Muhammed Ali Haji P.P vs State Of Kerala

Gopinath P., J

This is an application for regular bail.

The petitioner is the one among the accused in O.R.No.6/2019 registered by the Directorate of Revenue Intelligence (DRI), Thiruvananthapuram alleging commission of offences under the provisions of the Customs Act, 1962.

The prosecution case, in brief, is that on 13.5.2019, two passengers namely, Akash Shaji and Sareena Shaji, were intercepted at the Thiruvananthapuram International Airport where they arrived on a flight from Dubai, carrying 25 numbers of gold bars of 24 Carat purity, totally weighing 24998.61 grams and valued at Rs.8,17,45,455/- which they had attempted to smuggle into India. A declaration receipt regarding the gold made before the Dubai authorities was also recovered. The statements recorded from the aforesaid persons under Section 108 of the Customs Act revealed that the gold was being smuggled for one Abdul Hakkeem, who was working as Manager of M/s.PPM Chains at Thiruvananthapuram of which the petitioner herein is a Director/Partner. The said Abdul Hakkeem is also a close relative of the petitioner herein. It is alleged that the gold was smuggled for the business of M/s.PPM Chains with the active knowledge and support of the petitioner and the other accused.

Sri. P. Vijayabhanu, the learned senior counsel, who appeared for the petitioner on the instructions of Advocate Manu Tom, the learned counsel for the petitioner, would primarily contend that the petitioner has been wrongly implicated in the case. It is submitted that there is absolutely no material collected by the DRI which would indicate that the petitioner was in any manner connected with the alleged smuggling of gold into India. It is submitted that the petitioner has no direct connection in the running of the business of PPM Chains and that the business is being run by the son of the petitioner and other relatives. It is submitted that a search of the residence of the petitioner and other business premises connected/associated with the petitioner did not result in the recovery of any incriminating material. It is submitted that the passengers who allegedly smuggled gold into India on 13.5.2019 are absolute strangers to the petitioner and he has no knowledge of their activities. It is submitted that in the Month of November 2019, notices were issued for adjudication to several persons including the petitioner herein and the petitioner had filed a reply which is identical to the statement given earlier before the DRI officials stating that the petitioner has no connection with the gold seized on 13.5.2019 and completely denying any connection with the alleged smuggling of gold. It is submitted that the petitioner is engaged only in legitimate business and he has no connection with any illegal activity. It is submitted that the petitioner is a 61 year old man with various ailments including heart ailments and his continued detention is not necessary for the purposes of investigation. It is pointed out that the alleged incident of smuggling took place on 13.5.2019 and the petitioner was arrested only on 2.3.2022 while preparing to board a flight to the United Kingdom. It is submitted that the petitioner has been in custody from 2.3.2022. It is submitted that the continued incarceration of the petitioner, is a grave injustice and the petitioner is entitled to be released on bail.

Sri. Suvin. R. Menon, who appeared on behalf of the DRI (representing Sri. S. Manu, Standing Counsel for the DRI) would vehemently oppose the grant of bail. It is pointed out that a decision was taken to arrest the petitioner only after a thorough investigation revealed the clear role of the petitioner in the smuggling activity. It is submitted that the investigation conducted thus far has revealed that the attempt made on 13.5.2019 is only one among the numerous smuggling activities indulged in by the petitioner or others at his behest. It is submitted that the statements recorded from various persons including several employees of the petitioner revealed that at least 680 Kgs of gold have been smuggled into India by the petitioner in connivance with the other kingpins including one Vishnu Somasundaram, Biju. M and the aforesaid Hakkeem. It is submitted that the mobile phones and other incriminating material recovered from the phones of some of the employees of the petitioner itself show that a huge quantity of smuggled gold had been brought into India at the instance of the petitioner. It is submitted that several of the accused are not cooperating with the investigation. It is submitted that the petitioner and the other accused are not cooperating with the investigation and are either absconding or are giving false and vague statements. It is submitted that immediately after the seizure of the gold on 13.5.2019, the petitioner and his son Benzeer P.P., had absconded and had failed to appear before the investigating officer. It is submitted that the petitioner was arrested while he was trying to flee the country through the Calicut Airport on 2.3.2022. It is submitted that the call data records accessed by the DRI reveal that the petitioner was in touch with the other accused in the case. It is submitted that it is normally very difficult to identify and nab the main persons behind a smuggling syndicate. It is submitted that the investigation of the case is only progressing and the grant of bail to the petitioner at this stage may not be conducive as it is very likely that the petitioner will influence the witnesses at least some of whom are employees of the petitioner. It is therefore submitted that the petitioner is not entitled to be released on bail at present.

I have considered the contentions raised. I have also perused certain records including statements recorded from the various persons forming part of the case diary. Considering the serious nature of the allegations and taking note of the fact that several of the persons who have given statements before the DRI incriminating the petitioner are employees of the petitioner, who are likely to be influenced or manipulated, I am of the opinion that the petitioner is not entitled to bail at this point of time. If the petitioner is granted bail, the risk of witnesses being influenced or manipulated is greater since several of the persons who have given statements against the petitioner are also employees of the petitioner. There is no material to suggest that the health condition of the petitioner is so precarious that he is to be released on bail. Further, according to the prosecution, the petitioner was trying to flee from India. There are chances of the petitioner absconding if he is released on bail. Further, I cannot ignore the specific contention of the learned counsel appearing for the respondent that this is possibly one of the rare cases where the kingpin or master mind behind the smuggling activities has been identified and arrested. Therefore, I am clear in my mind that the petitioner is not entitled to be released on bail.

The Supreme Court in Prahlad Singh v. NCT Delhi; (2001) 4 SCC 280 has set out the factors that be kept in mind by the Court while deciding bail applications. Paragraph 8 of that judgment reads as follows:-

The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.”

This position of law has been reiterated by the Supreme Court in various cases. Applying the law laid down in Prahlad Singh (supra), the petitioner is not entitled to be released on bail. The bail application fails and it is accordingly dismissed.