TMI Blog2019 (12) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and facts are required to be unfolded in investigation, the applicant is not entitled for anticipatory bail - It is a well-settled law that, while considering the question of grant of anticipatory bail, the Court prima facie has to look into the nature and gravity of the alleged offence and the role of the accused. The facts of the case demonstrate that the petitioner, despite having been served with various show cause notices, has preferred not to join the investigation - where the accused has failed to join the investigation on false pretexts or sham/farce excuses despite being given opportunities and/or is not fully cooperating with the investigating agency, the anticipatory bail application of such accused should be rejected, solely on this ground. The facts of the present case demonstrate that the petitioner has failed to join the investigation on sham and farce excuses, hence his conduct itself disentitles him for any relief whatsoever from this Court in the matter - Hence, taking into consideration the nature and gravity of the accusations, the stage of the investigation, the alleged role of the accused and the enormity of financial transactions to be investigated, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Sessions Judge, New Delhi from arrest in the application for anticipatory bail for the offences committed under Sections 174/175 of the Indian Penal Code, 1860. 6. On 5.9.2019, the aforementioned application for anticipatory bail was rejected and the interim protection given to him was vacated by the learned Additional Sessions Judge, New Delhi, primarily on the ground that he did not join the investigation despite repeated summons by the DRI and that he was intentionally avoiding to join the investigation. 7. Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the present case. Learned counsel further submitted that the Department s intentions are not bonafide vis- -vis the petitioner, whom they intend to harass and humiliate by arresting him at any cost, contrary to settled principles of law. It is submitted that the initial statements of various persons, who were picked up along with the co-accused Rahul Kapoor from the Karol Bagh shop, demonstrate that petitioner was not named as the person, with whom they had any kind of transactions(s) and further that for ulterior motives, after seeing the Lease Deed, the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Act very clearly lays a bar to the effect that no order confiscating the goods or imposing any penalty on any person can be made unless the owner of the goods or such a person is given a notice in writing with the proper approval of the officer not below the rank of Assistant Commissioner of Customs, informing him the grounds on which it is proposed to confiscate the goods or to impose a penalty. 13. Per Contra, in the Status Report/reply filed by the DRI, it was contended by the prosecution that the petitioner had pleaded that there was an oral transfer of Lease Deed in favour of co-accused Rahul Kapoor, which is not a satisfactory answer because Rahul Kapoor had himself shown the petitioner as a partner in the business along with Vijay Kapoor and further that there is electronic evidence which had been put to forensic examination also showing pervasive role of petitioner Monu Kapoor. 14. Further, it is submitted by the prosecution that the petitioner s contention that since Show Cause Notice has been issued to the petitioner, no further investigation can go on, is untenable, in view of amendment of the Customs Act, which included Section 28(7A) in the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is required to find out the source and other details of the above smuggled gold and cash. It has further been argued that the applicant has been evading the joining of investigation of this case since long and for his above failure and non compliance to the summons issued by the department, a criminal prosecution for the offences under Section 174 175 IPC stands already launched by the DRI against him before the court of Ld. CMM, PHC, New Delhi District. Ld. SPP for the DRI has also relied upon the judgments/orders in cases Special Leave Petition (Crl.) No. 2075/2007 titled Union of India Vs. Padam Narain Aggarwal, V. Nandanan Vs. DIG of Police (Crime), Hyderabad Anr. 1986 Crl. L.J. 1032, order dated 18.02.2016 of the Hon'ble High Court on Bail Application No. 224/2016 titled Sanjay Kumar Bhartiya Vs. DRI and Inderjeet Nagpal Vs. DŘI 2005 (1) CC cases (HC) 382 on the aspect of the powers conferred by and provisions contained in under Section 438 Cr.P.C. This case pertains to the seizure of a huge quantity of gold weighing 35.175 kgs and valuing around ₹ 10.75 crores and also a huge cash amount of ₹ 3.49 crores in Indian currency, which was ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant in commissions of the alleged offence and these incriminating documents and materials may be required to be put to the applicant and he is required to be interrogated and questioned with regard to the same. Besides the above, it can also be seen that though the above seizure was effect around one year back, but the applicant has yet not joined the investigation of this case despite issuance of repeated summons by the DRI on 12.09.2018, 04.10.2018, 31.12.2018, 08.01.2019 and 06.02.2019 and he did not even turn up and appear in the criminal prosecution launched by the DRI for his default in complying with the said summons and it is only on 02.09.2019, when he had appeared in the said case and got his NBWs cancelled and was admitted to bail. The allegations made against the applicant are serious in nature and in the considered opinion of this court, he has been intentionally avoiding to join the investigation of this case for a long time. His custodial interrogation is required in connection with the above seizures. The scope of adjudication process and investigation involving the criminal aspects pertaining to the above seizures has to be viewed separ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 26 crore (around ₹ 13 crore each in credit and debit). Thus it appears that Vijay Kapoor @ Anil Kapoor, used to keep track of daily transactions of smuggled gold and cash in lieu of sale of smuggled gold. In whatsapp chat with Monu Kapoor, it appears that Monu Kapoor and Rahul Kapoor had shared numbers of Rupee notes and details of persons to whom payment has to be made and the same was confirmed by them. In whatsapp chat with Monu Kapoor, Rahul Kapoor sent three messages to Monu Kapoor in which he wrote Vipul 95660460418 5ka32ka6374 100 peti PK from which it appears that Rahul Kapoor shared mobile no. of one person named Vipul and ₹ 5 Note No. and Monu Kapoor confirmed the payment by sending message 100 peti de di ok pk ki . This implies that ₹ 100 lakhs was paid in favour of Tilak Raj @ Pankaj Dhingra @ PK as part of sale proceeds of smuggled gold. 24. We should keep in mind that a person who wants that the process of law should be followed, he should also follow and submit to the process of law. Normally, the law does not countenance that the person who fails to submit to the processes of law should be granted any relief ..... X X X X Extracts X X X X X X X X Extracts X X X X
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