Vocke Curt Ulrich vs Customs Through Air Customs ...
1999 Latest Caselaw 418 Del

ORDER

S.N. Kapoor, J.

1. Heard. According to the prosecution, the petitioner was arrested by the officers of Air Customs, IGI Airport, New Delhi while he was scheduled to board a Swiss Air flight dated 30th March 1999 Delhi to Zurich. The petitioner Mr. Vocke Curt Ulrich having a German Passport No. 7167142695 was found carrying foreign currency. As he proceeded to the security hold area, he was intercepted by a Customs Officer in plain clothes and was asked whether he was carrying any currency or prohibited goods. The petitioner replied in negative. In presence of the witnesses notice was given to him in writing. His entire baggage was examined in the presence of two witnesses. As a result of examination of his hand bag, a brown colour leather purse was recovered inside it. On examination of that purse, foreign currency consisting of US$ 14,500, Deutsche Marks 3530, Swiss Francs 860 and Pounds 380 were recovered. He could not produce any currency declaration form or any documentary evidence for the legal exportation of the recovered foreign currency. The total amount of foreign currency in Indian currency was valued at Rs.7,32,774/-. The accused made a statement under Section 108 of the Customs Act admitting the facts and circumstances of recovery and seizure of foreign currency from his possession.

2. Seeing the recovery of more than US$ 5000, it is apparent that the petitioner has prima facie committed an offence punishable under Section 132 and 135.

3. Learned counsel for the petitioner submits that while rejecting the application, the learned Additional Chief Metropolitan Magistrate has been unreasonably swayed by the high sounding adjectives used in the cases of highest scale, smuggling and evasion of duties. The limit for carrying foreign currency was reduced from US$ 10,000 to US$ 2,500 and it has again been raised to US$ 5000. It is submitted that coming from foreign countries, no one could be reasonably expected to know such frequent changes of limit. The right of life even in prolonged detention on ground of involvement and its violation has to be avoided by prolonged detention. The delay in investigation is also violative of right of life and liberty. There are numerous precedents where violation of this magnitude has been dealt only with fine of Rs. 50,000 to Rs. one lakh. Under the law, the petitioner is also entitled to the benefit of set off for the period of detention in judicial custody. No useful purpose will be served by prolonged detention of the petitioner in the judicial custody. Since passport of the accused is with the Department, there is no chance in which he could avoid the process of law by leaving the country. It is admitted that earlier in some cases, the bail was granted. The learned counsel for the petitioner further submits that the accused has already suffered a personal penalty of Rs.one lakh under Section 114 of the Customs Act, 1962. The foreign currency equivalent to Rs.7,32,774 has also been confiscated under Section 113(d) and 113(h) of Customs Act, 1962. The accused is in custody since 30th March 1999. Thus, he has been in custody for one and a half months. No useful purpose is going to be served by detaining him in jail, if even after trial the accused is ordered to pay the fine only. He has also submitted that any condition may be imposed on the petitioner to ensure that he does not leave the country.

4. On the other hand, the learned counsel for the State submits that petitioner is a foreigner. He is involved in a serious offence and huge amount of foreign currency has been recovered from the petitioner. The learned counsel has also stated during the course of arguments that the matter is fixed on 27th and 28th May 1999 for evidence and the prosecution would conclude their evidence on the two dates if the counsel for the accused is available. The epartment has no objection if directions are given to the trial court for taking this matter on day to day basis. In case he is granted bail, he shall not be available to face trial and receive punishment in such a serious offence. It is the sad experience of the Department that whenever a foreigner has been granted bail, he/she is not available to face the trial and has absconded. Gravity of offence, value and quantity, character of evidence, larger interest of society and nation, have also to be kept in view while considering petition for bail.

5. Having considered the submission of the counsel for the parties and without expressing any opinion on the respective contentions, seeing thatforeign currency has already been confiscated and a penalty of Rs. one lakh has also been imposed and further the fact that the accused has been in custody for the last one and a half months, I feel that it would be appropriate to release the accused on bail on furnishing personal bond of Rs. one lakh with one local surety of the like amount to the satisfaction of the learned trial court and subject to the following conditions:

i) That the accused shall not leave the Union Territory of Delhi during the period of trial, and for this purpose, he shall surrender his passport, if already not surrendered, and he as well as the surety shall give an undertaking that the petitioner shall not apply for and obtain a duplicate passport;

ii) That he shall not indulge in any activity which may be prejudicial to the interest of the country; and

iii) That he shall keep the Department informed about his where abouts.

6. The Department may also inform all Immigration Offices in the country along with a photograph of the petitioner that the petitioner is not allowed to leave the country without obtaining permission from this court or the learned Trial Court.

7. Furter, the trial court is also requested to expedite the disposal of the matter at the earliest of its convenience and preferably before 31st July 1999.

8. A copy of this order be given DASTI.