1 APPLN.388/2010 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 388 OF 2010 Additional Director General, Directorate of Revenue Intelligence ..Applicant Vs. Mr. Alberto Bestonso & Anr. ..Respondents. --- Mr. J.B. Mishra, for the Applicant. Mr. Yogesh Israni, for Respondent No.1. Mr. Y.M. Nakhwa, APP for Respondent No.2-State. -- CORAM : J.H. BHATIA, J. DATE : 22nd November, 2010. P.C.: Heard the learned counsel for the parties. 2] This application is filed for cancellation of anticipatory bail granted by the learned Additional Sessions Judge, Mumbai. 3] According to the prosecution, several notices were issued by the applicant-Directorate of Revenue Intelligence (DRI), Mumbai in 2 APPLN.388/2010 respect of import of eight high value cars. In spite of repeated notices, respondent no.1 did not turn up. The DIR Mumbai obtained arrest warrant from the Metropolitan Magistrate. Thereafter present respondent no.1 filed Anticipatory Bail Application No.1058 of 2009. The learned Additional Sessions Judge granted anticipatory bail observing that about the same cars he was being interrogated by DRI Ahmedabad. In support of this, he had referred one car viz. Lamborighili Car, which was imported vide BE No.667510 dated 3.11.2008. About that car DRI Ahmedabad had issued summons to the applicant. 4] The applicant has filed two statements, one about eight cars in which DRI Mumbai Office has sought his presence and another about 18 cars in respect of which DRI Ahmedabad had arrested him and was being interrogated. It appears from the said statements, that Toyoto Land Cruiser Diesel car imported with bill of entry 616434 dated 23.9.2008 is common in both statements. As far as the car Lamborghini LP640 Murceilago imported with bill of entry no.667510 dated 3.11.2008 is concerned, it finds place in the list of cars in which DRI Mumbai Office wants to interrogate. That car does not find place 3 APPLN.388/2010 in the list 18 of cars in which DRI Ahmedabad arrested him for interrogattion. However, the learned counsel for the respondents has pointed out that notice in respect of that car was issued by DRI Ahmedabad. Even if it is accepted, it appears that at least there are six other cars in respect of which DRI Ahmedabad office was not concerned and DRI Mumbai office was to interrogate respondent no.1. It is the case of the DRI that the applicant was importing high value cars for different customers showing them to be second-hand cars or by under invoicing to evade customs duty of those cars and accordingly there is evasion of custom duty to the extent of three crore rupees and it is contended that the custody of the present respondent no.1 is necessary for the purpose of interrogation. It is to be noted that DRI Mumbai had issued several notices to respondent no.1. The said notices had been received by his wife on his behalf but he never appeared. According to him during the relevant period of time he was abroad and therefore he could not appear. It appears that the learned Additional Sessions Judge had directed the applicant in the Anticipatory Bail Application to attend the office of DRI Mumbai every day for period a period of to weeks. 4 APPLN.388/2010 However, that order could not be complied with because the respondent no.1 was in custody of DRI Ahmedabad and thus the DRI Mumbai never got an opportunity for effective interrogation of respondent no.1 and investigation into the matter. 5] The learned counsel for DRI relied upon the judgments of the Apex Court in the case of State Rep. by the C.B.I. Vs. Anil Sharma reported in AIR 1997 Supreme Court 3806 and in the case of Enforcement Officer, TED, Bombay Vs. Bher Chand Tikaji Bora And Another reported in (1999) 5 Supreme Court Cases 720. In support of his contention he states that the Apex Court held that the custodial interrogation is qualitatively more elicitation oriented than questioning the suspect, who is ensconced with the favourable orders under section 438 of the Code of Criminal Procedure and also that granting anticipatory bail on the ground that the accused was available for interrogation but the prosecution failed to avail of that opportunity is improper. 6] Under section 135(1) of the Customs Act, 1962, offences relating to evasion or attempted evasion of duty exceeding Rs.30 Lacs, 5 APPLN.388/2010 punishable with imprisonment for a term which may extend to seven years and with fine. Thus, the offence is non bailable. Therefore, respondent no.1 was to be required to be interrogated to find out whether prima facie he has the committed offence of evasion of duty or not but he was never available for the said purpose. In such circumstances, if anticipatory bail is granted, there can never be effective interrogation. The learned Additional Sessions Judge committed error in observing that DRI Mumbai and DRI Ahmedabad were trying to interrogate respondent no.1 in respect of the same vehicles. As pointed in respect of seven vehicles and even if Lamborghini car is excluded, these are six such cars in respect of which DRI Ahmedabad never interrogated and only DRI Mumbai wanted to interrrogate and naturally after interrogation if it is found that he had committed offence under section 135(1) of the Customs Act, he chould be taken in custody for investigation. In the cases where there is allegations of evasion of of huge amount of custom duty running in crores of rupees it is improper to grant bail to such importers. Therefore, I find that the Additional Sessions Judge committed an 6 APPLN.388/2010 error in passing the impugned order. For the aforesaid reasons, the impugned order granting anticipatory bail to respondent no.1 is hereby set aside. Learned counsel for respondent no.1 seeks stay of this order. Application for stay is rejected. 7] The applicant to appear before DIR Mumbai office for interrogation on 25th November, 2010. (J.H. BHATIA, J.) 7 APPLN.388/2010