BA-249-11.sxw 1 Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.249 OF 2011 [For Cancellation of Bail] Harish Dharnia, Dy. Director, Directorate of Revenue Intelligence, Nhava Sheva ... Applicant V/s. Mukesh Kantilal Mehta & Ors. ... Respondents Ms. Nitee Punde for the Applicant. Mr. A.H.H. Ponda for Respondent Nos.1 and 2. Mrs. R.V. Newton, APP, for Respondent No.3. CORAM:- A.M. THIPSAY, J. DATED :- 18 TH JULY, 2011. P.C. : 1. Heard. 2. The Applicant-Deputy Director of the Directorate of Revenue Intelligence (DRI) seeks cancellation of bail granted to the Respondent Nos.1 and 2 by the Judicial Magistrate, First Class at Uran by her order dated 15th February, 2011. 3. The case of the Investigating Agency, i.e. the D.R.I., was that on the basis of Intelligence, that the Respondent Nos.1 and 2 were misusing the factory stuffing facility extended to genuine exporters, two containers of their Firm M/s. Super Impex were intercepted and examined, which revealed that the containers were filled with only 50% of the goods declared to have been stuffed in those containers. Since the declared value of the goods would stand reduced by 50%, the eligibility of the Respondent Nos.1 and 2 for duty draw-back claim would also stand reduced proportionately. In view of this mis-declaration, yet another container exported by BA-249-11.sxw 2 Dixit the Firm of the Respondent Nos.1 and 2 was called back and examined, which also revealed mis-declaration in quantity, weight and value, when compared with the export documents. The matter was investigated and it was revealed that M/s. Super Impex, the Firm of Respondent Nos.1 and 2, had been indulging into similar mis-declarations of quantity and value and had availed of more than Rs.30 crores as duty draw-back by such mis-declarations. The Respondent Nos.1 and 2 were interrogated, their statements were recorded and on 14th February, 2011, at about 5:55 p.m., they were placed under arrest on the accusation of an offence punishable under Section 135 of the Customs Act, 1962, by the officers of the DRI. . The Respondent Nos.1 and 2 were produced before the learned Magistrate on 15th February, 2011 with a remand application seeking remand of the Respondent Nos.1 and 2 in judicial custody for a period of 14 days. . The Respondent Nos.1 and 2 made an application for bail. The officer of the DRI, who was seeking remand, sought time to file a detailed reply to the Bail Application. The learned Magistrate, by her order passed on the same day, directed the release of the Respondent Nos.1 and 2 on bail in the sum of Rs.1,00,000/- with certain conditions. 4. It is this order that is being challenged by filing the present Application. 5. The learned Magistrate, inter alia, observed as follows :- "As per remand reports, the accused attempted to avail draw-back of Rs.6,00,000/-. Therefore, prima facie, it appears that, the present case clearly comes within Section 135(d)(ii) of Customs Act and such accused are entitled for bail." BA-249-11.sxw 3 Dixit 6. The main contention that is advanced by Ms. Nitee Punde, the learned Counsel for the Applicant, that the figure of Rs.6,00,000/-, as mentioned by the learned Magistrate in her order, is not correct. According to her, the case against the Respondent Nos.1 and 2 was in respect of falsely availing of duty draw-back for cores of rupees i.e. over Rs.30 crores. It was also contended that in the remand application, which was submitted to the learned Magistrate, the figure of Rs.6,00,000/- was not mentioned and thus a suspicion about the manner in which the figure was arrived at by the learned Magistrate was created in the mind of this Court. 7. In the order passed by this Court on 8th April, 2011, (Coram : R.C. Chavan, J.), it is specifically recorded that the Counsel for the Applicant stated that the remand report nowhere mentioned figure of Rs.6,00,000/-. This Court had then called for a report from the learned Magistrate and also for the comments of the learned Magistrate as to from where the figure of Rs.6,00,000/- was obtained. 8. Pursuant to the said order, a report has been received from the successor Magistrate. It is now clear that the figure of Rs.6,00,000/- had been taken on the basis of the annexures to the remand application. 9. The Annexure "A" to the remand application clearly mentioned that the quantity that was less than the declared quantity could have enabled Respondent Nos.1 and 2 to avail of draw-back of around Rs.6,00,000/- on the export consignment. 10. Apparently, the learned Magistrate has treated the case as relating to an offence punishable under Section 135(1)(d) of the Customs Act, 1962, though the Section is not properly quoted by her. Now the offence punishable under that Section is bailable is not disputed before me, though the same is punishable with BA-249-11.sxw 4 Dixit imprisonment for a term which may “extend to three years”. No attempt is made to canvass that the offence is not bailable. In other words, that if one proceeds on the footing that the offence relates to availing of draw back worth about Rs.6,00,000/- by making false declarations, then the grant of bail would be proper, is not disputed. 11. The contention advanced by Ms. Punde, the learned Counsel for the Applicant, is that since in the course of investigation it was revealed that the Respondent Nos.1 and 2 had in the past also made such false declarations and had availed of draw-back worth about Rs.30 crores, the matter should have been treated as a matter relating to availing of a draw back in respect of an amount exceeding Rs.30,00,000/-, in which case it would be non-bailable. In this regard, what the learned Magistrate has observed is as follows : "If the complainant wants to make investigation about the export made by the accused during last 5 to 6 years, then there should be different offence. Present offence is registered against the accused only in respect of the two containers mentioned in remand report.” 12. I do not wish to go deeper and to examine whether the offence ought to have been treated as one relating to availing of draw-back of about Rs.30 crores, or whether one relating to availing of draw back of Rs.6,00,000/-, the same being unnecessary, in my opinion. What needs to be observed is that the suspicion created with respect to the order granting bail, on the suggestion that the amount of Rs.6,00,000/-, as taken by the Magistrate in her order, was nowhere reflected in the record before her, is unfounded. The figure of Rs.6,00,000/- was not mentioned in the remand application, but was mentioned in the Annexure "A" to the remand BA-249-11.sxw 5 Dixit application, which, undoubtedly, formed part of the remand application. 13. Moreover, the question is not whether the learned Magistrate was right or wrong in that regard, but the question is whether the view taken by the learned Magistrate was a possible view. The learned Magistrate's reasoning that if there were revelations of similar incidents having taken place in the past, separate cases could have been registered against the Respondent Nos.1 and 2, cannot be said to be unreasonable. 14. Thus, it cannot be said that the impugned order suffers from any patent illegality, or perversity, or that it has been based on factors not borne out from the record before the Magistrate. 15. Mr. Ponda, the learned Advocate for Respondent Nos.1 and 2, has pointed out to me that, before the registration of the offences, the Respondent Nos.1 and 2 have attended the office of the DRI on about forty occasions and have been extensively interrogated. Even now, they are ready to attend whenever required by the DRI. 16. The bail order was passed on 15th February, 2011. Considering all the relevant aspects of the matter, at this distance of time, it is not desirable to interfere with the order granting bail. 17. The Application for cancellation of bail is rejected. 18. The Respondent Nos.1 and 2, however, shall attend the office of the DRI everyday between 10:00 a.m. and 1:00 p.m. for a period of one week commencing from 25th July, 2011 and, thereafter, as and when required by the Investigating Agency. [A.M. THIPSAY, J.]