Assistant Collector of Customs vs Paola Mortuzzi

Petition praying that in the circumstances stated therein the High Court will be pleased to cancel the bail granted to the respondent/Accused in

Crl. M.P. No. 695/87 on the file of the court of the Additional Chief Metropolitan Magistrate, E.O.I., Egmore, Madras-8.

ORDER

This petition coming on for hearing upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of Mr. P.

Rajamanickam, Central Government Prosecutor on behalf of the petitioner and/or Mr. R. Srinivasan for M/s. Murthy and Vasan, Advocates for

the respondent, the court made the following order.

The Assistant Collector of Customs, Madras, who is investigating into O.S. No. 388/87 R.D. registered against the respondent who was found in

possession of 20 gold bars valued at Rs. 7,38,610, while arriving at the Madras Airport on 29.9.1987, kept concealed in a medical band tied

around his waist and for which he had no valid permit, has filed this application u/s 439(2) and 482 Cr. P.C. to set aside the order of the

Additional Chief Metropolitan Magistrate (E.O.I.), Madras in Crl. M.P. No. 695 of 1987, granting bail to the respondent.

Facts briefly are : On 29.9.1987, the respondent lighted at the International Airport at Madras from Singapore and was found to have

concealed in a medical belt tied around his waist 20 gold bars of foreign origin, totally weighing 200 tolas valued at Rs. 7,38,610/-. The

respondent had no valid permit or authority to carry the gold. The gold bars were seized under a mahazar in the presence of independent

witnesses. He was examined and in the statement made by him, he had stated that he bought the gold bars at Singapore out of his own money and

brought them to India by concealing them on his person and that he wanted to sell them in India on profit. A case was registered against him for an

offence u/s 135 of the Customs Act. In a separate statement made on the next day, the respondent has stated that the gold bars were given to him,

by somebody at Singapore, to be delivered at Madras for a monetary remuneration of Rs. 4000/- and that he did not know the name of the

person who gave him the gold bars at Singapore or the person to whom the bars had to be delivered. The respondent was arrested and remanded

to judicial custody. The respondent filed Crl. M.P. No. 695 of 1987 before the Additional Chief Metropolitan Magistrate, E.O.I., Madras for bail.

The petitioner objected to the grant of bail, primarily on the ground that the respondent being an Italian National, having absolutely no roots in

India and no contacts in India, was bound to abscond and the gravity of the offence committed by him, was such that in the event of a conviction it

called for a minimum imprisonment of one year and that, therefore, bail should not be granted to him.

Learned Magistrate overruled the above objections observing as follows :

No doubt accused in Italian National. He is in custody from 30.9.1987. 20 gold biscuits worth over Rs. 7 lakhs from waist band of the accused

seized. If statements in own hand writing of accused in English obtained. Accused is only a carrier for gain, who made this trip to purchase some

machineries. Accused had been examined by me in detail during remand and I am of opinion that this foreign national is not likely to jump bail to

escape minimum imprisonment of one year, in case of conviction"".

Bail was, therefore, ordered subject to the condition, that the passport of the accused should be detained, till the trial was over and he should not

leave the City Limits of Madras without the permission of the Court and furnish cash security of Rs. 10,000/- and immovable property sureties

each for Rs. 10,000/- and to appear before the Assistant Collector of Customs.

In view of the fact that admittedly the respondent has neither roots nor contacts in India and is a foreign national and in view of the

circumstances that the gold was found concealed on his body and he had accepted the same in his voluntary statement, which he had not chosen to

retract, this Court by an interim order dated 4.11.1987 in Crl. M.P. No. 11481 of 1987, after hearing Thiru P. Rajamanickam, Standing Counsel

for Customs, directed stay of the order granting bail till the disposal of the main petition, Crl. M.P. No. 11480 of 1987. The respondent therefore

is in custody.

Thiru P. Rajamanickam, Standing Counsel for Customs, contended that the order passed by the learned Magistrate granting bail to the

respondent, is in violation of well established principles relating to grant of bail laid down by the Supreme Court, in several of its decisions and

consequently the order suffers from serious infirmities and interests of justice require that the order should be set aside. Learned Counsel relied on

certain decisions, which I shall refer to later.

