Bombay High Court
Yatish Sharma vs The Union Of India And Anr on 10 September, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:37643
aba-959-2025-Final.doc
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO. 959 OF 2025
Digitally
signed by
SHABNOOR
SHABNOOR AYUB
Yatish Sharma ... Applicant
AYUB PATHAN
PATHAN Date:
2025.09.10
16:19:49
V/s.
+0530
The State of Maharashtra & Anr. ... Respondents
Mr. Sham Walve a/w Mr. Aditya Talpade Deepak, Pratik
Karande Bhavik for the Applicant.
Mr. Deepak Singh, for respondent No.1 (UOI).
Mrs. Rajashree V. Newton, APP for the State-
Respondent No.2.
CORAM : AMIT BORKAR, J.
RESERVED ON : SEPTEMBER 9, 2025
PRONOUNCED ON : SEPTEMBER 10, 2025
P.C.:
1. The applicant, apprehending arrest in connection with Case
File No. DRI/MZU/NS-II/INT-146/2023/1081 registered by the
Directorate of Revenue Intelligence, Nhava Sheva-II, Mumbai
Zonal Unit, Uran, Raigad, seeks protection under Section 438 of
the Code of Criminal Procedure, 1973 for grant of pre-arrest bail.
2. The case has its genesis in specific intelligence received by
the Directorate of Revenue Intelligence (DRI) regarding smuggling
of cigarettes into India through mis-declaration of import cargo at
Nhava Sheva Port. Acting upon the information, the officers
intercepted container No. KOCU5036300 covered by Bill of Lading
No. SE2311014-01 dated 27 November 2023, in the name of
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Apnakart Sales Private Limited, Dwarka, New Delhi. The goods
were examined under a Panchnama dated 5 December 2023 at
Seabird Marine Services Pvt. Ltd. (JNPT) CFS, Navi Mumbai. The
examination revealed recovery of 86,30,000 sticks of cigarettes of
Gold Flake brand valued at Rs. 14,64,10,000. The declared goods
were "luggage trolley bags." It was noticed that not a single piece
of the declared goods was found in the container.
3. The cigarettes so recovered were found to be in violation of
the Cigarettes and Other Tobacco Products (Packaging and
Labelling) Rules, 2008 read with Notification dated 26 March
2018 issued by the Ministry of Health and Family Welfare. By
virtue of the said Rules and Notification, the goods were classified
as "restricted" goods. The consignment, being mis-declared, was
found liable to confiscation under the Customs Act, 1962.
Consequently, the goods were seized under a Seizure Memo dated
8 December 2023.
4. In the course of investigation, several searches were carried
out to trace the members of the syndicate involved in the
smuggling racket. Statements of several persons were recorded
under Section 108 of the Customs Act, 1962. From these
statements, it was revealed that Amit Kumar, son of Mange, and
Amit Kumar, son of Ompal Singh, acted only as dummy directors
of Apnakart Sales Private Limited. They admitted that they had
provided their KYC documents to one Bhupendra Singh alias Sonu
for formation of the firm and opening of its bank account. They
were paid Rs. 5,000 per month for lending their documents. Both
of them stated that it was Bhupendra Singh alias Sonu who
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operated the bank account of the company.
5. The statement of Bhupendra Singh further disclosed that he
had arranged the purchase of the company through a chartered
accountant for Rs. 1.5 lakh and subsequently appointed the above-
named dummy directors at the instance of the present applicant.
He admitted that he opened the bank accounts of the firm for
which the applicant paid him Rs. 1 lakh in cash. He also stated
that the applicant had instructed him to delete communications
and destroy his mobile phone to obliterate evidence linking the
applicant with the smuggling. He further revealed that all cash
transactions were routed through the applicant, who used him
only as a front to avoid any trace of his connection with Apnakart
Sales Private Limited. While Bhupendra Singh attempted to
distance himself from the actual operations, he candidly admitted
to the purchase and sale of the firm at the instance of the
applicant.
6. The material collected further indicates that the applicant
played a significant though indirect role in the operations of the
firm. The applicant's conduct of submitting fabricated documents,
forged invoices, and manipulated balance sheets of M/s PIPL
suggests an attempt to mislead the authorities and divert the
course of investigation. The balance sheets showed glaring
discrepancies, such as repetition of trade receivables in the name
of "Sonu" over consecutive years, and invoices inconsistent with
the financial statements. The version of Bhupendra Singh stood
corroborated by the statement of Sohil Singh recorded under
Section 108 of the Customs Act.
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7. After the arrest of Bhupendra Singh, the applicant avoided
personal appearance before the investigating agency despite
repeated summons between October and November 2024. Instead,
he responded only through emails or authorized representatives.
His evasive conduct coupled with submission of forged documents
demonstrates a deliberate effort to obstruct investigation and to
shield himself from accountability. Samples of seized cigarettes
were sent to ITC Limited for verification. By letter dated 10
January 2024, ITC confirmed that the seized cigarettes were
counterfeit and unfit for human consumption.
