TMI Blog2022 (12) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... ves and statutory obligations. It is a settled principle of law that the remand order does not cure the violation of Constitutional safeguards even to deny bail. This Court is inclined to grant bail to the applicant. Accordingly, the application is allowed. - BAIL APPLICATION (STAMP) NO.21291 OF 2022 - - - Dated:- 23-12-2022 - R. N. LADDHA, J. Dr. Sujay Kantawala, Advocate a/w Advocate Aishwarya Kantawala a/w Advocate Yogesh Rohira i/b Advocate Leena Patil for the Applicant. Mr. Advait M. Sethna, Advocate a/w Ms Ruju R. Thakker and Mr. Rangan Majmudar for Respondent No.1-DRI. Mr M.G. Patil, APP for the Respondent No.2-State. P.C.: Heard learned Counsel for the parties. 2. The Applicant, who is presently in judicial custody in R.A.No.1237 of 2022, seeks bail under Section 439 of the Code of Criminal Procedure, 1973. 3. It is the case of the first respondent that the syndicate in which the Applicant has played a major role, imported several consignments of iPhones giving misdeclaration and thereby leading to evasion of customs duty. The Directorate of Revenue Intelligence, Mumbai Zonal Unit, Mumbai, had taken up a detailed investigation into a syndi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed to meet his Advocate, who had visited the office of DRI. His Advocate was not permitted to remain present despite written and oral requests. 8. It is submitted that the Applicant was not allowed to go anywhere unaccompanied by the DRI Officers since he was brought to the office of DRI till recording his formal arrest later. It is submitted that merely because allegations are grave, the constitutional imperatives cannot be overlooked. It is submitted that the show cause notice also contains allegations of smuggling iPhones in more than 130 consignments and that the Applicant, for settlement, seeks immunity from prosecution even in respect of these allegations. 9. Learned Counsel for the Applicant invited the attention of this Court to Section 127-F to contend that where an application made under Section 127-B has been allowed to proceed under Section 127-C, the Settlement Commissioner shall until an order is passed under sub-section (5) of Section 127-C, have subject to the provisions of sub-section (4) of that section, exclusive jurisdiction to exercise the powers and perform that functions of any Officer of Customs and in the absence of any express directions by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is with respect to about 130 bills of entry filed by the Importer from 2 January 2021 to 25 November 2021. It is submitted that the show cause notice for the said period was never issued and that no any application in this regard is pending before the Settlement Commission. It is submitted that the Applicant s two firms were accredited as Authorised Economy Operators (AEO) by the Central Board of Indirect Taxes and Customs. It is submitted that the son of the Applicant was present with the Applicant throughout the day. It is submitted that the mail written by the daughter of the Applicant has been answered in detail. It is submitted that the Customs Officer under the Act is not a Police Officer within the meaning of Section 25 of the Evidence Act and the statement made before him by a person who is arrested is not covered under Section 25 of the Indian Evidence Act. 12. The learned Counsel for the first Respondent relied on (i) Ankit Ghamshyam Mutha Vs. Union of India and Ors., Writ Petition No.4642 of 2019 decided on 21.1.2020 (Bom); (ii) Gharban Ali Pour Azadi Shekhar Sareoi Vs. Intelligence Officer, Air Intelligence Unit, NIPT, Sahar, Bombay and Anr. In Crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act, 1944, as the case may be, in relation to the case. (3) In the absence of any express direction by the Settlement Commission to the contrary, nothing in this Chapter shall affect the operation of the provisions of this Act insofar as they relate to any matter other than those before the Settlement Commission. (4) The Settlement Commission shall, .. 15. The first Respondent contends that exclusive jurisdiction of the Settlement Commission is restricted to two sized consignments and for past 130 consignments. It is seen that Section 127-F(3) is applicable only in respect of operation of the provisions of the Act insofar as they relate to any matter other than those before the Settlement Commission. It is a matter of record that the Applicant seeks immunity from prosecution is sought by the Applicant in respect of allegations levelled in the show cause notice dated 25 May 2022, which also include allegations of misdeclaration in 130 past consignments. It cannot be, therefore, said that prima facie arrest is about any matter other than those before the Settlement Commission. It is admitted fact that the Settlement was filed after the issuance of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the first respondent that in the past, the Applicant has suffered penalty under Customs Act, he was absconding for quite some time, he has been non-cooperative in the investigation, bail had been rejected by the Courts below, cannot justify non-compliance with the Constitutional imperatives and statutory obligations. It is a settled principle of law that the remand order does not cure the violation of Constitutional safeguards even to deny bail. 17. In light of the above, this Court is inclined to grant bail to the applicant. Accordingly, the application is allowed in the following terms. ORDER i) The Applicant Dinesh Bhabootmal Salecha, be released on bail, in RA No.1237 of 2022, on furnishing a P.R.Bond in the sum of Rs.25,000/- (Rupees Twenty Five Thousand) only with one or two sureties in the like amount to the satisfaction of the concerned Court. ii) The Applicant shall not tamper with the prosecution evidence and/or give threat or inducement to any of the prosecution witnesses. iii) The Applicant shall place on record his detailed address and contact number. If there is any change in the contact number or address, it shall be placed on record before the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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