Rajesh Kumar Aggarwal vs State and Others

Sunil Gaur, J.—On 20th July 1999, Petitioner was arrested by the officials of Directorate of Revenue Intelligence, i.e., Respondent No. 2, for committing the offences u/s 132 and 135 of the Customs Act, 1962. In Crl. M.C. No. 2582/1999, Petitioner was enlarged on bail on 15th September 1999 by K.S. Gupta, J., on the condition that the Petitioner will not leave the country without the permission of ACMM, New Delhi and would surrender his passport with Respondent No. 2/department.

In this petition, waiver of the aforesaid condition is prayed for, by contending that in terms of Sub-section (3) of Section 437 of Cr.P.C., no condition can be imposed while enlarging the accused on bail for the offences punishable upto three years and the offences alleged against the Petitioner are also punishable upto a term for three years. Reliance has been placed upon an order passed in Crl. M.C. No. 1072/2003, on 3rd May 2005, by Manju Goel, J., waiving the condition of seeking permission and of substituting it with the rider that the accused would give prior information of his visiting abroad to the concerned court and the said visit would not be of more than three months, each time. Reliance has been also placed upon Crl. M.C. No. 581/2006, decided on 21st August 2007, wherein condition prohibiting the accused from leaving the country without permission of the court was substituted with the direction of prior intimation to the court concerned.

It has been also pointed out the Gujarat High Court in a decision reported in 2007 (3) Crimes 464, had deleted the condition requiring the accused not to leave the Gujarat State without the permission of the court concerned.

This petition has been opposed by the contesting Respondent No. 2, by filing a reply, stating that after completion of investigation, show cause notice was issued by the Additional Director General, Directorate of Revenue Intelligence, Head Quarters, New Delhi to M/s. Sundram Exports Pvt. Ltd., of which Petitioner is one of the Directors and the adjudicating authority has imposed a penalty of Rs. 1,04,48,669/ - and of Rs. 20,00,000/ - (Rupees Twenty Lacs only) on M/s. Sundram Exports Pvt. Ltd. and the Petitioner respectively and since the penalty has not been deposited, detention notice for attachment of the property of M/s. Sundram Export Pvt. Ltd. has been issued and there is every likelihood that to avoid further prosecution, the Petitioner will leave the country.

It is a matter of record that Petitioner and Bimal Kumar Jain were arrested in this case under the Customs Act, 1962 and similar conditions were imposed while granting bail to them in this case. Petitioner and his co-accused Bimal Kumar Jain are similarly placed and they cannot be treated differently. The condition of seeking permission from the court concerned, before going abroad, stands waived by another bench of this Court in Crl. M.C. No. 1072/2003 filed by co-accused Bimal Kumar Jain but, Mr. Satish Aggarwala, advocate for Respondent No. 2 is quick to point out that when the condition in the case of co-accused was waived, then the departmental adjudication proceedings against the company were still pending. To my mind, that will not make any difference, for the reason that the attachment proceedings against the company cannot be put on hold because present accused is not available. In any case, Petitioner cannot be treated differently than his co-accused Bimal Kumar Jain, as they are similarly placed in this case.

This court is persuaded to waive the condition imposed upon the Petitioner to seek permission every time, he has to travel abroad, because Petitioner is an exporter and he has to frequently travel abroad for business purpose, and it entails undue expense and inconvenience to obtain formal permission from the Court every time to travel abroad. Since contesting Respondent has not still launched effective prosecution against the Petitioner and his co-accused, although, a decade has passed, therefore, the Petitioner is entitled to be treated at par with his co-accused Bimal Kumar Jain.

In view of the aforesaid, the condition imposed upon the Petitioner in Crl. (M) No. 2582/1999 on 15th September 1999, of surrendering his passport and of seeking permission from the court of ACMM, New Delhi, to visit abroad is modified to the extent that the Petitioner may leave the country with prior intimation to the court concerned about the date of his departure, the place of his stay in foreign country and about the anticipated date of his return and his each visit abroad should not be more than three months at a time and he would not visit the countries with which India does not have extradition treaty, like, Middle East countries etc. The passport of the Petitioner be returned to him.

This petition is disposed of accordingly.