1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.APPLICATION NO.2750 OF 2009 Nalin Pravin Choksey .. Applicant Vs State of Maharashtra .. Respondent Mr. Raja Thakare i/b A.M.Chimalkar, Advocate, for Applicant. Mrs. P. P. Shinde, APP, for the Respondent. CORAM : D.B.BHOSALE, J. DATE : 15/07/2009 PC: 1. Heard Mr. Thakare, learned counsel for the applicant and Mrs P. P. Shinde, learned A. P. P, for the respondent. 2. The applicant is seeking anticipatory bail in GB CB CID E.O.W., C. R.No. 5 of 2009. The crime has been registered against the applicants and others for having allegedly committed an offence punishable under sections 420, 465, 467, 468, 471, 120(B) of I.P.C read with section 3, 12 of the Passport Act. 3. The prosecution case, in short, is that the accused persons T 2 involved in the crime imported luxury motor vehicles from Dubai under the “Transfer of Residence Scheme”, (for short “the scheme”), forged and fabricated the documents showing some past manufacturing years and evaded the customs duty payable on new motor vehicles. They also allegedly tampered with the engine numbers, the chasis numbers and fabricated the documents, to get the vehicles registered with transport authorities. It appears that in writ petition No.1064 of 2007, wherein the notice issued by the BMC for recovery of the octroi duty was under challenge, this court directed to investigate as to who are involved in importing the vehicles in this manner under the scheme and to take appropriate action against them. It is not the prosecution case that all the vehicles were imported under forged documents on same day, at one port and were thereafter distributed throughout India. The vehicles were brought independently in the name of different persons on different dates at different ports. During investigation, it transpired that the vehicle dealers in India, in connivance with dealers in Dubai, imported these vehicles by using passports of persons working there as labourers by paying them negligible commission. The vehicles were brought in their name under the scheme, which enjoys some benefits from payment of custom duty. The vehicles imported, though were sold to the customers, 3 were not transferred in their names since, under the scheme, it was a precondition that such vehicles cannot be transferred within a period of two years from the date of import. It is further alleged that the cheques of payments made by the customers were deposited in the bank accounts opened by showing some fictitious persons as real importers by the car dealers/ co- accused. Even for registration of these vehicles, forged and fabricated documents were submitted to the RTO showing some recent year of manufacturing. It is alleged that the Indians, who were residents of Dubai, were persuaded to bring the motor vehicles showing as purchased by them during their stay abroad. Thus, according to the prosecution, this scheme was cleverly utilized in order to bring luxury vehicles into India with the sole intention to evade the payment of customs duty. After unloading the vehicles on Indian ports, they were sold to the purchasers and got them registered on the basis of forged documents submitted to the Transport Authorities showing recent manufacturing year. After the investigation was directed by this court, initial report of the investigation shows that about 48 such vehicles were imported in India by using similar modus operandi and thereby more than Rs.2 crores customs duty was evaded and the Government was duped by the persons involved in the racket. 4 4. The applicant is one of the persons, who was allegedly involved in the racket. It appears that the brother of the applicant was also involved in the racket and since this court was not inclined to entertain his anticipatory bail application, he prayed for withdrawal of the same and sought liberty to surrender and apply for regular bail. 5. Insofar as the applicant is concerned, he is concerned with two vehicles involved in this racket, namely, MH-01-MA-9786 and MH-01-PA-3300. Both these vehicles were declared as old models at the time of import to the custom authority, and while registering with the RTO they were shown as latest models. Mr Thakare, learned counsel for the applicant, after taking me through the entire record and more particularly the statement of Hamsa Madatyil, submitted that the applicant has not played any role in either importing the vehicles or in registering them with the R.T.O. He has acted only as an agent/mediator between the importer and the purchaser of the vehicles. He submitted that the applicant is absolutely innocent and cannot be stated to have any connection with the crime. The State has filed detailed reply affidavit. It is necessary to reproduce as to what the State has to state in respect of these two vehicles. In 5 paragraphs 6(a) and 6(b) of the reply, they state as under: “(a) In case of Motor Vehicle MH-01-PA-3300 the vehicle is imported in the name of Thekkepuram Khalid r/o Mukkad, Thekkepuram