Rohit Sakhuja vs State & Anr.
2012 Latest Caselaw 6950 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        BAIL APPLICATION NO.1736/2012

                                        Decided on :    5th December, 2012

ROHIT SAKHUJA                                          ...... Petitioner
             Through:               Mr. Sudhir Nandrajog, Sr. Advocate with
                                    Mr. H.S. Bhullar, Mr. Dheeraj, Mr. Ankit
                                    and Mr. S. Pandey, Advocates.

                           Versus

STATE & ANR.                                          ...... Respondents
                        Through:    Mr. Sunil Sharma, APP for the State.
                                    Mr. Satish Aggarwala, Advocate for DRI.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

Crl. M.A. No.19546/2012 (for exemption)

1. Exemption allowed, subject to the deficiency being rectified.

2. The application stands disposed of.

Bail Application No.1736/2012

1. This is an application filed by the petitioner under Section 438 read

with Section 482 Cr.P.C. for grant of anticipatory bail in FIR

No.254/2012, under Sections 380/468/471/34 IPC, registered at Police

Station Pur Prahladpur.

2. Briefly stated the allegations against the petitioner are that on

25.5.2012, eight containers containing goods of various description,

imported at ICD, Tughlakabad, New Delhi, were illegally taken out from

the custody of CONCOR on the basis of gate passes which were

apparently bearing forged signatures of Customs Officers. The said

containers contained one thousand imported air conditioners, more than

600 imported gas cylinders of R-22 refrigerant gas and 580 cartons

(62,40,000 sticks) of imported cigarettes of Indonesian origin. The total

value of the goods was worth more than `10 crores.

3. It is also the case of the prosecution that R-22 refrigerant gas is an

Ozone depleting substance and its import is restricted as per Foreign

Trade Policy. The investigations by the Customs Authorities were

conducted and the statement of the present petitioner under Section 108

of the Customs Act was recorded. Similarly, the statements of driver and

co-accused of the present petitioner were also recorded, who took the

name of the present petitioner pursuant to which raids were conducted at

the godowns of the present petitioner and the goods which were illegally

taken out, on the basis of the alleged forged documents, are stated to have

been recovered. Similarly, the documents which are purported to be

forged have also been recovered and the specimen signatures and

handwriting of the petitioner have also been obtained and sent for

comparison to the Forensic Laboratory. On the basis of these allegations

not only a complaint case under Customs Act was filed against the

present petitioner but an FIR was also registered on 27.8.2012 bearing

No.254/2012, under Sections 471/380/468/34 IPC, registered by Police

Station Pur Prahladpur. The petitioner is on bail in the complaint case

under Customs Act, being a bailable offence.

4. The present petitioner, feeling aggrieved by the registration of the

aforesaid FIR, had filed an application for grant of anticipatory bail

before the Court of Sessions which came to be rejected on 23.11.2012 on

the ground that the petitioner was evading appearance before the

investigating agency and also because of the alleged forgeries having

been made in taking out the goods from the ICD.

5. Feeling aggrieved, the present petitioner has filed the second

application for grant of anticipatory bail before this court.

6. I have heard Mr. Nandrajog, the learned senior advocate appearing

on behalf of the petitioner, who has vehemently contended that since the

goods which are alleged to have been taken out from the ICD,

Tughlakabad have been recovered, specimen signatures of the present

petitioner have been obtained and sent for comparison with the

questioned documents, no useful purpose would be served by denying the

grant of anticipatory bail to the petitioner because his custodial

interrogation is not required. For this purpose, the petitioner has also

relied upon the case titled Siddharam Satlingappa Mhetre vs. State of

Maharashtra & Ors; (2011) 1 SCC 694 and the bail order passed by this

court in Bail Application No.2492/2009 dated 19.3.2012 titled Monika

Singh vs. State.

7. The second submission made by the learned counsel is that the

incidence is purported to have taken place in the month of May, 2012.

