VIJAY KUMAR Vs. CUSTOMS

JUDGEMENT

(1.) This order shall dispose of petitioner's application for bail under Section 439 of the Code of Criminal Procedure.

(2.) The facts, relevant for disposal of this petition briefly are that on 16.12.2000 one Subhash Sachdeva, co-accused of the petitioner came to India on a flight from Hongkong. While he was walking through the Green Channel, he was stopped by the Customs Officers (Preventive). On search, 11,950 pieces of watch movements and 8 mobile phones were recovered from his possession, which were not being imported legitimately. The value of these items was about Rs. 5,42,000.00. A statement of Subhash Sachdeva was recorded under Section 108 of the Customs Act in which he disclosed that he was approached by one J.S. Pruthi living in AIIMS, Ansari Nagar, New Delhi with an offer to visit Hongkong without incurring any expenditure but in lieu thereof he shall bring certain goods from there. He agreed, upon which said J.S. Pruthi arranged air tickets as well as foreign exchange. This air fare was paid by the present petitioner through a cheque. The foreign currency was also purchased by the petitioner by giving a cheque of Rs. 2,38,165.00. After reaching Hongkong, Subhash Sachdeva was given 12 packets of watch movements and 8 mobile phones by Pruthi and was asked to hand over the same to the petitioner Vijay Kumar. Immediately after arriving at Indira Gandhi International Airport, Subhash Sachdeva gave a phone call to the petitioner on mobile phone informing him that the watch movements and mobile phones had been brought and he should collect the same, but petitioner told him that he would collect the goods next day. After his apprehension Subhash Sachdeva once again informed the petitioner that he had been caught by Customs, upon which the petitioner replied that there was no need to worry and he would make arrangements and come to the Airport at 10.00 a.m. for getting him released. At about 10.00 a.m., the Customs Officers brought Subhash Sachdeva outside the Airport where the petitioner Vijay Kumar was found standing. On the identification of Subhash Sachdeva, the petitioner was given summons by the Customs Officers. The petitioner was found doing the business of watches in Lajpat Rai Market. He made a statement under Section 108 of the Customs Act admitting that the watch movements being brought by Subhash Sachdeva were for him. He was also arrested and after necessary investigations, a complaint was filed against him. It may be mentioned here itself that according to the complainant, the investigations confirmed that the payment for journey of Pruthi and Subhash Sachdeva was made by the petitioner and payment for procuring foreign exchange was also made by him by issuing a cheque of his firm in the sum of Rs.2,38,165.00. It was also discovered that the petitioner was earlier also involved in one case regarding smuggling of 300 gold biscuits and one case for smuggling of watch movements. These cases were still pending.

(3.) Mr. D.C. Mathur, Senior Advocate has vehemently argued that the statement made by the petitioner under Section 108 of the Customs Act cannot be read or relied upon inasmuch as the petitioner was already in custody of the Customs Officers before making statement and his statement was hit by Section 24 of the Evidence Act as it was not a voluntary statement. He further submits that the investigations are already over and there is no chance of the petitioner tampering with the prosecution evidence in any manner as most of the witnesses to be produced by the complainant are official witnesses. He submits that there are no chances of his absconding and prays that suitable conditions may be imposed while granting him bail.