R. A. MEHTA, J. ( 1 ) BOTH these applications are filed by the Customs authorities for cancellation of bail and are supported by the State through its learned counsels Mr. J. U. Mehta and Mr. K. T. Dave Addl. PPs. Special Criminal Application No. 1262/ 86 is directed against the order of the learned J. M. F. C. releasing the first respondent on bail and the Misc. Criminal Application No. 25/89 is for cancellation of the bail for breach of conditions on which it was granted earlier and continued. ( 2 ) THE respondent No. 1 is allowed to have been involved in a smuggling transaction wherein the gold worth Rs. 28 crores has been seized gold was to be delivered to first respondent Umar Haji Hasan and his brother Fakirmahomad. The seizure was effected in a dramatic film like chase. On 2 the coast guard officers saw countrycraft named Al-Khalidi in the Indian waters between Porbandar and Jakhau and the same was chased. When the Coast Guard officers gave a signal to the said countrycraft to stop the countrycraft did not comply with the signal and tried to fun away and therefore for intercepting the said countrycraft officers of the Coast Guard had to resort to helicopter and fire arms and ulti- matley the said countrycraft was caught hold of and the crew members were arrested. Two of the crew members were injured in cross-firing and admitted in the hospital at Jamnagar and Porbandar and other members were taken to Bombay. The countrycraft was searched and it was found carrying 75 0 tolas of gold worth Rs. 28 crores. The tow injured crew members namely Swali Ahmed and Mohmed Khalil Pirmahomad were admitted in Porbandar hospital and were subsequently transferred to Jamnagar hospital. Swali Ahmed was the Tandel of the vessel. He in his statement revealed that the gold was to be delivered to one Kasam. 28 crores. The tow injured crew members namely Swali Ahmed and Mohmed Khalil Pirmahomad were admitted in Porbandar hospital and were subsequently transferred to Jamnagar hospital. Swali Ahmed was the Tandel of the vessel. He in his statement revealed that the gold was to be delivered to one Kasam. The statement of Mohmad Khalil Sir mohamed was also recorded under Section 108 of the Customs Act on 3-12-1988 and he gave details of Kasam who was to take delivery of the said gold and the relationship of Kasam with present respondent No. 1 Umar Haji Hasan and his brother Fakirmahomed Haji Hasan Subhania that Kasam is the nephew of the present respondent No. 1 Mahomed Khalil further stated that the said gold was to be delivered to Kasam and Kasam was to take delivery of the said gold on behalf of respon- dent No. 1 and his brother (the brother was arrested in Bombay an proceedings for bail and cancellation of bail in Bombay High Court will be referred hereinafter ). Subsequently the statement of Swali Ahmed (Tandel) was also recorder under the Customs Act and he has also stated that the gold was to be delivered to Kasam who was to receive on behalf of re- spondent No. 1 and his brother. On this information the respondent No. 1 was arrested and pro- duced before the J. M. F. C. Porbandar (his brother was arrested in Bombay ). The respon- dent No. 1 submitted an application for releasing him on bail and the same was contested by the Superintendent of Customs by filing an affidavit. ( 3 ) THE learned JMFC by his order dated 14-12-1988 released respondent No. 1 on bail on Rs. 20 0 cash and surety for Rs. 2 0 0 and personal bond of Rs. 1 80 0 on the fol- lowing conditions:- (I) He shall record his presence at Customs Office at Probandar on 1st and 15th of every month; (II) He shall not leave India till disposal of the case; (III) He shall not tamper with any witness for complainant; (IV) He shall not involve in any offence of this crime; (V) He shall remain present for interrogation in respect of his offence whenever asked by the Customs authorities. ( 4 ) BEING aggrieved by this order the Customs have preferred Special Criminal Appli- cation No. 1262 for setting aside the order granting bail. On 21-12-1988 while admitting the petition the High Court passed the following order:rule to be made returnable on 28-12-1988. Mr. M. D. Pandya P. P. waives service of rule on behalf of respondent No. 2. Direct service permitted for respondent No. 1. Ad-interim relief to the effect that respon- dent No. 1 instead of making his presence as per the order dated 14-12-88 passed by the learned Judicial Magistrate First Class Por- bander in Misc. Cri. Appln. No. 712/1988 is ordered to mark his presence everyday at the place mentioned in the said order. It is clarified that the rest of the orders passed by the aforesaid court regarding releasing respondent No. 1 on bail remains intact. ( 5 ) THUS it was directed that respondent accused should mark