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2023 DIGILAW 1042 (ALL)

Anil Soni v. Union of India

2023-04-17

MOHD.FAIZ ALAM KHAN

body2023
JUDGMENT Mohd. Faiz Alam Khan, J. Supplementary affidavit filed on behalf of the applicant is taken on record. 2. Heard Shri Amol Kumar Srivastava, learned counsel for the applicant as well as Shri Digvijay Nath Dubey learned counsel for D.R.I. and perused the record. 3. The present anticipatory bail application has been moved by the accused/applicant- Anil Soni in DRI Case Crime No. 02/2023, under Section 135 of Custom Act, 1962, Police Station D.R.I., District Lucknow, with the prayer to enlarge him on anticipatory bail as he is apprehending arrest in the abovementioned case. 4. Learned counsel for the applicant while referring to the page 47 of the paper book submits that the applicant Anil Soni is a partner of R.A. Mosun Jewellers having its Head Office at Hasanpukur 1st Lane, Ground Floor, Kolkata, West Bengal, 700007 and its Branch office at Jaipur, Rajasthan and the gold which is shown to have been recovered from the possession of one Sumit Verma is actually owned by the firm of the applicant and he (Sumit Verma) was taking the gold from Kolkata to Jaipur under the directions of the applicant, with proper documentations. 5. It is also submitted, while referring to the tax invoices placed as Annexure No.1, as well as Debit Notes of date 24.1.2023 that the gold allegedly recovered and seized is owned by the firm of the applicant and was being transported to its branch office at Jaipur from Kolkata (head office). 6. It is also submitted that gold which has been recovered from the employee of the applicant, namely, Sumit Verma is shown to have been recovered while Sumit Verma was travelling by train at Kanpur Central Railway Station and he has not been arrested at any exit or entry point of territory of India. 7. It is further submitted that one of the partner of the firm, namely, M/s R.A. Mosun Jewellers, Mr. Ranjan Soni sent a representation dated 31.01.2023 to the Deputy Director of DRI, where he has admitted that the alleged gold confiscated and seized by the DRI belongs to the firm and he also produced all the receipts related to the said gold. He has also admitted that Sumit Verma was working for the firm and he was duly in possession of the title receipt of the gold, which was carried by him while travelling. 8. He has also admitted that Sumit Verma was working for the firm and he was duly in possession of the title receipt of the gold, which was carried by him while travelling. 8. It is also submitted that for the purpose of demand of new designs of jewellery, the applicant's firm used to send the jewellery from Jaipur to Kolkata at its principal place of business for redesigning or melting the gold, so that it can be used again to form different kind of jewellery. The same was done under the proper guidelines and GST invoices/ tax invoices/ credit note, which was always sent with the transferred gold. The old gold was transferred in the form of jewellery with Sumit Verma from Jaipur to Kolkata. The true copy of GST invoices of jewellery sent from Jaipur to Kolkata is being annexed as Annexure No.6 to the affidavit. 9. It is further submitted that under proper documentation of title, the precious goods reached at the principal place of business by the firm, and it was melted into fine gold and carving of jewellery under the specified design as mandated in the State of Rajasthan. The said stock transfer was repatriated/ sales/ return/ stock transfer return to the Additional place of business at Jaipur under proper taxable invoice dated 26.01.2023 and the said document of title was duly possessed by the employee of the applicant, which has inadvertently masked by the DRI and the said gold was illegally branded as smuggled gold from Bangladesh. 10. While relying on a copy of circular no. No. 13/2022- Customs placed as Annexure No. 8 to the application, it is vehemently submitted that Government of India Ministry of Finance (Department of Revenue) has issued guidelines with regard to the arrest of the offenders pertaining to the prohibited items under Customs Act, 1962 and guideline no.2 is pertaining to the exercising of powers of arrest wherein it is provided that the arrest in respect of offences under the Customs Act should be made only in exceptional situation and sub clause (d) of guideline no. 2.3 of this circular provides that the exercising of powers of arrest may be done with regard to the cases involving fraudulent evasion or attempt of evasion of duty involving goods of the value of Rs. 2,00,00,000/- (Rs. 2.3 of this circular provides that the exercising of powers of arrest may be done with regard to the cases involving fraudulent evasion or attempt of evasion of duty involving goods of the value of Rs. 2,00,00,000/- (Rs. Two Crore) or more, while as per the admitted case of DRI the value of the gold allegedly seized from the employee of applicant's firm Sumit Verma is Rs. 1,75,55,000/- which is less than Rs. 2,00,00,000/- thus the arrest of the applicant is not essential, more so in the background of fact that applicant is ready to cooperate in the investigation and shall remain present before the Investigating Officer / Intelligence Officer as and when his presence would be required. 11. It is also submitted that the applicant is not having any previous criminal history and having roots in the society and is also not a flight risk, thus his personal liberty be protected. 12. Shri Digvijay Nath Dubey, learned counsel representing DRI opposes the prayer of the applicant on the ground that coaccused Sumit Verma was apprehended on 27.1.2023 by the team of D.R.I. on the basis of an intelligence input stating that some gold is being smuggled in the territory of India and after arrest and search of the aforesaid Sumit Verma, gold weighing about 3000 grams were recovered from his possession having market value of Rs. 1,75,55,000/- and on being interrogated the name of the instant applicant has surfaced in his confessional statement wherein he has stated that recovered gold from him (Sumit Verma) was transported into the territory of India through Bangladesh and was delivered to the instant applicant at Kolkata and was to be delivered at Jaipur to a person named Ritesh Soni. 13. It is also submitted that till now no proof has been placed by the applicant or Sumit Verma with regard to the ownership of the gold and in absence of any such proof it would be presumed that the gold recovered from Sumit Verma was carried under the instructions of the applicant and has been smuggled into the territory of India. 