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2024 DIGILAW 113 (GUJ)

Parag Dhirajlal Dave v. State Of Gujarat

2024-01-16

DIVYESH A.JOSHI

body2024
ORDER : 1. Rule. Learned APP waives service of notice of Rule for and on behalf of respondent – State. 2. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with DRI File Number: DRI/AZU/SRU/B/INV-11 of 2023 registered with Directorate of Revenue Intelligence, Surat Unit, for the offence punishable under Sections 135(1) (i)(a) and 135(1)(i)(b) of the Customs Act, 1962. 3. Learned Senior Advocate Mr. J. M. Panchal assisted by learned advocate Ms. Shweta Lodha for learned advocate Mr. Virat Popat for the applicant submits that secret information was received on 07.07.2023 by the officials of the Directorate of Revenue Intelligence (DRI) that four persons viz. Shri Uvesh Imtiyaz Shaikh, Shri Mohamed Sakib Bustak Ahmad Atashbajiwal, Shri Yasir Shaikh and Smt Marufabanu Yasir Shaikh traveling via Air India Express flight from Sharjah are attempting to smuggle gold into India with the help of official at Surat Airport. Therefore, the officers examined their cabin and check-in baggage by drawing Panchnama. During the panchnama proceedings, the officers carried out systematic search/examination of handbag and check-in bags of above mentioned four persons and found total 20 white coloured pouches containing 38,155.00 gram gold in paste form. The details of gold extracted from gold paste are as under: Sr. No. No. of White Coloured Pouch Gross Weight of White Coloured Pouch (In Gms) Net Weight of Gold recovered (In Gms) Remarks 1 5 10812.06 9723.00 Maroon Coloured Duffle Bag of Brand “La Polo TM International” recovered from Shri Mohamed Sakib Bustak Ahmad Atashbajiwal 2 6 13094.09 11099.00 Black Coloured Side Bag of Brand “RichBaolong” recovered from Shri Uvesh Imtiyaz Shaikh 3 9 19631.13 17333.00 Blue-Black Coloured Bagpack of Brand “Royal Mountain Collection” recovered from Shri Uvesh Imtiyaz Shaikh 20 43537.28 38155.00 4. Learned Senior Advocate Mr. Panchal further submits that as per the case of the prosecution, approximately 3882 grams gold in paste form was found abandoned in the men’s washroom at the immigration area on 1st floor of Surat Airport by the CISF. Thus, total 42037 grams (38155 grams from aforesaid four co-accused and 3882 grams abandoned gold paste) was recovered by the DRI and the market value of the said gold would be of Rs.25,26,54,562/- (tariff value Rs.21,20,34,628/-). It is submitted that at the relevant time, the applicant accused was working as Police Sub-Inspector, Immigration Department at Surat Airport. Thus, total 42037 grams (38155 grams from aforesaid four co-accused and 3882 grams abandoned gold paste) was recovered by the DRI and the market value of the said gold would be of Rs.25,26,54,562/- (tariff value Rs.21,20,34,628/-). It is submitted that at the relevant time, the applicant accused was working as Police Sub-Inspector, Immigration Department at Surat Airport. Further, it is the case of the prosecution that the aforesaid four co-accused persons informed that 20 white coloured pouches containing gold in paste form and 5 black belts were handed over to them by one of the co-accused Salman bhai (from Sharjah) with a direction to hand it over to the present applicant accused in men’s washroom after arrival at Surat Airport on 08.07.2023. It is submitted that on the strength of the aforesaid material, the investigation is carried out and statements of the accused persons came to be recorded under Section 108 of the Customs Act, 1962 and ultimately a criminal complaint under Section 135 of the Customs Act, 1962 came to be registered against total 11 accused persons before the Court of learned Chief Judicial Magistrate, Surat, which was eventually culminated into Criminal Complaint No.83013 of 2023. 5. Learned Senior Advocate Mr. Panchal submits that as per the case of the prosecution, accused No.1, who belongs to Sharjah, has made an attempt to smuggle the gold by illegal way with the help of other co-accused persons and they have hatched a criminal conspiracy and in furtherance of the said conspiracy, they have to act in a particular manner as per the role assigned to them. The accused Nos. 1, 2 and 3 have yet not been arrested and they have been shown as absconder. As per the case of the prosecution, the applicant accused, being an officer of Immigration Department, Surat Airport, has tried his level best to extend all support to the accused persons to smuggle the gold illegally in the country. Learned Senior Advocate Mr. Panchal further submits that in fact the story put forward by the prosecuting agency is that all the accused persons have conspired with each other and made a plan to smuggle the gold illegally in the country, however, before they could execute the said plan, the co-accused persons who had come altogether from Sharjah to Surat have already been apprehended by the members of the Custom Department with alleged illegal consignment of gold. Learned Senior Advocate Mr. Panchal submits that as per the case of the prosecution, the role of the present applicant accused would start only after the co-accused meet him in the men’s washroom at Surat Airport but before that the co-accused have been arrested. Learned Senior Advocate Mr. Panchal further submits that during the course of investigation, five times, statement of the present applicant accused has been recorded and if the Court would go through the contents of the said statements, it would be found out that no role of the present applicant accused is found out. Learned Senior Advocate further submits that the complaint is filed against 11 accused persons, out of which, three accused persons have been shown as absconder. The present applicant is a Government employee and he has been arrested on 09.07.2023 and since then he is in judicial custody. 6. Learned Senior Advocate Mr. Panchal further submits that without admitting and for the sake of argument if the case of the prosecution is accepted as it is, in that event, the entire case of the prosecution hinges upon the provisions of Section 135 of the Customs Act and if at all at the end of day, the prosecution succeeds in their attempt to prove the charge levelled against the accused persons, in that event, the maximum punishment could be up to 7 years. Admittedly, present applicant accused is in jail since 09.07.2023. Learned Senior Advocate Mr. Panchal has put reliance upon the decision of the Hon’ble Apex Court in the case of Mohd. Farooque Alias Mohd. Farook v. Union of India, reported in (2023) 3 SCC (Cri.) 604 and emphatically submitted that the Hon’ble Supreme Court has considered the bail application of the said appellant accused person even after the following four grounds were raised by the prosecuting agency: (i) 22 biscuits of gold were found on the person of the present appellant; (ii) the appellant and his brother had made multiple trips to Myanmar importing gold