The Apex Court in Om Prakash & Anr. vs. Union of India & Anr.; 2011

X AD (S.C.) 417 has observed that offences under Customs Act are

bailable offences and, therefore, the petitioner was able to get the bail. It

is stated that during the course of issuance of notices to the petitioner

under Section 108 of the Customs Act, the petitioner was required to be

interrogated in the presence of a counsel, who was to sit at some distance

from the petitioner. This order was obtained by the petitioner from the

Hon'ble Apex Court. It is stated that since the petitioner had obtained an

order from the Apex Court regarding the presence of a counsel during the

course of interrogation, the Customs Authorities felt offended. They

could also not arrest the petitioner, the offence being bailable now. They,

after expiry of more than three months, have tried to be revengeful to the

petitioner by getting the FIR in question registered. It is, therefore, stated

that the very registration of the aforesaid FIR by the Customs Authorities

is mala fide only with a view to arrest the petitioner and subject him to

custodial interrogation.

It has also been lastly observed by the learned senior counsel that in the

event of bail being denied to the petitioner, if at all, the petitioner is to be

subjected to custodial interrogation, the order which has been passed by

the Apex Court granting him the liberty to be interrogated in the presence

of a counsel, should also be extended to the interrogation which is to be

done by the prosecuting agency.

8. The learned APP for the State has vehemently contested the grant

of the bail to the petitioner. It has been contended by Mr. Sharma, the

learned APP that the investigations are still at the threshold and the grant

of anticipatory bail to the petitioner, at this stage, will only hamper the

investigations and prevent the investigating agency to go to the root of the

matter inasmuch as to find out as to whether there was a larger conspiracy

involving officials of the Customs Department also in the case. He has

stated that in case the anticipatory bail is granted, it will completely block

the investigating agency from reaching to the bottom of the matter.

9. I have carefully considered the submissions made by the learned

senior counsel for the petitioner and have gone through the authorities

cited by him. No doubt, the Apex Court in Siddharam's case (supra) has

observed that the provisions of anticipatory bail should be used liberally

in favour of the accused persons but there is no such direction that

whenever such an application is filed, invariably, the bail ought to be

given. The grant of anticipatory bail is an exercise of discretion which is

to be governed by the settled judicial principles.

10. In the instant case, the facts are such which show that the goods

worth `10 crores were taken out from the custody of the Government

authority, that is, Customs Authorities on the basis of forged documents

which could not have been done without the complicity of somebody

from the inside of the office of Customs. At this stage, in order to reach

to the root of the matter, it would require custodial interrogation of the

petitioner. Merely because the goods have been recovered on the basis of

the statements made by the driver of the vehicle, who had transported the

goods or on the basis of the statement made by the co-accused, who had

shifted the entire burden on to the present petitioner painting him as the

main king pin who was indulged in these nefarious activities or that the

Customs Authorities had obtained the signatures and the handwriting of

the petitioner and sent for comparison, does not mean that the petitioner

deserves to be granted anticipatory bail. The modus operandi of the

offence is such that it will require a fair chance to be given to the

prosecuting agency to investigate into the matter freely. In case,

anticipatory bail is granted to the petitioner, it will only create hurdles.

11. So far as the observations which were passed by this court in

Monika Singh's case (supra), that custodial interrogation is not sine qua

non for every case are concerned, there is no dispute about the same but

the question as to whether custodial interrogation is required in a given

case or not or whether an accused in a given case is entitled to be granted

the anticipatory bail or not will be dependent on the facts and

circumstances of each and every case. In Monika Singh's case (supra),

the main distinguishing features from the facts of the present case were

that it was a dispute between the lady Monika Singh one side and her

husband and the father-in-law on the other. The allegation against

Monika Singh were that she had purportedly sold the flats which did not

belong to her and which was registered in the name of her husband or

father-in-law. While as in the instant case, the financial implications are

much higher than the Monika Singh's case and secondly, it shows that

there is some kind of racket going on in taking out the goods illegally on

the basis of forged documents from ICD, Tughlakabad, and then selling

them in the open market. This need to be probed into by the

investigating agency and for this purpose, a free hand deserves to be

given to them. I, therefore, feel that merely because certain observations

have been passed by this court in Monika Singh's case (supra), they do

not ipso facto apply to the present case.

12. Keeping in view the enormity and the gravity of the offence in the

instant case, I feel it is not a fit case where this court should exercise

discretion in favour of the petitioner and grant him anticipatory bail.

Accordingly, the application for grant of anticipatory bail is rejected.

13. I also feel that since there is no specific prayer in the petition that

the petitioner should be interrogated in the presence of a counsel, it will

be totally inappropriate to pass any such order in an anticipatory bail

application. The said oral prayer is also rejected.

V.K. SHALI, J.

DECEMBER 05, 2012 'AA'