Shaneef P.P vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the fourth accused in OR.No.2/2024 of Directorate of Revenue Intelligence, Cochin, Ernakulam, registered against the accused (four in number) for allegedly committing the offence punishable under Section 135 of the Customs Act ( ‘the Act’ for short). The petitioner was arrested on 18.04.2024.

The crux of the prosecution case is that: on 16.03.2024, 1250 grams of gold were seized from the possession of the first accused, who was working as a cleaning staff in Calicut International Airport for the last two years. In the course of interrogation of the first accused, a statement was recorded under Section 108 of the Act, wherein the first accused stated that the accused 2 and 3 are also involved in the case. Consequently, the accused 2 and 3 were arrested in the crime. During the course of their interrogation, the third accused stated that he had given the gold to the fourth accused. Accordingly, the fourth accused was issued with a notice under Section 108 of the Act, and was arrested on 18.04.2024. Thus, the accused have committed the above offences.

Heard; Sri.P.A. Mohammed Shah, the learned counsel appearing for the petitioner and Sri. Sreelal Warrier., the learned Special Public Prosecutor appearing for the respondent.

The learned counsel for the petitioner vehemently submitted that the petitioner is totally innocent of the accusations leveled against him. There is no incriminating material on record to substantiate that the petitioner is involved in the case. A reading of the First Information Report as well as the statement filed by the respondent would show that it was only on the basis of the statements of the accused 1 to 3, the petitioner has been implicated as an accused in the crime. The accused 1 to 3 have been enlarged on bail by the Court of Session, Ernakulam, as per Annexure A4 to A6 orders. The petitioner is at par with the said accused and is entitled to the benefit of a similar order. The petitioner has been languishing in jail for the last 36 days, the investigation in the case is practically complete, and the recovery has been effected. Therefore, the petitioner's further detention is unnecessary. Hence, the application may be allowed.

The learned Special Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that the petitioner is a kingpin in the crime. It is contended that as per the statements given by the accused 1 to 3 and the petitioner’s own voluntary statement recorded under Section 108 of the Act, he has admitted that he received Rs.10,000/- as remuneration on four occasions from one Ismail of Koduvally and also a total quantity of 6.25 kg of gold worth Rs.3.75 Crores was smuggled to the country. The investigation in the case is in progress. If the petitioner is enlarged on bail, there is every likelihood of him influencing the witnesses and tampering with the evidence, which would be detrimental to the prosecution. Hence, the application may be dismissed.

The prosecution allegation is that the first accused was found in possession of 1250 grams of gold, which was seized from his conscious possession. During the course of his interrogation, he stated that the accused 2 and 3 were also involved in the crime. Subsequently, the third accused stated that he had given the gold to the fourth accused/the petitioner. Indisputably, the accused 1 to 3 have already been enlarged on bail as per Annexure A4 to A6 orders passed by the Court of Session, Ernakulam, in Criminal MC.Nos.1108,1155 and 1174 of 2024. I am certain that the petitioner can claim parity with the accused 1 to 3 since he has been implicated on the basis of the alleged statements given by the third accused. Other than that, there is no material. Even as per the prosecution case, the gold was seized from the conscious possession of the first accused, who has been released on bail on the 30th day. Furthermore, the petitioner has been in judicial custody for the last 36 days, the investigation in the case is practically complete, and the recovery has been effected.

After bestowing my anxious consideration on the facts, the materials placed on record, the rival submissions made across the Bar, especially on considering the fact that accused 1 to 3 in the crime have already been enlarged on bail by the Court of Session, that the petitioner has been in judicial custody for the last 36 days, that the investigation in the case is complete, and that the recovery is to be effected, I am of the definite view that the petitioner is entitled to be released on bail. Hence, I am inclined to allow the bail application, but subject to stringent conditions.

In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions:

(i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. He shall also appear before the Investigating Officer as and when required;

(ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(iii) The petitioner shall not commit any offence while he is on bail;

(iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond;

(v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.

(vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below.

(vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].