his presence everyday instead of every fortnight. ( 6 ) EVEN though the accused was subjected to condition that he shall be available for interrogation whenever required by the Customs authorities that accused made himself scarce and was not available for service of the order of the High Court directing him to remain present everyday and his whereabouts were said to be not known even to his family members. The photocopy of the said order was sent to him by registered post by the customs authori- ties. ( 7 ) HARUN Haji Hasan Sumbania another brother of the respondent has filed an affidavit dated 29 on 30-12-1988 stating that he was given to understand that the High Court had passed an interim order partly staying the order granting bail to the opponent and that he was filing that affidavit to put certain documents on record. He placed on record a medical certificate dated 27 issued by Dr. S. D. Raj M. B. B. S. Bombay certifying that Umar Haji Hasan was under him treatment from 22-12-88 for foot injury and he was advised rest upto 16- 1-1989. The High Court had passed order on 21-12-1988 and next day he came to be under treatment of Dr. S. D. Raj at Bombay. ( 8 ) THE affidavit further states that another brother Fakir Mohmed Haji Hasan Sumbania was arrested by the DIR Bombay and was released on bail on the Bombay High Court. The High Court had passed order on 21-12-1988 and next day he came to be under treatment of Dr. S. D. Raj at Bombay. ( 8 ) THE affidavit further states that another brother Fakir Mohmed Haji Hasan Sumbania was arrested by the DIR Bombay and was released on bail on the Bombay High Court. That order dated 26 of the Bombay High Court reads as follows:the petitioner shall be released on bail in the sum of Rs. 2 lacs with one surety in the like amount. Liberty to deposit cash in lieu of surety bond is refused. Application for stay rejected. Applicant shall attend the office of DRI at Colaba from 11 a. m. to 1 p. m. everyday for one week. He shall not leave India without permission of the court. ( 9 ) THE affidavit further contests the prayer for cancellation of bail on merits and in para 7. 1 it is stated that in any case the condition imposed that the opponent should report daily at Porbandar should be waived. It was pointed out that there is a distance of about 150 kms between Jam Khamblia and Porbandar and it the opponent has to report daily at Porbandar it would cause considerable inconvenience and hardship to him. It was further pointed out that the opponent was under treatment at Bombay and he will have to be at Bombay for the purpose of treatment till 16/01/1989 and thereafter when the opponent returns to Jam Kham- blia the daily going to Porbandar for reporting would create an impossible situation. On the date on which this affidavit was filed the was heard before Mr. Justice A. S. Qureshi and the following order was passed:the matter is S. O. to 16-1-1989 at the request of the parties. Mr. K. S. Nanavati learned advocate appearing for respondent No. 1 has submitted that the condition imposed while granting the interim relief is required to be modified to the extent that the said respon- dent may be directed to present himself before the Customs authorities at Jam Kambhalia instead of Porbandar. Mr. B. B. Naik the learned Addl. PP has no objection. Mr. B. B. Naik the learned Addl. PP has no objection. Hence the earlier order is modified to the extent that the respondent No. 1 will present himself daily before the Customs authorities at ham Khambhalia instead of Porbandar with effect from 3 ( 10 ) THUS at the instance of respondent No. 1 accused the condition of daily reporting at Porbandar was changed to daily reporting to Jam Khambhalia and the excuse for remaining in Bombay for treatment was clearly given up and it was also directed that the respondent No. 1-accused with present himself daily and report to the Customs authorities at Jam Khambhalia with effect from 3 ( 11 ) ON 2-1-1989 the time to remain present before the Customs authorities at Jam Khambhalia was extended upto 4-1-1989. On 4-1-1989 the learned counsel for the respondent No. 1-ac- cused filed a note placing two medical certificates on record dated 3-1-1989. In one medical certificate it is stated that the accused-respondent No. 1 was suffering from Angina Pectoris (Ishaemic heart disease) and was advised to take complete rest in bed for 10 days; and in another certificate of the same date from the hospital states that the respondent No. 1-ac- cused was suffering from knee joint trauma (he is unable to walk) and was advised to take complete bed rest for 15 days. In first certificate he was advised not to travel for 10 days and was advised to undergo treadmill test after 10 days. None of these two certificates show that