2025 (11) TMI 1740 - HC - Customs

Anticipatory bail under Section 438 CrPC denied in foreign currency-gold smuggling cartel case requiring custodial interrogation

Ashwani Kapoor, Deepak Shekhar Versus Intelligence Officer, DRI

HC dismissed the petitions for anticipatory bail filed by the accused, who were alleged to be part of a cartel smuggling foreign currency from Amritsar to ... Seeking grant of anticipatory bail - no requirement of custodial interrogation - Cartel smuggling of foreign currency by concealing the same in checked-in baggage while travelling from Amritsar to Dubai - ownership of the seized currency - HELD THAT:- The Hon'ble Supreme Court in the case of Sumitha Pradeep Vs. Arun Kumar C.K. & Anr. [2022 (10) TMI 1177 - SUPREME COURT] held that merely because custodial interrogation was not required by itself could not be a ground to grant anticipatory bail. The first and the foremost thing the Court hearing the anticipatory bail application is to consider is the prima facie case against the accused. The petitioners appear to be a part of a cartel smuggling foreign exchange abroad, purchasing gold and bringing the same back to India thereby committing the offences in question. Apparently, the offences are prima facie established. The names of others who are a part of this cartel are to be unearthed. Therefore, as the investigation is to be taken to its logical conclusion the custodial interrogation of the petitioners is certainly required. There are no merit in the present petitions. Therefore, the same stand dismissed. 1. ISSUES PRESENTED AND CONSIDERED 1.1 Whether the petitioners, accused of offences under Section 135(1)(i)(A) of the Customs Act, 1962, are entitled to anticipatory bail under Section 482 BNSS in the facts and circumstances of the case. 1.2 Whether the absence or alleged non-necessity of custodial interrogation, by itself, constitutes a sufficient ground to grant anticipatory bail, in light of the governing principles laid down by the Supreme Court. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Entitlement of the petitioners to anticipatory bail under Section 482 BNSS in a prosecution under Section 135(1)(i)(A) of the Customs Act, 1962 Legal framework (as discussed) 2.1 The Court referred to the decision of the Supreme Court in 'Sumitha Pradeep v. Arun Kumar C.K. & Anr., 2022 Live Law (SC) 870', wherein it was held that: (i) the primary consideration in an anticipatory bail application is the existence of a prima facie case; (ii) the nature of the offence and severity of punishment must be considered; (iii) custodial interrogation is only one relevant factor and its non-requirement alone is not a ground to grant anticipatory bail. Interpretation and reasoning 2.2 The Court noted that a large quantity of unaccounted foreign currency valued at INR 2,66,29,598/- was recovered from a co-accused at the international airport while attempting to travel to Dubai, which formed the foundational fact for the allegations of smuggling and related offences under Section 135 of the Customs Act. 2.3 As regards the petitioner alleged to be linked with invoices dated 03.04.2025, the Court recorded that: (i) from the mobile phone of the arrested carrier, two invoices in his name were extracted indicating purchase of 7,95,352 Dirhams and purchase of gold of equivalent value on the same day; (ii) he was in Dubai on the date of those transactions; (iii) he had travelled to Dubai approximately 20 times in the last two years; (iv) no cogent explanation was furnished for either the invoices or the repeated Dubai visits. 2.4 As regards the petitioner connected with the 'Maha Laxmi Jewellers' letterhead, the Court noted that: (i) a page of the letterhead of Maha Laxmi Jewellers, admittedly his erstwhile firm, containing notings of foreign exchange transactions, was recovered from the co-accused's mobile phone; (ii) the dates '27th January, 2025 to 30th January, 2025' were mentioned on top of the document; (iii) he was in Dubai during those dates; (iv) he had similarly travelled to Dubai approximately 20 times in the last two years; (v) he had dropped the carrier to the airport on the date of interception; (vi) he gave evasive and unsatisfactory explanations with respect to the letterhead. 2.5 The Court further considered the role of a co-accused (airport worker) who was found using a SIM card which, as per the investigation, was provided by one petitioner to the other and then to the worker. This chain of possession of the SIM card, together with the other materials, was treated as an incriminating circumstance indicating coordination and facilitation in the smuggling activity. 2.6 The Court noted that both petitioners had claimed loss of their mobile phones and had not produced them for investigation, and that they had given evasive answers in the course of inquiry. The Court treated this conduct as non-cooperation and as an indicator that the petitioners were attempting to stonewall the investigation. 2.7 The Court took into account call detail records, demonstrating as many as 550 calls between the two petitioners within a defined period (05.01.2024 to 30.04.2025), and found this to be 'highly unnatural' and indicative of 'a deeper conspiracy to commit the offences in question.' 2.8 Statements of travel agents were also referred to, indicating that the accused persons were purchasing air tickets to Dubai for each other. The Court considered these statements as circumstances fortifying the prosecution version that the petitioners and the co-accused were acting in concert. 2.9 Upon a cumulative appreciation of these circumstances, the Court inferred the existence of a prima facie case that the petitioners were part of a cartel involved in smuggling foreign exchange abroad, purchasing gold and bringing it back into India, thereby committing offences under Section 135 of the Customs Act. 2.10 In view of the nature and seriousness of the alleged offences, the unexplained financial and travel-related circumstances, and the indications of a wider cartel whose members were yet to be identified, the Court held that custodial interrogation of the petitioners was necessary to take the investigation to its logical conclusion. Conclusions on Issue 1 2.11 The Court concluded that a strong prima facie case existed against both petitioners; their conduct reflected non-cooperation and attempted obstruction of the investigation; the nature of the alleged smuggling offences was serious; and further investigation, including custodial interrogation, was required. Accordingly, the petitions for anticipatory bail were found to be devoid of merit and were dismissed. Issue 2: Effect of non-requirement of custodial interrogation on grant of anticipatory bail Legal framework (as discussed) 2.12 Relying on the principles in 'Sumitha Pradeep v. Arun Kumar C.K. & Anr.', the Court reiterated that: (i) there is a misconception that absence of a case for custodial interrogation by itself justifies grant of anticipatory bail; (ii) custodial interrogation is merely one factor; (iii) the primary test is the existence of a prima facie case, along with consideration of the nature of the offence and potential punishment. Interpretation and reasoning 2.13 The Court emphasized that even assuming, arguendo, that custodial interrogation were not strictly necessary, that factor alone cannot entitle an accused to anticipatory bail if a prima facie case of serious economic offence is established. 2.14 Applying this principle, the Court held that in the presence of substantive incriminating material and serious allegations of organised smuggling, the mere argument that the petitioners had joined investigation or that custodial interrogation might not be indispensable could not override the requirement to deny anticipatory bail. Conclusions on Issue 2 2.15 The Court held that non-requirement of custodial interrogation, even if assumed, is not an independent or sufficient ground to grant anticipatory bail. In the present case, given the prima facie material and the nature of the offences, anticipatory bail was refused notwithstanding the contention that custodial interrogation was not essential.