8. The investigation thus disclosed existence of a well-
organized syndicate engaged in smuggling of cigarettes, using shell
companies, dummy directors, forged documentation, and
concealed transactions to evade customs control. The dummy
directors, who were paid meagre sums, had no role in the
operations. The real control of the firm and its activities remained
with the applicant and his associates. Considering the magnitude
of the offence and the role attributed to the applicant, a Show
Cause Notice dated 29 November 2024 was issued under Section
124 of the Customs Act, 1962, initiating proceedings against all
accused persons.
9. Learned Advocate for the applicant submitted that the
applicant has been falsely implicated in the present case. He
contended that the applicant is neither an importer nor a Customs
House Agent (CHA). His name has surfaced only on the basis of
statements made by co-accused persons who are themselves under
liability. It was further urged that a Show Cause Notice has already
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been issued and, in so far as the applicant is concerned, the
investigation has reached its finality. The statement of the
applicant was duly recorded during the investigation. The
applicant has appeared in response to the summonses issued to
him and has extended full cooperation to the investigating agency.
10. Learned Advocate further submitted that even after search of
the applicant's premises under Panchnama dated 23 April 2024,
nothing incriminating was recovered. He also placed reliance upon
various judgments of the Supreme Court and this Court, namely
Radhika Agarwal vs. Union of India and others, 2025 SCC OnLine
SC 449; Manish Jain vs. Union of India, (2025) 28 Centax 136
(Bom.); Mohammad Hanif Papa Shaikh vs. Union of India, (2024)
21 Centax 120 (Bom.); Nitesh Roy vs. Union of India, (2023) 9
Centax 21 (Bom.); and Union of India vs. Kisan Ratan Singh and
others, 2020 SCC OnLine Bom. 39. On the strength of these
submissions, it was urged that the present application for
anticipatory bail deserves to be allowed.
11. Per contra, learned Advocate appearing for the Directorate of
Revenue Intelligence opposed the application. He submitted that
the declared goods in the container were shown as luggage trolley
bags, however, upon examination, 86,30,000 sticks of cigarettes
valued at Rs. 14,67,10,000 were recovered. The statement of co-
accused Bhupendra Singh alias Sonu clearly names the applicant
as the person who instructed him to delete communications and
destroy his phone so that no evidence could remain linking the
applicant with the smuggling activities. It was further submitted
that all cash transactions were carried out by the applicant with a
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view to leave no trace connecting him to Apnakart Sales Private
Limited. Bhupendra Singh admitted to buying and selling the firm,
but maintained that he was unaware of the smuggling of cigarettes
in the name of Apnakart Sales Private Limited.
12. Learned Advocate further invited attention to the invoices
produced by the applicant during investigation, which were found
to be forged. He pointed out that the cellphone number printed on
the invoice consisted of eleven digits, which is impossible, and that
the closing balance in the statement of account did not tally with
the corresponding balance reflected in the earlier tax invoice. It
was further submitted that the statement of Sohil Singh recorded
under Section 108 of the Customs Act corroborates the version of
Bhupendra Singh regarding the involvement of the applicant,
Yatish Sharma. On this basis, it was argued that the applicant is
the real and beneficial owner within the meaning of Section
2(3-A) of the Customs Act. The applicant also failed to appear in
response to summons dated 12 October 2024, 22 October 2024, 6
November 2024, 18 November 2024, and 22 November 2024. On
these grounds, it was prayed that the application for anticipatory
bail be rejected.
13. I have considered the submissions advanced on behalf of the
applicant as well as the Directorate of Revenue Intelligence. I have
also perused the record of investigation placed before the Court.
14. The applicant seeks to project himself as a person falsely
implicated, contending that he is neither an importer nor a
Customs House Agent and that his implication rests solely upon
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the statement of co-accused persons. He relies upon the fact that a
Show Cause Notice has already been issued, that his statement
stands recorded, and that he has extended cooperation by
responding to summonses. Reliance is also placed upon certain
decisions of the Supreme Court and this Court to contend that in
the absence of recovery from his possession, custodial
interrogation is unnecessary.
15. However, the record paints a different picture. The
contraband seized is of considerable value, being 86,30,000 sticks
of cigarettes valued at Rs. 14.67 crore. The magnitude of the
seizure itself shows that the offence is not an isolated act but part
of a larger and well-organized smuggling activity. The modus
adopted was deliberate, wherein the cargo was declared as
"luggage trolley bags" while in reality it contained cigarettes,
thereby deceiving customs authorities. Such mis-declaration strikes
at the root of the regulatory system under the Customs Act and
causes direct loss to the revenue of the State.
16. The contention of the applicant that nothing incriminating
was recovered during the search of his premises cannot carry much
weight at this stage. In cases of smuggling and economic offences
of this nature, the prosecution is not required to rest its case only
on physical recovery of contraband or incriminating articles from
the residence of the accused. Such offences are often committed by
creating layers of companies, dummy directors, and paper
transactions, where the real role of the mastermind is concealed
behind front entities.
