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2002 DIGILAW 907 (PNJ)

Ashok Kumar v. Deputy Commissioner Of Customs

2002-09-12

ASHUTOSH MOHUNTA

body2002
Judgment Ashutosh Mohunta, J. 1. The petitioner, who is on anticipatory bail granted by the learned Sessions Judge, Amritsar, has filed this petition for the release of the passport to enable him to go abroad. 2. The petitioner is alleged to be a partner of M/s. ATM International, Jalandhar, which is an Export Oriented Unit. In December, 2000 a case against the proprietor of the firm under the name and style of M/s. Megna Impex, Jalandhar, was registered on the ground that the firm was wrongly availing the benefit granted under Duty Entitlement Pass Book Scheme (DEPB) by submitting forged/false export documents and, thus, caused revenue loss to the State exchequer. One Satbir Singh is stated to be the proprietor of the said firm. The petitioner is one of the accused in the said case. He was arrested on December 22, 2002. As the Customs Authorities failed to file the challan within the mandatory period of 60 days, the petitioner was released on bail by the Sessions Judge, Amritsar, vide order dated February 22, 2001 (Annexure P-1), by granting him the benefit under Section 167(2) of the Code of Criminal Procedure. Thereafter, the Customs Authorities started investigating the firms under the name and style of M/s. Golden Tools International, Jalandhar, and M/s. ATM International, Jalandhar. On the apprehension that he would be implicated in some other offence, the petitioner moved an application for grant of anticipatory bail, which was granted to him by the learned Sessions Judge, Amritsar, vide order dated July 24, 2001 (Annexure P-2). While granting the anticipatory bail, the learned Sessions Judge, inter alia, imposed the condition that the petitioner shall not leave the country and he shall surrender his passport before the concerned Customs Officer. As in connection with some business dealings, the petitioner wanted to go to Dubai, he applied to the Court for the release of his passport on August 27, 2001. The petitioner was permitted to visit Dubai from September 22, 2001 to October 3, 2001 on his furnishing sureties and bail bouds etc., and his passport was ordered to be released by the Sessions Judge vide order dated September 13, 2001 (Annexure P-3). Against the order passed by the Sessions Judge, the Customs Authorities filed Criminal Revision No. 1443 of 2001 before this Court. The said revision petition was allowed vide order dated April 22, 2002 (Annexure P4) by this Court. Against the order passed by the Sessions Judge, the Customs Authorities filed Criminal Revision No. 1443 of 2001 before this Court. The said revision petition was allowed vide order dated April 22, 2002 (Annexure P4) by this Court. The Special Leave Petition filed by the petitioner against the order passed by this Court was dismissed by the Honble Supreme Court. 3. Shri H.L. Sibal, learned Senior Advocate, contends that after the grant of bail in the afore mentioned case on February 22, 2001, the petitioner had visited Dubai five times. This itself shows that the petitioner is not going to abscond. He further contended that the petitioner is a major partner in three other concerns, namely, M/s. ATM International, M/s. Golden Tools International and M/s. ATM Forgings, Jalandhar. He has considerable stakes in the running of the above mentioned business ventures and, therefore, there is no question of his absconding from India. It has further been argued by Mr. Sibal that the inquiry/probe is going on in Dubai, whereas this time the petitioner wants to go to Egypt and Turkey. The counsel has argued that the petitioners concern is a 100 per cent export oriented unit, therefore, he has to go abroad in connection with his business commitments. Still further he contends that the restriction imposed upon the petitioner to visit abroad by impounding his passport by Customs Authorities is violative of his fundamental right to Personal Liberty as enshrined under Article 21 of the Constitution of India. In support of his contention he has placed reliance on an authority of the Supreme Court reported as Mrs. Maneka Gandhi v. Union of India and Anr. (1978) S.C.C. 248, wherein it has been held by their Lordships that right to travel abroad is a part of personal liberty. It has further been held that right to go abroad cannot be curtailed without granting reasonable opportunity to show cause. Thus, Mr. H.L. Sibal, learned Counsel for the petitioner, contends that as the petitioner was not granted any opportunity of hearing before impounding his passport, the said act of the Customs Authorities amounts to violation of his fundamental right guaranteed under Article 21 of the Constitution of India. 4. Thus, Mr. H.L. Sibal, learned Counsel for the petitioner, contends that as the petitioner was not granted any opportunity of hearing before impounding his passport, the said act of the Customs Authorities amounts to violation of his fundamental right guaranteed under Article 21 of the Constitution of India. 4. On the other hand, it has been argued by Shri R.S. Rai, learned Senior Standing Counsel for the Union of India, that in case the petitioner is allowed to go abroad, he might not return back because the evasion of duty is considerable and huge. He further submits that the petitioner should have approached the Court of Session in the first instance and sought permission to go abroad from the Court. He has further argued that on an earlier occasion also, the permission granted to the petitioner to visit Dubai was refused by the High Court and subsequently, the Special Leave Petition was dismissed by Honble Supreme Court. 5. I have heard the learned Counsel for the parties and perused the file carefully. It is not denied that the petitioner went to Dubai five times after the grant of bail to him on February 22, 2001. On each occasion he returned to India. Moreover, the petitioner is a partner in three other concerns, namely, M/s. ATM International, M/s. Golden Tools International and M/s. ATM Forgings, Jalandhar. It shows that the petitioner cannot leave behind his interests in India by absconding to other countries. The petitioner is running a unit, which is 100 per cent export oriented unit. In order to promote his business interests, he has to go abroad and have business dealings with the importers of his goods. Apart from the above, the petitioner wants to go to Egypt and Turkey, whereas the probe/inquiry is pending at Dubai. Therefore, there is no chance of the petitioner tampering with any evidence. 6. In view of the above, I allow the petitioner to visit Turkey and Egypt for one month. On the expiry of the period of one month from the start of his journey, he shall return to India. The passport of the petitioner shall be released to him forthwith by the Customs Authorities. It is further ordered that the petitioner shall furnish bank guarantee to the tune of Rs. 5,00,000/-with one surety in the like amount to the satisfaction of the Chief Judicial Magistrate, Amritsar. The passport of the petitioner shall be released to him forthwith by the Customs Authorities. It is further ordered that the petitioner shall furnish bank guarantee to the tune of Rs. 5,00,000/-with one surety in the like amount to the satisfaction of the Chief Judicial Magistrate, Amritsar. The petition is accordingly, disposed of.