ANIL MAHAJAN Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) This is a Petition filed under Section 439 of the Criminal Procedure Code for grant of bail to the Petitioner who is alleged to have committed offences punishable under Sections 132 and 135(l)(b) of the Customs Act, 1962 (hereinafter referred to as 'the Act'). The offence under Section 132 of the Act is bailable and the offence under Section 135(l)(b) of the Act is non- bailable. The Petitioner was arrested on 4-8-1999 and he has been in judicial custody since 5-8-1999. After completion of investigation a complaint has been Filed in the Court against the Petitioner. Even though the Petitioner filed an application for bail in the Court of the Additional Sessions Judge it was dismissed by the learned Additional Sessions Judge on 30-9-1999 observing that the Petitioner is involved in a serious economic offence which has been committed with a cool calculated mind with deliberate designs and with an eye on personal profits regardless of the consequences to the community and nation at large.

(2.) According to the Respondents, on 30-7-1999 smuggled synthetic fabrics of foreign origin and assorted colour bearing foreign markings and measuring 128745.80 meters and valued at Rs.l,28,74,580.00 were recovered and seized from the business premises and godowns of M/s. New India Agencies which is a proprietory concern of the accused Shri Anil Mahajan. At the time of raid by the officers of the Customs department the co-accused Shri Naresh Mittal was present. Shri Naresh Mittal was the Executive/Authorised Signatory of M/s. New India Agencies and was in charge of its day to day affairs. The Petitioner Shri Anil Mahajan and the co-accused Shri Naresh Mitlal could not produce any document in support in of the legal import of the above mentioned seized goods. The seized goods are notified goods and are covered under Section 123 of the Act. As per a notification issued by the Central Government under Section 123 of the Act, "fabric made wholly or mainly of synthetic yarns" are covered under Section 123 of the Act and hence the burden of proving that the seized goods are not smuggled goods is on the accused. However the accused completely failed to produce any evidence to prove that the seized goods were legally imported. After the arrest of the Petitioner and the co-accused Shri Naresh Mittal an application was moved on their behalf on 6-8-1999 staling that the seized goods had been legally imported against the Bills of Entry produced along with the said application. The learned Additional Chief Metropolitan Magistrate directed the Respondents to verify the said Bills of Entry.. Accordingly the said Bills of Entry were verified but none of the Bills of Entry could be co- related with the seized goods. The Petitioner had tendered a voluntary statement under Section 108 of the Act slating that Bills of Entry were not available at the time of the raid, that the import documents did not contain details of any individual roll of fabric, that he was not aware of the stock position at his branch office at Delhi, that it was not possible to co-relate the seized goods with the import documents and that he was not even aware of the address of the transport companies which transported the goods from Mumbai to Goa - Delhi. The co-accused Shri Naresh Mittal also gave a statement under Section 108 of the Act staling that he was not having any document to support the possession of the imported goods seized from his godowns, that there was no stock register relating to the smuggled fabrics and that no document was available at the time of search by the Customs officers. The Respondents have alleged that the Petitioner Shri Anil Mahajan and the co-accused Shri Naresh Mittal were carrying on their activities in a shady and hush-hush manner. According to the Respondents the seized smuggled goods are liable to be confiscated under Section 111 of the Act. It is also stated that the offences committed by the Petitioner are very grave and that, if found guilty, the Petitioner is liable to be punished with imprisonment up to a period of seven years and fine. It is further stated that, in the absence of any special reasons, the punishment under Section 135(1)(b) of the Act shall not be less than three years. This application for bail is opposed also on the ground that along with the official witnesses there are independent witnesses and there is every possibility of the accused person tampering with evidence and fleeing from justice if he is released on bail.

(3.) The Petitioner does not deny the search/raid of the premises in question and the seizure of the goods. According to the Petitioner the seized goods were imported from Singapore, Korea and Japan in container loads and were cleared at Mumbai, Goa and Delhi. They are stated to be non-standard and odd lengths of different varieties of fabrics in assorted colours and widths which are left out of regular length rolls. They are called 'slock-lot' and is a cheep product bought in bulk. According to the Petitioner the value of the goods has been highly exaggerated. It is stated that the goods are covered under Open General Licence Scheme and are neither prohibited nor restricted for the purpose of import. Any person can import any quantity on payment of customs duty. There is no restriction on the sale or purchase of the said fabrics. It is also stated that the seized goods are not goods notified under Section 11B of the Act and that there is no statutory requirement of record keeping in respect of purchase, sale, stocks etc. It is further stated that the goods attracted ad-valorum customs duty and the Bills of Entry provide all the relevant information. When the searches/ raids started the Petitioner was abroad. Learning about the searches/raids he returned to India and reported to the Customs House nd produced all the import documents in respect of all imports made by him since the commencement of the business. He owned that all the seized goods had been imported by him and were covered by the import documents produced by him. The officers however refused to look into the documents and proceeded to place him under arrest on 4-8-1999 and produced his in the court on 5-8-1999. The Petitioner claims that 58 sets of import documents were produced in the Coui:t of the A.C.M.M. on 6-8-1999. The learned A.C.M.M. handed them over to the prosecution to take note of them. Though the genuineness of the import documents was not challenged by the department, a verification report was filed on behalf of the department staling that the seized goods could not be co-related with the documents produced and that co-relation was not possible for the reasons mentioned in the report. The Petitioner has denied that the seized goods are covered under Section 123 of the Customs Act. According to him there is nothing on record to show how the various varieties and blends seized by the Respondents meet the description "fabric made wholly or mainly of synthetic yarns". The Petitioner has also stated that the Petitioner and the co-accused Shri Naresh Mittal had promptly retracted the statements given under Section 108 of the Act. It is contended that the Petitioner did not make any confession or admission regarding commission of any offence punishable under Section 135(1)(b) of the Act. According to the Petitioner, in view of Section 135(l)(b)(ll) of the Act the offence alleged to have been committed by him can attract only the punishment of imprisonment for aterm which may extend to three years or fine or both. It is also contended that the Petitioner fully co-operated with the investigation which has already been completed and that he is not required for any further investigation or enquiry. It is further contended that since the evidence in the case has already been documented and since the witnesses are official witnesses there is no basis for any apprehension that the Petitioner will flee from justice or temper with evidence if he is released on bail.