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Govind Gopal Goyal Versus State of Gujarat & 1

2017 (11) TMI 309 - GUJARAT HIGH COURT

Bail Application - offence punishable under Section 135(1)(i)(A) of the CA, 1962 - quantum for bailable offence - Held that: - indisputably, the charge-sheet in the matter is yet to be filed and the investigation is in progress, however, it is also not in dispute that the substantial part of the investigation is over. Moreover, the custodial interrogation of the applicant also appears to have been over as the applicant is in custody since his arrest i.e. 27/09/2017, for almost for 40 days. - .....

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the resident of Surat and has roots in Surat town, having responsibility towards family and has established business and hence, his presence can be secured as and when required during the investigation as well as during the trial by imposing certain conditions. - This Court is of the opinion that discretion is required to be exercised in favour of the applicant for grant of bail. Moreover, the applicant assures that he will abide by the terms and conditions that may be imposed by the Court .....

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in, Advocate ORAL ORDER 1. This application is filed by the applicant under Section 439 of the Criminal Procedure Code, 1973 (for brevity, 'the Code') for regular bail in connection with the File No. DRI/AZU/SRU/B/INV-04 (ENQ- 21/2017 of the Directorate of Revenue Intelligence, Regional Unit, Surat. The applicant has been arrested on 27/09/2017 by the respondent No. 2 herein in connection with the alleged offence punishable under Section 135(1)(i)(A) of the Customs Act, 1962. 2. Heard, l .....

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onment for seven years. The learned advocate further submitted that the grounds of arrest, which ought to have been served to the applicant in written as prescribed under the law, are not served to the applicant. In this context, the learned advocate for the applicant made available for perusal certain specimen copies of Grounds of Arrest, issued upon other accused persons in similar kind of cases. According to the learned advocate for the applicant, it is consistent practice followed by the res .....

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to the application. He submitted that the e-mail clearly suggests the fact that the applicant is not the import of the same though the applicant has to undergo such a trauma. Even, the department did not permit them to reexport the same. 3.2 The learned advocate for the applicant then referred to and relied upon the revised guidelines for arrest and bail in relation to offences punishable under the Customs Act, 1962, annexed to the application at Annexure C . The learned advocate for the applica .....

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rovided any calculation. It is further submitted by him that the investigating agency has not sought remand of the applicant so far. It is also submitted that the applicant was arrested on 27.09.2017 and he is in custody since then i.e. for about 40 days. It is also submitted that further custodial interrogation may not require as substantial part of the investigation is over and necessary documents have also been collected. 3.3 The learned advocate for the applicant further submitted that the a .....

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12 (Guj.); ii) Virendrasingh Karmvirsingh Sultan @ Jaglan (Jat) Vs. State of Gujarat & 1, passed in Criminal Misc. Application (For Regular Bail) No. 1689 of 2016 dated 10/02/2016; iii) Bajrang Lal Sharma S/o. Shri Prabhudayal Sharma Vs. State of Gujarat & 1, passed in Criminal Misc. Application (For Regular Bail) No. 12250 of 2017 dated 23/05/2017; iv) decision dated 28.11.2011 of the Delhi High Court passed in Bail Application Nos. 1565/2011 (Sharad Kumar Vs. CBI), 1567/2011 (Kanimozhi .....

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rther submitted that investigation is in progress and the charge-sheet is yet to be filed and accordingly, there are all chances of tampering with the evidence by the applicant. They further submitted that the date of arrest of the applicant is 27.09.2017 and therefore, the application may be rejected at this stage as statutory period of 60 days for filing of charge-sheet in such cases is yet to be completed. 4.1 Learned counsel Mr. Amin, while referring to the Arrest Memo (dated 27.09.2017), su .....

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Popper and remaining were of Chinese Firecrackers , which shows that the entire things were preplanned and the said Chinese Firecrackers were imported by the applicant without any licence and the applicant had camouflaged the Chinese Firecrackers with the Party Popper . Learned counsel Mr. Amin further submitted that the father of the applicant has filed the affidavit regarding second consignment but the said affidavit is also contrary to the real factual position. 4.2 It is further submitted t .....

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that even the office of the Income Tax has also raised the Demand Notice against the present applicant. 4.3 The learned counsel for the respondent No. 2 - department also submitted that the decisions relied by the learned advocate for the applicant are not applicable to the present case as the facts and circumstances involved in the those case are different then the present one. 4.4 Learned counsel Mr. Amin, while concluding his arguments, submitted that the investigation is under progress and .....

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he same form the part of the compilation submitted by the applicant along with the application. Further, the learned advocate for the applicant referred to the document at page 84 to show that Cold Pyros Firecrackers ensure premium quality and emission of less smoke. It is submitted that the directions issued by the Hon ble Apex Court were in respect of Delhi NCR area, however, the said directions are taken care of by the documents produced along with the compilation produced by the respondent N .....

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r the purpose of manufacturing heads of matches; c) for use in toy amorces (paper caps for toy pistols); or d) in percussion caps for use in Railway Fog Signals. In this context, he submitted that in recent years there has indeed been an increased use of entertainment pyrotechnics, that is, the indoor application of pyrotechnics. They cannot produce the smoke that a lot of outdoor fireworks produce, and they cannot be as hot. But pyrotechnic mixtures that are considerably lower in temperature ar .....

