2025 (9) TMI 626 - HC - Customs

Order allows respondent to travel abroad Sept 4-10, 2025 for international furniture fair; Rs.2 lakh refundable cash surety retained

Sruti Vijaykumar Versus Falgun Yogendra Shroff and anr.

HC granted respondent permission to travel abroad (Paris/France) from 4 Sept 2025 to 10 Sept 2025 to attend an international furniture fair, finding ... Permission to travel abroad including Paris and France - offence punishable under Section 135(1)(a) and 135(1)(b) of the Customs Act, 1962 - HELD THAT:- Considering the averments and the photos and non-rebuttal by DRI, it is difficult to doubt about holding furniture fair. It is no doubt true that application for cancellation of bail is pending for consideration before Sessions Court. It is also true that it is at the stage of hearing on the point of maintainability. The Respondent No. 1 is served private notice of the said application for cancellation of bail. It is opined that mere because investigation is going on, the Respondent No. 1 cannot be restrained from attending international furniture fair. Already the learned Magistrate has directed Respondent No. 1 to deposit cash surety of Rs. 2 lacs with condition to claim refund. One does not know how much time will be taken for hearing of application for cancellation of bail. It is scheduled for hearing on 11th September 2025 whereas till the time of hearing the fair will be over. The permission is granted from 4th September 2025 till 10th September 2025. Respondent No. 1 through learned Advocate undertakes that he will return to India and will participate in hearing the application for cancellation of bail. Conduct of international furniture fair depends upon the organisers and it is not that the present Respondent No. 1 has organised that furniture fair. It is not inclined to stay the impugned order. Petition dismissed. ISSUES PRESENTED AND CONSIDERED 1. Whether a Magistrate may permit an accused, released on bail with a condition to surrender passport and not travel abroad without permission, to travel abroad for a short period during an ongoing investigation and while an application for cancellation of bail is pending before the Sessions Court. 2. Whether the trial Magistrate's grant of permission to travel can be stayed or interfered with by the High Court in exercise of its powers under the Bhartiya Nagarik Suraksha Sanhita, 2023 ('B.N.S.S.'), pending hearing of the prosecution's application for cancellation of bail. 3. What conditions or safeguards are appropriate when permitting overseas travel by an accused in circumstances involving alleged risk of tampering with witnesses or evidence and the need for availability for investigation and subsequent proceedings. ISSUE-WISE DETAILED ANALYSIS Issue 1: Magistrate's authority to permit short-term foreign travel during investigation and pending cancellation application Legal framework: Conditions of bail including surrender of passport and requirement to obtain permission to travel abroad; fundamental right to travel abroad; duties of court to balance rights of accused and integrity of investigation. Precedent Treatment: The Court considered prior decisions that recognize a Magistrate's implied power to relax conditions imposed while granting bail. The decision in Dr. Rajaram (observations relied upon) was treated as supportive of the Magistrate's power to modify or relax bail conditions. A prior order in Mayurkumar was noted where permission was refused; that order was distinguished on facts. Interpretation and reasoning: The Court acknowledged that the right to travel abroad is a fundamental right and that mere pendency of prosecution or ongoing investigation does not automatically bar travel. The Magistrate had imposed specific conditions including passport surrender for six months and requirement to obtain permission; the accused applied for temporary return of passport and short-duration travel for a verifiable commercial event (furniture fair). The Court found the event's existence not disputed by the investigating agency and noted the limited duration (4-10 September). The pending cancellation application before the Sessions Court was at the maintainability stage and scheduled after the dates of travel. The Court reasoned that, on balancing the State's interest in investigation and the accused's right to travel, a short, discrete trip with safeguards does not warrant an absolute prohibition. Ratio vs. Obiter: Ratio - A Magistrate may permissibly grant limited permission for foreign travel during investigation where the trip is short, the purpose is substantiated and not disputed, and appropriate safeguards are imposed to mitigate risk to investigation. Obiter - Observations on the breadth of the fundamental right to travel in other factual permutations. Conclusion: The Magistrate's grant of short-term permission to travel abroad was permissible and not interfered with on merits by the High Court. Issue 2: High Court's power under B.N.S.S. to stay or modify Magistrate's bail conditions while cancellation application is pending Legal framework: Provisions of B.N.S.S., specifically Sections 403 and 483 (as referenced) concerning the power of higher courts to alter orders and modify conditions imposed by Magistrates or Sessions Courts. Precedent Treatment: The Court relied on its own prior decision in Mayurkumar (refusal to permit travel where cancellation application was pending) but distinguished it on facts; it also relied on Dr. Rajaram recognizing a Magistrate's power to relax conditions. The petitioner argued that higher courts (Sessions/High Court) have modifying powers under B.N.S.S., but the Court emphasized factual context in exercising such powers. Interpretation and reasoning: The Court accepted that higher courts have statutory powers to alter orders/conditions, but such powers are to be exercised after balancing competing interests and on the basis of material before the Court. The presence of an application for cancellation of bail does not ipso facto obligate interference with a Magistrate's permission, particularly where travel is short, substantiated, and effective safeguards can be imposed to protect investigation and attendance at proceedings. Ratio vs. Obiter: Ratio - Higher courts have power to modify Magistrate's conditions but should exercise it only after considering the balance of rights and available safeguards; pending cancellation proceedings alone do not mandate automatic stay of a magistrate's permission. Obiter - Remarks distinguishing factual patterns where travel might be denied (e.g., risk of absconding or staying abroad with family residence). Conclusion: The High Court will not automatically stay or set aside a Magistrate's permission to travel merely because a cancellation application is pending; interference is unwarranted where appropriate safeguards can be imposed and the trip is limited and substantiated. Issue 3: Appropriate safeguards when permitting travel - risk of tampering and availability for proceedings Legal framework: Court's duty to prevent tampering with evidence and ensure accused's availability for investigation and hearings; imposition of bail conditions and ancillary undertakings. Precedent Treatment: The Court applied general supervisory principles from case law recognizing the need to balance and to impose conditions to protect investigation (citing and applying reasoning in earlier decisions rather than overruling them). Interpretation and reasoning: The Court accepted the investigating agency's apprehension of potential tampering with exporters/witnesses as a material consideration. It required a concrete, practical safeguard: the accused to give an undertaking before the Magistrate and his counsel to undertake that the accused will not contact exporters connected to the case and will return to participate in the cancellation hearing. The Court noted an existing cash surety condition and the accused's surrender of passport, and found an additional undertaking a sufficient protective measure given the short trip and undisputed purpose. Ratio vs. Obiter: Ratio - When permitting travel in such circumstances, courts may impose targeted, enforceable undertakings (e.g., not to contact specified witnesses/exporters; to return for scheduled hearings) to mitigate tampering risk and protect investigation; such conditions can justify refusal to stay the travel permission. Obiter - Comments on uncertainty of investigation duration and that broader factual settings may require different protective measures. Conclusion: The Court imposed the additional condition that the accused give an undertaking not to contact exporters related to the case and to appear for the cancellation hearing; with this safeguard the impugned order did not require interference and no stay was granted. Overall Disposition Conclusion of law: Balancing the accused's fundamental right to travel and the investigatory interests of the State, a Magistrate's limited permission for short-term foreign travel may be upheld where the purpose is substantiated, the investigating agency's objections do not rebut the material, and tailored safeguards (undertakings and existing sureties) are imposed to prevent tampering and ensure attendance at proceedings; mere pendency of a cancellation application does not warrant automatic stay by the High Court.