he was hospitalised and none of these certificates give any address of the respondent No. 1-accused. Apparently no order was sought from the court for changing or extending the time for reporting to the Customs officers at Jam Khambhalia. It is admitted position that till 16 the respondent No. 1 accused did not report to the Customs officers as directed by the court in the condition of granting and continuing bail and did not comply with the requirements of remain- ing present as and when required by the Customs officers. In the affidavit dated 16-1-1989 filed by the son of respondent No. 1-accused he has placed further certificate on record. In the affidavit dated 16-1-1989 filed by the son of respondent No. 1-accused he has placed further certificate on record. Certificate dated 10 of prince Aly Khan Hos- pital show that he was admitted in that hospital from 7-10/1/89 and his case was of chest pain angina pectoris under evaluation and was being referred to Bombay hospital. There in nothing to show that he had reported to Bombay hospital and underwent test prescribed for him in the earlier certificate. It is further stated in the affidavit that the condition of respondent No. 1- accused continued to be as before and therefore he was under treatment of doctors at Bombay and today i. e. on 16 in the morning at 8 oclock he has remained present himself be- fore the Customs authorities at Jam Khambhalia. In another affidavit dated 4-2-89 his son i. e. son of respondent No. 1-accused reiterated that the respondent No. 1-accused was not keeping good health and was undergoing medical treatment in the hospitals at Bombay; he was under- going medical treatment for the ailment from which he was suffering i. e. heart problem in the hospitals at Bombay and that he was advised not to travel and to take complete bed rest on the basis of the medical certificates produced before this Court. It is further stated that the respondent No. 1 had on being released from the hospital straightaway presented himself before the customs authorities at Jam Khambhalia on 16-1-1989 in compliance with the order of this court. ( 12 ) THIS story of illness and medical treatment has turned out to be a mere excuse for keeping away from the compliance of conditions of the bail as is evident from the fact that on 10-1-89 he went to Calcutta and moved an application in Calcutta High Court for interim order against his apprehended detention under COFEPOSA. This fact is in an undisputed fact and is also admitted in para 1. 2 of the affidavit of the son of the respondent No. 1-accused. ( 13 ) THE detention order was passed by the Govt. of India on 9-1-89 at Delhi. The accused was in Bombay. The smuggling incident had taken place near Porbandar in Gujarat. He was released on bail at Porbandar and is a resident of Jam Khambhalia and President of Jam Khambhalia Nagar Panchayat. He had attained bail and secured liberty in Gujarat. of India on 9-1-89 at Delhi. The accused was in Bombay. The smuggling incident had taken place near Porbandar in Gujarat. He was released on bail at Porbandar and is a resident of Jam Khambhalia and President of Jam Khambhalia Nagar Panchayat. He had attained bail and secured liberty in Gujarat. However he went to Calcutta and obtained interim orders against his apprehended detention under COFEPOSA. ( 14 ) SIMILAR is the story of his brother who was also required to report daily to the DRI au- thorities at Bombay. He also made himself scarce and did not comply with the conditions of reporting to the DRI authorities and went underground after his release on bail obtained interim orders against his detention from Calcutta. He had also story to tell for not reporting daily to the DRI at Bombay which is seen from the judgment of Bombay High Court cancelling the bail. He was ordered to be released on bail on 26 According to that accused he received a telephonic call on the same day i. e. 26-12-88 to the effect that his mother was seriously ill and therefore he was required to go of Porbandar and therefore he moved an applica- tion before the Bombay High Court for modification and the learned Judge directed that while that accused was going to his nature place he shall report to Asst. Collector of Cus- toms all Porbandar during this time as required under the order dated 26-12-1988. It was further directed that the accused shall also report at Bombay after he left Porbandar and that he should again start reporting to DRI Colaba from 10-1-89. That accused did not attend the office of DRI on 28-12-88 and from that day onwards did not report any where and he did not report at the office of the Assistant Collector Customs at Porbandar. According to the accused he went to Porbandar on 29-12-88 and reached Jam Khambhalia on that day at