Allowed

Mohd, Mohseen v. Union of India Thru, D.R.I Lucknow

Allahabad HC29 Aug 2022/504/2022

Case brief

AI extract

What is this about?

This single-judge order allows bail to an applicant charged with smuggling foreign origin gold. Relying on established Supreme Court precedents regarding bail criteria, the High Court of Judicature at Allahabad granted bail subject to standard conditions including personal bonds and sureties.

What did the court decide?

Release of applicant on bail by furnishing a personal bond and two reliable sureties subject to specific conditions.

Mohd, Mohseen Vs Union of India Thru, D.R.I Lucknow — Cheque Dishonour | Allahabad HC (2022)

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Court No. - 15

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 504 of 2022

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Applicant :- Mohd, Mohseen Opposite Party :- Union Of India Thru, D.R.I Lucknow Counsel for Applicant :- Ayodhya Prasad Mishra A.P. Mishra,Rituraj Mishra,Suryakant Singh Counsel for Opposite Party :- Digvijay Nath Dubey

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Hon'ble Sanjay Kumar Pachori,J.

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Heard Sri Ayodhya Prasad Mishra, learned counsel for the applicant, Sri Digvijay Nath Dubey, learned counsel for the Directorate of Revenue Intelligence, Lucknow and perused the material on record.

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The present bail application has been filed on behalf of applicant Mohd, Mohseen under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 06 of 2021, under Sections 135 r/w 104 of Custom Act, 1962, registered at Police Station- D.R.I. Lucknow Zonal Unit, District- Lucknow, during pendency of the trial.

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The allegations as per the complaint are that an intelligence was received that a person namely Sri Mohseen bearing passport No.R 6611354 is in possession of Foreign Origin Gold and was arriving at Lucknow Airport from Riyad Saudi Arabia on 15.08.2021. On the basis of the said information, Directorate of Revenue Intelligence, DRI, Lucknow setup a surveillance. It is also recorded that DRI had specific information that the person coming to India with Gold would be received in a Toyota Fortuner Car bearing Registration No. UP-12X-9393 and shall deliver the smuggled gold at Muzffarnagar. It is stated that the said vehicle was not found around the Airport, the officers located the said vehicle near Awadh Chauraha and found two persons seated in the vehicle. Subsequently, two other persons deboarded one auto and sat in the said car and went towards Agra Expressway. When they were intercepted and a search was carried out, it is stated in the complaint that one Mohseen had admitted that he had come from Riyad and had brought with him Foreign Origin Gold, which was to be delivered at Muzaffarnagar. In respect of personal search conducted on all the applicants herein, only from co-accused Mohd. Nasir Raza, an amount of Rs.1,43,000/- was recovered from the backpack. From Mohd. Mohseen 40 bars of Gold were recovered along with other articles. It was alleged that the Gold recovered from applicant was clearly an act of smuggling.

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Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that the applicant was not the importer of the gold in question. In worst case scenario, the case against the applicants by the department would fall under section 135(1)(i) and the department in worst case scenario can allege that the applicants were knowingly concerned in the evasion of duty. He argues that the possession of gold per se is not illegal and the non payment of duty is the offence under which the punishment can be awarded which is on the importer, in the present case.

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It is further argued that in terms of mandate of section 135 (1) (i) (A), the offence is punishable for a term which may extend to seven years. It is further argued that in terms of the mandate of section 137(iii), the offence is compoundable as the import of gold is not marked as a prohibited item for import in ITC(HS) Classification of Export and Import Items in the Foreign Trade Policy as amended from time to time. It is further submitted that offence is triable by the Magistrate as provided under section 138 of the Customs Act. It is further submitted that co-accused Mohd. Nasir Raza, Shamsher Alam and Shri Mukir have been granted bail by Co-ordinate Bench of this Court in Bail Nos. 10481 of 2021, 10036 of 2021 & 10249 of 2021 by a common order dated 16.12.2021.

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It is next contended that there is no other criminal antecedent to his credit. It is next submitted that there is also no possibility of the applicant either fleeing away from the judicial process or tampering with the witnesses. The applicant, who is languishing in jail since 15.08.2021 undertakes that he will not misuse the liberty, if granted. It has also been pointed out that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

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Per contra , learned counsel for the D.R.I has supported the order passed by the court below and vehemently opposed the prayer for grant of bail to the applicant. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.

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It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.

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Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118 , the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.

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Let applicant, Mohd. Mohseen be released on bail in the aforesaid case crime number on her furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

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(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the court or to any police officer or tamper with the evidence.

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(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.

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(iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 of Cr.P.C.

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(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.

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(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.

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(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed in accordance with law.

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The trial court may make all possible efforts/endeavor and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.

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It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

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The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

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The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

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Order Date :- 29.8.2022 VPS

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Digitally signed by VED PRAKASH SHARMA Date: 2022.08.30 18:27:31 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Mohd, Mohseen v. Union of India Thru, D.R.I Lucknow

Case brief

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Mohd, Mohseen v. Union of India Thru, D.R.I Lucknow

Case brief

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