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Allahabad High Court · body

2015 DIGILAW 927 (ALL)

Murli Asandas Chandiramani v. Union of India

2015-04-21

NAHEED ARA MOONIS

body2015
JUDGMENT Naheed Ara Moonis, J. Heard the learned counsel for the applicant, Sri Sanjay Kumar Singh, learned counsel appearing as Special Public Prosecutor, Directorate of Revenue Intelligence, Custom and Central Excise and perused the record. 2. The instant bail application has been moved on behalf of Murli Asandas Chandiramani to release him on bail in connection with case Crime No. Ni. of 2014, under Sections 11, 104 and 135 of Custom Act, police station D.R.I., district Varanasi during the pendency of the trial before the court below. 3. The genesis of the case emanating from the prosecution in nutshell is that on 11.12.2014 the officers of the Directorate of Revenue Intelligence (hereinafter referred to as D.R.I.) Varanasi visited to G.R.P. Mughalsarai office where they were informed by the G.R.P. officers that two persons, namely, Rajesh Jatmal Bhatt and Rajesh Chetandas Wasvani both belonging to district Nagpur had been intercepted by them and during search two gold bars each were recovered from specially designed cavity fabricated shoes from Rajesh Jatmal Bhatt. It was elucidated that during the search of Rajesh Jatmal Bhatt two gold bars with mark Motiwala engraved and from his pocket a small bar has also been recovered weighing in all 2050 gms. Apart from that 16,500/- Thai currency and INR 18830 along with pass port were recovered from the search of Rajesh Chetandas Wasvani, two gold bar with the mark Motiwala engraved on it were recovered from his shoes in all 2000 gms. besides that 1120 Thai currency and INR 10845 along with pass port were also recovered besides the Mobile phones were also recovered from their possession. Since the matter was relating to smuggling of gold bars for which necessary action be taken under the provisions of Custom Act for which the D.R.I. officers were called upon. The G.R.P. Officers handed over the case to the D.R.I. officers for necessary action under the provisions of the Custom Act. The various valuers were called upon by the D.R.I. officers for determining the weight and value of the foreign origin gold bars and the valuer report was submitted on 11.12.2014 wherein the actual weight of the recovered foreign gold was found to be 4076.00 gms. valued by Rs. 1,09,98,018/-. (Rs. one crore, nine lacs, ninety eight thousand and eighteen) in stead of 4050 gms as recovered by G.R.P. Mughalsarai. valued by Rs. 1,09,98,018/-. (Rs. one crore, nine lacs, ninety eight thousand and eighteen) in stead of 4050 gms as recovered by G.R.P. Mughalsarai. The inventory of all the seized articles were prepared and was confiscated under Section 11 1 (1) of the Custom Act as the two arrested persons were clandestinely carrying the smuggled foreign origin gold for which they have violated Section 77 of the Custom Act. The statements were also recorded under Section 108 of the Custom Act before the Senior Intelligence Officer D.R.I., Varanasi. They have accepted the illegal smuggling of gold and categorically stated that the illegally brought gold to be delivered to the applicant at Nagpur and in his absence to one Prahlad Setia who is also resident of Nagpur and the applicant is working for the said Prahlad Setia. The applicant's photographs were also identified by them. The aforesaid two persons who were arrested under Section 104 of the Custom Act were produced before the Special Chief Judicial Magistrate (Economic Offense), Varanasi on 12.12.2014 and were sent to jail. The applicant was arrested upon receipt of the information and follow up action on 12.12.2014 with the help of his photograph, who was identified by the arrested persons in the presence of the independent witnesses. On his arrest search was made and voter ID Card and Adhar Card were recovered besides three mobile phones recovered from his possession and a Panchnama was prepared on the same date. 4. The applicant was also interrogated under Section 108 of the Custom Act on 12.12.2014 before the Senior Intelligence Officer, Directorate of Revenue of Intelligence, Varanasi wherein he stated about that he is working with the person named Prahlad Setia who is also resident of Nagpur. Prahlad Setia used to send Indian people to Dubai/Bangkok and to coerce them to smuggle foreign origin gold into India and the applicant is his employee who helps him in his illegal work. He also admitted that he is acquainted with arrested Rajesh Jatmal Bhatt. He also admitted that the arrest of two persons by the D.R.I. was in his knowledge. He was asked by Prahlad Setia to go to Varanasi from Gaya and arrange for their release. He has also admitted the fact as narrated by the arrested persons in their statements. He also admitted that he is working at the behest of Prahlad Setia and was being paid Rs. He was asked by Prahlad Setia to go to Varanasi from Gaya and arrange for their release. He has also admitted the fact as narrated by the arrested persons in their statements. He also admitted that he is working at the behest of Prahlad Setia and was being paid Rs. 25,000/- per month as salary. 