about 10 p. m. and he learnt there that his mother was seriously ill and she had been taken to Jamnagar. On the next day he went to Jamnagar to see his ailing mother in the Nursing Home of Dr. K. S. Shah. On the next day he went to Jamnagar to see his ailing mother in the Nursing Home of Dr. K. S. Shah. According to him to seeing the condition of his mother he was greatly upset and his mother expressed a desire and asked him to pay a visit of Dargah of St. Chisti at Ajmer and he was further asked by his mother to remain in Ajmer for seven days and offer prayers 40 times and accordingly he went to Ajmer and remained there till 8-1-89 and came on that day he left Ajmer and proceeded to Calcutta where he reached on 8-1-89 and came to Bombay on 10- 1 In Calcutta he moved an application in Calcutta High Court and obtained an order re- straining the Government of India from detaining him under COFEPOSA and after obtaining this order came to Bombay and reported to DRI. ( 15 ) IN that case also it was contended that the accused had bona fide intention to comply with the order of conditions of bail but because of the illness of his mother and her desire to Offer prayers at Ajmer he could not comply with the conditions. As regards going to Calcutta and obtaining the stay order it was contended that he had secured the order as provided under law and his bona fides cannot be questioned on that behalf. The Bombay High Court did not accept his story and cancelled the bail. Para Nos. 13 14 and 18 of the order of Mr. Justice H. Suresh. dated 18 reads follows:13 Thus it is clear that from 29-12-88 till he came back to Bombay he was not available for investigation apart from the fact that he deliberately flouted and order of this court. He made himself scarce. This is nothing but absconding entitling the applicants to make the present application to have his bail cancelled. 14 The fact that he came back from Calcutta with an order from the Calcutta High Court in respect of an order passed at Delhi and in respect of an incident that took place at porbandar with regard to which all the proceedings are in Bombay speaks volumes for his conduct. While propriety demands that I should say nothing as far as the Calcutta High Court is concerned. While propriety demands that I should say nothing as far as the Calcutta High Court is concerned. I will have no hesitation in lamenting upon the active connivance on the part of the legal fraternity that has advised and assisted him. But that apart I am inclined to think that this is nothing but gross abuse of freedom that he got under the bail order. ( 16 ) MR. Vakil on behalf of his client tendered an apology. I do not accept that apology. Apology is only a rare to avoid the law. I have no sympathy for a person who has scant respect for the order of this Court. He deliberately flouted the order to this court. He misused the freedom that was given to him by the order of this Court. He subverted the judicial process when he went of Calcutta and brought an order behind the back of the officers. Having come to this court and having obtained freedom on bail from this court in all fairness he ought to have moved this court after due notice to the other side. The fact that he did not do so shows his basic distrust of this court. ( 17 ) I wholeheartedly agree with these observations. I would only add that it is not the distrust of the court it is fear of the court When a criminal or a smugglers is afraid of the court that court can take it as a compliment that the persons who must be afraid of the court are really afraid of the court. It is not always that such persons came to the court for justice real and substantial out they want to use the court and the judicial process to meet their own ends and purposes. Naturally they are advised to select the forum which serves their ends and purposes. Howsoever one may disprove of such advice and tactics it is likely to continue till the proper court does something about it. ( 18 ) SIMILAR is the make-believe story of this present respondent-accused. Both the brothers have parallel make-believe stories for identical purposes. Strangely the story about mothers illness does not find any place in the story of the present respondent. ( 18 ) SIMILAR is the make-believe story of this present respondent-accused. Both the brothers have parallel make-believe stories for identical purposes. Strangely the story about mothers illness does not find any place in the story of the present respondent. Both the brothers are in Bombay then one brother receives a telephone call about serious illness of mother but the other brother (the present respondent) does not get that information Even though he is aware of the High Courts order that he has to report daily at Porbandar