SHANTILAL JAVERCHAND JAIN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) PETITIONER has challenged the conditions of order dated 17.04.2002 and prays that such conditions be suspended with a permission to the applicant to go abroad for a period of 6 months and for the purpose to direct the Court of Chief Judicial Magistrate, Bhuj return passport, on such terms and conditions as deemed fit by this Court in the interest of applicant.

(2.) BY an order dated 17.04.2002, the then Chief Judicial Magistrate, Bhuj had in file No. D.R.I. G.R.U. INT - 6/2001 granted default bail to the applicant under Section 167 (2) in connection with offence under Section 135 of the Customs Act. So far as proceedings are concerned, there is no dispute that such proceedings are solely for evasion of custom duty by the applicant, for which proceedings were initiated against him. The applicant was arrested in connection with such file and was released on bail with certain conditions amongst which, one of the conditions was regarding not to leave the area of Kachchh district was deleted by this Court by an order dated 12.08.2002 passed in Criminal Misc. Application No. 4884 of 2002, whereas condition No. 1 regarding marking presence before the office of the DRI, Gandhidahm was modified by an order dated 27.04.2004 by this Court in Criminal Misc. Application No. 10415 of 2003 in Criminal Misc. Application No. 4884 of 2004. While modifying such condition regarding marking presence before the DRI, Gandhidham this Court has directed the petitioner that he shall mark his presence before D.R.I., Mumbai, once in a month without fail, with liberty to the applicant to move an appropriate application with such prayer as and when requries with direction to the applicant to furnish present and permanent address and other details to DRI authority, keeping all other conditions in operation. It is submitted by the petitioner that in view of the decision by the Apex Court in case of Omprakash v. Union of India in Writ Petition (Criminal) No. 66 of 2011 dated 30.04.2011 offences are bailable. It is also submitted by the applicant that in view of the decision in case of Sultan Kamrudding Dharani v. Union of India reported in 2008 (231) ELT 217 (Bombay), the condition regarding the accused person to surrender his passport to the Court is not termed as bail and though bail is granted subject to such condition it will defeat the rights under Section 436(1) of the Code of Criminal Procedure to be set at liberty. However, in the same judgment it is also observed that in a given case if there is an apprehension that the accused is likely to abscond, steps can also to be taken as per law including impounding the passport. Petitioner has also relied upon the decision in case of Rasiklal v. Kishore reported in 2009 (4) SCC 446. However, gist of such judgment is to the effect that bail in bailable offence can be granted if accused is willing to abide by reasonable conditions, which may be imposed upon him. Petitioner has also relied upon the case of Vaman Narain Ghiya v. State of Rajasthan reported in (2009) 2 SCC 281 submitting that the Court has no discretion while granting bail under Sections 436 and 450 of Chapter XXXIII of the Code of Criminal Procedure to impose any condition except security with sureties. Whereas it is submitted that this High Court in case of Hasmukhlal Kalidas Choksi v. State of Gujarat reported in 2006 (3) GLR 2529 grant passport to the accused and permitted him to stay permanently at USA.

(3.) PETITIONER has also relied upon several other decisions cited with reference to the powers by the Magistrate and procedure to be followed in such cases submitting that order of the Chief Judicial Magistrate directing the applicant to surrender his passport is illegal. It is further submitted that once applicant is arrested for the purpose of investigation, purpose of arrest and detention of the applicant has been satisfy and fulfilled, pending investigation when applicant is co -operated on all levels and therefore now there is no reason to restrict him to move freely. It is further submitted that applicant is now aged about 66 years and residing in Mumbai with family of mother, wife, daughter and son from last 46 years and therefore there is no question of abscondment. It is also submitted that petitioner is paying income -tax and has paid almost Rs. 1 Crore as tax during last 3 years since turnover of his business is ranging between Rs. 200 Crores to Rs.560 Crores during last 3 years and that he is Managing Director of Varsha Group of Companies, which is holding/owing several business houses. It is further submitted that petitioner is involved in business of export -import and therefore he is required to go abroad to work out with terms and conditions of business with various purpose since applicant is a business man he is visiting so many countries and there is no likely hood of abscondment. Therefore, petitioner has prayed to delete all the conditions imposed by an order dated 17.04.2002 while releasing him on bail. As recorded herein above since condition Nos. 1 and 3 are already been modified earlier, if we perused other condition Nos. 2, 4, 5, 6 and 7 cannot be altered or modified, whereas condition No.8 is pertaining to surrendering passport to the Court and therefore practically petitioner is entitle, if at all then modification of condition No.8 only.