VIPAN KUMAR KAPOOR Vs. S M ALI

JUDGEMENT

(1.) Petitoner has applied for grant of ball. He has been booked by the Directorate of Revenue Intelligence (DRI for short) under Section 135 (1)(b) of the Customs Act, 1962. The allegations In the complaint lodged against the petitioner and 8 others are that acting on a specific intelligence, officers of the DRI intercepted truck No. RRN- 5254 on 21.1.91 between 4-5 A.M. just out side the factory situate at A-71, Industrial Area, G.T. Karnal Road, Delhi-33. Two drivers and three helpers were found in the truck at that time. Besides them, three other persons, namely, petitioner, Sanjay Verma and Mohsin Anwar were also present near the truck to take delivery of the goods loaded in it. On seeing the officers, the petitioner who tried to run away was over-powered after a brief scuffle. The truck was taken to the office complex of the DRI at I.P. Estate. Its search yielded 25 slabs of foreign silver wraped in Gunny bags and kept concealed in the floor of the truck with a thick layer of soil. Each slab weighed about 30 Kg. and the total value of the silver recovered was estimated at Rs. 57,95,912. The slabs were found to be of 99.50 purity.

(2.) Statements of the petitioner and others were recorded under Section 108 of the Customs Act. The petitioner in his statement is alleged to have said that no particular day while DRI officers were taking search of the truck, his brother Satish ran away from there. He also tried to run away but he was over-powered. Regarding his complicity in the offence of smuggling foreign silver, he stated that he had met Javed co-accused in his office on 20.1.91 to inform him about the place where the smuggled silver slabs were to be un-loaded. Javed had sent the co-accused Mohsin Anwar with him. He pointed out the Sanjay Garments Factory at A-71, Industrial Estate G.T. Kranal Road where he had already made arrangements with Harish Verma, co-accused about the unloading and keeping of silver slabs. He further stated that while disposing of the silver later on he would have made good profit from the transaction. Some similar Incriminating statements were made by the other co-accused persons. It may be noted that the bail application of Sanjay Verma was dismissed by me In Cr. M.(M) 641/91 on 8.4.91.

(3.) I have beared arguments advanced by learned counsel for the parties. The first submission made on behalf of the petitioner is that according to their own allegations In the complaint, it Is admitted that the petitioner was over powered while running and therefore, a presumption should be drawn that his alleged statement under Sec. 108 of the Customs Act was obtained as a result of coercion pressure and undue influence exercised upon him by the officers of DRI. It is then contended that the petitioner even refracted from the alleged confessional statement and, therefore, the prosecution prim facie having no other evidence to rely upon could not be successful in securing the conviction of the petitioner. This, according to the learned counsel, was also a good reason for allowing bail to the petitioner. It is also argued that the prosecution has not collected any evidence to indicate that the silver was of foreign origin and that It was smuggled into India after 8.6.90. the date on which Notification No. 28 of 1990 (Customs) was Issued by the Central Government bringing silver also within the purview of Section 123 of the Act. Learned counsel has also argued that the manner in which the statement of the petitioner is alleged to have been recorded and the repeated use of the world VIDESHI appended to the silver suggests that the statement was recorded on the dictation of some officer of DRI. My attention has also been drawn to the order of grant of bail by him in the case of Hemant Kumar Ishwar Dass Sanghvi v. Customs, Crl. Misc. (M) No. 748/91. Thus It is contended that the petitioner was also entitled to grant of bail. All the aforesaid arguments have been countered on behalf of the respondent.