2023 (9) TMI 245 - HC - Customs

Petitioner granted anticipatory bail in gold smuggling case under Customs Act.

The court granted anticipatory bail to the petitioner accused of involvement in smuggling gold bullions under section 135(1)(b) of the Customs Act, 1962. ... Smuggling - 23 gold bullions of foreign origin - tampering of witnesses - HELD THAT:- It is an admitted fact that the said gold has not been recovered from the conscious physical possession of the petitioner, who is the brother of the apprehended co-accused. He is working in the shop of Kailash Chandra Maheshwari (owner of K.P. Bullions) and therefore, he was made accused in the present case on the allegation that he assisted the apprehended co-accused person. Apart from that, there is no specific allegation against the petitioner to tamper the witnesses. Considering that the recovered gold bullions have already been confiscated by the Customs Department and punishment for the said offence is seven years imprisonment and considering the the judgment of the Apex Court in the case of SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION & ANR. [2022 (8) TMI 152 - SUPREME COURT] anticipatory bail granted to the petitioner. Let the petitioner be released on bail, in the event of his arrest or surrender before the learned Court below within a period of six weeks from today, on furnishing bail bond of Rs. 25,000/- (Rupees Twenty Five Thousand) with two sureties of the like amount each to the satisfaction of the learned court below where the case is pending/Successor Court in connection with DRI, Patna Unit Case No.23 of 2022-2023, arising out of Complaint Case No.376(O)/2022, subject to the conditions as laid down under Section 438(2) of the Cr.P.C. - Application allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether anticipatory bail under Section 438 Cr.P.C. should be granted to an accused against apprehension of arrest for an offence under Section 135(1)(b) of the Customs Act, 1962 where no incriminating article was recovered from his conscious physical possession and his connection to the alleged smuggling is alleged primarily on the basis of a statement of a co-accused. 2. Whether the confessional statement of an apprehended co-accused, recorded by investigating officers, without independent corroborative material linking the petitioner to the recovered contraband, suffices to deny anticipatory bail. 3. Whether the nature of the offence (customs offence attracting confiscation and prescribed sentence) and the prospect of tampering with witnesses justify refusal of anticipatory bail where there is no specific allegation of tampering against the petitioner. 4. Application of higher court precedent(s) on grant of anticipatory bail in cases of serious offences where recovery is not from the petitioner's conscious possession and assessment of factors relevant to exercise of jurisdiction under Section 438 Cr.P.C. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Grant of anticipatory bail where no incriminating article was recovered from accused's conscious physical possession Legal framework: Section 135(1)(b) of the Customs Act, 1962 (offence for dealing with smuggled goods); Section 438 Cr.P.C. (anticipatory bail). Provisions regarding confiscation (Sections 111(a),(b),(h),(p) referenced). Precedent Treatment: The Court referred to a ruling of the Apex Court (recent judgment) guiding grant of anticipatory bail in cases where serious allegations exist but recovery is not from the accused's conscious possession; that precedent was followed in principle. Interpretation and reasoning: The Court noted as admitted that no gold bullions were recovered from the petitioner's conscious physical possession; recovery was from a co-accused. The petitioner's alleged role was based on disclosure by the apprehended co-accused that implicated the petitioner as having introduced and instructed carriage of the gold. The record did not contain independent material directly linking the petitioner to storage, transportation or handling of the recovered contraband. Ratio vs. Obiter: Ratio - absence of recovery from accused's conscious possession and lack of direct material tying accused to the contraband are relevant and can justify grant of anticipatory bail. Obiter - factual observations regarding familial/employment relationship between accused and co-accused. Conclusions: The absence of recovery from the petitioner's person or immediate control weighed in favour of granting anticipatory bail. Issue 2 - Reliance on co-accused's statement as sole basis to deny anticipatory bail Legal framework: Principles governing reliance on extra-judicial/confessional statements of co-accused in criminal proceedings (relevant to sufficiency for arrest/denial of pre-arrest relief). Precedent Treatment: The Court applied the guiding principle from higher court authority that confessional statements of co-accused require careful appraisal and ordinarily need corroboration to justify denial of pre-arrest relief where other factors favour release. Interpretation and reasoning: The Court examined the prosecution's reliance on the statement of the apprehended co-accused. It observed that the co-accused's admissions led to recovery but that there was no supporting material in the record conclusively substantiating the petitioner's active role beyond the co-accused's statement and alleged CDR linkage. The Panchnama and other steps recorded did not show that confessional material was supplemented by independent incriminating evidence against the petitioner (e.g., possession, documents, or witness linkages demonstrating active participation). Ratio vs. Obiter: Ratio - where the only incriminating material against an accused is the statement of a co-accused without corroborative evidence, anticipatory bail may be granted; Obiter - detailed comments on the conduct of inspections by different zonal units were factual observations. Conclusions: The co-accused's statement alone, absent corroboration, did not suffice to refuse anticipatory bail to the petitioner. Issue 3 - Weight of seriousness of offence, confiscation prospect and risk of tampering in exercise of Section 438 jurisdiction Legal framework: Consideration of offence severity, prescribed punishment (seven years for the offence), and potential for confiscation under customs law as relevant but not determinative factors in anticipatory bail decisions; Section 438(2) Cr.P.C. conditions and safeguards. Precedent Treatment: The Court relied on higher court guidance that seriousness of offence and confiscation consequences are important but must be balanced against the nature of the material against the accused and the likelihood of tampering or absconding. Interpretation and reasoning: The Court acknowledged the gravity of the offence and that the seized gold had been confiscated by Customs. However, it found no specific allegation that the petitioner was likely to tamper with witnesses or abscond; the record lacked distinct material of such risks. Given the absence of direct incriminating recovery and absence of allegations of witness tampering, the Court balanced these factors in favour of bail, while attaching protective conditions (bail bond, sureties, cooperation, surrender of passport, and cancellation clause for non-appearance twice). Ratio vs. Obiter: Ratio - seriousness of offence and confiscation do not automatically preclude anticipatory bail where other factors (lack of direct possession, lack of specific tampering risk) favour release; Obiter - procedural chronology of searches by different units. Conclusions: Despite the offence's severity and confiscation, the lack of specific risk factors warranted grant of anticipatory bail subject to stringent conditions under Section 438(2) Cr.P.C. Issue 4 - Application of higher court guidance in balancing factors for anticipatory bail Legal framework: Judicial standards for exercise of discretion under Section 438 Cr.P.C., including assessment of material on record, likelihood of tampering or absconding, nature of allegations, and need for protection of individual liberty. Precedent Treatment: The Court followed the ratio of the Apex Court's recent pronouncement emphasizing careful, fact-sensitive exercise of anticipatory bail jurisdiction where recovery is not from the accused and where only co-accused's statement implicates the accused. Interpretation and reasoning: Applying that guidance, the Court carried out a fact-specific inquiry: acknowledged secret information and recovery from the co-accused; noted CDRs and alleged admissions but found absence of direct evidence against petitioner; observed no specific allegation to tamper with witnesses. On balance, the Court concluded that custodial deprivation was not necessary at the pre-arrest stage for the petitioner. Ratio vs. Obiter: Ratio - higher court guidance on confessional statements and need for corroboration is applied as binding principle in exercise of anticipatory bail jurisdiction; Obiter - ancillary commentary on inter-unit coordination of searches. Conclusions: The Court applied the higher court's balancing test and granted anticipatory bail with conditions, emphasizing cooperation in trial, bail bond and sureties, passport surrender, and potential cancellation on repeated non-appearance.