Anil Kumar @APPELLANT@Hash State of Rajasthan & Ors

Petitioner has filed this petition under Section 439 Code of Criminal Procedure, 1973 seeking regular bail in File No. VIII (48) 227/Prev./2018 Customs

Duty (Prev.), Jaipur for the offences punishable under Sections 135(1)(a), 135(1)(b) & 135(1)(c) of the Customs Act, 1962Â (hereinafter referred to

as the ‘Act’).

Learned counsel for the petitioner has submitted that the petitioner was apprehended on 17.07.2018 and was found in possession of foreign currency

with Indian currency value of Rupees thirty five lacs fifty thousand and twenty six. Petitioner was also found in possession of Indian currency to the

tune of Rupees thirty seven thousand six hundred and fifty. Since, the total currency carried by the petitioner was less than Rupees fifty lacs,

petitioner could be punished for maximum term of three years. Hence, the offence could be said to be a bailable one. Arpit Jain, son of the petitioner,

was apprehended on 13.11.2017 and was found in possession of foreign currency with Indian currency value of Rupees ninety six lacs twenty four

thousand and twelve. In this regard, son of the petitioner is facing the criminal proceedings. So far as the petitioner is concerned, he is not an accused

in the said case. Son of the petitioner is not an accused in the present case. However, now the amount of currency recovered from the petitioner is

sought to be exaggerated by including the foreign currency recovered from the son of the petitioner on the ground that the petitioner as well as his son

in their statements under Section 108 of the Act have stated that the said amount was handed over by the petitioner to his son. Petitioner is in custody

since 17.07.2018. Presently petitioner is in judicial custody.

Learned counsel for Union of India has opposed the petition and has submitted that the bail petition filed by the petitioner was liable to be dismissed as

the petitioner could be said to be carrying foreign currrency with Indian currency value of Rupees thirty five lacs fifty thousand and twenty six plus

Rupees ninety lacs twenty four thousand and twelve in view of the statements made by the petitioner and his son under Section 108 of the Act. The

amount carried by the petitioner and his son were liable to be clubbed. In support of his arguments, learned counsel has placed reliance on the decision

given by the Hon'ble Supreme Court in case of Illias Vs. Collector of Customs, Madras, AIR 1970 SC 1065, wherein, it was held as under:-

Learned counsel for the appellant when faced with the above difficulty has gone to the extent of suggesting that by necessary implication the power

to file a charge sheet flows from some of the powers which have already been discussed under the new Act and that a customs officer is entitled to

exercise even this power. It is difficult and indeed it would be contrary to all rules of interpretation to spell out any such special power from any of the

provisions contained in the new Act. In this view of the matter even though under the new Act a customs officer has been invested with many powers

which were not to be found in the provisions of the old Act, he cannot be regarded as a police officer within the meaning of Section 25 of the

Evidence Act. In two recent decisions of this Court in which the judgments were delivered only on October 18, 1968 i.e. Romesh Chandra Mehta v.

State of West Bengal and Dady Adarji Fatakia v.K.K. Ganguly, Asstt Collector of Customs & Ant., the view expressed in Barkat Ram's case with

reference to the old Act has been reaffirmed on the question under consideration and it has been held that under the new Act also the position remains

the same. This is what has been said in Dady Adarji Fatakia's case:

For reasons set out in the judgment in Cr. A. 27/67 (Romesh Chand Mehta v. State of West Bengal) and the judgment of this Court in Badku Joti

Savant's case, we are of the view that a Customs Officer is under the Act of 1962 not a police officer within the meaning of Section 25 of the

Evidence Act and the statements made before him by a person who is arrested or against whom an inquiry is made are not covered by Section 25 of

the Indian Evidence Act.

 Learned counsel has next placed reliance on the decision given by the Hon'ble Supreme Court in case of Naresh J. Sukhawani Vs. Union of India,

1995 Supp (4) Supreme Court Cases 663, wherein, it was held as under:-

It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal

Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That

material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to

connect the petitioner in the contravention inasmuch as Mr. Dudani's statement clearly inculpates not only himself but also the petitioner. It can,

therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. Therefore, we

do not think that there is any illegality in the order of confisaction of foreign currency and imposition of penalty. There is no ground warrantaing

reduction of fine.

The special leave petition is dismissed accordingly.â€​

Learned counsel has next placed reliance on the decision given by the Hon'ble Supreme Court in case of State of Gujarat Vs. Shri Mohanlal Jitamalji

Porwal & Anr., 1987 (11) ECR 353 S.C., wherein, it was held as under:-

The Community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the Community deserves equal treatment

at the hands of the court in the discharge of its judicial functions. The Community or the State is not a persona-nongrata whose cause may be treated

with disdain. The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder

may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design

with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only

at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner with- out fear of criticism

from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National

Interest.

Learned counsel has also placed reliance on the decisions given by this court in S.B. Criminal Miscellaneous Bail Application No. 5874/2015 titled as

Harish Kumar Aalumalani Vs. State of Rajasthan, decided on 23.07.2015, S.B. Criminal Miscellaneous Bail Application No. 1257/2015 titled as

Abdul Ali Jalil Vs. Union of India, decided on 26.03.2015 and S.B. Criminal Miscellaneous Bail Application No. 13466/2014 titled as Najibullah &

Anr. Vs. Union of India decided on 05.01.2015.

In the present case, admittedly, petitioner was arrested on 17.07.2018 at the Jaipur International Airport. Petitioner was found in possession of foreign

currency with Indian currency value to the tune of Rupees thirty five lacs fifty thousand and twenty six. Son of the petitioner was arrested in

November 2017 and was found in possession of foreign currency with Indian currency value to the tune of Rupees ninety six lacs twenty four

thousand and twelve. So far as the petitioner is concerned, he is not an accused along with his son in the case registered against the son of the

petitioner in November 2017. Arpit Jain son of the petitioner is not an accused in the present case. Hence, it would be a debatable issue as to whether

the amount recovered from the son of the petitioner in another criminal case can be clubbed with the present recovery from the petitioner. The said

aspect can be gone into by the Trial Court during trial.

Accordingly, without expressing any opinion on the merits of the case, this petition is allowed. Petitioner be admitted to bail subject to satisfaction of

the Trial Court.