SANJAYKUMAR MULCHANDBHAI SHAH V. PRINCIPAL COMMISSIONER OF CUSTOMS

CR.MA/1902/2018

AI Insights

The case involves Sanjaykumar Mulchandbhai Shah, a director of M/s. Somnath Metal Private Limited, who sought anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, concerning a summons related to the mis-declaration and concealment of goods, including beetle nuts, in imported containers. The goods were seized under Section 108 of the Customs Act. The applicant argued that he was falsely implicated and had no direct involvement in the alleged smuggling activities. The court considered the guidelines for arrest and bail under the Customs Act, 1962, and the specific circumstances of the case, including the CIF value of the goods and the applicant's lack of criminal antecedents.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 692249 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 17-07-2018
• Assessment Year: misc
• Laws Referred To: Code of Criminal Procedure, 1973, Customs Act, 1962
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: NIRZAR DESAI; MD MEHTA
• Assessee Lawyers: DEVEN PARIKH; HARDIK MODH
• Keywords: Anticipatory bail; Concealment of Goods; Customs Act; Mis-declaration; Customs guidelines
• Section: 108; 438

Judgement Text

"R/CR.MA/1902/2018 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL MISC.APPLICATION NO. 1902 of 2018 ========================================================== SANJAYKUMAR MULCHANDBHAI SHAH Versus PRINCIPAL COMMISSIONER OF CUSTOMS ========================================================== Appearance: MR DEVEN PARIKH, SR. ADVOCATE, MR HARDIK P MODH(5344) for the PETITIONER(s) No. 1 MR NIRZAR S DESAI(2117) for the RESPONDENT(s) No. 1 MS MD MEHTA, PUBLIC PROSECUTOR(2) for the RESPONDENT(s) No. 2 ========================================================== CORAM: HONOURABLE MS JUSTICE SONIA GOKANI Date : 17/07/2018 ORAL ORDER . 1. This is an application seeking anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, in connection with the Summons being Case No. S. No. SK/23/2017 in F. No. S/43-05/SIIB/CHM/Radhika/ 2017-18, Dated: 06.12.2017, issued by Superintendent (SIIB), Mundra. 2. The applicant is a Director of M/s. Somnath Metal Private Limited for more than seven years, which is engaged in the business of import and trading of various types of metal scraps. In relation to the four containers of HMS scrap at Mundra of one M/s. Radhika Impex, the cargo was examined, which was stuffed in four containers and 21.420 metric tonnes of Arecanuts, which is popularly known as ‘Beetle Nuts’ of ‘Supari’ was found. It was concealed behind the heavy metal Page 1 of 9 R/CR.MA/1902/2018 ORDER scrap. It was seized under Section 108 of the Customs Act under the panchnama dated 29/30.07.2017. Said containers were seized on the ground of mis-declaration on the part of M/s. Radhika Impex of imported goods, and therefore, they are liable for confiscation. 3. The applicant, since, apprehended his arrest in connection with the summons issued after recording the statements of one Shri. Ramnarayan Laddha and Shri. Dipak Thakor, who are arrested for further interrogation, that this application has been preferred. 4. The Court of the learned Session Judge chose not to exercise discretion on 19.01.2018 and rejected the same, and therefore, the applicant is before this Court. 5. The applicant has been protected by this Court (Coram: S.H. Vora, J.) vide order dated 25.01.2018 by way of interim relief, which read thus: 6. Today, this Court has heard the learned Sr. Advocate, Mr. Deven Parikh, with learned Advocate, Mr. Modh, appearing for the applicant, learned Standing Counsel, Mr. Desai, for respondent No.1 and learned APP, Ms. Mehta, for the State. Page 2 of 9 R/CR.MA/1902/2018 ORDER 7. It is urged by the learned Sr. Counsel, Mr. Parikh, that in connection with the import of the containers of HMS Scrap, gold bar and cigarettes also have been seized. The authorities also found the concealment of beetle nuts. He urged that, therefore, these all have arisen from one incident and in respect of other two seizures, the applicant has been granted anticipatory bail as well as regular bail. It is, further, urged that the applicant is falsely roped in, as he is the person working with Shri. Ramnarayan Laddha and he has no independent role to play. It is, further, his case that he is not directly or indirectly involved in alleged smuggling of beetle nuts nor has he dealt with the procedure of import of the same. He has no criminal antecedents. He is in the business for many years with his family and he has many moveable and immovable properties, and thus, he is having deep roots in the society. His income tax returns and other documents are also produced before this Court to substantiate this argument. 