14. It is also submitted that the applicant is not cooperating with the investigation and despite issuance of summons under section 108 of the Customs Act on various occasions, he has not appeared before the Investigating Officer, thus he is not entitled for any protection. 15. 14. It is also submitted that the applicant is not cooperating with the investigation and despite issuance of summons under section 108 of the Customs Act on various occasions, he has not appeared before the Investigating Officer, thus he is not entitled for any protection. 15. Having heard learned counsel for the parties and having perused the record, it is evident and accepted to the parties that co-accused Sumit Verma from whose possession 3000 grams of gold is said to have been recovered of the value of Rs. 1,75,55,000/- has not been apprehended from any exit or entry point to or from the territory of India. The case of the D.R.I. as is reflected from the submissions made by Shri Digvijay Nath Dubey is that the applicant before this Court and co-accused Sumit Verma have failed to produce any document or conclusive proof which may show that the ownership of the gold belongs to them and in absence of any conclusive proof pertaining to the ownership, the gold in all probability should be presumed is to be smuggled in the territory of India and as it has also been confessed by Sumit Verma. 16. Per contra learned counsel for the applicant has relied on various documents placed on record pertaining to the ownership of the gold and it is submitted that the firm in the name of R.A. Mosun Jewellers is jointly owned by the instant applicant and other partners and applicant is one of its partner and the gold was being transported under the instructions of the applicant through its employee, namely, Sumit Verma from Kolkata to Jaipur where the branch of R.A. Mosun Jewellers is also existing and thus it was a case of internal transfer of the gold of R.A. Mosun Jewellers from their head office to branch office at Jaipur. 17. Be that as it may the circular issued by the Ministry of Finance, Department of Revenue of date 16.8.2022 which has not been denied by the D.R.I. places a rider on the arrest of the offender of Customs Act if the value of such goods is not more than Rs.2,00,00,000/-. Admittedly the value of gold which has been recovered from the co-accused Sumit Verma is Rs.1,75,55,000/-. 18. Admittedly the value of gold which has been recovered from the co-accused Sumit Verma is Rs.1,75,55,000/-. 18. Thus, having regard to all the facts and circumstances of the case including the guidelines which has been issued by the Government of India, Ministry of Defence, Department of Revenue dated 16.8.2022 pertaining to the arrest of various offenders of the Customs Act as well as the fact that alleged offences against the applicant are punishable with upto seven years of imprisonment and gold has not been recovered from the possession of applicant, in the considered opinion of this Court the liberty of the applicant may be protected for some time, subject to his cooperation in the investigation. 19. Let better counter affidavit be filed by the DRI mentioning therein about the culpability of the applicant more so in the background of the fact that the gold recovered from the coaccused Sumit Verma has not been apprehended from any exit or entry point to or from the territory of India and a representation is alleged to be pending before DRI, submitted by Mr. Ranjan Soni, partner of the firm. 20. Let this case be listed on 3.5.2023. 21. In the meantime, it is provided that till the next date of listing the applicant -Anil Soni in the event of his arrest in the above noted case by DRI or any of its officer shall be released on anticipatory bail on his furnishing a personal bond of Rs. 50,000/- with two sureties in the like amount to the satisfaction of the Station House Officer / Investigating Officer/ trial court concerned subject to the fulfillment of following conditions:- (1) The applicant within a week from today shall appear before Mr. Anil Kumar Pathak, Senior Intelligence Oficer, DRI, investigating Officer, at the office of DRI situated at 2/31 Vishal Khand, Gomti Nagar, Lucknow on any working day. (2) The Investigating Officer/ Intelligence Officer who is investigating the case would be free to interrogate the applicant and the applicant shall cooperate in the investigation and shall also remain present before the Investigating Officer/ Intelligence Officer investigating the case on any subsequent date on which he may be called even for discovery of any fact under section 27 of the Indian Evidence Act. (3) The applicant shall deposit his passport with the Investigating Officer / Intelligence Officer of DRI and if he is not possessing any passport he shall file an affidavit before the Investigating Officer mentioning clearly therein that he is not possessing any passport. (4) Learned counsel for the applicant shall immediately provide the mobile phone no. of the applicant (7450895547 & 9331602171) to the learned counsel appearing for DRI and learned counsel for DRI shall communicate these mobile phone nos. of the applicant to the Intelligence Officer/ Investigating Officer, who may communicate with the applicant/ accused pertaining to his attendance before him at the office of the DRI at Lucknow on any given date (s). 22. In case the applicant will not cooperate with the Investigating Officer, the DRI may approach this Court even before the next date of listing for vacation of this interim order.