Delhi High Court
Air Customs vs Shail Anand And Another on 10 January, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 04.10.2021
% Pronounced on : 10.01.2022
+ CRL.M.C. 2017/2020
AIR CUSTOMS . .... Petitioner
Through: Mr. Satish Aggarwala, Sr. SPP and
Mr. Gagan Vaswani, Advocate.
versus
SHAIL ANAND AND ANR. ..... Respondents
Through: Mr. Akshay Anand, Advocate with
Ms. Prarthana Gund, Ms. Archana
Sharma and Mr. Tushar Anand,
Advocates.
+ CRL.M.C. 2019/2020 and CRL. MA. 15157/2020
AIR CUSTOMS . .... Petitioner
Through: Mr. Satish Aggarwala, Sr. SPP and
Mr. Gagan Vaswani, Advocate.
versus
ANKIT MADAN AND ANR. ..... Respondents
Through: Mr.Sunil K. Mittal, Advocate.
CORAM:
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
JUDGMENT
RAJNISH BHATNAGAR, J.
1. These are the petitions filed by the petitioner/Customs department
under section 482 Cr.P.C. seeking setting aside of order dated
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Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:13.01.2022
21:27
14.10.2020 by way of which the respondents i.e. Shail Anand and
Tarush Anand in Crl. M.C. 2017/2020 and Ankit Madan and Anil
Madan in Crl. M.C. 2019/2020 were granted bail for the offences under
sections 132 and 135 of Customs Act, 1962.
2. Brief facts of the case are that on the basis of specific intelligence, the
officers of Air Customs had recovered and seized 04 watches valued at
Rs. 51,55,887/- from the possession of the respondents, on their arrival
at T-3,New Delhi by Flight No. UK 224 dated 23.09.2020 from Dubai
to Delhi on 24.09.2020. In their respective voluntary statements
tendered under Section 108 of Customs Act, 1962 the persons namely
Shail Anand, Tarush Anand, Ankit Madan and Anil Madan inter-alia
admitted the recovery, seizure and other incriminating facts. Thereafter,
FIR was registered and investigation was taken up.
3. I have heard learned counsel for the petitioner, learned counsel for the
respondents and also perused the reply filed on behalf of respondents.
4. It is submitted by the counsel for the petitioner that the learned CMM
while granting bail to the respondents did not deal with all the
submissions made on behalf of the petitioner department and none of
the judgments cited by the petitioner department were taken into
consideration. It is further submitted that learned CMM did not
appreciate that watches which are case property in the present case are
covered by Section 123 of the Customs Act, 1962 and also the plea of
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Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:13.01.2022
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the petitioner department that investigation was going on and grant of
bail at the initial stage of investigation particularly in economic
offences had been deprecated. It is further submitted that the
respondents are not only involved in smuggling of wrist watches but
are also part of the hawala racket which is a case of international
ramification. Lastly, it is prayed that bail granted to the all the
respondents vide order dated 14.10.2020 be cancelled.
5. On the other hand, it is submitted by learned counsel for the
respondents that there are no malafides in the Impugned Order dated
14.10.2020 passed by learned CMM. It is further submitted that
respondents have already deposited the amount as per direction of the
learned CMM, towards the Customs duty. It is further submitted that
the watches seized at the airport had already been released vide order
dated 16.07.2021 passed by customs authority and the penalty imposed
on the respondents have already been paid by them. It is submitted that
there are two essential conditions mandatory for the maintenance of
bail being granted to accused, first, that he shall be available for the
trial proceedings and he shall not flee from the hands of justice and
second that accused will not tamper with the evidence. It is further
submitted that none of the condition has been violated by the
respondents also there are no allegations against the respondents that
they ever tried to tamper with the evidence. It is further submitted that
there is no likelihood of tampering with the evidence and accordingly
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Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:13.01.2022
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the learned CMM has rightly granted bail to the respondents after duly
considering the facts of the case. It is further submitted that the
cancellation can only be done in cases of supervening circumstances
which are totally lacking in the present case.
