Divyesh A. Joshi, J
1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State.
2. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the arrest memo dated 19.12.2023 being CBIC-DIN-202312DDZ1000001540F issued by Ajit Kumar Singh, Senior Intelligence Officer, DRI, Gandhidham under Section 132, 133, 135A of the Customs Act, 1962.
3. Learned advocate Mr. D.K. Trivedi appearing for the applicant has submitted that the applicant-accused was arrested on 19.12.2023 and since then he is in jail. Learned advocate Mr. Trivedi has also submitted that the investigation in the present case is underway and charge-sheet is yet to be filed. Learned advocate Mr. Trivedi has further submitted that the applicant-accused is a businessman having good reputation in the Society. The applicant is the proprietor of a Proprietary concern viz. M/s Global Brand Resources Pvt. Ltd. engaged in the business of trading and/or supply of rock salt since the year 2017 having it unit at S.E.Z., Mundra. Learned advocate Mr. Trivedi has submitted that for the purpose of running the said business, the applicant-accused has also obtained all the necessary permissions and approvals from the concerned Government Department. Learned advocate for the applicant has further submitted that the applicant-accused preferred an application to the KASEZ for the purpose of carrying out manufacturing activities in the Kandla Special Economic Zone and the Joint Development Commissioner, Kandla Special Economic Zone granted such permission to the applicant-accused on 15.06.2016 It is moreso submitted that the DRI believed that the applicant-accused imported the rock salt from Pakistan and, therefore, the custom duty to be paid by the applicant-accused on the said product was 200%.
However, such an allegation of DRI is not correct because the country of Origin of the rock salt supplied into India could not be said to be Pakistan because what was brought from Pakistan by the applicant-accused into India was rock salt in its raw form and not in edible form and, therefore, the same was classified under Tariff Item 25010020 and the duty leviable upon such product is 5% and not 200%. Learned advocate Mr. Trivedi for the applicant-accused has submitted that the applicant-accused came to be arrested through arrest memo dated 19.12.2023 and before issuing such arrest memo, on number of occasions the applicant-accused was called upon to the Office of the Directorate of Revenue Intelligence and his submissions were recorded. The officers also paid personal visit to the manufacturing unit of the applicant-accused. Learned advocate Mr. Trivedi appearing for the applicant has further submitted that the person who arrested the applicant-accused is a Senior Intelligence Officer and as per the circular/ guidelines issued by the Office of Ministry of Finance, (Department of Revenue) dated 17.09.2023, before making arrest in relation to the offences punishable under the Customs Act, certain guidelines are required to be strictly adhered and followed by the arresting party. Admittedly, here in the present case, the said terms and conditions as mentioned in the said circular have not been followed while arresting the applicant-accused. Learned advocate Mr. Trivedi has further submitted that arrest takes away the liberty of an individual and, therefore, powers must be exercised with utmost care and caution in cases where Commissioner of Customs or Additional Director General has reason to believe on the basis of information or suspicion that such person has committed an offence punishable under Sections 132, 133, 135A and 136 of the Customs Act. Learned advocate Mr. Trivedi has submitted that the rock salt was imported from Pakistan in a raw form and thereafter the same was processed in the unit of the applicant-accused situated in SEZ and, therefore, the Country of Original of the said product is India and not the Pakistan which has also been certified by the various concerned government authorities of India. Therefore, the allegations levelled by the DRI against the applicant-accused of evading the custom duty are completely false and concocted one. It is further submitted that the entire case of the prosecution hinges upon documentary evidences and all the documents have already been collected by the Investigating Officer during the course of investigation and, there is no question of any kind of tampering with the prosecution evidence. It is further submitted that for the purpose of redressing its grievance, the concerned department has to first approach the Customs Excise & Service Tax Appellate Tribunal by instituting appropriate proceedings, and if that competent authority after considering the materials available on record, reach to the conclusion that the company of applicant-accuse is liable to pay customs duty at the rate of 200%, in that event, the applicant-accused is ready and willing to pay the said amount to the Government and in the absence of such an order passed by the competent authority, the liability cannot be fastened on the head of the applicant-accused. It is an admitted position of fact that uptill now, the department has not instituted any proceedings before the concerned Tribunal. Learned advocate Mr. Trivedi has submitted that the applicant-accused is a reputed businessman having deep roots in the Society. The applicant-accuse also does not have any past antecedents. In support of his submissions, learned advocate Mr. Trivedi has relied upon the following case laws;
