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2010 DIGILAW 304 (MAD)

A. P. T. Mahadevan v. State

2010-01-25

M.SATHYANARAYANAN

body2010
COMMON ORDER:-The petitioners in Crl.O.P(MD)No.347 of 2010, are arrayed as A.1 to A.3 and the petitioner in Crl.O.P(MD)No.348 of 2010 is arrayed as A.4, for the alleged commission of the offence under Section 135 of the Customs Act, 1962. All the petitioners were arrested on 25.12.2009. 2. The case of the prosecution is that the first petitioner herein has received and arranged for the transportation of Ketamine Hydrochloride along with food items from Chennai to Tuticorin. The first petitioner herein obtained 240 Kgs. of the above said contraband from Subhu Khan @ Bansilal who is a Malaysian national. The contraband was sent to Tuticorin to be received by A.4 namely M.Ambalavanan for the purpose of export to Malaysia under the guise of salt and fried grams, etc. The first petitioner will get the commission from Subhu Khan @ Bansilal. It is the further case of the prosecution that the first petitioner herein on an earlier occasion during August 2009, had exported 25 Kgs. of above said item through A.4/petitioner in Crl.O.P.(MD)No.348 of 2010 and received the commission. 3. The prosecution further alleged that one N.Kandasamy arranged for IE Code from a licence holder from Chennai and the said licence is in the name of M/s.Dhanalakshmi Exports, Chennai. N.Kandasamy had arranged for godown at Kurinji Nagar, Tuticorin and also arranged for custom clearance through V.Muthuraj of Vishwa Shipping Services, Tuticorin. The said V.Muthuraj, in turn, arranged M/s.Smile Shipping Services, Tuticorin, a custom house agent, for filing the shipping bill and he is in-charge of loading and transportation of export goods from the godown to the CFS which is a customs area. The said person also purchased salt from a local dealer. The said V.Muthuraj along with M.Ambalavanan (A.4) and M.K.Sathish Kumar (third petitioner/A.3 in Crl.O.P(MD)No.347 of 2010), repacked the white crystalline substance in 1 Kg. packets similar to salt packages at the godown and made arrangements for transportation to CFS for export. The packed materials containing Ketamine Hydrochloride were loading into a lorry on 24.12.2009. 4. It is the specific case of the prosecution that all the accused and other absconding accused attempted to export 440 Kgs. of Ketamine Hydrochloride which is worth about Rs.1.5 crores, without getting clearance from the Narcotics Commissioner and also made a false declaration that the consignment contains salt and fried grams, etc. 5. 4. It is the specific case of the prosecution that all the accused and other absconding accused attempted to export 440 Kgs. of Ketamine Hydrochloride which is worth about Rs.1.5 crores, without getting clearance from the Narcotics Commissioner and also made a false declaration that the consignment contains salt and fried grams, etc. 5. The learned Counsel for the petitioners in both the petitions, would submit that the petitioners are nothing to do with the alleged commission of the offence. It is the further submission of the learned Counsel for the petitioner that as per the Notification No.67 (RE-07)2004-2009, dated 27.12.2007, Ketamine free export is allowed subject to obtaining No Objection Certificate from Narcotics Commissioner. Therefore, in the absence of any prevention for export, it cannot be said that the petitioners had violated Section 135 of the Customs Act. It is also the submission of the learned Counsel for the petitioners that attempts if any on the part of the petitioners to export the above said contraband, could only partake the character of preparation with regard to attempt to export and therefore, the said act, in any event, would not attract the ingredients of Section 135 of Customs Act. Therefore, the learned Counsel for the petitioners prayed for the release of the petitioners on bail. 6. The respondent in each of the petitions, has filed the counter contending that under the guise of export of salt and fried grams, the petitioners attempted to export 440 Kgs. of Ketamine Hydrochloride which is a restricted item for export under Foreign Trade Policy, 2004 - 2009 read with Customs Act, 1962 and that the value of the seized contraband is about Rs.1.5 crores. It is further stated in the counter that the petitioners after arrest, gave statements dated 25.12.2009 admitting their guilt. It is further stated in the counter that based on the confession given by the accused, some more accused are to be apprehended and the investigation is in crucial stage. It is further stated in the counter that if the petitioners are enlarged on bail they will hamper the investigation and tamper the witnesses. 