2023 (6) TMI 713 - HC - Customs

Application for Anticipatory Bail Dismissed: Court Finds Petitioner Only a Witness, Not an Accused in Customs Act Case.

The HC dismissed the petitioner's application for anticipatory bail under Section 438 Cr.P.C. in a case involving Sections 132 and 135 of the Customs Act, ... Seeking grant of Anticipatory Bail - offence punishable under Sections 132,133,135,135A or Section 136 of the Customs Act, 1962 - it is submitted that for affecting arrest of anybody for offences punishable under the Customs Act, 1962, a written approval of the competent authority i.e., Commissioner of Customs/Principal/Additional Director, DRI is required which has not been obtained till date in the present case - HELD THAT:- In the instant case, a bare perusal of the reply filed by the DRI/respondent shows that the ingredients of Section 438 Cr.P.C. are not attracted. As far as the contention of learned counsel for the petitioner that two summons were issued to the petitioner dated 22.08.2022 and 12.09.2022, as an accused is concerned, it is opined that summons have been issued only for the inquiry purposes as a witness and not as an accused. Keeping in view the totality of the facts, submissions made and the reply filed by learned senior standing counsel for the respondent/DRI and also relying on the order dated 06.04.2021 passed by the co-ordinate Bench of this Court, the present bail application is pre mature and, accordingly, dismissed as not maintainable. Issues:The petition for anticipatory bail under Section 438 Cr.P.C. in a case under Sections 132/135(1)(a)/135(1)(b) of the Customs Act 1962.Details:1. The petitioner sought anticipatory bail based on summons issued after disclosure statement by an accused, who was already granted bail. The trial court dismissed the bail application. 2. The respondent argued that the bail application was premature as powers under Section 104 of the Customs Act, 1962 can only be exercised with written approval for arrest, which was not obtained in this case.3. The respondent emphasized the statutory nature of powers under Section 104 and the requirement of written approval for arrest under the Customs Act, 1962. The application for anticipatory bail was considered premature and not maintainable.4. The respondent relied on a previous court order to support the argument that the current bail application was premature.5. The court observed that the summons issued to the petitioner were for inquiry purposes as a witness, not as an accused. The ingredients of Section 438 Cr.P.C. were not met.6. Reference was made to a previous court order highlighting the need for written approval for arrest under Section 135 of the Customs Act, 1962. The court found the present bail application premature and dismissed it as not maintainable.