Per contra, Thiru K. Srinivasan, Learned Counsel for the respondent, contended that the present application itself was not maintainable since the

respondents had not yet come out on bail and therefore, no violation of condition of bail could be put forward by the petitioner, that the order of

the learned Magistrate showed that he had questioned the respondent and was satisfied that the respondent would not abscond and that no

discrimination can be made against foreign nationals, even in the matter of bail.

Countering the above contentions, learned Standing Counsel for Customs, relied on certain decisions of the Supreme Court laying down the

principles to be followed in such matters and also contended, that even in the counter filed by the respondent to this application, he had not given

any reference about persons in India with whom he could claim association and the vague averment in the counter that the respondent has got a lot

of business connection in Madras city, is devoid of any details, which the petitioner could check up and this clearly indicated that the respondent

has absolutely no roots in India and was bound to abscond, if released on bail.

The question that arises for consideration is whether the impugned order suffers from any impropriety or serious infirmity, which interests of

justice would justify invoking the inherent powers of this court for setting it aside ?

Under the Scheme of Criminal Procedure Code, the provision primarily intended to have a bail already granted cancelled, is Section 439(2)

Cr. P.C. under which the High Court or the Court of Sessions, could direct that any person who has been released on bail to be arrested and

committed to custody. In the application u/s 439(2) Cr. P.C. the initial decision of the Court in granting bail, is not assailed but what is sought for

is, a review of that decision already made, necessitated by circumstances supervening the grant of bail as and when the accused after gaining his

liberty, consequent to the bail order, abuses the same, either by threatening the witnesses or interfering with the smooth progress of investigation.

Through several of its pronouncements, the Supreme Court has indicated the various considerations that should weigh with the courts, when called

upon to cancel bail u/s 439. On a preponderance of probabilities, the truth or falsity of the allegations on the basis of which cancellation is sought

for, should first be decided and thereafter it has to be ascertained whether interests of justice would require cancellation of bail.

In the present application, the petitioner seeks having the order granting bail, set aside, not on the ground of any supervening circumstances

calling for cancellation of the bail and re-arrest of the respondent, but seeks to get, the order set aside on the ground that the order, being in

violation of the principles laid down by the Supreme Court, suffers from serious infirmity and impropriety and interests of justice require, that the

order be set aside. This court is conscious of the fact that this court is not sitting, in appeal, as it were, over the order of the learned Sessions Judge

or Motropolitan Magistrate, granting bail, Grant of bail is a matter exclusively within the discretion of the Court passing the order. The discretion is

wide. It could not be circumscribed by any rigid formula or set canons. The discretion, however, has to be exercised judiciously, on established

judicial principles. Even if the case on hand is a case for rejecting bail, this court will not be justified in interfering with the exercise of the discretion

by the learned Magistrate in favour of the accused, unless the order is shown to suffer from some infirmity, which, compelling necessity, in the

interests of justice, would require its reversal.

In fact in Gurcharan Singh v. State (Delhi Administration) AIR 1978 S.C. 179 the Supreme Court, while considering the correctness of the

order of the Delhi High Court cancelling the bail, granted to the accused by the Sessions Judge, Delhi, posed the question as follows :

In the present case the Sessions Judge, having admitted the appellants to bail, by recording his reasons, we will have to see whether that order

was vitiated by any serious infirmly, for which it was right and proper for the High Court, in the interests of justice, to interfere with his discretion in

granting the bail.

It is the above spirit that the order of the learned Magistrate is now being scrutinised by this Court.

Upon the following decisions of the Supreme Court reliance was placed, both by Standing Counsel for Customs and learned Counsel for the

respondent, to indicate the different considerations that should weigh with the Courts while considering bail. In The State Vs. Captain Jagjit Singh, ,

the Supreme Court laid down that the Court granting bail........