and at his instance the place of reporting is changed from Porbandar to Jam Khambhalia he does not care to report his whereabouts he does not care to report extension/modification an on false excuses re- maines away from law and law-enforcing officers and deliberately flouts the conditions of bail. The story of his illness seems to be a bogey in view of the fact that he did not go to Bombay hospital as directed. He has not produced any medical evidence in that respect and he did not have any history or past record and does not show that he has serious heart ailment. Once the story of illness and excuses falls to ground it is clear that he has deliberately and wilfully disobeyed the conditions of bail and therefore the bail is required to be cancelled on that ground and therefore the Misc. Criminal Application No. 25/89 is required to be allowed. ( 19 ) THE Special Criminal Application No. 1262/88 has also strong merit in it. The learned trial Magistrate has observed that there is no prima facie case against the accused and that he is the President of Jam Khambhalia Municipality and that there is no basis for appre- hension that he will not be available for trial. ( 20 ) THE learned counsel for the Customs authorities has submitted that the present accused is not only involved in smuggling activities but his present connection in the inci- dent is also shown. It is submitted that ten years ago the respondent was involved in an incident of huge quantity of snake skins and he was penalised for the same. It is submitted that ten years ago the respondent was involved in an incident of huge quantity of snake skins and he was penalised for the same. On behalf of the accused it was submitted to the learned Magistrate that an appeal against the order of penalty was pending and that thereafter there is no incident in 10 years and that he is democratically elected public worker and thus he has completely reformed himself and in such circumstances if he was not released on bail his mind was likely to be perverted and that he should be given additional opportunity in accordance with reformative theory. The learned Magistrate has completely agreed with such arguments. . ( 21 ) THE reasons of the learned Magistrate about lack of prima facie case as well as consideration of reformative theory and the respondent being a public figure are thor- oughly erroneous and perverse. In transactions of such a magnitude it is very difficult to get direct physical involvement with prime persons. It is true that the respondent was not Mahomed Khalil Pirmohmed is of significance in view of the fact that he was not an ordinary crew member he was sent by the owners of the vessel in Dubai and he has stated that the gold was to be delivered to Kasam nephew of respondent No. 1 for delivering to respondent No. 1 by Kasam for further disposal. This statement has not been believed by the learned Magistrate on the ground that the statement does not show that the owner of the launch had talked with the present respondent-accused and that there was nothing showing that the owner had given such instructions and there fore it was not possible to infer that the present respondent had any knowledge about the smuggling of gold or he has any connection with the conspiracy. Thus the learned Magistrate has not given any effect to the statements that these two brothers were to be recipients of this smuggled gold. Therefore the finding of the learned Magistrate that there is no prima facie case is utterly baseless and erroneous. Thus the learned Magistrate has not given any effect to the statements that these two brothers were to be recipients of this smuggled gold. Therefore the finding of the learned Magistrate that there is no prima facie case is utterly baseless and erroneous. At this stage for consideration on bail the court is not required to give any finding that there is a certainty of conviction but on the material on record it can certainly be said that there is a prima facie case against the respondent-accused and there is sufficient material to try the respondent- accused for the offence. The learned Magistrate has also mentioned that Kasam was not yet arrested and his statement was not recorded but the learned Magistrate has not appreciated that accussed Kasam has been absconding and is not traceable and not available. The learned Magistrate has also not appreciated the fact that the incident occurred on 2-12-88 and on 14-12- 88 he has passed order for release of the accused on bail when the investigation was at a very crucial stage and at this stage the release of persons who were alleged to be accused recipi- ents of huge quantity of gold will be detrimental to the course of investigation are prom- ised so as to secure liberty and immediately