PRASHANT J MEHTA Vs. DIRECTORS OF REVENUE INTELLIGENCE

JUDGEMENT

(1.) Petitioner is the first accused in a crime registered by the Intelligence Officer, Directorate of Revenue Intelligence, Ernakulam as O.R. No. 3 of 2013 under S. 135 read with S. 104 of the Customs Act, 1962. He has filed the above application seeking the discretionary relief of anticipatory bail under S. 438 of the Code of Criminal Procedure (for short 'the Code'). Petitioner is the Managing Director of M/s. Rajesh Exports Limited operating business within the Cochin Special Economic Zone, Kakkanad, which has been given licence to export gold medallions manufactured from gold imported duty free. The Directorate of Revenue Intelligence, Cochin (hereinafter referred to 'DRI, Cochin') getting information that gold imported duty free by the Unit of the above Company in Kakkanad is being smuggled out by a gang headed by petitioner close surveillance was kept on such activities. On 10.5.2013, third accused employed in the Company, and an associate of petitioner, was intercepted at Ernakulam Railway Station while he was trying to board a train to Bangalore. Search over his person resulted in recovery and seizure of 900 gms of gold. Disclosure statement made by him revealed that the gold was handed over to him by the second accused, Manager of the above Company, in the Unit at Special Economic Zone, Kakkanad. The gold was smuggled out from the Unit for being handed over to first accused, and that on previous occasions also such smuggling operations had been carried out from the gold imported duty free and handed over to petitioner in Bangalore. That disclosure led to arrest of second accused and, later, after recording their statements, both of them were produced before the Magistrate. Petitioner was proceeded as the first accused in the above crime registered for the smuggling of gold diverted from the imported duty free stock in the Unit of the Company in the Special Economic Zone.

(2.) Petitioner, after unsuccessfully moving applications for anticipatory bail before the Sessions Judge, more than once, has filed the present petition seeking for such discretionary relief from this Court. A detailed objection to the petition with some annexures also has been filed by the Senior Intelligence Officer, DRI, Cochin, opposing the application. Petitioner is liable for prosecution under S. 135 and also for penal action under S. 112 of the Customs Act, 1962, in the facts arid circumstances presented in the case is the thrust of the objections mainly contending that clearance of any duty free goods from the Special Economic Zone unauthorisedly to the domestic market will be considered as an import from an outside territory, and in such a case penal provisions of the Customs Act will apply with full force.

(3.) Learned counsel for petitioner adverting to the amendment made in S. 104 of the Customs Act contended that till the amendment came into force on 10.S.2013 the offence under S. 135 of the Act was only bailable. Where the DRI has set up a case that three transactions were much earlier before the commencement of the amendment and that the value of gold seized (900 gms), allegedly, from third accused on 10.5.2013 is taken, then, the case would not fall under S. 104(6)(c) of the Act is the submission of counsel. In that case, the offence, if any, made out on the allegations raised would still be bailable, is the submission of counsel. Conceding that an application for anticipatory bail cannot be maintained in respect of a bailable offence, learned counsel urged that if the submission made as above with reference to S. 104 of the Act in relation to the amendment referred to is accepted then this Court may dismiss the application observing that the offence is bailable, enabling the petitioner to get regular bail from the magistrate. Learned counsel also canvassed arguments that even if the offence is treated as non-bailable by virtue of the amendment made to S. 104 of the Customs Act, still, on the facts and circumstances presented petitioner cannot be penalised for the transaction which had taken earlier to the amendment. That would amount to penalising him under a retro active law, which is against the constitutional mandate. Value of materials alleged to have been smuggled out from the Unit of the Company in the Special Economic Zone on four occasions together exceeded one crore, is the case of DRI to proceed against the accused, and where only one transaction, that too in respect of 900 gms of gold, allegedly, seized from the third accused on 10.5.2013 alone can be reckoned as having taken place after amendment of S. 104 of the Customs Act, it is submitted, invoking of S. 104(6)(c) of that Act is impermissible, and further it is violative since the petitioner cannot be proceeded under ex post facto legislation. Learned counsel has also referred to the definition of 'export' and 'import' in the Customs Act and also some provisions of the Special Economic Zones Act, 2005 to contend that to constitute an import or export the materials should have been either sent outside India or received from out side India. When that be so, according to counsel, criminal proceedings launched against petitioner by the DRI is prima facie unsustainable. Petitioner in the given facts of the case deserve to be granted pre-arrest bail is the submission of counsel, for extending such equitable relief to him.