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17. The record collected by the investigating agency shows that
the applicant was not a mere bystander but was actively directing
the affairs of M/s Apnakart Sales Private Limited through dummy
directors. The statements of co-accused recorded under Section
108 of the Customs Act point to the applicant as the person who
financed the operations, arranged dummy directors, and instructed
associates to destroy evidence to avoid detection. The forged
invoices and manipulated financial statements furnished by the
applicant further indicate a conscious effort on his part to mislead
the authorities.
18. In this context, Section 2(3-A) of the Customs Act assumes
importance. It defines "beneficial owner" to include not only the
person in whose name the goods stand but also the person who
exercises control or derives benefit from the import. The evidence
on record, including statements of co-accused and the
documentary discrepancies, prima facie show that the applicant
falls within the ambit of a "beneficial owner." Therefore, the
liability of the applicant cannot be diluted on the ground that
nothing was seized from his house.
19. Thus, the case of the prosecution is built not merely on
physical recovery but on the overall role of the applicant in
masterminding and controlling the operations of the smuggling
syndicate through indirect means. At this stage, the material
available against him is sufficient to deny the benefit of pre-arrest
bail.
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20. The statement of co-accused Bhupendra Singh clearly names
the applicant as the person who instructed him to delete
communications and destroy his mobile phone to erase all possible
evidence of the applicant's role in the smuggling racket. This
conduct, if viewed in its proper context, indicates a conscious
attempt by the applicant to conceal his involvement and frustrate
investigation. The veracity of this statement does not stand alone.
It finds support from the independent statement of Sohil Singh
recorded under Section 108 of the Customs Act, who has
confirmed the role of the applicant as narrated by Bhupendra
Singh. When two independent statements recorded under
statutory power converge on the same set of facts, they gain strong
probative value at the stage of considering anticipatory bail.
21. Therefore, it cannot be said that the applicant's implication
rests on a solitary or uncorroborated allegation. On the contrary,
the record demonstrates that his role is supported by consistent
statements of co-accused and associates, pointing towards his
active involvement in orchestrating the smuggling activities behind
the facade of dummy directors and shell companies.
22. In addition to the corroborated statements, the conduct of
the applicant during investigation further reinforces his complicity.
The invoices and balance sheets furnished by him were found to be
fabricated. The investigating agency has pointed out glaring
discrepancies such as an eleven-digit mobile number printed on
the invoices and mismatched closing balances in the statements of
account as against the tax invoices. These anomalies cannot be
brushed aside as clerical mistakes. They prima facie indicate that
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false documents were created and placed on record with the intent
to mislead the authorities and to conceal the true nature of
transactions.
23. Such fabrication of records, when viewed along with the
statements of Bhupendra Singh and Sohil Singh, strengthens the
inference that the applicant was not a passive or innocent party
but was actively engaged in shielding the operations of the
syndicate. The law is well settled that when a person, instead of
producing genuine records, furnishes false and misleading
documents, it is a strong circumstance pointing to guilty
knowledge and conscious involvement.
24. Further, the applicant's conduct of avoiding personal
appearance before the Directorate despite repeated summonses
between October and November 2024 speaks volumes. Instead of
subjecting himself to questioning, he chose to respond only
through emails or through his representative. Such avoidance,
coupled with his attempt to rely on forged documents, indicates a
deliberate design to obstruct investigation. The principle that
anticipatory bail cannot be granted to persons who are not
forthcoming with the truth or who attempt to derail investigation
applies with full force here.
25. Thus, the chain of circumstances, large scale seizure of
smuggled goods, corroborated statements of co-accused, forged
invoices and manipulated accounts, and deliberate evasion of
summons, taken together, points towards the active role of the
applicant in the smuggling operation. At this stage, it cannot be
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accepted that the applicant is a victim of false implication. On the
contrary, the material on record prima facie discloses his
involvement, which requires thorough custodial interrogation for
unearthing the financial trail and the wider network of the
syndicate.
26. The seriousness of the offence cannot be overlooked.
Smuggling of such magnitude not only results in loss of revenue to
the exchequer but also involves circulation of counterfeit and unfit
goods, as confirmed by ITC Limited. The materials unearthed so
far indicate the existence of an organized syndicate operating
through dummy directors, shell companies, and forged documents.
The applicant's role, as emerging from the record, cannot be said
to be peripheral.
27. The plea of false implication, in the face of corroborative
statements and forged documentation, does not inspire confidence
at this stage. The fact that nothing incriminating was recovered
from the applicant's premises during search does not, by itself,
absolve him, particularly when the allegations relate to control and
operation of the firm behind the smuggling activities rather than
mere possession of goods.
28. The law relating to grant of anticipatory bail requires
balancing individual liberty against the interest of a fair and
effective investigation. In the present case, considering the gravity
of the offence, the manner of operation of the syndicate, and the
applicant's conduct during investigation, custodial interrogation
appears necessary for unearthing the complete chain of
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transactions and to trace the financial trail.
29. In these circumstances, I am of the considered opinion that
the applicant has failed to make out a case for grant of pre-arrest
bail.
30. At this stage, learned Advocate for the applicant prayed for
continuation of ad-interim relief. Considering the reasons stated
above, the said request is rejected.
(AMIT BORKAR, J.)