House, Post – Ravneshware, Pallikere, Dist-Kasargod, Kerala. The vehicle was declared as 1999 model at the time of import to custom authority and while registering at R.T.O. Mumbai it was shown as 2005 model. For the said vehicle NOC was given to the Noida RTO. During investigation it was revealed that one Jungbahadur Gujral and Harmindersingh Walia sold said vehicle for Rs.25 lacs to “Seven Heaven Developers India Pvt Ltd.”, Noida, Dist-Gautam Budha Nagar, UP in July 2006. Then said vehicle registered in UP vide registration No.UP16-N-0007 on 19/10/2006. The said vehicle cannot be sold within two years from date of customs clearance, but applicant has sold the vehicle before two years, for that applicant has given forged documents which are submitted to RTO Noida for registration of the vehicle. After that said vehicle was sold to Dr.Sanjay Wadhavan and later he sold said vehicle to Daler Mehendi. The said vehicle was registered at Delhi RTO vide registration no.DL 4 FC 0005. For sale and acceptance of the payment of said vehicle in UP, the role of Harmindersingh Walia and Jungbahadursingh Gujral was disclosed. Therefore both of them was arrested and at present are on bail. During the custodial interrogation of Gujral it is disclosed that the said vehicle was imported by applicant and after the sale of vehicle money was given by Gujral to applicant in cash. Investigation with RTO agent revealed that applicant accused and arrested accused Jungbhadursingh Gujral has contacted him for registration with Mumbai RTO and Rs.1,20,213/- was handed over by applicant/accused to him for registration, the vehicle was produced by applicants driver at 6 RTO Mumbai. After registration the set of documents handed over by RTO agent to the applicant. (b) In case of Motor Vehicle MH-01-MA-9786 the vehicle is imported in name of Hamsa Madatyil, r/o Vallappuzha, Dist-Palghat, Kerala. The vehicle was declared as 1998 model at the time of import to custom authority and while registering at R.T.O. It was shown as 2004 model. The vehicle is presently in the name of said importer and presently seized by EOW from the possession of Deepak Walvekar r/o Pune Satara road, Survey no.50, Pune-9. The said vehicle was sold to Mr Deepak Walvekar for an amount of Rs.12,50,000/- by the applicant and his son Hemen Choksey. Mr Deepak Walvekar had issued a cheque of Rs. 12,50,000/- drawn on Janta Sahkari Bank, Pune in favoring to Hamsa M (Importer). The said cheque was deposited in Samta Sahakari Bank, Santacruz Branch A/c no.17937. During investigation it was revealed that the said bogus/fictitious account was opened in the name of importer where applicant accused was introducer of the said account. For sale of said vehicle a forged lease agreement and general power of attorney document was made where the son of the applicant accused was signed as a witness. During the investigation of DRI it was disclosed that at the time of sale to Deepak Walvekar, account opening form in the Samata Sahakari Bank, registration with RTO the said improter was at Dubai. The custom duty regarding this vehicle was paid from the account of relative of importer from the account no. 875 (01192050383) (10610044510) State Bank of India, Kerala. Statement of account holders was recorded, which discloses that the photo, which is affixed on account opening form of Samata Sahakari Bank is not belonging to his relative (importer)”. 7 6. A bare perusal of the reply shows the role played by the applicant in this crime. It is clear that he was more active than one innocent agent would be while dealing with vehicles as an agent. He was active in all respect while dealing with these vehicles. For instance, in respect of vehicle no. MH-01-MA 9786, it is clear that he sold it to Deepak Walvelkar and the monies paid by cheque were deposited in the account opened in the name of importer, where the applicant introduced some fictitious person as importer. The account was opened with photograph of the person, who, in fact, was not the importer. Though at this stage, it is alleged that the applicant is involved only in respect of these vehicles, the State has stated on affidavit that his involvement in respect of some other vehicles cannot be ruled out and that they would like to find out as to what extent is the involvement of the applicant in this racket and who are the other persons involved alongwith the applicant. In my opinion, having considered overall facts and circumstances of the case and the role played by the applicant in evading the huge amount of customs duty and for reasons stated in the reply affidavit, no case for anticipatory bail is made out. Custodial interrogation of the applicant is necessary. Hence, the application is 8 rejected. While rejecting the application, I shall not be understood to have expressed any opinion on merits of the case and the trial Court shall deal with the case uninfluenced by the observations made in this order. Application is disposed of. (D. B. Bhosale, J.)