7. This Court heard the submissions of Mr.N.Dilip Kumar, learned Counsel for the petitioners and Mr.Arul Vadivel @ Sekar, learned Special Public Prosecutor for Customs. 8. It is further stated in the counter that if the petitioners are enlarged on bail they will hamper the investigation and tamper the witnesses. 7. This Court heard the submissions of Mr.N.Dilip Kumar, learned Counsel for the petitioners and Mr.Arul Vadivel @ Sekar, learned Special Public Prosecutor for Customs. 8. The learned Counsel for the petitioners in support of his submissions, placed reliance upon the following decisions: (i) V.Esakia Pillai v. Commissioner of Customs, Chennai reported in 2001 (138) E.L.T.802 (Tri - Chennai). (ii) Ranjit Export Private Ltd., v. Collector of Customs, Madras reported in 1985 (21) E.L.T.353(Mad.). 9. In V.Esakia Pillai v. Commissioner of Customs, Chennai reported in 2001 (138) E.L.T.802 (Tri - Chennai), the fact pertains to appeal against the penalty of Rs.5,000/- on the appellant therein who is a Custom House Agent. On the facts of the case, the Tribunal held that there was no corroborative evidence or statement of anybody alleging that the he had information, knowledge or has connived in surreptitious export of the goods and consequently, set aside the order of penalty. In the considered opinion of this Court, the said decision has not applicability with regard to the facts on hand. 10. In Ranjit Export Private Ltd., v. Collector of Customs, Madras reported in 1985 (21) E.L.T.353(Mad.), the issue pertaining to preparation and attempt to commit the offences, viz., Sections 50, 110 and 113(d) of the Customs Act. This Court, in the said decision, has considered all the earlier decisions and held as follows: "24. In the language of the Supreme Court, attempt defies a precise and exact definition. Section 511 of the Indian Penal Code punishes 'attempt', but it does not define 'attempt'. All said, the question is really one of fact depending upon the peculiar features and circumstances of each case and the provisions of law, the attempted breach of which is complained of. In the context of the present case, we cannot lose sight of the definition of 'export' found in Section 2(18) of the Act. The essential ingredient of export is the taking out of India. The acts complained of must fall in the course of movement of the goods with an intention to take them out of India. All other acts done anterior to this step, namely, movement would only partake the character of preparations. The essential ingredient of export is the taking out of India. The acts complained of must fall in the course of movement of the goods with an intention to take them out of India. All other acts done anterior to this step, namely, movement would only partake the character of preparations. If the petitioner has done any act towards the exportation, namely, taking of the goods out of India and if the act or acts could be fitted in the course of such movement of the goods, or, in other words, the act could fall in the course of progress towards the actual physical taking of the goods out of India, the mischief of Section 113(d) would be attracted. There should be a direct physical movement towards the taking of the goods out of India after all the preparations are made and which preparations may also fall within the satisfaction of the provisions and completion of the formalities under the Act. There must be an act or acts done towards the actual physical movement of the goods with an intention to take them out of India. That alone, in my view, would constitute an attempt to export the goods, that too depending on the facts and circumstances of the case. As stated above, I am not expressing any opinion with reference to the violation of any of the provisions of the Act which would involve penal consequences, since such a stand is not expressed before me by the respondent. The essential feature to be taken note of for assessing this question is as to whether the act of the person did reach a point which constituted an actus reus. This question is one of law depending upon the facts and circumstances of the case to be decided by the Court. If there is no taking of the goods out of India, there is no exportation. Hence, 'attempt' must also have relevance to the taking of the goods out of India. We are not concerned with the actual completion of the exportation. We are concerned only with the attempt. But, if no feature which would constitute actus reus or physical element towards taking of the goods out of India is made out on the facts and circumstances of the case, it will be far fetched to invoke the first limb of Section 113(d) of the Act. We are concerned only with the attempt. But, if no feature which would constitute actus reus or physical element towards taking of the goods out of India is made out on the facts and circumstances of the case, it will be far fetched to invoke the first limb of Section 113(d) of the Act. That is the point on facts in the present case. The definition of "Export" as found in Section 2(8) and the concept of "attempt" as I could evolve with reference to the export, as defined in the Act, being what they are, I am of the view that the respondent is not in order to detain the goods on the ground that Section 113(d) of the Act is attracted and the goods are liable to confiscation on that ground." 