Abdulmunaf Mahmadarif Vohra vs State Of Gujarat
2021 Latest Caselaw 6948 Guj

      R/CR.MA/5176/2020                                   ORDER DATED: 25/06/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 5176 of 2020
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                          ABDULMUNAF MAHMADARIF VOHRA
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR.R.C.JANI, SENIOR ADVOCATE for MR. VISHRUT R JANI(6696) for the
Applicant(s) No. 1
MR.KSHITIJ AMIN for MR DEVANG VYAS(2794) for the Respondent(s) No. 2
MS.MOXA THAKKER, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                 Date : 25/06/2021
                                  ORAL ORDER

[1] Present application is filed seeking the following prayer,

"The applicant may be granted anticipatory bail in connection with the Summons issued by the respondent no.2 under Section 108 of the Customs Act, 1962."

Thus, the applicant is seeking anticipatory bail against the summons issued under Section 108 of the Customs Act.

[2] At the outset, learned advocate Mr.Kshitij Amin has submitted that looking to the prayer made in the present application, the same would not survive as per the law enunciated in the case of Union of India vs. Padam Narain Aggarwal and Others reported in 2009 (1) SCC (Cri) 1. He has placed reliance on the judgment dated 11.09.2020 passed in the case of co-accused in Criminal Misc. Application No.22910 of 2019.

[3] Learned Senior Advocate Mr.R.C.Jani appearing for the applicant has submitted that in fact the present applicant is not connected with M/s. PVD Enterprise in any manner. He has further

R/CR.MA/5176/2020 ORDER DATED: 25/06/2021

referred to the show-cause notice dated 25.09.2020 in support of his submission. It is submitted that the statement of the applicant was recorded on 01.07.2020 by the Custom Authority under the provision of Section 108 of the Customs Act, 1962.

[3.1] It is further submitted that the associating Officer Mr.B.S.Rajput was accompanied by Mr.Alok Chaudhry and when he visited the residence and business place of the applicant, he had abused his wife as well as daughter. He has submitted that there were no special reason for Mr.Rajput to visit residence of the applicant when summons to remain present was issued on 05.03.2020. Thus, he has submitted that the present applicant may be granted anticipatory bail.

[4] It is pertinent to note that the respondent in affidavit-in-reply dated 20.05.2020 has categorically stated that to substantiate the claim of Shri Parthiv Vijaykumar Dave a summons dated 19.02.2020 was issued to the applicant but he had not appeared before DRI, Ahmedabad even after serving of summons and is absconding. Another Summons dated 27.02.2020 was issued to the applicant and the same was sent by post. Further for personal service of the said summons dated 27.02.2020 and to verify his address, the officers of DRI, Ahmedabad visited on 28.02.2020 at his residential address. On ringing the doorbell one lady came outside from the applicant's residential premises and introduced herself as wife of the applicant. Conversation with the applicant's wife was in decent and polite manner. The officers of DRI, Ahmedabad requested Shri H.R.Pathan, Advocate and relative of the applicant, who came there as per the direction of the applicant, to make the applicant understand that this is a government inquiry and the applicant should honour the DRI summons issued to him. Thereafter, the DRI officers left that place for the office of DRI, Ahmedabad. Another Director of M/s. Barckly Exim

R/CR.MA/5176/2020 ORDER DATED: 25/06/2021

Pvt. Ltd. is Shri Abdulmukim Mahmadarif Vohra, who is the owner of M/s. Water Force General Trading LLC., PO Box-83108, Dubai (supplier of the aforesaid old & used MFDs). He was also summoned vide summons dated 20.02.2020, but he had not appeared before DRI, Ahmedabad for recording of his statement.

[5] The applicant is seeking anticipatory bail under the provision of Section 438 of the Criminal Procedure Code, 1973 against the summons dated 19.02.2020 issued by respondent no.2 under the provision of Section 108 of the Indian Penal Code, 1860.

[6] It would be apposite to refer to the observations made by the Supreme Court in the case of Union of India vs. Padam Narain Aggarwal and Others:

"39. This section does not contemplate magisterial intervention. The power is exercised by a Gazetted Officer of the Department. It obliges the person summoned to state truth upon any subject respecting which he is examined. He is not absolved from speaking truth on the ground that such statement is admissible in evidence and could be used against him. The provision thus enables the officer to elicit truth from the person examined. The underlying object of Section 108 is to ensure

40. As held by Constitution Bench of this Court in Ramesh Chandra Mehta v. State of West Bengal, (1969) 2 SCR 461, a person called upon to make a statement before the Custom Authorities cannot be said to be an accused of an offence. It is, therefore, clear that if a person is called upon to make a statement under Section 108 of the Act and summon is issued for the said purpose, he is bound to comply with such direction. This view has been reiterated in several cases thereafter.

44. In the case on hand, the respondents were only summoned under Section 108 of the Act for recording of their statements. The High Court was conscious and mindful of that fact. It, therefore, held that applications for anticipatory bail, in the circumstances, were pre-mature. They were, accordingly, disposed of by directing the respondents to appear before the Custom Authorities. The Court, however, did not stop there. It stated that even if the Custom Authorities find any non- bailable offence against the applicants (respondents herein), they shall not be arrested "without ten days prior notice to them.

45. In our judgment, on the facts and in the circumstances of the present case, neither of the above directions can be said to be legal, valid or in consonance with law. Firstly, the order passed by the High Court is a blanket

R/CR.MA/5176/2020 ORDER DATED: 25/06/2021

one as held by the Constitution Bench of this Court in Gurbaksh Singh and seeks to grant protection to respondents in respect of any non-bailable offence. Secondly, it illegally obstructs, interferes and curtails the authority of Custom Officers from exercising statutory power of arrest a person said to have committed a non-bailable offence by imposing a condition of giving ten days prior notice, a condition not warranted by law. The order passed by the High Court to the extent of directions issued to the Custom Authorities is, therefore, liable to be set aside and is hereby set aside."

[7] It is pertinent to note that the co-accused i.e. Ravindra Chandrakantbhai Patel, who was issued summons under Section- 108 of the Customs Act, has approached this Court seeking anticipatory bail. The Coordinate Bench vide judgment dated 11.09.2020 passed in Criminal Misc. Application No.22910 of 2019 has rejected the application as prematured, in light of the observations made by the Apex Court.

[8] Thus, as per the law promulgated by the Apex Court the Summons under Section 108 of the Custom Act is only issued for recording the evidence and the High Court cannot direct the respondent authorities not to arrest such accused, as the anticipatory application would be premature at this stage. Even the direction issued by the High Court not to arrest such accused for limited period would be illegal and against the law.

[9] Under the circumstances and in light of the aforementioned submissions advanced by the learned advocates for the parties and observations made by the Apex Court, the present application is rejected. Rule is discharged. Interim relief granted earlier stands vacated.

(A. S. SUPEHIA, J) NABILA VHORA