biscuits; (iii) they were using multiple mobile phones; and (iv) the principal offender has been absconding. Learned Senior Advocate Mr. Panchal submits that herein the instant case, nothing is recovered from the conscious possession of the applicant accused. Learned Senior Advocate Mr. Panchal further submits that during the course of investigation, investigating officer has recovered the mobile phone of the present applicant accused. Learned Senior Advocate Mr. Panchal submits that herein the instant case, nothing is recovered from the conscious possession of the applicant accused. Learned Senior Advocate Mr. Panchal further submits that during the course of investigation, investigating officer has recovered the mobile phone of the present applicant accused. It is alleged that present applicant accused has already deleted all the WhatsApp call recording and other data from the phone and the mobile phone is already forwarded to the National Forensic Science Laboratory for retrieving the data but yet report of NFSL has not been produced on record. Learned Senior Advocate further submits that certain data have been recovered and those set of documents are already produced on record. Learned Senior Advocate Mr. Panchal further submits that the investigation is already over and therefore, considering the aforesaid factual aspects as well as principle of law enunciated by the Hon’ble Apex Court and role attributed to the present applicant accused, he may be enlarged on bail by imposing suitable terms and conditions. 7. Learned APP Mr. J. K. Shah appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. 8. Learned Senior Standing Counsel appears on behalf of respondent No.2 DRI Mr. Siddarth Dave has opposed present application with vehemence and submitted that present applicant accused is a Government Employee and as per the job profile of the present applicant accused he has to keep watch on the movement of the passengers passing through the Airport and if he finds the activities of any particular passenger as suspicious, then he has to intercept and interrogate him/her and during that process if something contrary to the provisions of law is found out, in that event, appropriate legal action is required to be initiated against the so-called culprit who has committed the crime. However, in the instant case, the applicant, who is the protector of the law, has indulged into such kind of illegal activities which would ultimately prove to be counter productive and against the welfare and economy of the country. It is also submitted that as soon as the main perpetrators of the crime have been apprehended by the officials of the DRI, they have immediately verified the CCTV footage of the Airport wherein act, action, behaviour and conduct of the applicant accused is found out very suspicious. It is also submitted that as soon as the main perpetrators of the crime have been apprehended by the officials of the DRI, they have immediately verified the CCTV footage of the Airport wherein act, action, behaviour and conduct of the applicant accused is found out very suspicious. Not only that, the statements of the persons who were caught red handed along with the gold were recorded under Section 108 of the Customs Act, wherein, a specific role of the present applicant accused is spelt out and it is well settled that incriminating statement recorded under Section 108 of the Customs Act can be taken into consideration and it can be admissible as an evidence in the Court of law and on the strength of the said evidence, order of conviction can be passed. Learned Senior Standing Counsel Mr. Dave further submits that the accused persons have narrated the entire sequence of events of incident in such a great manner that role of the present applicant accused is clearly spelt out. It is further submitted that as soon as the applicant accused has come to know about the arrest of the co-accused persons immediately he has deleted WhatsApp recording and other important data from his mobile phone and he has also crushed his sim-card and thrown it somewhere on the road. Therefore, the conduct of the applicant accused is also required to be seen. It is also submitted that during course of investigation it has also come on record that in past the applicant accused has also helped the co-accused persons and smuggled the gold in the country and therefore on the strength of the said revealing fact, a complaint for disproportionate assets under the provisions of the Anti Corruption Act has been registered against him and a raid was also conducted and investigation qua the said complaint is still going on. It is also submitted that the main accused persons who are situated outside the country are still not arrested and if the applicant is enlarged on bail, there are all chances that he will help the other co-accused persons and the investigation qua the absconder accused persons would not reach to its logical conclusion. Therefore, at least, till the filing of the charge-sheet in the aforesaid complaint, the applicant may not be enlarged on bail. 9. Therefore, at least, till the filing of the charge-sheet in the aforesaid complaint, the applicant may not be enlarged on bail. 9. I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. It is also found out from the record that applicant is a Government Employee and arrested on 09.07.2023 and since then he is in judicial custody. The investigation is over. All the offences are triable by the Court of Magistrate. There is no recovery or discovery at the instance of the present applicant accused. The applicant accused has been arraigned as an accused on the basis of the statement of the co-accused. Thus, considering the aforesaid aspects, I am inclined to exercise discretion in favour of the applicant. 10. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in [2012]1 SCC 40 as well as in case of Satender Kumar Antil v. Central Bureau of Investigation & Anr. reported in (2022)10 SCC 51 . 11. In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. 12. 11. In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. 12. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with DRI File Number: DRI/AZU/SRU/B/INV-11 of 2023 registered with Directorate of Revenue Intelligence, Surat Unit, on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall; [a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injuries to the interest of the prosecution; [c] surrender passport, if any, to the lower court within a week; [d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned; [e] mark presence before the concerned Police Station on alternate Monday of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.; [f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court; 13. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. 14. At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail. 15. The present application stands allowed accordingly. Rule is made absolute. Direct service is permitted.