Rohit Sakhuja vs State and Another

V.K. Shali, J.

Crl. M.A. no. 19546/2012 (for exemption)

Exemption allowed, subject to the deficiency being rectified.

The application stands disposed of.

Bail Application no. 1736/2012

This is an application filed by the petitioner u/s 438 read with Section 482 Cr.P.C. for grant of anticipatory bail in FIR no. 254/2012, under

Sections 380/468/471/34 IPC, registered at Police Station Pur Prahladpur. Briefly stated the allegations against the petitioner are that on

25.5.2012, eight containers containing goods of various description, imported at ICD, Tughlakabad, New Delhi, were illegally taken out from the

custody of CONCOR on the basis of gate passes which were apparently bearing forged signatures of Customs Officers. The said containers

contained one thousand imported air conditioners, more than 600 imported gas cylinders of R-22 refrigerant gas and 580 cartons (62,40,000

sticks) of imported cigarettes of Indonesian origin. The total value of the goods was worth more than Rs. 10 crores.

It is also the case of the prosecution that R-22 refrigerant gas is an Ozone depleting substance and its import is restricted as per Foreign Trade

Policy. The investigations by the Customs Authorities were conducted and the statement of the present petitioner u/s 108 of the Customs Act was

recorded. Similarly, the statements of driver and co-accused of the present petitioner were also recorded, who took the name of the present

petitioner pursuant to which raids were conducted at the godowns of the present petitioner and the goods which were illegally taken out, on the

basis of the alleged forged documents, are stated to have been recovered. Similarly, the documents which are purported to be forged have also

been recovered and the specimen signatures and handwriting of the petitioner have also been obtained and sent for comparison to the Forensic

Laboratory. On the basis of these allegations not only a complaint case under Customs Act was filed against the present petitioner but an FIR was

also registered on 27.8.2012 bearing no. 254/2012, under Sections 471/380/468/34 IPC, registered by Police Station Pur Prahladpur. The

petitioner is on bail in the complaint case under Customs Act, being a bailable offence.

The present petitioner, feeling aggrieved by the registration of the aforesaid FIR, had filed an application for grant of anticipatory bail before the

Court of Sessions which came to be rejected on 23.11.2012 on the ground that the petitioner was evading appearance before the investigating

agency and also because of the alleged forgeries having been made in taking out the goods from the ICD.

Feeling aggrieved, the present petitioner has filed the second application for grant of anticipatory bail before this court.

I have heard Mr. Nandrajog, the learned senior advocate appearing on behalf of the petitioner, who has vehemently contended that since the

goods which are alleged to have been taken out from the ICD, Tughlakabad have been recovered, specimen signatures of the present petitioner

have been obtained and sent for comparison with the questioned documents, no useful purpose would be served by denying the grant of

anticipatory bail to the petitioner because his custodial interrogation is not required. For this purpose, the petitioner has also relied upon the case

titled Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, and the bail order passed by this court in Bail Application no.

2492/2009 dated 19.3.2012 titled Monika Singh vs. State.

The second submission made by the learned counsel is that the incidence is purported to have taken place in the month of May, 2012. The

Apex Court in Om Prakash and Another Vs. Union of India (UOI) and Another, has observed that offences under Customs Act are bailable

offences and, therefore, the petitioner was able to get the bail. It is stated that during the course of issuance of notices to the petitioner u/s 108 of

the Customs Act, the petitioner was required to be interrogated in the presence of a counsel, who was to sit at some distance from the petitioner.

This order was obtained by the petitioner from the Hon''ble Apex Court. It is stated that since the petitioner had obtained an order from the Apex

Court regarding the presence of a counsel during the course of interrogation, the Customs Authorities felt offended. They could also not arrest the

petitioner, the offence being bailable now. They, after expiry of more than three months, have tried to be revengeful to the petitioner by getting the

FIR in question registered. It is, therefore, stated that the very registration of the aforesaid FIR by the Customs Authorities is mala fide only with a

view to arrest the petitioner and subject him to custodial interrogation.

It has also been lastly observed by the learned senior counsel that in the event of bail being denied to the petitioner, if at all, the petitioner is to be

subjected to custodial interrogation, the order which has been passed by the Apex Court granting him the liberty to be interrogated in the presence

of a counsel, should also be extended to the interrogation which is to be done by the prosecuting agency.

The learned APP for the State has vehemently contested the grant of the bail to the petitioner. It has been contended by Mr. Sharma, the

learned APP that the investigations are still at the threshold and the grant of anticipatory bail to the petitioner, at this stage, will only hamper the

investigations and prevent the investigating agency to go to the root of the matter inasmuch as to find out as to whether there was a larger

conspiracy involving officials of the Customs Department also in the case. He has stated that in case the anticipatory bail is granted, it will

completely block the investigating agency from reaching to the bottom of the matter.

I have carefully considered the submissions made by the learned senior counsel for the petitioner and have gone through the authorities cited by

him. No doubt, the Apex Court in Siddharam''s case (supra) has observed that the provisions of anticipatory bail should be used liberally in favour

of the accused persons but there is no such direction that whenever such an application is filed, invariably, the bail ought to be given. The grant of

anticipatory bail is an exercise of discretion which is to be governed by the settled judicial principles.

In the instant case, the facts are such which show that the goods worth Rs. 10 crores were taken out from the custody of the Government

authority, that is, Customs Authorities on the basis of forged documents which could not have been done without the complicity of somebody from

the inside of the office of Customs. At this stage, in order to reach to the root of the matter, it would require custodial interrogation of the

petitioner. Merely because the goods have been recovered on the basis of the statements made by the driver of the vehicle, who had transported

the goods or on the basis of the statement made by the co-accused, who had shifted the entire burden on to the present petitioner painting him as

the main king pin who was indulged in these nefarious activities or that the Customs Authorities had obtained the signatures and the handwriting of

the petitioner and sent for comparison, does not mean that the petitioner deserves to be granted anticipatory bail. The modus operandi of the

offence is such that it will require a fair chance to be given to the prosecuting agency to investigate into the matter freely. In case, anticipatory bail is

granted to the petitioner, it will only create hurdles.

So far as the observations which were passed by this court in Monika Singh''s case (supra), that custodial interrogation is not sine qua non for

every case are concerned, there is no dispute about the same but the question as to whether custodial interrogation is required in a given case or

not or whether an accused in a given case is entitled to be granted the anticipatory bail or not will be dependent on the facts and circumstances of

each and every case. In Monika Singh''s case (supra), the main distinguishing features from the facts of the present case were that it was a dispute

between the lady Monika Singh one side and her husband and the father-in-law on the other. The allegation against Monika Singh were that she

had purportedly sold the flats which did not belong to her and which was registered in the name of her husband or father-in-law. While as in the

instant case, the financial implications are much higher than the Monika Singh''s case and secondly, it shows that there is some kind of racket going

on in taking out the goods illegally on the basis of forged documents from ICD, Tughlakabad, and then selling them in the open market. This need

to be probed into by the investigating agency and for this purpose, a free hand deserves to be given to them. I, therefore, feel that merely because

certain observations have been passed by this court in Monika Singh''s case (supra), they do not ipso facto apply to the present case.

Keeping in view the enormity and the gravity of the offence in the instant case, I feel it is not a fit case where this court should exercise

discretion in favour of the petitioner and grant him anticipatory bail. Accordingly, the application for grant of anticipatory bail is rejected. I also feel

that since there is no specific prayer in the petition that the petitioner should be interrogated in the presence of a counsel, it will be totally

inappropriate to pass any such order in an anticipatory bail application. The said oral prayer is also rejected.