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it inter-alia stating that they are not the import of the said container, so they do not have any document for the same and they have nothing to do with the said container. The affidavit dated 24.10.2017 along with covering letter dated 25.10.2017 addressed to the Directorate of Revenue Intelligence, Regional Unit, Surat with copy thereof marked to the Commissioner (Imports), Nhava Sheva, Tal.: Uran, Dist.: Raigad (Maharashtra) were received by the Directorate on 25.10.2017 and to that effect se .....

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any offence under Section 132 to 136 except with the previous sanction of the Commissioner of Customs or of Central Govt. in the case on a complaint filed by an officer of Customs not lower in rank than Asstt. Commissioner of Customs. The Act provides inter-alia two types of action i.e. (1) Action-in-rem i.e. action against the goods (2) Proceedings in personem, a criminal prosecution. Both the proceedings are independent of each other. The Ministry from time to time issues and revies guidelines .....

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isappear from the scene/area - such as in cases involving outright smuggling by Sea/Air/Land route. (ii) Arrest should be made only when it is intended to prosecute the offenders and the monetary limits or conditions provided for prosecution would apply equally to arrests. (iii) Though under Sec. 104 of the Customs Act, Commissioners of Customs have been empowered to delegate to an officer of Customs by general or special order, powers of arrest of persons guilty of offence punishable under sec. .....

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tional Director General in writing on file before the arrest is ordered and effected by the proper officer. (iv) xxx XXX REQUIREMENT TO BE FOLLOWED IN ALL CASES OF ARREST (internal page 160): The Honourable Supreme Court in the case of D. K. Basu v/s. State of West Bengal and others have envisaged certain requirements to be followed in all cases of arrest or detention. In line with said requirements, following preventive measures should be followed in all cases of detention or/and arrest. (1) Th .....

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, as soon as practicable, unless the attesting witness of the 'Arrest Memo' is himself [such friend or relative of the arrestee, about his arrest and place where he is kept. (3) The time, place of arest and venue of the custody of an arrestee must be notified, where his friend or relative lives outside & district or town through the Legal Aid Organization in the District telegraphically within a period of 8 to 12 hours after the arrest. (4) The person arrested must be made aware of t .....

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stee. (6) The arrestee should be subjected to 'Medical Examination' by a trained Doctor every 48 hours of his detention in custody by a Doctor on the panel of the approved Doctors appointed by the Director, Health Services of the concerned States. (7) Copies of the all the documents including the 'Arrest Memo' referred to above should be sent to the CMM for his record. (8) The arrestee may be permitted to meet his lawyer during interrogation, though not through-out interrogation. .....

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i) Name of officer (s) handling interrogation, with specific time of interrogation by the officer. (iii) Name of officer(s) who is causing the arrest. (iv) Name of officer who informed the arrestee friend, relative etc. about arrest, time and mode of such communication as also the name of such friend, relative etc. along with address. (v) In case the person arrested does not have friends, relative etc. in the place of arrest, the time date and mode of informing Legal Aid Organization about the a .....

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M/s. Joule International. While referring internal page 5 of the said notice, the learned advocate for the applicant submitted that the firm was opened in the name of the applicant in the name of M/s. R.G. International and it was mutually agreed between the applicant and one Mr. Jayesh (Mamrawala) that they would be importing goods such as embroidery machines, sequence films, PET Films, yarn embroidery machine spare parts, dies etc. in the name of M/s. R. G. International and trading the same i .....

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alleged against the present. He submitted that in the aforesaid notice, Mr. Jayesh Mamrawala is described as de facto co-importer. 5.4 Thus, making above submissions, the learned advocate for the applicant reiterated to allow the present application and grant bail to the applicant on the conditions as may be deemed fit and proper, to which, the applicant assures to abide by. 6. I have heard the learned advocates appearing for the parties and perused the material placed on record. 7. At the outs .....

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of the bail there must be extraordinary circumstances necessarily meaning that bail ought not to be denied to an accused only on the ground of general sentiments of the community as it impairs the right to liberty guaranteed to an accused. (iii) While considering the grant of bail, both the factors, namely, the seriousness of charges and the severity of punishment which the offence carried must taken into consideration. (iv) The bail ought to be granted in a case where there are no chances of th .....

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case the benefit of bail is extended to an accused he is going to misuse his liberty or so as to create conditions which are not conducive to hold a fair trial. 8. I have considered the submissions made by the learned advocates for the parties as also considered the facts and circumstances of the case and the nature and gravity of accusation made against the applicant and other papers placed on record as well as the decisions relied by the learned advocate for the applicant and the aforesaid pa .....

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which weighed with the Court is, the offence is triable by the Magistrate Court and the maximum punishment prescribed under the Act is up to seven years. Besides, from the material placed on record, prima facie, there appears nothing on record to show that as to how, the department has arrived at such a figure, to be precise, the valuation of ₹ 1.07 crore. If the submission made by the learned advocate for the applicant is considered, it is a borderline case and the value may go down also .....

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and they have nothing to do with the same. Further, it is also not in dispute that the applicant is the resident of Surat and has roots in Surat town, having responsibility towards family and has established business and hence, his presence can be secured as and when required during the investigation as well as during the trial by imposing certain conditions. 9. Thus, considering overall aspects of the matter vis-a-vis the parameters laid down by the Hon'ble Apex Court for considering the ma .....

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