Allowed

Dhanjay Kumar Yadav v. Union of India Thru. Deputy Commissioner (P) Air Custom C.C.S.I. Airport Lko.

Allahabad HC18 Apr 2024BAIL/4213/2024

Case brief

AI extract

What is this about?

In Criminal Misc. Bail Application No. 4213 of 2024, the High Court of Judicature at Allahabad, Lucknow Bench granted bail to the applicant in a customs smuggling case. The court distinguished a coordinate bench's order and applied recent Apex Court guidelines to authorize release after nearly one year of custody, imposing strict conditions.

What did the court decide?

Release of the applicant on bail with two sureties and liability to forfeit, subject to strict conditions of personal presence and surrender of passport.

Dhanjay Kumar Yadav vs Union of India Thru. Deputy… — Customs and Excise | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:34022

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Court No. - 14

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4213 of 2024

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Applicant :- Dhanjay Kumar Yadav Opposite Party :- Union Of India Thru. Deputy Commissioner (P) Air Custom C.C.S.I. Airport Lko. Counsel for Applicant :- Sanjay Kumar Verma,Pramod Kumar Pandey,Vasuvrat Counsel for Opposite Party :- Dipak Seth

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Hon'ble Jaspreet Singh,J.

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Heard learned counsel for the applicant and Shri Dipak Seth, learned counsel appearing for the Union of India.

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By means of the instant bail application, the applicant seeks bail in respect of Complaint Case No.82605 of 2023, Case Crime No.6 of 2023-24 under Section 135 Customs Act, 1962, relating to Police Station Airport, District Lucknow.

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The submission of the learned counsel for the applicant is that as per the version of the prosecution, the applicant while travelling from Muscat to Lucknow on 29.05.2023 was intercepted at the airport. It is alleged that the applicant was carrying 4255 grams of gold valued at Rs.2,29,27,800/-.

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It is submitted that in so far as the applicant is concerned, the aforesaid recovery has been staged. It has further been pointed out that in terms of Section 135 of the Customs Act, 1962, the offence made out on its face value is triable by Magistrate and if the evasion of attempted duty does not exceed Rs.50,000,00/- then the said offence is non cognizable.

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It is also urged that the maximum sentence as prescribed is minimum one year and upto seven years and in the instant case, the applicant has been in jail since 30.05.2023 and as such he has already completed almost one year in custody and the trial has yet not concluded. It is in the aforesaid circumstances, it is urged that the applicant be enlarged on bail.

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Shri Dipak Seth, learned counsel appearing for the respondent has submitted that in so far as the present applicant is concerned, he was caught red handed with precious metal which was identified as gold on the person of the applicant. Apparently, it was a case of gold of foreign origin being

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smuggled into the country in such a case it does not amount to evasion of custom duty, it is an out right case where precious metal has been smuggled in the country and to that extent the submission of the learned counsel for the applicant may not have much bearing on the issue of bail.

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It is further urged that the trial is already underway and once the applicant has been apprehended with a such huge quantity of gold in such circumstances the applicant is not entitled to bail especially when another person on the very same day travelling from the very same flight has been smuggled was also apprehended with almost the same quantity of gold as well as in the same manner in which the present applicant was travelling and the bail of the said accused was rejected by a Coordinate Bench of this Court by means of order dated 19.09.2023 in Criminal Misc Bail Application No.10916 of 2023 ( Salman Ali Vs. Union of India ). It is thus urged that the present application also needs to be rejected for the said reason. He has also relied upon a decision of the Apex Court Y. S. Jagan Mohan Reddy Vs. Central Bureau of Investigation, (2013) 7 SCC 439. Reference has been made to paragraphs 34 and 35 of the said report that the economic offence cannot partake the nature of the other offences which are punishable. The effect of an economic offence goes an affects the financial condition of the country and also impacts the economy in such circumstances, merely because the punishment is upto seven years may not be taken as a parameter for granting bail.

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The Court has considered the rival submissions and also perused the material on record.