11. As per the ratio laid down in the above said decision, the acts complained of must fall in the course of movement of goods with an intention to take them out of India and all other acts anterior to the steps could fall in the course of progress towards actual physical taking of the goods out of India. 12. In the case on hand, the alleged acts on the part of the petitioners would disclose that after procuring the contraband, they made arrangements to export by declaring that the said contraband is salt and fried grams, etc., and also packed the contraband in saches resembling the salt packets. 13. It is pertinent to point out at this juncture that as per the Notification dated 27.12.2007 stated supra, issued by the Ministry of Commerce and Industries, the exporter of Ketamine Hydrochloride has to obtain No Objection Certificate from the Narcotics Commissioner and no such material has been produced to show that the petitioners had obtained No Objection Certificate as required under the said Notification. 14. In Abhayanand Mishra v. State of Bihar reported in AIR 1961 S.C. 1698 , the Honourable Supreme Court has considered the distinction between 'attempt' and 'preparation' and held as follows: "11. .... There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. .... There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore, can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. .... 26. .... A person commits the offence of attempt to commit a particular offence when (i) he intends to commit that particular offence and (ii) he having made preparations and with the intention to commit the offence, does an act towards its commission, such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence." 15. Similar issue came up for consideration before the Honourable Supreme Court in State of Maharashtra v. Mohd. Yakub reported in AIR 1980 S.C. 1111 and it has been held as follows: "Per Sarkaria J:- What constitutes an "attempt" is a mixed question of law and fact, depending largely on the circumstances of the particular case. "Attempt" defies a precise and exact definition. Broadly speaking all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be 'criminal' need not be the penultimate act towards the commission of the offence. It is sufficient if such act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence. Such overt act or step in order to be 'criminal' need not be the penultimate act towards the commission of the offence. It is sufficient if such act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence. Per Chinnappa Reddy J.:- In order to constitute 'an attempt', first, there must be an intention to commit a particular offence, second, some, act must have been done which would necessarily have to be done towards the commission of the offence, and, third, such act must be 'proximate' to the intended result. The measure of proximity is not in relation to time and action but in relation to intention. In other words, the act must reveal, with reasonable certainty, in conjunction with other facts and circumstances and not necessarily in isolation, an intention, as distinguished from a mere desire or object, to commit the particular offence, though the act by itself may be merely suggestive or indicative of such intention, but, that it must be, that is, it must be indicative or suggestive of the intention. In the instance case the fact that the truck was driven up to a lonely creek from where the silver could be transferred into a sea-faring vessel was suggestive or indicative though not conclusive, that the accused wanted to export the silver. It might have been open to the accused to plead that the silver was not to be exported but only to be transported in the course on inter-coastal trade. But, the circumstances that all this was done in a clandestine fashion, at dead of night, revealed, with reasonable certainty, the intention of the accused that the silver was to be exported." 