5. On his categorical acceptance of connivance in smuggling of the foreign origin gold into India, he was found committing offence under Section 135 of the Custom Act and was accordingly arrested under section 104 of the Act on 13.12.2014 under proper authorization from the competent authority Special Chief Judicial Magistrate and was produced before the Special Chief Judicial Magistrate (Economic Offence), Varanasi on 13.12.2014. All the above three persons are now under judicial custody. The sanction of the prosecution was taken on 5.2.2015 by the competent authority and pursuant to which a complaint was filed against all the three accused persons who are languishing in jail. A bail application was moved on behalf of the applicant before the Special Chief Judicial Magistrate, Varanasi who rejected the bail application by order dated 22.2.2015. The applicant approached the Court of Sessions and the Additional Sessions Judge also rejected the bail application of the applicant by order dated 11.2.2015. 6. The submission of the learned counsel for the applicant is that the applicant is maliciously being prosecuted in the present case as he has been made accused in a every collusive manner. The applicant who was staying in Hotel Mansovar at Varanasi along with Manoj Jatmal, Suresh and Virendra Lalwani were taken away by the officers of D.R.I. and they assured that by depositing the default of duty they will be released and for that purpose they came to Varanasi with Rs. 5,14,000/- and when in the evening they reached near the bus stand they had taken forcibly to his office and made them accused. The remaining other persons Manoj, Suresh and Virendra Lalwani have been released with their goods and the officers forcibly taken them away the money of the applicant to the tune of Rs. 5,14,000/- and made him accused in the present case. The applicant only came at Varanasi for doing pairvi but he has been made accused in the present case. Neither anything has been recovered from the possession of the applicant nor he has any concerned with the alleged recovered gold. 5,14,000/- and made him accused in the present case. The applicant only came at Varanasi for doing pairvi but he has been made accused in the present case. Neither anything has been recovered from the possession of the applicant nor he has any concerned with the alleged recovered gold. He has been implicated falsely in the present case. The inquest memo prepared by the custom department are their own men and pocket witnesses. The applicant moved the bail application before the court below but has been rejected without appreciating the true facts of the case. The applicant has no criminal history and is languishing in jail since 13.12.2014. In case he is enlarged on bail he will not misuse the liberty of bail. 7. Per contra learned counsel appearing on behalf of the Director of Revenue Intelligence vehemently opposed and argued that the recovery of foreign origin gold weighing 4.076 kg. the value of which was assessed to be 1,9,98,018/- only as on date 11.12.2014 from the possession of the two other accused persons, which was brought in a clandestine manner in violation of the provisions of Section 11 of the Custom Act, therefore, liable to be prosecuted under Section 11 1 of the Act. 8. The search memo was prepared by the D.R.I. Officers on 11.12.2014 on the confessional statements recorded of the two arrested accused persons under Section 108 of the Act brought the complicity of the applicant and one Prahlad Setia who are operating smuggling foreign origin gold. On the secret information the applicant was intercepted near roadways bus stand Cantt Varanasi and was brought to D.R.I. office and on his personal search recovery was made and statement was recorded where he has categorically made a statement that he is facilitated by Prahlad Setia to bring foreign origin gold in India by smuggling. 9. He has also admitted that he knows the arrested accused persons, namely, Rajesh Jatmal Bhatt and Rajesh Chetandas Wasvani and he was there in Varanasi to arrange bail of those arrested persons as directed by Prahlad Setia. 