Anil Jain and Others vs Union of India

P. Devadass, J.—Petition for anticipatory bail. Offences alleged are under Section 468, 471 of I.P.C. and Section 132 of Customs Act.

Petitioners are son and father.

They were alleged to have clandestinely imported R-22 Gas, a restricted item from China.

Apprehending arrest, they seek anticipatory bail under Section 438 Cr.P.C.

According to the learned Senior counsel for the petitioners, a mistake committed by a foreign exporter landed up the petitioners in trouble. Supply of permitted R-410A Refrigerant Gas alone has been ordered. However, R-22 Refrigerant Gas intended to be exported to Panama has been wrongly sent to the petitioners'' Company.

The learned Senior Counsel for the petitioners further contended that the said mistake was also informed by the foreign exporter. In the circumstances, the Indian Importer informed the authorities for re-exporting the same. In between, certain public holidays intervened. In the circumstances, hurriedly, the Department has implicated the petitioners in this case.

The learned Senior Counsel further submitted that there is apprehension of arrest. Petitioners will not evade. They will co-operate with the investigation agency. They will not interfere with the investigation. In the circumstances, they may be granted anticipatory bail.

Prosecution filed counter. Petitioners filed rejoinder. Prosecution also filed counter to the rejoinder.

Learned Special Public Prosecutor/D.R.I., contended that the petitioners have been illegally importing restricted R-22 Gas fairly for a long time. Now, they have been caught. To escape from the clutches of law, they are coming out with a false story.

The learned Special Public Prosecutor further contended that statements given by their staff exposes the petitioners. There are very many incriminating materials as against them. Summons under Section 108 of Customs Act have been issued. However, they did not respond. They have ability to interfere with the investigation and tamper the investigation.

The learned Special Public Prosecutor also submitted that a Division Bench of this Court in The Additional Director General, Directorate General of Revenue Intelligence, Chennai and another vs. J.K.S. Air Travels (W.A. No. 1720 of 2014 dated 5.01.2015) (reported in this issue at 2015-1-L.W. (Crl.) 406) has held that a person who had not responded to the summons of the Department and who is not co-operating with the investigation agency shall not be given the relief of anticipatory bail.

I have anxiously considered the rival submissions, set of pleadings of the parties, typed set of documents, the Case-Diary and the decision cited.

Sherisha Technologies Pvt. Ltd., Thiruporur, Kanchipuram District is an import Company. It has I.E. Code. Its Managing Director is first petitioner. Second petitioner is its Director. He is also father of the first petitioner. It has certain sister-concerns. One of the sister-concern is M/s. Refex Industries Ltd. It is being managed by Jagadish Jain, another son of the second petitioner. The Company is importing Refrigerant Gas from Zhejiang AMP Orient Import and Export Co., Ltd., China.

Since R-22 Refrigerant Gas is dangerous to environment, Government of India declared it a restricted item. It is being regulated by the Ministry of Forest and Environment, Government of India. Its importation is now restricted and regulated.

On specific intelligence, the consignment containing Refrigerant Gas stated to be R410-A (a permitted item) was inspected by the officials of the Department. However, the container restricted Refrigerant Gas R-22. Raid was conducted.

In this connection, the Department proceeded as against the petitioners and others.

At this juncture, as stated at the outset, petitioners seek pre-arrest bail.

I have perused the Division Bench decision in The Additional Director General, Directorate General of Revenue Intelligence and another vs. J.K.S. Air Travels (supra). It does not support the proposition advanced by the learned Special Public Prosecutor that once summons under Section 108 of Customs Act has been issued to a person, he cannot be granted anticipatory bail.

In J.K.S. Air Travels (supra), a person was intercepted at the Airport, huge cash has been recovered from him. The Department issued him several summons under Section 108 of Customs Act. He did not respond. Instead he filed writ petition. A learned Single Judge considered the issue on the anvil of Article 300-A of Constitution of India and directed return of particular item of seized cash to him. Under these circumstances, the Department went in Writ Appeal before a Division Bench. The Division Bench while upsetting the order of the writ court, viewed the matter on the anvil of Section 108(3) of Customs Act, 1963 and held that such summons etc., cannot be interdicted as the Officers of the Department are statutorily empowered to enquire persons, who are bound to truly and fairly state the facts with which they are acquainted.

In J.K.S. Air Travels (supra), the Division Bench did not laid down a proposition that Section 108(3) of Customs Act, 1962 is an exception to Section 438 of Code of Criminal Procedure, 1973.