16. In the light of the factual situations and in the light of the ratio laid down in the above said decisions, the alleged acts on the part of the petitioners would definitely constitute attempt to export the contraband without obtaining No Objection Certificate from the Narcotics Commissioner and also false declaration with regard to the contents. The circumstances at this stage, only lead to the conclusion that attempt was made to export Ketamine Hydrochloride worth about Rs.1.5 Crores in a clandestine manner. 17. The circumstances at this stage, only lead to the conclusion that attempt was made to export Ketamine Hydrochloride worth about Rs.1.5 Crores in a clandestine manner. 17. The scope of Section 135 of the Customs Act, came up for consideration before the Honourable Supreme Court in Assistant Collector Customs Preventive v. Babu Miya Sheikh Imam reported in AIR 1983 SC 974 , wherein the Honourable Supreme Court has clearly analysed the said provision. It has been pointed out in the said decision that 'Section 135(1)(a)(ii) is divisible into three parts and that the ingredients of the offence under Section 135(1)(a)(ii) should clearly be satisfied if the case falls within any one of these three parts. The Supreme Court has further observed that each of these three parts is distinct and independent of the other two, and that the ingredients of one part cannot be projected in the other two parts.' 18. An attempt was also made by the learned Counsel for the petitioners that the offence under Section 135 of the Customs Act, is a bailable one and therefore, the petitioners are entitled to be released as a matter of right. 19. The said question came up for consideration before the Gujarat High Court in Asfaq Rajak Patel v. K.U.Patel, Superintendent of Customs, Ahmedabad reported in 1997 (92) E.L.T., 37 (Guj.,) and it has been held that 'in view of Section 4(2) of the Code and when there is no specific provision to make the offence under Section 135 of the Customs Act bailable one as it is made by Section 104(4) the offence under Section 135 non-cognizable one, by stretch of argument to the effect that simply because the identical powers are given to the customs officers like that of the Police Station officer who can exercise such power in case of bailable offence, the offence under the Customs Act would not become bailable one.' 20. Therefore, it cannot be said that the petitioners are entitled to be released on bail as a matter of right. 21. It is to be borne in mind that the younger generation now a days, started to use Ketamine Hydrochloride as a psychotropic substance and it is being used as a party drug. The offences under the Customs Act are economic offences affecting the economy of the country. 21. It is to be borne in mind that the younger generation now a days, started to use Ketamine Hydrochloride as a psychotropic substance and it is being used as a party drug. The offences under the Customs Act are economic offences affecting the economy of the country. If under the guise of exporting normal items, Ketamine Hydrochloride is exported to a foreign country, the name and reputation of the country is in peril. 22. The modus operandi on the part of the petitioners to export Ketamine Hydrochloride under the guise of salt and fried grams and that too, without getting No Objection Certificate from the Narcotics Commissioner, on the face of it, appears to be a very serious one. What is required to be considered by this Court for grant of bail is the nature of crime, nature of charge, evidence and possible punishment, possibility of interference with the course of justice and antecedents of the applicant, furtherance of interest of justice, socio-geographical circumstances; prospective misconduct. 23. The facts of the above said case would prima facie disclose that the petitioners/accused are not entitled to the relief of bail. 24. It is to be noted at this juncture that investigation is pending. In State v. Adi Rajaram reported in 1996-2-L.W.(Crl.), 482, this Court has held as follows: "Investigation is not an end in itself. It is process which precedes the trial. Evidence has to be collected, but the indictment comes only after the evidence is placed before the court, appreciated and accepted. If by proper safeguards the evidence collected during investigation is not allowed to be preserved and placed before the court and if in the intervening stage, through the operation of extraneous force the evidence is allowed to be undermined or erased, the entire investigation become an exercise of futility and the guilty escape the arms of justice. The possibility of the evidence being tampered is therefore, serious aspect to which the Court has to give due consideration." 25. In view of the above facts and circumstances of the case and especially, in view of the confessional statements of the petitioners, this Court is of the view that the petitioners are not entitled to be enlarged on bail. 26. Therefore, both the Criminal Original Petitions are dismissed.