Mohd. Kashif Vs U.O.I. Deptt. of Air Customs C.C.S.I. Airport Thru. Deepak Kumar Inspector Air Customs Officer

Neutral Citation No. - 2024:AHC-LKO:40743

Court No. - 21

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5664 of 2024

Applicant :- Mohd. Kashif Opposite Party :- U.O.I. Deptt. Of Air Customs C.C.S.I. Airport Thru. Deepak Kumar Inspector Air Customs Officer Counsel for Applicant :- Raghvendra P. Singh,Vijay Pratap Singh

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Counsel for Opposite Party :- Dipak Seth,Manish Misra

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Hon'ble Jaspreet Singh,J.

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Heard learned counsel for the applicant and Sri Manish Misra learned counsel who has filed vakalatnama on behalf of Central Board of Indirect Taxes & Customs, the same is taken on record.

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The instant application has been moved seeking bail in respect of Case No.01 of 2024-2025 under Section 135 of Customs Act 1962, Police Station Customs Airport, District Lucknow.

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It has further been stated that as per the version of the prosecution, it is stated that the applicant was travelling from Sharjah to Lucknow in Flight no.6E-1424 on 01.04.2024. Upon arrival at Lucknow airport, the baggage of the applicant was checked. It is alleged that from the baggage of the applicant, 3 carton of cigarettes of foreign origin valued at Rs.8,28,000/- is said to have been recovered.

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Submission of learned counsel for the applicant is that the applicant has been falsely implicated in the case. The applicant does not have any criminal history nor the aforesaid consignment was recovered from the applicant. There is neither any public witness and under coercion the signatures of the applicant has been taken. It is further stated that in light of the Section 135 of the Customs Act, the value of the goods confiscated is less than Rs.1 Crore. In such circumstances, the applicant is entitled for bail.

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It is further submitted that the applicant is 29 years old and has a future ahead of him and in such circumstances, he is ready to participate in the trial and the applicant who otherwise has been in jail since 04.04.2024 may be enlarged for bail as two other co-accused namely Ameer Ahmad and Mohd. Rafeeq have already been enlarged on bail by means of the orders dated

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07.05.2024 passed in Criminal Misc. Bail Application no.4723 of 2024 and 4914 of 2024 respectively.

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Sri Manish Mishra learned counsel for the Customs has opposed the bail application and has submitted that from the bare perusal of the provision of Section 135 of the Customs Act, the word that 'any person' in circumstances must include a body of the individuals or an association of the persons whether registered or not and this is supported by the definition of the word, 'person' as mentioned in the General Clauses Act, 1897.

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It is further urged that in the instant case, all the co-accused as well as the applicant were travelling on the same flight from Sharjah to Lucknow and each of them were carrying contraband items which were confiscated. All the persons together were working in tandem with each other. In such circumstances they should be treated as a body of persons apart from the fact that they all belong to the same District Rampur, in order to over reach the provisions of law each was carrying contraband items reducing its value to enable them to get bail if apprehended. Since they were working together the collective value of the confiscated items if taken would indicate that the amount and value exceeds Rs.1 crore and in such circumstances the applicant is not be entitled for bail.

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In support of his submissions, Sri Mishra has relied on the decision of the Apex Court in State of Gujarat vs Mohanlal Jitamalji Porwal; 1987 2 SCC 364. Relying on the aforesaid decisions, it is urged that there is distinction between a crime relating to murder and an economic offence. It is submitted that where person is involved in economic offence, his actions have a more deeper impact on the society coupled with the fact that such an offence is committed with deep deliberation and thought which may not be necessarily true for an offence such as murder which may have been committed at the spur of the moment.

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Sri Mishra also relied upon another decision of Kerala High Court in Pulikkippoyil Sharafudheen vs The Superintendent of Customs ; 2023 SCC online Ker 4488 and it is urged that in paras-16 and 19, the Court had noticed the provisions of the General Clauses Act and extending it to the provisions of Section 135 of the Customs Act where the word 'any person' has been used to include a body of persons. In such circumstances, it is urged that once the applicant and the other co-accused who were acting as one common associations of individuals hence the collective value of the contraband and confiscated items would reach at the threshold of Rs.1 crore and in such circumstances the applicant is not entitled for bail.

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The Court has heard learned counsel for the appellant and also perused the material on record.

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At the outset, it may be stated that in so far as the fact whether the applicant was working in tandem with the other co-accused is an issue which is to be gone in trial as it requires evidence to establish the fact. Prima facie, at this stage, the Court is considering the issue of bail, nothing has been brought on record to indicate that the applicant was working in tandem with the other co-accused. There may be some similarity that the applicant and some of the other co-accused belong to District Rampur but that in itself is not sufficient to conclude that the applicant was or can be treated to form an association of persons or a body of individual with common goal.

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Considering the decision of Kerala High Court, which would reveal that in the said case the facts were little different as there was material on record to indicate that the persons were working together which is not the case here nor this fact has been brought on record based on some cogent material except the oral submission of the counsel for the respondent.

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The decision of the Apex Court in State of Gujarat vs Mohanlal Jitamalji Porwal (supra) apparently as a proposition can not be disputed, but the fact remains that the aforesaid judgment has been rendered by the Apex Court after trial had concluded. As already noticed above that this is pre trial bail and the evidence is yet to be adduced during trial.

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In the aforesaid facts and circumstances of the case in the humble opinion of the Court the decisions cited by the counsel for the respondent are distinguishable and not applicable in the instant case and at the pre trial bail stage.

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Looking into the fact that the applicant does not have any criminal history and the quantity of the contraband items is stated to be of Rs.9,12,000/- and considering the facts and circumstances including that the counsel for the respondent did not dispute that the applicant is not at flight risk and he is not in a position to influence any witness or tamper with the evidence; coupled with the fact that all contentions issues are yet to be tested in trial.

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Moreover, the co-accused Ameer Ahmad and Mohd. Rafeeq have been enlarged on bail vide orders dated 07.05.2024 passed in Criminal Misc. Bail Application no.4723 of 2024 and 4914 of 2024, copies of the bail orders have been annexed as Annexure nos.6 and 7 of the bail application.

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Considering the rival submissions as well as the facts and circumstances of the case and the material available on record also considering the nature of allegations and accusation against the applicant, the severity of the punishment if convicted and the period of incarceration as well as the fact that no apprehension has been expressed by the learned AGA that the applicant is at the risk of fleeing justice or that he would tamper with evidence or influence any witness, hence, at this stage, without expressing any opinion on the merits of the case, this Court is of the view that the applicant is entitled to be released on bail.

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Accordingly, the instant bail application is allowed.

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Let the applicant- Mohd. Kashif involved in the abovementioned case crime be released on bail on his furnishing a personal bond with two reliable sureties each in the like amount to the satisfaction of the court concerned. At the time of executing required sureties, the following conditions shall be imposed in the interest of justice:-

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(i) 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 court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

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(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

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(iii) 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 him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

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(iv) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

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(v) 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

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313 Cr.P.C. If in the opinion of the trial court, 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 against him in accordance with law.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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Order Date :- 25.5.2024 Asheesh

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Digitally signed by :- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Mohd. Kashif v. U.O.I. Deptt. of Air Customs C.C.S.I. Airport Thru. Deepak Kumar Inspector Air Customs Officer

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Mohd. Kashif v. U.O.I. Deptt. of Air Customs C.C.S.I. Airport Thru. Deepak Kumar Inspector Air Customs Officer

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