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It is not disputed that the complaint which has been filed against the applicant is under Section 135 of the Customs Act, 1962 as a stand alone provision. It is also not disputed that in terms of the aforesaid section read with Section 137 of the Customs Act an offence is also compoundable. There is a proviso appended a sub-section (3) of Section 137 specifically provides that in so far as certain substance and articles are concerned, the provision would not apply.

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However, the same does not clearly indicate in so far as the precious metal gold is concerned. Moreover, in terms of Section 137 (3) and the proviso appended thereto, a person may be permitted to compound only in respect of an offence where the value of which do not exceed rupees one crore. The offences are to be tried summarily.

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Having taken note of the above and also noticing the observations made by the Apex Court in the case of Satender

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Kumar Antil Vs. Central Bureau of Investigation and another, 2022 SCC Online SC 825 even though there is a mention that the economic offences are to be noticed separately but the fact remains that in the instant case the trial has yet not concluded. The applicant has already been in the custody for about a year and there does not appear to be any apprehension expressed regarding influencing any witness or tampering with the evidence and in so far as the flight risk of the applicant is concerned, appropriate submissions can be fixed so that the applicant does not flee justice.

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Keeping the aforesaid in mind and also the period of incarceration hence for the said reason the decision of the Coordinate Bench of this Court in Salman Ali (supra) can be distinguished. As far as the decision of the Apex Court in Y. S. Jagan Mohan Reddy (supra) is concerned, the observations apparently cannot be disputed but at the same time the decision of the Apex Court in Satender Kumar Antil (supra) also needs to be noticed and the relevant portion thereof needs as under:-

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"3. We are inclined to accept the guidelines and make them a part of the order of the Court for the benefit of the Courts below. The guidelines are as under:

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"Categories/Types of Offences

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A) Offences punishable with imprisonment of 7 years or less not falling in category B & D.

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B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.

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C) Offences punishable under Special Acts containing stringent provisions for bail like NDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act, 212(6), etc.

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D) Economic offences not covered by Special Acts.

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Requisite Conditions

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1) Not arrested during investigation.

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2) Cooperated throughout in the investigation including appearing before Investigating Officer whenever called.

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(No need to forward such an accused along with the chargesheet (Siddharth v. State of UP, 2021 SCC OnLine SC 615)

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CATEGORY A

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After filing of chargesheet/complaint taking of cognizance

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a) Ordinary summons at the 1st instance/including permitting appearance

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through Lawyer.

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b) If such an accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued.

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c) NBW on failure to failure to appear despite issuance of Bailable Warrant.

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d) NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.

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e) Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided.

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(emphasis mine)

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CATEGORY B/D

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On appearance of the accused in Court pursuant to process issued bail application to be decided on merits."

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CATEGORY C

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Same as Category B & D with the additional condition of compliance of the provisions of Bail under NDPS S. 37, 45 PMLA, 212(6) Companies Act 43 d(5) of UAPA, POSCO etc.

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4. Needless to say that the category A deals with both police cases and complaint cases.

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5. The trial Courts and the High Courts will keep in mind the aforesaid guidelines while considering bail applications. The caveat which has been put by learned ASG is that where the accused have not cooperated in the investigation nor appeared before the Investigating Officers, nor answered summons when the Court feels that judicial custody of the accused is necessary for the completion of the trial, where further investigation including a possible recovery is needed, the aforesaid approach cannot give them benefit, something we agree with."

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Considering the rival submissions, the facts and circumstances of the case and the material available on record as well as 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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Let the applicant Dhanjay Kumar Yadav involved in Complaint Case No.82605 of 2023, Case Crime No.6 of 202324 under Section 135 Customs Act, 1962, relating to Police Station Airport, District Lucknow 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.

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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) 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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(iv) 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 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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(v) The applicant will surrender the passport and not leave the country without prior permission of the Court.

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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 :- 1.5.2024 ank

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Digitally signed by :- ALI NEWAZ KHAN High Court of Judicature at Allahabad, Lucknow Bench

Dhanjay Kumar Yadav v. Union of India Thru. Deputy Commissioner (P) Air Custom C.C.S.I. Airport Lko.

Case brief

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Dhanjay Kumar Yadav v. Union of India Thru. Deputy Commissioner (P) Air Custom C.C.S.I. Airport Lko.

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