Faisal Theyyil vs State Of Kerala

C.S.Dias, J

The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), for an order of pre-arrest bail.

The petitioners apprehend arrest in Crime No.O.S. No.52/2023-2024 of the Directorate of Revenue Intelligence Calicut Regional Unit, Kozhikode.

The prosecution case, in brief, is that: on 6.12.2023, the Officers of the Customs at Air Cargo Complex (UB), Calicut had seized 2,092 grams of gold, valued at Rs.1,28,76,260/- in the domestic market and Rs.1,15,94,260/-in the international market, from the unaccompanied cargo send to Smt.Naseema Kakkachiyapura, (in short, hereinafter referred to as ‘Naseema’). The gold was concealed inside a vacuum cleaner. Naseema has stated that she had given a copy of her passport to a person named Illyas, as induced by her husband, Mohamed Rafeeque. Illyas offered Rs.4,000/- each to Naseema and Rafeeque as remuneration for the purpose of illegal import of goods from abroad through unknown persons. Rafeeque in his statement admitted to have given copies of his and his wife’s passports to Illyas, expecting a remuneration of Rs.4,000/- each. Illyas in his statement has admitted to have facilitated the illegal import of 2,092 grams of gold. He stated that he collected the passports of Rafeeque and Naseema and forwarded the same to one Nawas (second petitioner), who is a staff of M/s.DR Courier and Cargo, UAE, owned by Faisal ( first petitioner). Illyas further stated that he agreed to give Rs.3,500/- each to Rafeeque as remuneration for furnishing the copies of their passports. Illyas received an amount of Rs.1,500/- to Rs.2,000/- as remuneration for arranging such passports and DR Courier used to send him the list of recipients for delivering the cargo. He had engaged one Usman of cargo track for delivering the items to the respective recipients. When he came to know about the seizure of the gold from Naseema’s cargo, he checked the list and found the said cargo was sent by one Soney from Dubai in the name of one Karan Kumar at Delhi. He contacted the second petitioner and informed him regarding the gold seizure. But, the second petitioner informed him that he was unaware of anything. Rafeeque and Illyas were arrested and remanded to judicial custody for having committed the offence under Sec.135 of the Customs Act. Illyas is already involved in a gold smuggling case registered by the ACC(UB), Calicut. Summons were sent to the petitioners, Soney and Karan Kumar. But they have failed to respond to the same. The case has been handed over to the Customs Preventive Division, Calicut with the approval of the Commissioner of Customs (Prev.,) Cochin. The petitioners statements have to be recorded for the proper and fair investigation of the crime. A search was conducted at the residences of the petitioners and several documents have been seized. In the investigation it is revealed that in the month of November 2023, a case was booked by the Delhi Customs against M/s.DR Courier and Cargo for sending a similar cargo to Delhi. A staff of the said concern named Riyaz of Kannur has been arrested and remanded to judicial custody. A deep rooted conspiracy has been adopted by the smuggling syndicate. The application is premature, and is only liable to be dismissed.

Heard; Sri.K.R.Sunil, the learned counsel appearing for the petitioners and Sri.Sreelal N.Warrier, the learned Special Public Prosecutor appearing for the respondents.

The learned counsel for the petitioners strenuously argued that the petitioners are totally innocent of the accusations leveled against them. There is no material to establish that the petitioners are involved in the crime. It is solely on the basis of the statements given by Naseema, Rafeeque and Illyas, that the respondents have issued the summons to the petitioners. The petitioners are only conducting a cargo company in Dubai and have forwarded the cargo as requested by the customers to India. The petitioners have no complicity in the crime. Therefore, there is no necessity to record their statements. The petitioners are apprehensive that, if they appear before the respondents, they would be arrested and remanded to judicial custody. Hence, the application may be allowed.

The learned Special Public Prosecutor vehemently opposed the application. He submitted that the application is not maintainable in law as the respondents have only issued a notice to the petitioners under Section 108 of the Act, to record their statements, which is a statutory power. It is trite law in Union of India v. Padam Narain Aggarwal & Ors. [(2008)13 SCC 305] and State of Gujarat v. Choodamani Parmeswaran Iyer & Anr.[MANU/SC/992/2023] that an application for pre-arrest bail is premature when a notice is issued under Section 108 of the Act. He submitted that the petitioners have been evading the process of law and have refused to appear before the respondent to record their statements. The Investigating Officer has filed a detailed statement opposing the application. They have reiterated the prosecution case and have contended that the petitioners are persons with antecedents. The petitioners statements have to be recorded for the proper and fair investigation of the crime. Hence, the application may be dismissed.

The prosecution allegation is that Naseema and Rafeeque had given their passport copies to Illyas who in turn gave it to the petitioners, who sent a cargo containing 2,092 grams of gold, concealed in a vacuum cleaner. Even though summons were issued to the petitioners to record their statements, they have not appeared before the respondents. Another staff of the courier company is involved in a similar crime in November 2023, and has been arrested and remanded to judicial custody. The petitioners' statements have to be recorded for the proper and full investigation of the crime.

The Constitutional Bench of the Hon’ble Supreme Court in Ramesh Chandra Metha v. State of West Bengal [AIR 1970 SC 940] has declared that a person who is called upon to make a statement before the Customs Authorities cannot be said to be accused of an offence. If a person is called upon to make a statement under Section 108 of the Act, pursuant to a summons, he is bound to comply with such directions.

The above view has been reiterated by the Honourable Supreme Court in Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd. [(2000) 7 SCC 53] that Section 108 of the Act does not contemplate any magisterial intervention. It only contemplates the recording of a statement by the officer of the Customs.

In Padam Narain Aggarwal’s case (supra), the Honourable Supreme Court has held that a statement recorded under Section 108 of the Act is distinct and different from the statement recorded by a Police Officer during the course of investigation under the Code. When a notice under Section 108 of the Act is issued to a person to record his statement, an application for pre-arrest bail is premature, because it illegally obstructs, interferes and curtails the authority of the Customs Officers from exercising their statutory power.

The above view has been reiterated recently by the Honourable Supreme Court in Vijaykumar Gopichand Ramachandani v. Amar Sadhuram Mulchandani and Others [2022 KHC Online 8031].

On an overall conspectus of the facts, the rival submissions made across the Bar, the materials placed on record, and the enunciation of law in the above referred decisions, and on finding that the respondents have only issued notices to the petitioners under Section 108 of the Act, directing them to appear before the respondents for the purpose of recording their statements, I am of the firm view that the application for pre-arrest bail is premature. Nonetheless, if the respondents proceed to arrest the petitioners, such power shall be exercised, only if the competent authority has reasons to believe that the petitioners have committed the offences punishable under Sections 135, 135A,136 and 137 of the Act.

With the above observations, the bail application is dismissed.