TaxTMI 
TaxTMI 
2020 (1) TMI 209
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....it A on 27th August, 2019. 4. This matter was mentioned in the morning. Notices were issued to the respondents and the matter was taken up for hearing. The Learned APP Mrs. A. S. Pai sought adjournment to enable her to obtain instructions and to file reply. The Learned Counsel for the Petitioner insisted for grant of interim relief. On this count, during the course of hearing, Learned APP sought for short adjournment to enable her to obtain oral instructions and accordingly the matter stood adjourned till 5.00 p.m. 5. Various contentions were advanced by the Learned APP opposing prayer for interim relief. The Learned Counsel for the Petitioner drew our attention to arrest memo (Exhibit A, at page 29) which reads thus: "ME....
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....Art. 21 of the Constitution of India. The Learned Counsel for the Petitioner submitted that the said arrest memorandum is not in consonance with the provisions of S. 104 of the Customs Act, 1962 which mandates that the Customs Officer was required to record his "reasons to believe", that the accused has committed an offence punishable under S. 132 or 133 or 135 or 135A or 136 and such "reasons to believe" and "grounds of arrest" have to be informed to the arrested person at the earliest. 7. The Learned Counsel submits that the accused had been summoned on 26-8-2019 by the respondents to appear before the authorities and in response to said summons, he had appeared before the authorities on 27-8-2019 and was arrested at 23.35 hrs.....
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....o deprive other persons of their personal liberty in the discharge of what they conceive to be their duty, must strictly and scrupulously observe the forms and rules of the law. That has not been done in this case. The petitioners now before us are therefore entitled to be released, and they are set at liberty forthwith." 10. The Learned APP relied upon various judgments in the matter and highlighted the fact that these matters essentially involve huge financial consequences, affecting the economy of the country and submitted for rejection of prayer for interim relief. 11. We have perused arrest memorandum (Exhibit A), as also remand application filed by the prosecution at Exhibit I. The Learned APP placed reliance on para 1....
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....ed or accounted for, he has expressed his unawareness and stated that all the activities pertaining to the company were looked after by Happy Dhakad. As per the call records, Muhammed Asif, a key member of the syndicate who is on the run, also appears to have spoken to Arvindkumar Dhakad from his mobile number twice on 29-03-2019, the day of seizure of gold and arrest of key persons including Happy Dhakad. However, he has denied knowing any Muhammed Asif and refused to divulge the conversation Asif had with him. 13. Being a Director of the company and father of the accused Happy Dhakad, it is highly unlikely that he was not aware of the surreptitious activities of dealing in smuggled gold going on in the company. In view of th....
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....kad had also been summoned and had been arrested. Both - Nisar and Happy Dhakad and several other accused have been released by the Advisory Board of COFEPOSA. It is important to note here that in para 13 quoted hereinabove, the prosecution have stated as follows : "Being a Director of the company and father of the accused Happy Dakhad, it is highly unlikely that he was not unaware of the surreptitious activities ...." The aforesaid description made by the prosecution does indicate that the prosecution has acted on a presumption that the detenue Arvindkumar Jain Dhakad was aware of the surreptitious activities of his son Happy Dhakad. Prima facie it does not meet the standard, as prescribed under S. 140 of the Customs Act, 19....
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....isfied that interim prayers ought to be granted, subject to further orders that may be passed on final adjudication of the matter. Accordingly, we direct as follows : (a) The detenue Arvindkumar Jain Dhakad be released forthwith. (b) The detenue Arvindkumar Jain Dhakad shall appear before the DRI authorities, including jail authorities as and when required, subject to summons being issued to him. (c) The detenue Arvindkumar Jain Dhakad shall not leave the city limits of Mumbai without prior permission of this Court and shall appear before this Court on each and every date the case is adjourned. (d) It is made clear t....