Allahabad High Court
Vibhore Rastogi vs Union Of India Thru. Deptt Of ... on 30 August, 2022
Bench: Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 15
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9279 of 2022
Applicant :- Vibhore Rastogi
Opposite Party :- Union Of India Thru. Deptt Of Revenue Intelligence Lko
Counsel for Applicant :- Purnendu Chakravarty,Pranjal Jain
Counsel for Opposite Party :- Digvijay Nath Dubey
Hon'ble Sanjay Kumar Pachori,J.
Heard Sri Purnendu Chakravarty, learned counsel for the applicant and Sri Digvijay Nath Dubey, learned counsel for the Department of Revenue Intelligence and perused the material on record.
The present bail application has been filed on behalf of applicant Vibhore Rastogi under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 12 of 2022 for offence punishable under Section 135 of Customs Act, 1962 registered at Police Station- Department of Revenue Intelligence, Zonal Unit, District- Lucknow during pendency of the trial.
As per the allegation of the first information report, some officials of Department of Revenue Intelligence intercepted the vehicle bearing No. UP 63 AP 1819, in which applicant and 3 other persons were apprehended carrying with gold of foreign origin mark and seized 2297.840 grams gold from the dashboard of the Tata Harrier Car, four mobiles, Black Tata Harrier Car.
Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. As per prosecution case, smuggled golds were transported to Mirzapur to be smelted and after removing the marks of foreign origin, the same were handed over to applicant and other accused persons to be transported to Lucknow. It is further submits that applicant is the proprietor of M/s Yogendra Prasad Kameshwar Prasad and is involved in the business of trading bullion bars, the applicant's firm is registered firm in GST department. It is further submitted that the matter falls within the parameters of Compoundable category as provided under Section 137 of the Customs Act, 1962. The said offence is triable by the Magistrate and maximum punishment is 7 years. The applicant is a bonafide owner of the said gold, which has been seized by the custom department and he had paid the amount including GST to aforesaid seizure.
It has also been submitted that co-accused, Shamik Khanna @ Rishi Khanna has already been enlarged on bail by the Coordinate Bench of this Court vide order dated 16.08.2022 in Criminal Misc. Bail Application No. 9115 of 2022 and the applicant is also entitled to be enlarged on bail on the ground of parity.
It is next contended that there is no other criminal antecedent to his credit. It is next submitted that there is also no possibility of the applicant either fleeing away from the judicial process or tampering with the witnesses. The applicant, who is languishing in jail since 06.07.2022, undertakes that he will not misuse the liberty, if granted. It has also been pointed out that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
Per contra, learned counsel for the Department of Revenue Intelligence has supported the order passed by the court below and vehemently opposed the prayer for grant of bail to the applicant and submits that the present gold which has been seized by the department is smuggled gold from foreign origin and further submits that the allegations involved are very serious in nature and the delay in lodging the F.I.R. cannot be said to be fatal to the case at this juncture while considering the application of bail. But they would not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.
It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.
Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.
Let applicant, Vibhore Rastogi be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:
(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.
(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.
(iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 of Cr.P.C.
(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.
(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed in accordance with law.
The trial court may make all possible efforts/endeavor and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.
It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 30.8.2022
Ishan