8. Learned Sr. Counsel also drew the attention of this Court to the Circular dated 17.09.2013 bearing Circular No. 38/2013-Cus. Issued by the Government of India, Ministry of Finance (Department of Revenue), Central Board of Excise & Customs, New Delhi, which pertains to the guidelines for arrest and bail in relation to offences punishable under the Customs Act, 1962. It Page 3 of 9 R/CR.MA/1902/2018 ORDER states that in case of importation of goods involving willful mis-declaration in description of goods, concealment of goods, goods covered under Section 123 of the Customs Act, 1962, with a view to import restricted or prohibited items and where the CIF value of the offending goods exceeds Rs.50/- lakh, it being a bailable offence only in exceptional circumstances arrest be effected. Counsel also, further, pointed out that this guideline has been further amended vide Circular No. 28/2015-Cus., Dated: 23.10.2015, where, the CIF value of the offending goods is enhanced to Rs.1,00,00,000/- or more. Apart from that, he also took this Court through the factual details to point out that the applicant has a good case on merit to be enlarged on anticipatory bail. 9. Learned Standing Counsel, Shri Desai, appearing for respondent No.1 has vehemently stated that it is the case of the prosecution that there are two companies, namely M/s. Somnath Metal Private Limited and M/s. H.B. Metal Private Limited, which are legally importing goods, whereas, some of the concerns had created two fictitious companies, namely M/s. Radhika Impex and M/s. Bhagyoday Enterprise. Present applicant has a sizable role in smuggling of gold bar, cigarettes and beetle nuts by concealing the same in scrap. He, further, urged that Shri Ramnarayan Laddha and Shri Dipak Thakor are engaged in Page 4 of 9 R/CR.MA/1902/2018 ORDER creating shadow companies. He, however, does not dispute that the value of the goods, which had been allegedly concealed, comes to Rs.50/- lakh. 10. Having thus heard the learned Counsels on both the sides and also on examining the material on record, this Court notices that from the provisions of the Customs Act and the guidelines issued vide Circular dated 17.09.2013 bearing Circular No. 38/2013-Cus. by the Government of India, Ministry of Finance (Department of Revenue), Central Board of Excise & Customs, New Delhi, and the further amendment made by the very authority dated 23.10.2015, it is very clear that the arrest, in respect of the offence categorized as bailable offences, should be effected only in exceptional circumstances, which may include importation of trade goods involving mis-declaration in description of goods, concealment of goods, goods covered under Section 123 of the Customs Act, 1962, with a view to import restricted or prohibited items and where the CIF value of the offending goods is Rs.1,00,00,000/- crore or more. In the instant case, the CIF value of the goods, according to the Customs Department, comes to Rs.50/- lakh. Apart from that, the applicant is working for Shri Ramnarayan Laddha and others in importing the goods, where, the allegations are of masterminding the smuggling of beetle nuts. Considering the fact that the companies are owned by Shri Ramnarayan Page 5 of 9 R/CR.MA/1902/2018 ORDER Laddha and also bearing in mind the maximum punishment of 7 years and with the applicant having no antecedents, the nature of accusations levelled against the applicant, this Court is inclined to consider his request. 11. Here, it may also be noted that on earlier occasion, this Court protected him vide order dated 25.01.2018 and he has not misused his liberty and as the learned Standing Counsel for Respondent No.1 also could not point out any antecedent of the applicant nor has he pointed out non-cooperation on the part of the applicant, this application deserves to be allowed. 12. In the result, this application is ALLOWED by directing that in the event of the applicant herein being arrested in connection with the Summons being Case No. S. No. SK/23/2017 in F. No. S/43-05/SIIB/CHM/Radhika/ 2017-18, Dated: 06.12.2017, issued by Superintendent (SIIB), Mundra, the applicant shall be released on bail on furnishing a bond of Rs.25,000/- (Rupees Twenty Five Thousand only) with one solvent surety of the like amount to the satisfaction of the trial Court concerned and on conditions that the applicant:- [a] shall cooperate with the investigating agency and shall make himself available for interrogation Page 6 of 9 R/CR.MA/1902/2018 ORDER whenever required; [b] shall remain present at concerned Police Station on 23RD JULY, 2018, between 11:00 am to 2:00 pm: [c] shall not hamper the investigation in any manner nor shall directly or indirectly make any inducement, threat or promise to any witness so as to dissuade them from disclosing such facts to the Court or to any Police Officer; [d] shall at the time of execution of bond, furnish the address to the Investigating Officer and the Court concerned and shall not change the residence till the final disposal of the case or till further orders; [e] will not leave India without the permission of the Court and, if is holding a Passport, shall surrender the same before the trial Court immediately; [f] despite this order, it would be Page 7 of 9 R/CR.MA/1902/2018 ORDER open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order. [g] If arrested, to 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 Page 8 of 9 R/CR.MA/1902/2018 ORDER residence without prior permission of this Court; [h] shall deposit RS.5/- (FIVE LAKH) lakh before the trial Court concerned, which shall in turn deposit the same in FDRs in any nationalized bank, as the maximum penalty that can be levied against the person, if eventually, the offence is proved. 13. At the time of 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. 14. Rule is made absolute to the aforesaid extent. Direct service is permitted. (SONIA GOKANI, J) UMESH/- Page 9 of 9 "