IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 11 OF 2009 CRIMINAL APPLICATION NO. 11 OF 2009 CRIMINAL APPLICATION NO. 11 OF 2009 Haren Pravin Choksey ...Applicant vs. Union of India & Ors. ...Respondents Mr.Vikram Choudhari alongwith Mr.Uday Warunjikar, Mr.Karan Mehta and Mr.P.A. Aqustin for the Applicant. Mrs.A.S. Pai for Union of India. Mr.S.R. Shinde, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : JANUARY 14, 2009 DATED : JANUARY 14, 2009 DATED : JANUARY 14, 2009 P.C. :- P.C. :- P.C. :- 1. Heard learned Counsel for both the parties. 2. The applicant has filed an application for bail. The applicant was arrested by the officers of the Directorate of Revenue (DRI). According to them, the applicant was arrested at 4 p.m. on 25th December, 2008. According to the applicant, he was detained on 24th December, 2008 at midnight and kept in detention for more than 24 hours. To show their arrest of 25th December, 2008, the respondent filed an application for remand and in remand application, it was stated that the - 2 - applicant has violated various provisions of the Import Duty Act and has evaded customs duty of more Rs.2 crores and therefore, there is sufficient material to believe that he is guilty for the offence punishable under Section 135(1) of the Customs Act, 1962. His statement under Section 8 of the Customs Act was recorded in which he confessed that he had fraudulently imported three vehicles and also admitted his complicity in the fraudulent import of seven cars which were cleared by mis-declaring their value. Thus according to the respondent, the total evasion was more than Rs.2 crores. Initially, in the remand application, the respondent was remanded to judicial custody for a period of 14 days. 3. Shri Choudhari, learned Counsel for the applicant has submitted that in the present case, there is no material shown by the respondent which would indicate that the application would fall under the provisions of Section 135(1)(i). He submitted that the case of the present applicant would fall under Section 135(1)(ii) since the mis-declaration and difference in value of individual cars was less than Rs.1 crore, - 3 - therefore, the said offence under Section 135(1)(ii) would be attracted which was bailable offence. He submitted that without show cause notice, the respondents were not entitled to interrogate the applicant. He invited my attention to the various judgments of the Apex Court in support of the said submission. He invited my attention to the judgment in the case of Commissioner of Customs, Calcutta & Ors vs Commissioner of Customs, Calcutta & Ors vs Commissioner of Customs, Calcutta & Ors vs M/s M.M. Exports & Anr. reported in 2007-TIOL-110-SC- M/s M.M. Exports & Anr. reported in 2007-TIOL-110-SC- M/s M.M. Exports & Anr. reported in 2007-TIOL-110-SC- CUS. CUS. CUS. He also invited my attention to the observations made by the Apex Court in the said case i.e. the Apex Court had ordered no steps would be taken without issuance of show cause notice. 4. He then submitted that the guidelines laid down by the Apex Court in the case of D.K. Basu, Petitioner D.K. Basu, Petitioner D.K. Basu, Petitioner v. State of W.B., Respondent WITH Ashok K. Johri, v. State of W.B., Respondent WITH Ashok K. Johri, v. State of W.B., Respondent WITH Ashok K. Johri, Respondent v. State of U.P., Respondent, reported in Respondent v. State of U.P., Respondent, reported in Respondent v. State of U.P., Respondent, reported in AIR 1997 SC 610(1) AIR 1997 SC 610(1) AIR 1997 SC 610(1) were not violated and as such there is a clear violation of provisions of Article 21 of the Constitution of India and on that ground alone, the applicant is entitled to be released on bail. He - 4 - invited my attention to para 36 and para 37 of the said judgment. He then invited my attention to the judgment of the learned Single Judge of this Court in the case of Suaibo Ibow Casamma vs. Union of India, reported in Suaibo Ibow Casamma vs. Union of India, reported in Suaibo Ibow Casamma vs. Union of India, reported in 1995 (80) E.L.T. 762 (Bom.) 1995 (80) E.L.T. 762 (Bom.) 1995 (80) E.L.T. 762 (Bom.). He submitted that the applicant has been detained for more than 24 hours and as per the mandatory provisions of Sections 57 and 167 of the Cr.P.C., he was not produced before the Magistrate and therefore, there is a clear violation of the provisions of Articles 21 and 22 of the Constitution of India and on that ground also, he was liable to be released. He invited my attention to the observations made by the learned Single Judge in the aforesaid case and submitted that the ratio of the said judgment would apply to the facts of the present case. He also invited my attention to the judgment of the learned Single Judge of this Court in the case of Prabhu Singh Walia vs. Prabhu Singh Walia vs. Prabhu Singh Walia vs. Union of India, reported in 2007 (218) E.L.T. 186 Union of India, reported in 2007 (218) E.L.T. 186 Union of India, reported in 2007 (218) E.L.T. 186 (Bom.) (Bom.) (Bom.). It was submitted that in the said case also, the application for anticipatory bail filed by the applicant was not granted, however, the department was permitted to interrogate the applicant for a period of - 5 - four days and thereafter, he should be released on bail after the interrogation for four days is over. He also submitted that the daughter and the son of the applicant was detained and under those circumstances, their statements under Section 108 have been recorded since the applicant had no other option but to sign on the dotted line. The said statement under Section 108 has been retracted