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2002 DIGILAW 417 (PNJ)

Deputy Commissioner Of Customs v. Ashok Kumar

2002-04-22

NIRMAL SINGH

body2002
Judgment Nirmal Singh, J. 1. The relevant facts for the disposal of this petition are that Ashok Kumar, respondent floated a firm in the name and style of M/s. Megna Impex, Sehdav Market, Jalandhar and taken incentive and benefit of DEPB scheme to the tune of Rs. 1.85 crore by forging bank realisation certificate and other documents and also substitution of export related document showing value of exports amounting to Rs. 9.00 crores approximately. The department investigated the case and has also asked its counter parts at Dubai for investigation whether the alleged material was exported. After investigation, it revealed that no money was received from abroad in 29 cases against 33 consignment. After completion of the investigation, a complaint under Section 135 of the Customs Act (hereinafter referred to as the Act) was filed for which the respondent is facing trial. 2. Respondent was allowed pre-arrest bail vide order dated 24-7-2001 passed by the Sessions Judge, Amritsar. While allowing bail, one of the conditions imposed was that respondent shall not leave India without prior permission of the Court and shall surrender his passport before the Customs authorities. 3. The respondent filed an application before the Sessions Judge for grant of permission to visit Dubai from 22-9-2001 to 3-10-2001 and requested that his passport may be released. The learned Sessions Judge vide order dated 13-9-2001 granted permission to the respondent to visit Dubai from 22-9-2001 to 3-10-2001 on furnishing personal bond in a sum of Rs. 2,00,000/- with two sureties of the like amount to the satisfaction of Chief Judicial Magistrate, Amritsar and on his furnishing an undertaking that he shall appear before the Court along with his passport on 3-10-2001. It was also directed to the Customs authorities to release the passport of the applicant three days before 22-9-2001 against a valid receipt. 4. Aggrieved by the order dated 13-9-2001, the Deputy Commissioner, Customs filed the present revision petition. 5. Ms. Ranjna Sahi, learned Counsel appearing for the Customs submits that the Court while allowing the pre-arrest bail has imposed a condition that the respondent will not leave the country without, prior permission of the Court. 4. Aggrieved by the order dated 13-9-2001, the Deputy Commissioner, Customs filed the present revision petition. 5. Ms. Ranjna Sahi, learned Counsel appearing for the Customs submits that the Court while allowing the pre-arrest bail has imposed a condition that the respondent will not leave the country without, prior permission of the Court. She submitted that this condition was imposed keeping in view that the respondent may not flee from the country but the learned Sessions Judge erroneously gave permission to the respondent to visit country where the investigation is going on and the relevant evidence on the basis of which the case against the respondent is to be proved i.e. in a country which the respondent wants to visit. She submitted that the petitioner is not going to visit Dubai for the purpose of his business but the purpose of the respondent to visit Dubai is that he may be able to tamper with the evidence. 6. On the other hand, Mr. R.S. Ghai, Senior Advocate appearing for the respondent submits that respondent is partner in firm of M/s. A.T.M. Forgings, which is engaged in the manufacture and export of hand tools. He further submitted that this firm is a 100% export oriented unit. He pointed out that the respondent has received an order from Dubai and he has sent the proforma invoice to its buyer. He contended that the respondent is to visit Dubai in connection with his business dealings. He undertook to come back to India. He submitted that the passport is with the respondent (sic). It was not released. Therefore, without passport, respondent could not visit Dubai in connection with his business. He contended that the respondent is ready to furnish security or surety as per the condition imposed by the learned Sessions Judge. He contended that there is no material on the record to show that if the respondent is allowed to visit Dubai, he will not come back to India. 7. I have considered the rival contentions of the learned Counsel for the parties and perused the record. 8. While allowing bail under Section 438, the Court can impose any condition which the Court consider necessary in the interest of justice under Section 438(iv) Cr.P.C. Once any condition is imposed, it is absolute. 7. I have considered the rival contentions of the learned Counsel for the parties and perused the record. 8. While allowing bail under Section 438, the Court can impose any condition which the Court consider necessary in the interest of justice under Section 438(iv) Cr.P.C. Once any condition is imposed, it is absolute. This condition can be modified in rarest to rare cases when the persons in whose favour order under Section 438 Cr.P.C. has been passed brought on record very cogent and convincing reason and the ground for which the condition is to be modified was not available on the day when the order was passed. If on the day the condition was imposed and the ground was available then the Court should not modify the condition. If the condition is imposed, subsequently it is modified without changed circumstances then it will be mere an eye-wash to impose the condition. 9. In the instant case when pre-arrest bail was allowed and respondent was aware that he has a business in Dubai and he has to visit there in connection with his business dealings at that time the respondent has not raised any objection for imposing this condition. So, on this ground that the petitioner is to visit Dubai in connection with the business dealings can not be modified and the respondent cannot be allowed to visit Dubai. Furthermore, as per the petitioner the investigation is still going on in Dubai. If the respondent is allowed to visit there, there are every chances that he may be able to tamper with the evidence and may influence witnesses there. The learned Sessions Judge while allowing the application of the respondent to visit Dubai has not taken into consideration all these facts and circumstances in right perspective and has allowed the respondent to visit Dubai without taking into consideration the seriousness of the offence. 10. For the reasons recorded above, this revision petition is accepted. Order dated 13-9-2001 passed by the learned Sessions Judge, Amritsar is set aside.