2021 (2) TMI 1372 - HC - Customs

Swiss gold smuggling case: anticipatory bail granted under Section 135 Customs Act, arrest deemed last resort

Allahabad HC granted anticipatory bail to applicant charged under Section 135 of Customs Act for carrying Swiss gold bars weighing 2797 gms. Court ... Application seeking Grant of anticipatory bail - carrying Swiss 1 kg Gold 995 Bars weighing about 2797 gms - Offence committed u/s 135 of the Customs Act - HELD THAT:- This court finds that there is a case registered/about to be registered against the applicant. It cannot be definitely said when the police may apprehend him. After the lodging of FIR the arrest can be made by the police at will. There is no definite period fixed for the police to arrest an accused against whom an FIR has been lodged. The courts have repeatedly held that arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required. Irrational and indiscriminate arrests are gross violation of human rights. In the case of Joginder Kumar v. State of Uttar Pradesh [1994 (4) TMI 385 - SUPREME COURT] the Apex Court has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief source of corruption in the police. Personal liberty is a very precious fundamental rights and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the peculiar case the arrest of an accused should be made Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, the applicant may be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi) [2020 (1) TMI 1193 - SUPREME COURT] The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court. The anticipatory bail application is allowed. This Court directs that till filing of the chargesheet, in the event of arrest, the accused-applicant, shall be released forthwith on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Arresting officer/Investigating Officer/ S.H.O. concerned on the conditions. Issues Involved:1. Application for anticipatory bail under Section 438 Cr.P.C.2. Allegations under Sections 104, 110, 111 & 135 of the Customs Act, 1962.3. Seizure of gold and silver bullion along with cash.4. Compliance with Section 41 of Cr.P.C. regarding arrest.5. Considerations for granting anticipatory bail as per judicial precedents.Comprehensive, Issue-wise Detailed Analysis:1. Application for Anticipatory Bail:The applicant filed for anticipatory bail under Section 438 Cr.P.C., apprehending arrest in connection with DRI Case No. 10 of 2020, under Sections 104, 110, 111 & 135 of the Customs Act, 1962. The court heard arguments from both the applicant’s and respondent’s counsels.2. Allegations under Customs Act:The Customs Department intercepted a bus based on intelligence and found two individuals carrying Swiss gold bars weighing about 2797 grams, valued at Rs. 1,43,85,600/-. These individuals claimed the gold belonged to the applicant, a gold dealer with shops in Nagpur. Consequently, the applicant’s shops and residence were raided, recovering additional silver bullion and cash.3. Seizure of Gold and Silver Bullion along with Cash:The applicant asserted ownership of the seized gold, claiming it was part of his regular business transactions. He maintained regular accounts and provided transaction details to the Customs Department. The department admitted to scrutinizing the applicant’s submissions but had not made a final decision.4. Compliance with Section 41 of Cr.P.C. Regarding Arrest:The applicant’s counsel cited the Supreme Court judgment in Arnesh Kumar vs. State of Bihar, emphasizing that arrests for offenses punishable with up to seven years should not be made routinely. The police must justify the necessity of arrest, considering factors like preventing further offenses, ensuring proper investigation, and preventing evidence tampering. The court reiterated that the police must record reasons for arrest or non-arrest in writing, and the Magistrate must scrutinize these reasons before authorizing detention.5. Considerations for Granting Anticipatory Bail:The court referred to the Supreme Court judgment in Siddharam Satlingappa Mhetre v. State of Maharashtra, listing factors for granting anticipatory bail, including the nature of the accusation, the applicant’s antecedents, the possibility of fleeing justice, and the potential for tampering with evidence. The court noted that the applicant had provided all necessary documentation to the Customs Department, which was still under review. The applicant had no criminal history, and there was no risk of him fleeing or tampering with witnesses.Conclusion:The court found it appropriate to grant anticipatory bail, considering the applicant’s cooperation with the investigation and the lack of immediate necessity for arrest. The court directed that the applicant be released on bail upon arrest, subject to conditions like making himself available for interrogation, not making any inducements or threats, and not leaving India without court permission. The court emphasized that personal liberty is a fundamental right and should be curtailed only when imperative.Order:The anticipatory bail application was allowed. The applicant was directed to be released on bail on furnishing a personal bond and two sureties, subject to specific conditions. The court also provided for the possibility of bail cancellation if any conditions were breached or if deemed necessary by the state or appropriate authority.