related to the persons, who have sent the gold bars without paying any duties. It is also an admitted fact that 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 .....

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ursuant to the lodgment of FIR by the police department, the Custom Department has arrested the present applicants on 29/08/2015 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 not arresting the applicants for considerable long time. The complaint has also been filed on 60th day from their arrest. This also suggests that customs department has sufficient time to investigate the case i.e. from .....

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round to reject the application, since the authority had sufficient time to complete the investigation. I have also considered the ratio laid down by Hon ble Apex Court in the case of Sanjay Chandra (supra) as well as in the case of Kalyan Chandra Sarkar V/s. Rajesh Ranjan reported in 2004(7) SCC 528, 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 suppor .....

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was in jail about 66 days, which was considered as long period wherein in the present case, the applicants are behind the bar since more than 10 months and it is equally true that investigation is almost over. 8. Considering the overall facts and circumstances of the case and ratio laid down by the Hon ble 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 allegation .....

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