immediately when the first opportunity was made available to the applicant. It was further submitted that the applicant is having a brain tumour and the medical papers clearly established the said fact and he was undergoing treatment at the J.J. Hospital. It was lastly submitted that though an opportunity was available to the DRI officers to interrogate the applicant, no steps were taken for his interrogation from the date of his arrest. He, therefore, submitted that this is a fit case for grant of bail. 5. Mrs.Pai, learned Counsel for Union of India invited my attention to the affidavit-in-reply filed by Shri C. Jagiasi, working as Assistant Director in the Director of Revenue Intelligence, Mumbai Zonal Unit, - 6 - Mumbai. He submitted that in the present case, the investigation was pertaining to ten cars which were seized from the custody of the applicant and the investigation initially was pertaining to the cars which were imported by the applicant. She submitted that there was sufficient material available with the DRI authorities which indicated that the complicity of the applicant over and above the statement made by him under Section 108 of the Customs Act. She submitted that the invoices which were given by the applicant were later on found to be fabricated when investigation was made with the various companies who had allegedly issued those invoices. She submitted that since the applicant had made various applications on medical grounds and he was admitted in the hospital, it was not possible to interrogate the applicant. 6. I have heard the learned Counsel appearing on behalf of the applicant and the respondent, at length. In my view, since the investigation is going on at this stage, it is not possible to grant bail to the applicant. According to me, there is sufficient - 7 - material on record which justifies the detention of the applicant and his custodial interrogation, in my view, is necessary. So far as the first submission of the learned Counsel Shri Choudhari for the applicant is concerned, in my view, at this stage, it will not be possible to find out whether the case of the present applicant would fall under Section 135(1)(i) or 135(1)(ii). The DRI in its remand application has clearly stated that the case falls under Section 135(1)(i) and they have claimed that there is evasion of duty of more than Rs.2 crores. The submission of Shri Choudhari, learned Counsel for the applicant that the evasion of duty in each car should be separately assessed and if that is done, then the duty evasion should be less than the amount mentioned in Section 135(1)(i). This submission cannot be accepted. At this stage, it is not possible to consider whether the case of the applicant would fall under Section 135(1)(i) or 135(1)(ii). In view of the specific allegation of the respondent that there is a evasion of duty to the tune of Rs.2 crores, in my view, prima facie, it does appear that the case of the applicant would fall under Section - 8 - 135(1)(i). 7. So far as the submission of the applicant that there is violation of guide-lines laid down by he Supreme Court in D.K. Basu’s case (supra) D.K. Basu’s case (supra) D.K. Basu’s case (supra), the Apex Court in the said judgment has held that the applicant in such cases would have a remedy as stated in the said judgment. The applicant is always at liberty to take such steps as laid down in the said judgment and make his grievance before the appropriate forum. So far as the first submission of Shri Choudhari, learned Counsel for the applicant is concerned that the applicant was detained for more than 24 hours and there is a violation of Article 21, in my view, this submission also cannot be accepted. The respondents have shown that the applicant is arrested at 4 p.m. on 25th December, 2008 and thereafter, within 24 hours, he has been produced before the Magistrate. Since there is a dispute regarding the factual aspect of arrest, it is not possible to decide the same in this application which is filed under Section 439 of the Cr.P.C. The ratio of the judgment of the learned Single Judge of this Court, - 9 - therefore, will not apply to the facts of the present case. So far as judgment on which reliance is placed in the case of Suaibo Ibow Casamma (supra) Suaibo Ibow Casamma (supra) Suaibo Ibow Casamma (supra), the ratio of the said judgment also will not apply to the facts of the present case. The facts being entirely different, the observations made in the said judgment will not apply to the facts of this case. 8. Lastly, it is submitted that the applicant is having a brain tumour and is now under observation of his doctor in J.J. Medical Hospital and therefore, on medical grounds, the applicant can be released on bail. He invited my attention to the Certificates given by Dr.Harshad Parekh dated 9th January and 12th January, 2009. The Dean, J.J. Hospital also has given a report in which he has stated that there is cyst in his brain for the last three years and his condition was quite normal. However, this Court by its earlier had already directed the Dean to admit him to a private Neuro Ward of the J.J. Hospital and has also permitted his doctor to examine him at J.J. Hospital and therefore, this Court has already given appropriate directions to the - 10 - concerned authorities to give him proper medical treatment. Therefore, this submission also cannot be accepted. 9. In the result, the application for bail filed by the applicant is rejected at this stage. The medical treatment shall continue for such time as directed to the Dean with liberty to apply. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)