Nitin Gunwant Shah vs Assistant Collector Of Customs ...
1989 Latest Caselaw 535 Del

JUDGMENT

P.K. Bahri, J.

(1) This is an application seeking anticipatory bail. Facts as have been stated in the reply filed by the respondent, in brief, are that on July 28, 1989, a bill of entry was filed at the Customs House by Shri B.S. Gandhi, agent, on the authority of M/s. Ess O.A. Company in the name of M/s. S.G. Combines in respect of two containers purported to contain aluminium scrap. The said two containers were found to contain not only the aluminium scrap but also contraband goods like polyester textiles, zip fasteners and almonds of U.S. origin and some brass ingots and crude ayurvedic drugs. It was also discovered that three more containers had arrived which were consigned to the same importer and which also purported to contain only aluminium scrap but on being examined, similar contraband goods were recovered from those containers as well. The value of the goods from the five containers came to be Rs. 1,79,91,935.00. Statements of Shri B.S. Gandhi and Shri Sudhir Kumar, representatives of Cha, were recorded No evidence was produced in support of any lawful importation of the said goods Shri Azhar Ali, who, as proprietor of M/s. S.G. Combines, was also examined, stated that this import has been made at the instance of Parkash Jain, who was introduced to him by one Shri Qureshi. It is alleged that Shri M.S. Qureshi had made a statement that the present petitioner Nitin Gunwant Shah, who is also dealing in import licenses in a big way, was concerned with this illegal import of contraband goods. He also mentioned that Parkash Jain had told him that consignments belonged to Nitin Shah, the petitioner. It has come out that the petitioner had moved the Bombay High Court for grant of anticipatory bail and vide order dated August 14, 1989, the Bombay High Court recorded that the searches of the premises of the petitioner had not yielded any incriminating evidence and the petitioner is willing to join and co-operate in investigation and the Court directed that he should appear before the D.R.I, office in Bombay on that day in between 3.45 P.M. to 6 P.M. and if his presence was required later on he might be summoned again and he should attend office of the Assistant Collector of Customs Delhi, at 11 A.M. on August 16, 1989 and continue to appear as long as his presence was required. The Court granted the anticipatory bail by making the following order : "FOR this purpose the petitioner shall be released on an anticipatory bail of Rs. 2,00,000.00 with one surety in the like amount. The respondents will be at liberty to seek a remand from Delhi Court on the basis of whatever material may be found in Delhi if that tends to be incriminating."

(2) The learned counsel for the petitioner has argued that not an iota of evidence has been collected by the respondent which could connect the petitioner with the said illegal import and thus, the petitioner should be granted anticipatory bail. He has pointed out that no evidence has been collected in Delhi which is incriminating to the petitioner and thus, the petitioner should not be allowed to be arrested and humiliated unnecessarily in this case.

(3) The learned counsel for the respondent has, on the other hand, argued that as the investigation is still in progress in a very heinous offence involving the economy of the country, the petitioner should not be granted anticipatory bail and he has made reference to a number of judgments in support of his contention. He has also pointed out that the petitioner had tried to forge some documents in order to mislead the respondent and so his conduct deserves condemnation and he had also not cooperated with the investigating agency inasmuch as he had not appeared before the Customs officers as directed by the Bombay High Court. So, he does not deserve to be released on bail.

(4) The principles which have to be kept in view while deciding an application for grant of anticipatory bail are well-known. In cases involving non-bailable offences where the trial has not yet commenced, the court is to take various matters into consideration such as the nature and the seriousness of the offence, the character of evidence, the circumstances which are peculiar to the accused: a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other considerations. (See State v. Jagjit Singh, , State v. Jaspal Singh Gill, Gurcharan Singh v. State (Delhi Administration), Air 1978 Sc 179, Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, and State of Gujarat v. Mohanlal, ).

(5) In the case of Mohanlal (supra), the following observations were made by the Supreme Court which are pertinent and are reproduced below : "TO deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. Ends of justice are not satisfied only when. the accused in a criminal. case is acquitted. The Community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the Community deserves equal treatment at the hands of the Court in the discharge of its judicial functions. The Community or the State is not a persona non-grata whose cause may be treated with disdain. The entire Community is aggrieved if the economic offender's who ruin the economy of the State are not brought to book. A murder may be committed in the heat of of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifest only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest. The High Court was therefore altogether unjustified in rejecting the application made by the learned Assistant Public Prosecutor invoking the powers of the Court under Section 391 of the Code of Criminal Procedure."

(6) It is not necessary to multiply the judgments holding the same principle which has been referred to by the learned counsel for the respondent except that some of the judgments were also considered by a Single Judge of of this Court in Criminal Miscellaneous (Main) No. 1033/87 decided on September 3, 1987,by D.P. Wadhwa,J. Except for statement of one witness who stated that one co-accused Parkash Jain had told him that the petitioner is also involved in the import of these contraband goods, the learned counsel for the respondent has not been able to point out any other incriminating evidence collected by the respondent against the petitioner. The aforesaid evidence already collected by the respondent was available to the respondent when the High Court of Bombay had granted anticipatory bail. I do not think that it will be appropriate for this court at least in this case to come to a different conclusion and refuse anticipatory bail to the petitioner when no new facts or material had been collected in investigation since the order granting anticipatory bail was passed by the Bombay High Court. The mere fact that a very serious and grave offence appears to have been committed by certain persons is not a sufficient ground to refuse anticipatory bail to the petitioner unless it is shown, prima facie, that the petitioner is also involved in commission of the said offence.

(7) In the reply the respondent had made reference to the factum of petitioner having given an advance copy of the petition to Assistant Collector (T) where he later on changed the letter 'T' to letter (P) so that the proper authority who was to take steps to oppose the petition showed remain unaware of the present petition being filed in this Court. I do not think that anything turns on such allegation. In the rejoinder the petitioner had controverter this allegation and had mentioned that he had not only given advance copy of the petition to the proper authority but had also sent a letter to the Assistant Collector of Customs (P), New Delhi, in which he intimated about having moved the application for grant of anticipatory bail.

(8) It has been argued by the learned counsel for the respondent that the petitioner has not cooperated with the investigating agency. The petitioner has admittedly now appeared and has given the statement under Section 108 of the Customs Act. The petitioner has explained in the petition as well as in the rejoinder-affidavit as to how he could not come to Delhi on the date fixed by the Bombay High Court and he also mentioned that he applied to the Bombay High Court and the Bombay High Court had permitted him to come to Delhi on August 17, 1989 and he had reached Delhi in the evening on that day. So, it cannot be said that the petitioner had not been cooperating with the investigating agency.

(9) In view of the above discussion, I direct that in the event of arrest the petitioner be released on anticipatory bail on furnishing a bond in the sum of Rs. 2,00,000.00 (two lakhs only) with one surety in the like amount to the satisfaction of the Investigating Officer concerned. The petitioner shall continue to join investigation whenever required.