6. In this regard, Three Judges Bench of Hon'ble the Supreme Court in
State (Delhi Administration) vs. Sanjay Gandhi 1978(2) SCC 411 has
made the following elemental distinction in defining the nature of
exercise while cancelling bail:
a. "Rejection of bail when bail is applied for is one thing;
cancellation of bail already granted is quite another. It is easier to
reject a bail application in a non-bailable case than to cancel a
bail already granted in such a case. Cancellation of bail
necessarily involves the review of a decision already made and
can by and large be permitted only if, by reason of supervening
circumstances, it would be no longer conducive to a fair trial to
allow the accused to retain his freedom during the trial."
7. Further, the Hon'ble Supreme Court in Dolat Ram v. State of Haryana
(1995) 1 SCC 349 has also laid down guidelines to Courts while
deciding the question of cancellation of bail already granted. Para 4
of judgment reads as follows:
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Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:13.01.2022
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"4. Rejection of bail in a non-bailable case at the initial stage and
the cancellation of bail so granted, have to be considered and
dealt with on different basis. Very cogent and overwhelming
circumstances are necessary for an order directing the
cancellation of the bail, already granted. Generally speaking, the
grounds for cancellation of bail, broadly (illustrative and not
exhaustive) are: interference or attempt to interfere with the due
course of administration of justice or evasion or attempt to evade
the due course of justice or abuse of the concession granted to the
accused in any manner... However, bail once granted should not
be cancelled in a mechanical manner without considering whether
any supervening circumstances have rendered it no longer
conducive to a fair trial to allow the accused to retain his freedom
by enjoying the concession of bail during the trial. These
principles, it appears, were lost sight of by the High Court when it
decided to cancel the bail, already granted. The High Court it
appears to us overlooked the distinction of the factors relevant for
rejecting bail in a non bailable case in the first instance and the
cancellation of bail already granted."
8. It is settled that once bail granted should not be cancelled in a
mechanical manner without there being any supervening circumstances
which are not conducive to fair trial. It cannot be cancelled on a request
from the side of the complainant/investigating agency unless and until
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Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:13.01.2022
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it is established that the same is being misused and it is no longer
conducive in the interest of justice to allow the accused any further to
remain on bail. No doubt, the bail can be cancelled only in those
discerning few cases where it is established that a person to whom the
concession of bail has been granted is misusing the same.
9. In the instant case, there are no allegations of any tampering with the
evidences. There are also no allegations that the respondents are at
flight risk or there is any likelihood of absconding. The petitioner
department has not been able to make out a case of supervening
circumstances on the basis of which the bail granted to the respondents
should be cancelled and nothing has been brought on record to show
that the respondents have towering personalities that their mere
presence out on bail would in any manner thwart the further
investigation (if any) of the case or that they are in any manner threat to
the fair trial of this case. Nothing has been brought on record that the
respondents in any manner have violated the terms and condition of the
order granting them bail.
10. It is pertinent to mention here that watches which were seized at the
airport had already been released vide order dated 16.07.2021 passed
by customs authority and also the penalty which was being imposed on
the respondents have already been paid by them. Petitioner department
also failed to answer that what purpose would be served if the bail is
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Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:13.01.2022
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cancelled and what further enquiry is to be done after cancellation of
bail by taking them into custody. So, I see no reason for cancellation of
bail of respondents in the present case. Therefore, relying upon the
judgments State (Delhi Administration) vs. Sanjay Gandhi (supra) &
Dolat Ram v. State of Haryana (supra) and also that all the facts and
circumstances, required for an order of cancellation of bail to be passed
are missing in the present case, the present petitions along with pending
applications, are dismissed.
RAJNISH BHATNAGAR, J
JANUARY 10, 2022
AK
Signature Not Verified
Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:13.01.2022
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