Section 108 of Customs Act appears in a Quasi-penal statute. When there is no express provision in the said Act and the Rules framed thereunder the Code of Criminal Procedure will apply. (See Section 5 of the Code, 1973).

In the Old Code, 1898, there is no provision for pre-arrest bail. In the New Code of 1973, in Chapter 33, in Section 438 Cr.P.C. a direction to release a person in the event of his arrest has been provided. So, a person apprehending arrest for a cognizable offence under Customs Act can seek relief under Section 438 Cr.P.C.

In the Constitution Bench judgment in Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, the Hon''ble Supreme Court laid down twin requirements to seek relief under Section 438 or Cr.P.C. They are, there must be reasonable basis for complaint or allegation or suspicion of having committed a cognizable offence and there must be apprehension of arrest.

However, when there are incriminating materials required for verification of the same by the investigation agency and there is possibility of non-co-operation and escape or maneuvering attitude by the accused then the said relief cannot be extended to him. Now, it is well settled that custodial interrogation has been considered a tool of investigation agency.

The salient features of the anticipatory bail as stated above also have been reiterated by the Hon''ble Supreme Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, .

It is pertinent to note that the efficacy, effect and aftermath of summons issued under Section 108 of Customs Act, 1962 is not analogous to summons issued by the police under Section 91, 161 Cr.P.C. Though both are intended for unraveling the truth of crime reported but they qualitatively differ by the person wielding power of issuance of such summons and approach of the Court to it when it contains incriminating information and when it has been issued by two type of Officers viz., Police officer and Non-Police Officer.

One thing is clear that when a person has been proceeded under the Customs Act either by the Directorate of Revenue Intelligence or by the Customs department or by any Central Agency and there is apprehension that he will be arrested in connection with a cognizable offence, if he is otherwise eligible under the parameters to seek relief under Section 438 Cr.P.C., he cannot be denied relief merely on account of the fact that summons under Section 108 of Customs Act has been issued to him.

Now, we will revert back to the case at our hand.

Permitted Gas consignment viz., R-410A Refrigerant gas has been booked in the name of Sherisha Technologies Pvt. Ltd., actually it was R-22 Gas. It has been seized. The Department is probing the matter further.

Statements recorded under Section 108 of Customs Act from Lalitha and Ravi, who are staff of the petitioners throws much light and furnishes incriminating information and it transpires that the said petitioners'' Company supplied the said restricted Gas to one of its client in Noida, U.P. Incriminating materials have been seized. Lalitha and Ravi have stated that their Company placed orders for the supply of R-22 Gas under the pretext of importing permitted item viz., R-410A Gas. Their statements further reveals that their Company has been in the habit of doing this wrong doing fairly for a long time.

Petitioners are son and father. First petitioner is the Managing Director of Sherisha Technologies Pvt. Ltd. In her statement, Lalitha has stated that she placed orders as per the instruction of the first petitioner. His brother Jagadish Jain is looking after the sister-concern Refex Industries Ltd. Ravi in his statement also stated that the first petitioner talked to him about the arrival of the tanker from China. He also stated that the first petitioner knows all the details. In his counter, dated 6.2.2015, in page 6, para 5(b) the prosecution also states that the first petitioner is the man behind it for all these covert operations. Very many incriminating materials are as against him. He is at the elm of affairs of the guilty Company. Staff are under his peck and call. He has the potentiality to influence and meddle with the on-going investigation.

Now, coming to the second petitioner Tarachand Jain, he is a Director of the said Company. The materials so far collected by the Department would bring out the fact that Tarachand Jain is a Director of the said Company. More than that there is no direct incriminating materials implicating him in the clandestine importing of restricted gas from Chinna. He is 67 years old. The entire matter has been handled by his son, namely, first petitioner.

Considering all the above aspects and the nature of allegations made and the role of the petitioners, I am inclined to grant anticipatory bail to the second petitioner only. Ordered as under:

(i) Anticipatory bail granted to the second petitioner, viz., Tarachand Jain only.

(ii) Second petitioner shall surrender before the learned Additional Chief Metropolitan Magistrate (EO-1), Chennai within 15 days of receipt of a copy of this order;

(iii) Second petitioner shall also execute a bond for Rs. 25,000/- (Rupees Twenty Five Thousand only) with two sureties each for a likesum to the satisfaction of the said Magistrate;

(iv) Second petitioner shall also deposit Rs. 5 lakhs to the credit of this case before the said Court.

(v) Petitioner shall also report before the respondent daily at 10.30 a.m. until further orders;

(vi) Second petitioner shall also surrender his Passport to the said Court;

(vii) So far as the first petitioner Anil Jain is concerned, this petition is dismissed.