JUDGMENT
Arun Kumar, J.
(1) This is a petition under Section 439 Crl.P.C. read with Section 482 thereof for grant of bail to the petitioner.
(2) The petitioner is in custody since December 1993. A complaint was filed against the petitioner for the offences punishable under Section 135(1)(b) of the Customs Act 1962. The complaint is dated 23rd September 1993. As per facts disclosed in the complaint on 22.12.1992 on the basis of message received from C.B.I, the officers of Headquarters, Customs Preventive, took over from Shri S.B. Sinha, Dsp (CBI), 51 silver slabs with foreign markings and 59 empty jute wrappings, reported to have been recovered by them from farm house Satbari Village, New Delhi vide their recovery memo dated 21st December 1992, in the presence of two witnesses and one Kundan Lal who was reported to be found guarding the silver when the Cbi officers visited the farm house. All the silver slabs except one were certified as of 999.9% purity. They collectively weigh 1709.78 Kg. and were valued at Rs.l,12,84,548.00 . As no evidence for the lawful import/purchase etc. was available with Kundan Lal or anybody else, the same were, therefore, seized under Section 110 of the Customs Act 1962, on the reasonable belief that the same had been smuggled into India in violation of the restrictions imposed on import of silver and were liable to be confiscation under the provisions of Customs Act.
(3) So far as the case made out against the petitioner is concerned, it is based on statements of various persons recorded by the department. The statements were recorded in the process of investigations regarding the same offence. The statements form part of the complaints and most of these persons are named as accused in the first complaint. At this stage it is worth noting that complaint had been earlier filed by the department on 18th February 1993 naming six persons as accused therein. The said complaint was also for the same offence and a comparison of the said complaint with the complaint in the present case shows that both are almost identical. In the present complaint besides the petitioner one more person named Ravi have been named accused. One of the grievances made out by the learned counsel for the petitioner that no fresh material is disclosed in the second complaint in which the petitioner has been named as an accused and if that is so why the petitioner was not named as an accused in the first complaint itself. The sanctions for the two complaints are identical. All the same there are two complaints for which independent sanctions were given and there is nothing on record to show that any attempt has been made by the prosecution to have the two complaints consolidated.
(4) Learned counsel for the petitioner has raised various grounds in support of his prayer for grant of bail to the petitioner. It is submitted that- a) all the accused mentioned in the first complaint have been granted bail. b) the persons on the basis of whose statements the petitioner is being made an accused are not co-accused with the petitioner in the complaint. Therefore, such statements cannot be used against the petitioner; c) Vinod Luthra, the owner of the farm house from where the recovery was made, has not been made an accused. Similarly Sheetal and Narender Sharma who are named in the statements made by the persons accused in the first complaint have not been made co-accused; d) On merits it is submitted that except being named here and there in some of the statements made by persons who are accused in the first complaint, there is nothing on record which shows the connection of the petitioner to the alleged offence. In this connection it is pointed out :- (i) the farm house from which the silver was recovered does not belong to the petitioner; (ii) the petitioner was not present at the farm house at the time of recovery. (iii) He was not in any way connected with transportation of the silver. Neither he was driving the vehicle a legally used for transporting the silver nor the vehicle belonged to him (iv) The petitioner has not made any incriminating statement under Section 108 of the Customs Act. (v) Neither Kundan Lal who was guarding the silver nor Narender Singh, driver of the car who was used for transporting the silver named the petitioner; (vi) no role is assigned to the petitioner in transportation of the silver from Rajasthan. (vii) There is no recovery of any silver or any contraband material from any of the premises of the petitioner. (viii) There is nothing to connect the petitioner with contraband articles seized.
(5) To make good the aforesaid submissions, the learned counsel for the petitioner has taken me through various paragraphs of the complaint filed by the Cbi against the petitioner.
(6) In reply the learned counsel for the Department submitted that the record shows that both the complaints are inter linked and, therefore, the statements made by persons named as accused in the first complaint can be used against the persons who are accused in the second complaint. Secondly, it was submitted that the petitioner was not available for interrogation and, therefore, complaint had been filed against the petitioner under Sections 172-174 Indian Penal Code . for non-compliance of summons. Thirdly, it was submitted that in view of the seriousness of the offence and heavy quantity involved and non-availability of the petitioner for investigations for which complaint was ultimately lodged, the petitioner should not be granted bail. Presently the petitioner is under detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act.
(7) Expression of any opinion on the merits of the case at this stage is likely to cause prejudice one way or the other. Therefore, I am reframing from going into details of the various pleas raised ori behalf of the petitioner in support of his case for grant of bail. However, taking an overall view of the matter coupled with the fact that all the other accused mentioned in the first complaint have already been enlarged on bail, I am inclined to admit the petitioner to bail subject to his furnishing a personal bond in the sum of Rs.50,000.00 with two sureties in the like amount to the satisfaction of the court concerned. This is subject, however, to the condition that the petitioner will not leave the country without permission of this court. He will also furnish advance information to the Investigating Authority regarding the places of his visit in India, their duration and addresses thereof. The petition stands disposed of.