thereafter all such promises and conditions become nugatory as seen from the present case. ( 22 ) THE learned counsel for the first respondent submitted that cancellation of bail already granted is quite different from refusing bail in the first instance. Once the bail is granted in exercise of judicial discretion it cannot be cancelled because of change of forum. It is submitted that valid and cogent reasons are required for cancellation of bail already granted. Reliance is placed on the observations of Supreme Court in the case of Bharatsinh Jadeja v. State of Gujarat 1984 SC 372 it is true that valid and cogent reasons are required for cancellation of bail but in the present case such reasons are there. The learned Magistrate has not appreciated the prima facie involvement of the respondent and that there is huge quantity of gold worth Rs. The learned Magistrate has not appreciated the prima facie involvement of the respondent and that there is huge quantity of gold worth Rs. 28 crores involved in the smuggling transaction persons involved are having all the resources and means to defeat the course of investigation and in the given case persons who have been released on bail on conditions to cooperate with the investigation and report to the investigators have willfully and deliberately failed to comply with these conditions and that has been done with a view to hamper the investigation as well as abusing the process of court and liberty granted by the court. ( 23 ) THE learned counsel for the respondent No. 1 submitted that there is no damage done to the investigation. Same argument was advanced in the Bombay High Court and it was observed that it is a very serious economic offence the types of which are on the increase and which cannot be approached in a casual manner; it is clear that the first respondent was not available for investigation purpose for a long time. When the court granted bail and imposed a term that he should be available for interrogation whenever required and shall also report daily which was not an empty formality but was essentially for the purpose of enabling the authorities to further investigate and for which the presence of the respondent was necessary. It is a fact that the respondent disappeared soon after his release on bail without giving any address or whereabouts and thereafter completely evaded the authorities on false excuse without any bonafide justifications. It is sufficient to hold that he has clearly obstructed the investigation. The respondents nephew who is said to be involved has not been traced so far. Bombay High Court observed: In offences of such type with money muscle and middlemen wielding considerable influence investigation is not easy. I entirely agree with the observation made by the Bombay High Court in the case of the brother of first respondent. Non-availability of this person for investigation and his going underground would clearly show that he was engaged in obstructing the investigation and the result is a serious set- back of the investigation. ( 24 ) SINCE the learned Magistrate has illegally and without valid reasons granted the bail his order is required to be set aside. Non-availability of this person for investigation and his going underground would clearly show that he was engaged in obstructing the investigation and the result is a serious set- back of the investigation. ( 24 ) SINCE the learned Magistrate has illegally and without valid reasons granted the bail his order is required to be set aside. The bail is also required to be cancelled because of viola- tion of conditions on which bail was granted and continued. On both these grounds the bail is required to be cancelled hence the said Special Criminal Application No. 1262/88 is also required to be allowed by quashing and setting aside the order dated 14-12-88 passed by the learned Magistrate Porbandar. ( 25 ) IN the result both these applications are allowed and rule is made absolute and the bail granted to the respondent No. 1 is cancelled forthwith and the respondent No. 1 is ordered to be taken into custody. ( 26 ) THE learned counsel for respondent No. 1 prays that the order of cancellation of bail be stayed for three weeks to enable him to approach Supreme Court. Said request is rejected. Similar request was made by the respondent accuseds brother in the Bombay High Court and that was also rejected. ( 27 ) THE authorities are at liberty to take the respondent No. 1 in custody and produce him before appropriate jail authorities for judicial custody. At the request of learned counsel for respondent No. 1 it is recorded that the respondent No. 1 has remained present at the time of hearing of this petition since last 3-4 days and today also he is here. (RPV) Applications allowed. .