Hemanth H.S. vs Senior Intelligence Officer (SIO)

Budihal R.B., J.—This is the petition filed by the petitioner--accused No. 3 u/s 438 of the CR.P.C. seeking anticipatory bail and to direct the respondent--police to release the petitioner on bail in the event of arrest of the petitioner for the alleged offence punishable under Sections 135(A) and 135(B) of the Customs Act, registered in DRI. No. S/IV/15/2014.

Heard the arguments of the learned counsel appearing for the petitioner-accused No. 3 and also learned High Court Government Pleader for the respondent-State.

Learned counsel for the petitioner-accused No. 3 during the course of his arguments submitted that the present petitioner has been employed in the office of the accused No. 2 attend to the courier services and to give door to door delivery. He further submitted that, in so far as alleged offences are concerned the present petitioner is totally unconnected and he was not at all having the knowledge that the imported material and boxes contain 7 Kgs. of gold bar worth Rs. 2,14,27,000/-. Counsel further made submission that the Customs Authorities have already searched the house of the present petitioner and nothing was found in his house. He further submitted that accused Nos. 1 and 2 have been arrested in this case and have been already granted bail by the Special Economic Court by its order dated 15.04.2014 pleaded in para No. 4 of the bail petition at page No. 3. Learned counsel made submission that the present petitioner was not at all having the knowledge before receiving the imported articles from the Customs Authorities that they were gold bars weighing 7 Kgs. and without such knowledge he has received the said consignment. Counsel made submission that since accused Nos. 1 and 2 are already been released on bail and only Investigation Officer has to record the statement of the present petitioner and he is ready to abide any conditions to be imposed by this Court. The offences are triable by the Court of Magistrate and not exclusively punishable with death or imprisonment of life.

As against this, learned Government Pleader during the course of his argument submitted that the material collected by the Investigation Officer during the investigation shows the involvement of the present petitioner in the commission of the offences, in so far as that the imported material and boxes contain 7 Kgs. of gold bar worth Rs. 2,14,27,000/-. He further submitted that the investigation material collected by the Investigation Officer during the investigation goes to show prima-facie case against the petitioner about his involvement in committing the alleged offence and the matter is still under investigation. At this stage, if the present petitioner is granted with anticipatory bail he may abscond and he may tamper the prosecution witnesses. Hence, he submitted that petitioner is not entitled to be granted with anticipatory bail.

I have perused the averments made in the bail petition, FIR, Complaint, Order passed by the Lower Court and other materials placed on record which goes to show that the present petitioner has been appointed by the accused No. 2 Muralidhar as a delivery boy to work in his office and he has been entrusted with courier service and to give door to door delivery. The material also goes to show that the Customs Authorities and also the Investigation Officer searched the house of the present petitioner and nothing was found relating to the alleged offence. The only allegation against the present petitioner that he went to collect the consignment which was imported without the knowledge that the imported boxes contain gold bars. It is the submission that the main accused Nos. 1 and 2 have been already granted with the bail by the Special Economic Court by passing the order dated 15.04.2014. Regarding grant of anticipatory bail for the alleged offence under the Customs Act, the learned counsel for the petitioner relied upon the decision reported in E. Joseph and Another Vs. The Assistant Collector of Customs, Tuticorin, . It is the apprehension of the prosecution that since the gold bars weighing 7 Kgs. which were imported worth Rs. 2,14,27,000/- looking to the magnitude of the amount involved and if granted bail he may abscond and tamper with the prosecution witnesses. By imposing stringent conditions this petitioner can be admitted to anticipatory bail. It is no doubt true that the statement of accused No. 1 has been recorded by the Customs Authorities where in the name of the present petitioner is also mentioned by accused No. 1 and the same is not admissible and cannot be made used against present petitioner. Therefore looking all these aspects of the case, I am of the opinion that it is a fit case to excise the discretion in favour of the present petitioner.

Accordingly, the petition is allowed. Respondent police are directed to release the petitioner-accused No. 3 on bail in the event of his arrest for the offence punishable under Sections 135(A) and 135(B) of the Customs Act, registered in DRI. No. S/IV/15/2014 subject to following conditions.

Petitioner to execute a personal bond for Rs. 1,00,000/- (Rupees One Lakh Only) and to furnish one solvent surety for the likesum to the satisfaction of the concerned Court.

Petitioner shall not tamper the prosecution witnesses directly or indirectly.

The petitioner-accused 3 shall make himself available before the Investigation Officer for interrogation whenever called for.

Petitioner shall appear before the concerned Magistrate Court within thirty days from the date of this order and execute the personal bond and also the surety bond.