Assu S.V vs State Of Kerala

Mohammed Nias C.P., J

Apprehending arrest, the petitioner has filed this application under Section 438 of the Code of Criminal Procedure seeking anticipatory bail.

The petitioner states that he has been served with a summons issued by the third respondent directing him to appear before the second respondent, and the petitioner apprehends that he will be arrayed as an accused in some criminal case by the respondents alleging commission of a non-bailable offence under the Customs Act, 1962 and that he will be arrested and detained.

The petitioner has been employed in the United Arab Emirates since 2005-2006 for different spells of time. In between, he was employed in China during 2014/15. For the past six years the employed in a Cafeteria in Sharjah.

The petitioner came to Chennai on 23.10.2023 from Dubai. He was detained by the Immigration authorities at Chennai International Airport on his arrival, and his passport was seized and impounded. A true copy of the receipt issued to him by the Bureau of Immigration, Chennai International Airport, dated 23.10.2023, is produced herewith and marked as Annexure A1. It is stated in Annexure A1 that the impounded passport is being sent to to Regional Passport Office, Kozhikode, for further cause of action. The petitioner had not received any letter of intimation from any authority regarding the impounding of his passport or containing any other directions at any time earlier before his passport was impounded on 23.10.2023. Annexure A1 does not explain why the petitioner's passport was seized and impounded.

Thereafter, the petitioner was served with a summons dated 01.11.2023 issued by the third respondent directing him to appear before the second respondent at 10.00 a.m. On 7.11.2023. A true copy of that summons issued by the third respondent dated 01.11.2023 is produced herewith and marked as Annexure A2. Annexure A2 summons states that the petitioner has been called regarding an enquiry in connection with the seizure of 2326.48 grams of gold at Air cargo (UB) at Calicut Airport in January 2023. The petitioner is in no manner connected with such an incident, and he is unaware of such an incident.

The respondents opposing the bail application have filed a statement that reads as follows:-

“4. As a result of further investigation conducted, it was found that the person who facilitated the illegal import by way of importing cargo of many persons from Dubai using the Passport copy collected from Shri Abdu Raoof through Shri Irfan, was one Shri Ashraf, S/o.Mohammed, Vayangattil House, P.O.Kumminiparamba, Malappuram. Shri Ashraf was summoned and his statement was recorded on 16.1.2023. Shri Ashraf in his voluntary statement inter-alia admitted the offence and stated that he acted on behalf of one Shri Noujas P.K, owner of M/s.Best Cargo Express, Dubai. He also stated that he was an employee of M/s.Best Cargo Express, Karipur. He collected the Passport copy from Shri Abdu Raoof and forwarded the same to Shri Noujas, Dubai for sending cargo of many person to Calicut in the name of Shri.Abdu Raoof, as unaccompanied baggage for a remuneration of Rs.5,000/- Shri.Asharaf further stated that he had given Rs.5,000/- to Shri.Abdu Raoof as remuneration as per the instructions of Shri Noujas for getting his passport copy for importing cargo in his name. Being the person who facilitated the import of cargo, Shri Asharaf was also arrested and remanded to judicial custody and later released on bail.

5.As per the statement of Shri Ashraf, the package from which the gold had been seized was sent by one Smt. Khadin Fareeda Umer Farukh, located at Dubai to one Shri Karud Abdul Basit Yunus Bhai, located at Gujarat. Shri Karud Abdul Basit Yunus Bhai had come to Air Cargo Office for claiming the cargo, when 698.08 gram of gold was seized. He was summoned and his statement was recorded on 9.1.2023 and he stated that Smt. Khadin Fareeda Umer Farukh was his relative and the package was sent by her to her house. However, as per her request, he had given copy of his Aadhaar Card to send the cargo.

As a result of investigation, it was found that Shri Karud Abdul Basit Yunus Bhai had come to the Customs Office at Air Cargo Complex, Calicut Airport in a Nissan Micra car having Registration Number KL 11 BQ 5554. The owner of the said car found to be one Smt.Ramlath, Calicut. Statement of Smt.Ramlath was recorded on 16.3.2023, wherein she inter alia stated that the car was used by her brother Shri.Assu Sahibintevalappil. Enquiries conducted revealed that Sri.Assu had brought Shri.Karud Abdul Basit Yunus Bhai to the Customs Office at Air Cargo Complex , Calicut Airport to claim the cargo. It was also found that Shri.Assu had also communicated with Smt.Bhadin Fareeda Umer Farukh and the helper of Shri Ashraf, over phone. From the above it appears that Shri.Assu has a strong involvement in this gold smuggling case.

Accordingly, Summons were issued to Shri Assu on 28.3.2023, 3.4.2023, and 10.4.2023 to appear before the investigating officer. Though Shri Assu had received all the summons he neither responded nor appeared before the investigating officer. Based on the request made by this office Look-Out-Circular (LOC) was issued by Bureau of Immigration in the name of Shri Assu. On 23.10.2023, Shri Assu arrived at Chennai International Airport from Dubai and was intercepted by Bureau of Immigration and handed over to Air Customs, Chennai. Shri Assu was released by Chennai Customs with a direction to appear before the Customs at Calicut Airport. However, Shri Assu did not appear before the investigating officer after his arrival at Calicut. Summons were again issued on 1.11.2023 and 9.11.2023 to appear before the investigating officer on 7.11.2023 and 15.11.2023 respectively, but he did comply to the summonses.

Based on the investigations conducted so far, it appears that Shri Assu has direct involvement in this gold smuggling case and is attempting to evade legal consequences. He is also trying to protect other persons involved in this case. His presence is crucial in this case for thorough examination and to determine the roles of other persons involved in this case. Under these circumstances, it is humbly prayed that this Hon'ble Court may be pleased to reject the anticipatory bail application filed by the petitioner and direct the petitioner to appear before the Investigating Officer at the earliest for fare completion of investigation and for filing prosecution complaint in this case.”

Heard the learned counsel for the petitioner and the learned Standing Counsel and perused the available records.

Learned counsel for the petitioner Sri. Philip T Varghese argues that his client had cooperated with the investigation. This is disputed by the learned counsel appearing for the respondent, Sri. Sreelal N. Warrier who submitted that the petitioner was not cooperating with the investigation. He also submitted that the role of the petitioner is clear from the report extracted above.

Considering the rival submissions and perusing the report referred to above that narrates the alleged role of the petitioner herein, it cannot be said that the offence alleged against him is not attracted. Under such circumstances, grant of anticipatory bail will affect a proper investigation, given the gravity of the allegations. The application seeking anticipatory bail is accordingly dismissed.