2020 (10) TMI 1136 - HC - Customs

Anticipatory Bail Denied in Gold Smuggling Case

M. SIVASANKAR Versus SUPERINTENDENT OF CUSTOMS, ASSISTANT COMMISSIONER CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS

The court dismissed the applicant's anticipatory bail application under Section 438 Cr.P.C. in a case involving alleged smuggling of gold through ... Grant of Anticipatory Bail - Smuggling Gold - applicant would submit that there is no embargo under the Customs Act from seeking pre-arrest bail - Section 108 of the Customs Act - HELD THAT:- An offence under the Customs Act is undoubtedly an economic offence of grave nature and the Hon'ble Supreme Court has held in a number of cases, including in P. CHIDAMBARAM VERSUS DIRECTORATE OF ENFORCEMENT [2019 (9) TMI 286 - SUPREME COURT], wherein it was held that power under Section 438 Cr.PC being an extraordinary remedy has to be exercised sparingly; more so, in cases of economic offences, and that economic offences stand as a different class as they affect the economic fabric of the society. The applicant has not yet been made an accused. But he apprehends arrest. There are no sufficient material to show that he will be arrested. Merely because he was questioned for 60 hours by the Customs Department does not indicate that he is intended to be made an accused - The fact that the applicant was in constant contact with one of the prime witness, namely Swapna Suresh, and that he had even volunteered to help her by contacting his Chartered Accountant and asking him to assist her in managing her finances indicates that there is a fair possibility that applicant knew about the involvement of Swapna Suersh in the alleged smuggling activity. The power of the Customs Department to question the applicant under Section 108 cannot be curtailed by granting anticipatory bail. The relief sought for is undoubtedly premature - the applicant is not entitled to anticipatory bail - Bail application dismissed. Issues:1. Application for anticipatory bail under Section 438 Cr.P.C.2. Whether the applicant is entitled to pre-arrest bail in a case involving alleged smuggling of gold through diplomatic channels.3. Legal principles governing the grant of anticipatory bail in economic offences under the Customs Act.4. The significance of the applicant's contact with a prime accused in the alleged smuggling case.Issue 1: Application for anticipatory bail under Section 438 Cr.P.C.The applicant, a senior civil servant facing apprehension of arrest in connection with a Customs case, filed for anticipatory bail under Section 438 Cr.P.C. citing his unblemished service record of over three decades and extensive questioning by multiple investigating agencies.Issue 2: Entitlement to pre-arrest bail in a smuggling caseThe Customs Department opposed the bail application, arguing that the applicant, though not yet an accused, had knowledge of the prime accused's involvement in gold smuggling and should not be granted pre-arrest bail due to the nature of the alleged offence.Issue 3: Legal principles in economic offences under the Customs ActThe applicant's counsel argued that the Customs Act does not prohibit seeking pre-arrest bail and highlighted the continuous questioning by authorities as an attempt to implicate the applicant unjustly, warranting anticipatory bail.Issue 4: Significance of contact with prime accusedThe court noted the applicant's close contact with a prime accused and his assistance to her, indicating potential knowledge of the smuggling activity. Relying on legal precedents, the court held that the Customs Department's power to question under Section 108 cannot be hindered by granting anticipatory bail prematurely, leading to the dismissal of the bail application.In the judgment, the court emphasized the seriousness of economic offences under the Customs Act, citing previous Supreme Court decisions that highlighted the need for caution in granting anticipatory bail in such cases. The court underscored that economic offences impact society's economic fabric and require a distinct approach due to their potential threat to the country's financial health. Despite the applicant not being formally accused, the court found his contact with a prime accused significant, suggesting potential involvement that warranted investigation. Relying on legal principles and precedents, the court dismissed the bail application, emphasizing that granting anticipatory bail at this stage would be premature given the ongoing investigation and the nature of the alleged offence.