Ravindra Laxman Rao Mane vs The State Of Maharashtra And Anr
2023 Latest Caselaw 8876 Bom

2023:BHC-AS:24964
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                                                                                      Santosh

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CRIMINAL APPELLATE JURISDICTION


                    ANTICIPATORY BAIL APPLICATION NO. 2217 OF 2023

               Ravindra Laxman Rao Mane                                      ...Applicant
                                   Versus
               The State of Maharashtra & ors.                         ...Respondents

               Mr. Brijesh Pathak, for the Applicant.
               Mr. Saket Ketkar, for Respondent No.2/DRI.
               Mrs. Geeta Mulekar, APP for the State.

                                                    CORAM:    N. J. JAMADAR, J.

                                                    DATED:    30th AUGUST, 2023

               Order:-

1. Heard the learned Counsel for the parties.

2. This is an application for pre-arrest bail in connection

with the summons issued to the applicant in the case

bearing F.No.DRI/M20/B/INT/37/2022 registered for the

offences punishable under Sections 132 and 135 of the

Customs Act, 1962. The Director of Revenue Intelligence

(DRI), on the basis of a specific intelligence input, conducted

search and seized 5.8 kgs. of smuggled gold at Air Cargo

Complex, Mumbai, on 6th May, 2022. During the course of

investigation, DRI conducted a search at a premise located at

403A, 4th Floor, Golden Plaza Building, Dhanji Street,

Kalbadevi, Mumbai. During the search operations thereat

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smuggled gold in various forms weighing 37.129 kgs. with an

approximate value of Rs.21.65 Crores was recovered under

Section 111 of the Customs Act. Cash amount of

Rs.23,50,256/- was also recovered and seized under Section

121 of the Customs Act.

3. Statements of the members of the alleged syndicate

were recorded under Section 108 of the Customs Act. One

Prashant Mainkar was arrested on 24 th January, 2023. It

further transpired that the said accused Prashant Mainkar

alias Vikas Bhai used to parcel smuggled gold to Ganesh

Jewellers, Ahmedabad through Angadia Services of Patel

Vishnubhai Kantilal and Company. A statement of one of the

Directors of the said company came to be recorded. It

transpired that the melted gold received in the name of

Ganesh Jewellers was, in fact, handed over to Ravindra

Laxmanrao Mane, the applicant, who is the proprietor of

Gopnath Jewellers located at Ratan Pole, Mirchi Pole,

Ahmedabad. Receipts of smuggled gold delivered to the

applicant were also handed over by the said Director.

Further arrests were made. Those co-accused also revealed

the complicity of the applicant. Hence, a summons was

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issued to the applicant under Section 108 of the Customs

Act.

4. Apprehending arrest, the applicant preferred

ABA/713/2023 before the Court of Sessions. Initially interim

protection was granted by order dated 28th March, 2023. By

a further order dated 2nd August, 2023, the learned

Additional Sessions Judge was persuaded to reject the

application for pre-arrest bail.

5. The applicant claims he deals in the business of testing

of purity of gold at Ahmedabad. The applicant after testing

the purity of the gold hands over the same to the party, who

seeks certification of purity. Pursuant to the interim

protection granted by the Court of Sessions, the applicant did

appear before DRI and co-operated with the investigation and

furnished all relevant documents. In the circumstances,

since the investigation is complete for all intent and purpose,

at this stage, custodial interrogation of the applicant is not

warranted.

6. An affidavit-in-reply is filed on behalf of DRI in

opposition to the prayer of pre-arrest bail. It is contended,

inter alia, that a strong case is made out against the

applicant which warrants investigation for which custodial

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interrogation of the applicant is indispensable. The

applicant, according to DRI, did not cooperate with the

investigation and suppressed material information. Having

regard to the quantity of the smuggled gold and the gravity of

the offence, arrest of the accused is necessary for complete

and effective investigation.

7. I have heard Mr. Pathak, the learned Counsel for the

applicant, Mr. Ketkar, the learned Counsel for respondent

No.2 and Mrs. Mulekar, the learned APP for the

State/respondent No.1. The learned Counsel took the Court

through the material on record. Mr. Ketkar also invited the

attention of the Court to the statements of the witnesses and

the co-accused recorded under Section 108 of the Customs

Act.

