IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 72 OF 2008 Kamlesh Navinchandra Shah & Anr.. ...... ....Petitioners V/s Union of India & Ors.. ...... ......Respondents. Mr.U.P.Warunjikar, Adv. For the petitioners. Mrs.Usha Kejriwal, Adv. For the respondent Nos.1 to 3. Ms.A.A.Mane, APP for the State. CORAM: A.P.DESHPANDE, J. 18/3/08 PC: A case of non-declaration was booked by the officers of respondent No.2 on interception of imported goods by M/s.Perfect Trading Company. The present petitioners were arrested by respondent No.2-DRI Mumbai Zonal Unit for alleged violation of provisions of Customs Act in relation to making of declaration/non- declaration and remand petition was filed and the custody of the petitioners was procured. The Magistrate had granted custody of the petitioners by an order dated 4.9.04. Bail application there after was moved before the Additional Chief Metropolitan Magistrate, 3rd Court, Esplanade, Mumbai and by an order dated 23.9.04 the petitioners came to be released on bail subject to certain conditions including attendance of the petitioners in the office of DRI, bail in the sum of Rs.2 lacs each with sureties in the 1 like amount or cash was granted. A show cause notice was issued to the present petitioners and those involved in the said offence after completion of investigation by respondent No.2. The present petitioners along with Perfect Trading Company and others moved an application under section 127B of the Customs Act before the Settlement Commission. The Settlement Commission passed final order on the said applications on 8.3.06 an at the conclusion of para 10 in relation to penalty and prosecution observed as under : “In view of the full and true disclosure and co-operation with the proceedings before the Commission, we grant immunity to the applicant from penalty that could be levied on it under the Act. For the same reasons we grant immunity to the applicant from prosecution under the Customs Act and the IPC. For the same reasons we also grant immunity from penalty and prosecution to the co-applicants under the above mentioned acts.” Thereafter para 11 of the said order reads thus: “11. The above immunities are grantned under sub section (1) of section 127H of the Act. Attention is also invited to the provisions under sub section (2) and (3) of section 127H ibid.” 2. In view of the said order granting immunities to the present petitioners they moved an application before the Additional Chief Metropolitan Magistrate seeking cancellation of bail bonds and refund of bail amount. Reply to the said application came to be filed wherein in para 3 following statement was made : 2 “Now as the said order of the Settlement Commission mentioned above is being challenged in the High Court, it is prayed that pending the outcome of the said writ petition no relief in the form of cancellation of bail bond and/or refund of bail amount may be granted to the respondents.” 3. Thus what was stated before the trial Court was that filing of writ petition against an order passed by the Settlement Commission was in contemplation and thus granting of relief was opposed. Strangely enough in the order passed by the trial Court in para 4 it is mentioned that the advocate Smt.Punde has stated that the order of Settlement Commission is challenged by the department. The said recording is incorrect. The order of Settlement Commission has not been challenged filing writ petition in the High Court is an admitted position as of today. Learned counsel appearing for respondent Nos. 1 to 3 has placed on record a communication dated 6.2.08 received by her from the Directorate of Revenue Intelligence, Mumbai Zonal Unit, signed by Vivek Mukund, Senior Intelligence Officer, DRI, MZU wherein it is categorically stated that after substantial deliberations the order passed by the Settlement Commission dated 7.3.06 has been accepted by respondent Nos. 1 to 3. The communication concludes thus : “In view of the said present position, since no complaint will be filed before the Hon' ble ACMM, by the Department in the impugned case, the petitioners may, if desire, seek suitable remedy from the Hon' ble ACMM OR as Hon' ble HC 3 directs in this WP.” 4. It is thus clear that respondent Nos. 1 to 3 have taken decision to honour the order passed by Settlement Commission and has taken a decision not to file any complaint in regard to offence under reference before the Additional Chief Metropolitan Magistrate, Mumbai. In view of the stand taken by respondent Nos. 1 to 3 in not filing any complaint the application moved for cancellation of bail bonds and refund of bail amount deserves to be allowed. However the petitioners will have to approach the trial Court in that regard. In the result impugned order passed by the trial Court dated 9.9.07 is quashed and set aside. The application filed by the petitioners for cancellation of bail bonds and refund of bail amount shall stand revived. The Additional Chief Metropolitan Magistrate, 3rd Court, Esplanade, Mumbai shall pass appropriate orders on the said application in the light of observations made in this order. Respondents shall place on record of the trial Court copy of the communication dated 6.2.08 so as to enable the trial Court to pass appropriate orders in accordance with law. Communication dated 6.2.08 is taken on record and marked `X' for identification. Rule made absolute in above terms. 18.3.08 4