i) In the case of Gramophone Co. of India Ltd. vs. Collector of Customs, Calcutta, reported in 1999 (114) E.L.T., 770 (SC);
ii) In the case of Ujagar Prints vs. Union of India, reported in 1988 (38) E.L.T., 535 (S.C.);
iii) In the case of Union of India vs. Parle Products Pvt. Ltd., reported in 1994 (74) E.L.T., 492 (S.C.);
iv) In the case of Laminated Packings (P) Ltd. vs. Collector of C.Ex., reported in 1990 (49) E.L.T., 326 (S.C.);
v) In the case of Baccarose Perfumes & Beauty Products vs. Commissioner of Customs, Kandla, reported in 2014 (301) E.L.T., 691 (Tri.-Ahmd.);
vi) In the case of Deputy Commissioner of Customs vs. Baccarose Perfume & Beauty Products Ltd., reported in 2010 (257) E.L.T., 177 (Guj.);
vii) In the case of Commissioner of Income Tax Circle, Tirunelvli, Tax Case Appeal No.605 of 2018;
4. In such circumstances, referred to above, learned advocate Mr. Trivedi prays that there being merit in his application, the same be allowed and the applicant-accused be released on bail.
5. The learned APP appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. It is further submitted that the applicant-accused has imported the rock salt an he has supplied the rock salt to DTA and the process, which is narrated by the applicant, there is no new product has been generated out of the process as contended by the learned advocate for the applicant and, therefore, the origin of the goods cannot be said to be changed and, therefore, by doing so, he has evaded the custom duty and committed the offence under the Customs Act. Learned APP has submitted that, therefore, considering the role attributed to the applicant-accused, this is a fit case wherein discretionary power of this Court is not required to be exercised in favour of the applicant-accused.
6. The learned advocate Mr. Chirayu Mehta appearing for the respondent No.1 has also opposed grant of regular bail looking to the nature and gravity of the offence. It is submitted that the applicant-accused is indulged in the evasion of customs duty through DTA clearances of rock salt originating from Pakistan without paying applicable customs duties. The said unit was found to be importing rock salt declaring country of origin as Pakistan in Bill of Entry for home consumption where applicable basic customs duties is 200% while at the time of clearances in DTA, the unit was paying basic customs duties at 5% by miss-declaring country of origin as India and thus the applicant-accused has tried to evade the legitimate customs duty leviable upon the said product. Learned advocate Mr. Mehta has also submitted that the applicant-accused is found to be indulged in evasion of huge amount of customs duty by way of miss-declaration of country of origin.
The applicant-accused is very well acquainted with the standard of duties leviable on Pakistan origin goods and, therefore, the applicant-accused has deliberately disclosed the original of the goods and thereby committed the present offence causing loss of crores of rupees to the exchequer. Therefore, considering the role attributed to the applicant-accused and looking to the gravity of the offence committed by the applicant-accused, discretion should not be exercised in favour of the applicant-accused.
7. The learned advocates appearing on behalf of the respective parties do not press for further reasoned order.
8. I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. This Court has also considered the following aspects;
a) That the investigation is at the verge of completion;
b) That the present offence is a Magistrate Triable offence;
c) That the applicant-accused is in jail since 19.12.2023;
d) That the applicant-accused does not have any past antecedents.
e) That the case of the prosecution hinges upon documentary evidence and all the documents have already been collected by the Investigating Officer during the course of investigation and now there is no question of tampering with the evidence of the prosecution;
9. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in [2012]1 SCC 40.
10. In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
11. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with the arrest memo dated 19.12.2023 being CBIC-DIN-202312DDZ1000001540F issued by Ajit Kumar Singh, Senior Intelligence Officer, DRI, Gandhidham, on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;
[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injuries to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within a week;
[d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
[e] mark presence before the concerned Police Station on alternate Monday of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;
[f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
12. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.
13. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.
14. At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