8. At the outset, Mr. Pathak, the learned Counsel for the

applicant, submitted that since the offence under Section 135

of the Customs Act, 1962 entails maximum punishment of

seven years, it is incumbent upon the prosecution to make

out a case for custodial interrogation. Placing strong reliance

on the decisions of the Supreme Court in the cases of Arnesh

Kumar vs. State of Bihar 1 and Satender Kumar Antil vs.

1 (2014) 4 SCC 273.

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Central Bureau of Investigation and another 2, Mr. Pathak

submitted that the applicant deserves the exercise of the

discretion on the count of the punishment the offence under

Section 135 entails. As a second limb of this submission, Mr.

Pathak would urge that the prosecution, in the light of the

punishment which the major offence under Section 135 of

the Customs Act entails, cannot be heard to urge that the

offence is of grave nature.

9. Mr. Pathak further submitted that there is an inbuilt

guarantee of personal liberty under Section 104 of the

Customs Act. The authorized officer of the Customs is

empowered to arrest any person only when he has reason to

believe that such person has committed an offence under

Sections 132, 133, 135, 135A or 136 of the Customs Act.

Laying emphasis on the use of the expression "reason to

believe" Mr. Pathak submitted that in the case at hand there

is no material to demonstrate that the said test is satisfied. It

is not the mere ipse dexit of the concerned officer. There has

to be credible material which would justify such belief,

submitted Mr. Pathak.

2      (2022) 10 SCC 51.




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10. A very strong reliance was placed by Mr. Pathak on an

order passed by this Court in the case of Narendra Amrutlal

Patel and anr. vs. Assistant Commissioner of State Tax and

anr. in Anticipatory Bail Application No.2099 of 2022,

wherein in the context of the provisions of Section 132 of the

Central Goods and Services Tax Act, 2017, it was enunciated

that the expression "reason to believe", contemplates

existence of reasons on which the belief is founded and not

merely to believe in the existence of the reasons inducing the

belief. The belief must not be based on mere suspicion, but

must be founded upon some concrete foundation, on the

basis of direct or circumstantial evidence and it will be open

for the Court to examine whether the reason for the

formation of the belief have a rational connection with, or the

relevant bearing on the formation of belief. Reasons to

believe, thus, must be based on some credible material.

11. Mr. Pathak submitted that if the aforesaid test is

applied to the facts of the case, DRI has singularly failed to

demonstrate the existence of "reason to believe". It was

submitted that DRI has not proceeded against the persons,

who were allegedly involved in the transfer of the smuggled

gold. As the applicant has brought material on record to

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show that he deals in the business of testing of purity of gold,

a prima facie case for the exercise of the discretion can be

said to have been made out, submitted Mr. Pathak.

12. In opposition to this, Mr. Ketkar, the learned Counsel

for the DRI, submitted that the complicity of the applicant is

made out with an element of certainty by the statements of

the persons recorded under Section 108 of the Customs Act.

Mr. Ketkar would urge that the delivery of huge quantity of

gold to the applicant is rather incontrovertible. There is

material to show that though the smuggled gold was meant

for Ganesh Jewellers, yet, it was, in fact, delivered at the

applicant's firm. The mobile number of the applicant finds

mention on the receipts under which the smuggled gold was

allegedly transferred. To add to this, according to Mr. Ketkar,

there is material to show that the applicant had abused the

liberty by making an effort to dissuade the persons from

disclosing his identity and involvement in the smuggling. In

such circumstances, an order of pre-arrest bail would cause

serious prejudice to the public interest. According to Mr.

Ketkar, the huge quantity of the smuggled gold allegedly

delivered to the applicant and the resultant gravity of the

offence, which has the propensity to cause huge loss to

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public revenue, cannot be lost sight. To bolster up this

submission Mr. Ketkar placed reliance on the judgments of

the Supreme Court in the cases of Union of India vs. Padam

Narain Aggarwal Etc.3, State vs. Anil Sharma4 and Y. S.

Jagan Mohan Reddy vs. Central Bureau of Investigation5.