.... should then taken into account the various considerations such as nature an seriousness of the offence, the character of the evidence,

circumstances which are peculiar into the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable

apprehension of witnesses being tampered with, the larger interests of the public or State, and similar other considerations which arise, when a

court is asked for a bail in the non-bailable offence. It is true that under S. 498 of the Code of Criminal Procedure (present S. 439) the powers of

the High Court in the matter of granting bail are very wide, even so where the offence as non-bailable, various considerations such as those

indicated above have to be taken into account before bail is granted in a non-bailable offence.

In Gurcharan Singh v. State (Delhi Administration) AIR 1978 S.C. 179 the Supreme Court observed :

We may repeat the two paramount considerations, viz., likelihood of the accused fleeing from justice and this tampering with prosecution

evidence, relate to ensuring a trial of the case, in court if justice. It is essential that due and proper weight should be bestowned on these two

factors, apart from others. There cannot be inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern

the exercise of judicial discretion in granting or cancellation of bail.

Similar observations, though in different language, have been made by the Supreme Court in Bhagirathsingh Judeja v. State of Gujarat 1984

Crl. L.J. 160 emphasising the bifocal considerations in the following terms :

But even where a prima facie case is established, the approach of the court in the matter of a bail, is not that the accused be detained by way of

punishment but whether the presence of the accused would be readily for the trial or that he is likely to be discretion granted in favour, by

tempering with evidence.

It has been further observed :

The only material considerations in such a situation are, where the accused be readily available for his trial and whether he is likely to abuse the

discretion granted in his favour by tampering with evidence.

It, therefore, follows that one of the major factors on which the court should give anxious considerations when admitting bail, is the possibility

of the accused fleeing from justice. In case of nationals of same country, the possibility of their leaving the country is comparatively more remote,

than in case of foreign nationals. If a foreign national succeeds in leaving the country through some illicit channel, rearresting and bringing him back

to face trail, is almost an impossibility. In such cases, it would be no adequate safeguard to require execution of bonds with sureties. However high

to bond amount may be, in economic offences, like the one on hand, may amount would be a cheap price, to ensure one''s freedom or liberty.

Testing the impregnated order on the basis of principles enunciated above, we find the offence committed by the respondent is a grave one. 20

gold bars of foreign origin were found concealed on his very person. The respondent had made two statements and in both of them, he had not

denied that he had carried the gold on his person without the necessary permit. The offence, if proved, called for a minimum imprisonment of one

year. The second safeguard that the courts at this stage have to provide, is to rule out the possibility of the accused absconding. The respondent is

an Indian and foreign national. If, however, he had some roots in India of had sufficient contacts in India, business or otherwise, the possibility of

the respondent absconding, would comparatively less. As rightly contended by Standing Counsel for Customs, even in the counter that had been

field in this Court, the claim of the respondent of business contacts in the Madras City, is vague. Not even a single name is mentioned. This clearly

indicates that the respondent has neither roots in India nor in has he any contact with any one paramountly residing in India. He appears to be just a

bird of passage. Even the learned Magistrate in the impugned order has not stated as to how he was convinced that ""this foreign national"" would

not jump bail. Apart from the blad statement in the impugned order, that the respondent had been examined by him in detail during remand and he

is of opinion that this foreign national is not likely to jump bail to escape minimum imprisonment one year, we do not have any facts or figures on

the basic of which the learned Magistrate was convinced that this foreign national would not be abscond. The apprehension of the petitioner, that

because the respondent has neither roots nor contacts in India he would flee from justice, crossing the Indian border through illicit channel, if need

be, by forfeiting the amount of bond, in a reasonable apprehension. Securing presence of the accused for trial, one of the two paramount

considerations the court has to keep in mind while considering bail. The direction exercised by the learned Magistrate, is granting bail, suffers from

serious infirmity in that it is violation of the principles laid down by the Supreme Court in several of its decisions, referred to above. Interests of

justice require, but this court should interfere with the discretion exercised by the learned Magistrate in granting bail. The order of the learned

Magistrate, therefore, has to be set aside.

In the result, the petition is allowed and the order of the Additional Chief Metropolitan Magistrate (E.O.I.) Egmore, Madras in Crl. M.P. No.

695 of 1987 dated 3-11-1987 is set aside. The petitioner will complete the investigation without any delay and, if a complaint is filed expedite the

trial.