JUDGMENT
Badar Durrez Ahmed, J.
CRL M A 2528/2005
Allowed subject to all just exceptions.
BAIL APPLN 489/2005
1. Notice. Mr Aggarwal accepts notice. However, he wants that this matter be taken up after two days as he says that the petitioner is involved in evasion of customs duty to the extent of about Rs.12.5 crores. He further submits that the petitioner has been absconding and investigation is pending. Mr Aggarwal also relied upon the decision of the Supreme court in the case of Jagtar Singh v. Satender Kaur @ Bhavana Grover and Ors. 2002(6) SCALE 177 and in particular he has relied upon the sentence of which reads as under:
“Normally, when the accused are absconding, there is no question of granting anticipatory bail or regular bail.”
Mr Aggarwal also relied upon the decision of the Supreme Court in the case of Enforcement Officer, TED, Bombay v. Bher Chand Tikaji Bora 2000(121) ELT 7 (SC). He submits that unless the petitioner establishes that he is being unnecessarily harassed by the investigating agency, the court would not be justified in invoking jurisdiction under section 438 Cr.P.C. and in granting anticipatory bail there under.
2. Since Mr Aggarwal has made final arguments in this matter and has submitted that the petitioner is not entitled to any protection whatsoever, instead of taking up the hearing of the matter after a short notice of two days, the application is taken up for disposal straight away. Accordingly, the learned counsel for the petitioner submitted that he would like to now address the arguments for a final decision in this matter.
3. The learned counsel first of all pointed out that it is an incorrect statement that there is an evasion of duty to the extent of Rs. 12.5 crores. He submits that although it was his brother Devinder Singh Dawer who was the main accused even as per the prosecution case, it is still a point of fact that the alleged export were to the extent of Rs.12.5 crores and the duty drawback amount was roughly about Rs.1.2 crores. The learned counsel for the prosecution was unable to quantify and specify as to how the amount of Rs.12.5 cores was said to have been evaded. The learned counsel for the petitioner further pointed out that according to the prosecution case itself, the person involved in the alleged offences was his brother Devinder Singh Dawer. He drew my attention to a copy of the application for judicial remand dated 2.7.2004 in respect of his brother. In that application in several places, it is revealed and stated by the Arresting Officer through the counsel Mr Satish Aggarwal, that the said Devinder Singh Dawer was the main person and controller of all these firms and is fully aware of the fraudulent availment of duty drawback. As per the remand application, it is the said Devinder Singh Dawer who assumed the role of an exporter, raised invoices at prices much higher than actual prices, claimed export promotion benefit etc. He thereafter, purchased foreign currency from local black market and deposited the same in the bank claiming it to be advance payment by foreign buyers. All these allegations were specific to Devinder Singh Dawer. The application for judicial remand also indicated that the firms that were operated by Devinder Singh Dawer were opened by him in the name of his relatives and other persons.
4. The learned counsel for the petitioner also drew my attention to the reply to the application for bail in respect of Devinder Singh Dawer which was filed on 5.8.2004 before the learned Additional Sessions Judge. In paragraph 6 thereof it is again stated that the said Devinder Singh Dawer had opened 14 different firms in the name of his relatives and other associates. It further reveals that on interrogation the so called proprietors of these firms have voluntary stated that the business activities of their firms were managed and controlled by the said Devinder Singh Dawer and it was he who organized and operated each activity of their firms starting from incorporation of the firm, getting IEC No, opening of bank accounts procurement of goods for export etc and they were only name sake proprietors. The said Devinder Singh Dawer used to collect foreign exchange from the foreign tourist and deposit the same in the bank account of their firms. In a nut shell, it is clear that throughout it has been the case of the prosecution that it was Devinder Singh Dawer who was the main person involved in the alleged fraud. The learned counsel for the petitioner submits that the said Devinder Singh Dawer has been released from custody on account of the provisions of Section 167 of the Code of Criminal Procedure, 1973, inasmuch as the investigation was not completed within 60 days. Because of this, prosecution is harassing and attempting to arrest the petitioner. The learned counsel for the petitioner also submitted that the allegation that the petitioner is an absconder is false to the record. Firstly, he submits that the petitioner has not been declared as a proclaimed offender. Secondly, he drew my attention to a copy of an application dated 20.07.2004 which is at page 23 of the paper book which clearly indicates that the petitioner had submitted to the jurisdiction of the courts and was available at all times. He, however, said that at that point of time, the petitioner had a fractured leg and was unable to move about freely and had been advised four weeks’ complete bed rest. However, the petitioner was at all times available at his residence. He submits that he is ready and willing to cooperate with the investigating agency in whatever manner they deem fit in accordance with law.
5. In this view of the matter, having considered all the facts and circumstances as well as the arguments advanced by the learned counsel for the parties, it appears that the petitioner cannot be termed as an absconder and the decisions of the Supreme Court relied upon by the learned counsel for the prosecution would not be applicable to the facts of this case. Another circumstance in favor of the petitioner is that the investigation has not been completed qua the brother who was the main accused even as per the statements of the prosecution referred to above. Furthermore, since the main accused is no longer in custody, no useful purpose would be served by keeping the petitioner in custody. The learned counsel for the petitioner also argued that in any event the offence under Section 135 of the Customs Act is now compoundable and the offence alleged to have been committed is punishable with three years imprisonment or fine and in this view of the matter, it is not necessary and imperative that the petitioner be arrested.
6. In this view of the matter, the petitioner is directed to be released on bail, in the event of his arrest, on furnishing a personal bond in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the Arresting Officer. The petitioner shall join investigation as and when directed by the Investigating Officer. The petitioner shall also not leave the country without permission of the ACMM, New Delhi.