9. He has also admitted that he knows the arrested accused persons, namely, Rajesh Jatmal Bhatt and Rajesh Chetandas Wasvani and he was there in Varanasi to arrange bail of those arrested persons as directed by Prahlad Setia. The confessional statement of the applicant thus shows the connivance of the accused persons in the involvement of smuggling of foreign origin gold and merely because nothing has been recovered from the possession of the applicant, it cannot be said that he has nothing to do with the other accused persons and it will not mitigate the gravamen of the offence. The story set up by the applicant in his defense is all against the evidence on record. The applicant is deeply involved as he is well known to each other who have committed offence of smuggling of foreign origin gold bars, which is against the interest of economy of the nation. Thus the two arrested persons along with gold could not produce any valid papers regarding importation of foreign origin gold bars. The applicant is trying to set up a case only to escape the penal action. It is also pertinent to mention that Prahlad Setia who is involved in the smuggling of foreign origin gold is still away from the enquiry as he is not turning up to the summons for recording of his statement and he is making all efforts to evade the appearance before the authorities when there is clinching material against the applicant and other accused persons in the involvement of smuggling of foreign origin gold. Since the enquiry is still going on in case the applicant is enlarged on bail there is every possibility that he may abscond and again indulge in the crime of illegal smuggling hence the applicant does not deserve to be enlarged on bail. 10. Having considered the submission of the learned counsel for the parties and have gone through the record of the case. In the present case two persons arrested by the officers of D.R.I. and from their possession gold was recovered weighing 4076 gms. worth of Rs. one crore, nine lacs, ninety eight thousand and eighteen recovered for which the arrested persons could not produce any valid documents for its importation from foreign country. In the present case two persons arrested by the officers of D.R.I. and from their possession gold was recovered weighing 4076 gms. worth of Rs. one crore, nine lacs, ninety eight thousand and eighteen recovered for which the arrested persons could not produce any valid documents for its importation from foreign country. Thereafter the statement of the co-accused persons under Section 108 of the Custom Act were recorded wherein they have stated about the complicity of the applicant and one Prahlad Setia and consequent thereto the applicant was intercepted and arrested by the D.R.I. officials and the applicant's statement was also recorded under Section 108 of the Custom Act who has admitted that he is managing the affairs of the smuggling at the behest of Prahlad Setia and he is a paid employee is the sufficient proof of the involvement of the applicant along with other persons for smuggling goods. Merely because the goods have not been recovered from the possession of the applicant will not mollify the gravity of offence. The applicant without coming into physical contact with the smuggled gold may yet be liable for having been concerned in its importation. It has been said that a man may be miles and miles away from the gold and yet if proof is available that he had an interest in or was concerned in its illegal transportation then he would be guilty of the offence and in the present case from the statement of the applicant and other arrested accused person it is quite evident that he did take some part in the series of steps which culminated in the gold being brought in the country. The statements of the applicant and other accused persons so recorded under Section 108 of the Custom Act are distinct and different from statement recorded by the police officers during the course of investigation under Criminal Procedure Code. It is a material piece of evidence collected by the Custom officials statement made by another accused persons inculpating the applicant therein, can be used as a substantive piece of evidence. The said statements under Section 108 of the Act are admissible in evidence. The applicant and other accused persons arrested by the D.R.I. officers cannot be interfered with as it does not show that the power has been exercised on whim and caprice or fancy of the officer. The said statements under Section 108 of the Act are admissible in evidence. The applicant and other accused persons arrested by the D.R.I. officers cannot be interfered with as it does not show that the power has been exercised on whim and caprice or fancy of the officer. The arrested persons were produced before the Magistrate without any delay and they did not even raise any objection of any kind when they were produced before the court for remand. The cases cited by the learned counsel for the applicant where the bail was granted facts of which are quite distinguishable from the facts and circumstances of the present case of the applicant, therefore, this court does not find any justifiable ground and a fit case to release the applicant on bail. 11. It is hardly required to be stated that once a person is released on bail in such a serious offence where punishment is quite deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses and evidence collected and also create problem of law and order situation. Release on bail in serious offence of such nature larger interest of the public and State always matter. 12. Accordingly, the prayer for bail is rejected. ……………….