13. I have carefully considered the aforesaid submissions.

14. First and foremost, it is imperative to note that prima

facie, there is material to show that huge quantity of gold

weighing 36 kgs. was delivered to the applicant. Mr. Pathak

would urge that the applicant does not contest the factum of

the delivery of the gold. The applicant, according to Mr.

Pathak, had accepted the delivery of the gold for the purpose

of testing its purity and returned the same to the party at

whose instance the purity was so tested. Thus, the

controversy, even at this nascent stage, lies in a

narrow compass.

15. At this stage, the material in the form of the nature of

the role attributed to the applicant albeit, prima facie, as

borne borne out by the statements of the persons recorded

under Section 108 of the Customs Act assumes significance.

3      (2008) 13 SCC 305.
4      (1997) 7 SCC 187.
5      (2013) 7 SCC 439.




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Firstly, Mr. Sankalchand Patel, one of the Directors of Patel

Vishnubhai Kantilal and Company, the Angadiya Services

Provider, throws light on the circumstances of the case. Mr.

Sankalchand has categorically stated that the parcels

received from Mumbai containing the melted gold, marked for

Ganesh Jewellers, were delivered at Gopnath Jewellers on the

instructions of one Shrikant of Ganesh Jewellers. The mobile

number of the applicant was mentioned on the parcels which

were meant for Ganesh Jewellers. Mr. Sankalchand claimed

to have known the applicant and in all delivered 12 parcels to

the applicant containing the melted gold during the period 7 th

December, 2022 to 18th January, 2023.

16. Mr. Dharmaraj Bhosale, who came to be arrested, also

seems to have stated that 30 to 32 kgs. smuggled gold in

melted form was sent to Ganesh Jewellers, Ahmedabad, and

after Prashant Mainkar was released on bail, the applicant

had been to meet Prashant to enquire as to whose names

Prashant had divulged before the DRI. In a further statement

Dharmaraj Bhosale specifically named the applicant as the

person to whom the smuggled gold was delivered, with the

named consignee being Ganesh Jewellers, and the mobile

number of the applicant mentioned on the parcel. Dharmaraj

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Bhosale professed to identify the applicant as the person,

who had came to meet Prashant Mainkar after the latter was

released on bail.

17. Prima facie, there is material to show that about 36

kgs. smuggled melted gold was delivered to the applicant.

There are statements to show that though the consignee was

Ganesh Jewellers, the gold was delivered to the applicant and

the persons have specifically named the applicant as the

person to whom the gold was delivered. In the face of the

aforesaid material coupled with rather indisputabe delivery

of the gold, I find it rather difficult to accede to the

submission that there is no credible material to form a

reasonable belief about the alleged complicity of the

applicant.

18. I am mindful of the fact that in the case of Satender

Kumar Antil (supra) the Supreme Court has enunciated that

in category 'A' containing the offences which entail

punishment of seven years or less a better exercise of

discretion on the part of the Court in favour of the accused is

expected. However, in the face of the material on record

where prima facie involvement of the applicant in the alleged

smuggling of the gold is made out, the custodial interrogation

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of the applicant appears indispensable for an effective and

complete investigation.

19. Mr. Pathak was justified in canvassing a submission

that the Court in view of the enunciation in paragraph 90 of

the judgment in the case of Satender Kumar Antil (supra)

cannot proceed on the premise that the offences in question

being economic offences the accused does not deserve the

exercise of the discretion. The Court cannot treat the

economic offence as a class apart. However, the quantity of

the gold allegedly smuggled cannot be ignored. While

appreciating the gravity of the offence, undoubtedly, the

punishment the offence entails is the criteria, yet, the

quantity of the gold allegedly smuggled and the resultant loss

to the public revenue also appear to be germane.

20. The conspectus of aforesaid consideration is that the

material on record prima facie indicates that custodial

interrogation of the applicant is necessary to facilitate further

investigation and unmask the characters, which are involved

in the alleged syndicate, and unearth the facets of the alleged

offence.

21. Resultantly, I am not inclined to exercise the discretion

in favour of the applicant.

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22. Hence, the following order:

:ORDER:

(i) The application stands rejected.

(ii) It is clarified that these prima facie observations

are confined to determine entitlement to pre-arrest

bail only.

[N. J. JAMADAR, J.]