1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1113 OF 2009 Mr. Pradeep Shivram Dhond ..... Applicant. V/s The State of Maharashtra ...... Respondent. Mr. A.S. Khan i/b Miss Sartaj Shaikh for the applicant. Mr. D.P. Adsule, APP for the State. Ms. Y.H. Katipitia for DRI. CORAM : V.M. KANADE, J. DATE : 1st April, 2009 P.C:- 1. This is an application for anticipatory bail filed by the applicant who apprehends arrest for second time in respect of the same incident for the offence punishable under section 135(1)(a) and 135(1)(c) read with section 135(1)(i) of the Customs Act. 2. Brief facts are as under:- 3. The officers of DRI Mumbai Zonal Unit, on the basis of specific information intercepted a tempo on 12/06/2008 at the air cargo complex, Sahar, Mumbai. Eighty drums from the said tempo were seized. On the said drums, it was stated that it contained lead acetate consigned by M/s KLM Exports India, Ghaliv Apartments, Pritampura, New Delhi and it was being exported to Mexico. When the contents 2 of these drums were tested, they were found to contain Amphetamine. The drums were seized and the panchanama under the provisions of NDPS Act was made. 4. On 13/06/2008, the applicant was arrested under various provisions of NDPS Act vide NDPS Spl. RA No.101/2008. During the course of investigation, DRI received four reports in respect of 35 samples and out of 35 samples 26 samples were reported to be neither narcotic drug nor psychotropic substance and in respect of other eight samples Dy.C.C informed that they were unable to give opinion and the DRI was asked to send the samples to CFSL, Hyderabad. 5. After a period of almost four months, applicant was enlarged on bail on 8/10/2008 by the NDPS Special Court. Since the contents of the drums which were seized by the officers of DRI were not covered under the NDPS Act, they were seized under the provisions of Customs Act, 1962. Applicant during this period of four months was already remanded to the custody of DRI for a period of 15 days for interrogation. 6. A show cause notice was issued to the applicant under section 124 of the Customs Act by the Additional Director General of DRI Mumbai Zonal Unit, asking him why the goods which were seized on 12/6/2008 and 13/6/2008 should not be confiscated under the Customs Act and why penalty should not be imposed upon him. Applicant apprehends arrest again under the provisions of the 3 Customs Act and, therefore, has filed an application for anticipatory bail in the Sessions Court. On 03/02/2009, the applicant attended the Office of DRI. On 04/02/2009, his statement under section 108 of the Customs Act was recorded by DRI. His application for anticipatory bail was rejected on 27/02/2009. 7. The learned Counsel appearing on behalf of the applicant submitted that the applicant was arrested by the Officers of DRI at the airport and he was in their custody for two weeks and, thereafter, in judicial custody for about four months. The Customs Authorities were very well aware that the applicant had given a declaration that the said drug was lead acetate and during the said period when he was in their custody, they could have simultaneously made investigation in respect of the offence punishable under section 135. He submits that, in any event, further custodial interrogation was not necessary for the offence under the Customs Act since primary allegation against him was that though the said drug was declared as lead acetate, it was some other drug and, therefore, it was a drug prohibited under the Customs Act and he was liable for evasion of duty and for exporting drug which was prohibited. It is submitted that in view of the past conduct of the DRI Officers, it is apparent that he was summoned by the Customs Authorities and he has reason to believe that he would be arrested by them and, therefore, this application for anticipatory bail is filed. 8. Ms. Katipitia, the learned Counsel appearing on behalf of DRI vehemently opposed this application for anticipatory bail. She 4 submitted that only a show cause notice has been issued by the Customs Authorities and, therefore, there was no reason for the applicant to believe that he would be arrested. She further submitted that the Apex Court has held that in cases where summons under section 124 of the Customs Act is issued for the purpose of recording statement of accused under section 108 of the Customs Act, Court should normally not grant anticipatory bail as it amounted to interference in the power of the investigation by the Customs Authorities. In support of the said submission, she relied on the judgment of the Apex Court in the case of Union of India vs. Padam Narain Aggarwal reported in 2008 AIR SCW 7220. A detailed affidavit in reply has been filed on behalf of the the respondent – DRI. In the reply it is stated that while issuing summons, DRI Officers had no time to threaten the arrest of the applicant. The learned Counsel, however, during the course of submissions, submitted that if during interrogation, the DRI Authorities found that the applicant has committed cognizable offence, he shall then be arrested. 9. I have heard both the Counsel at length. 10. In the present case, in my view, the applicant has reason to believe that he is likely to be arrested again for the second time for the same incident which took place on 12/06/2008 viz. seizure of 80 drums which were being exported. Initially, DRI Officers arrested him under the provisions of NDPS Act. He was in police custody for 15 days. Though, initially, the report sent by C.A showed that the said drug was neither narcotic drug nor psychotropic substance, the DRI 5 Authorities still filed remand application, stating therein that they needed custody of the applicant. The DRI Officers could have very well interrogated the applicant at that time after they came to know that the said drug was neither narcotic drug nor psychotropic substance since he had given a declaration that the said drug was lead acetate and the said declaration and all other relevant papers were available with them. But, instead of that, they chose to file one after another remand applications, seeking continuation of custody. Finally, the Special Court under NDPS Act was pleased to enlarge the applicant on bail on 8/10/2008. After about three months thereafter, again, a show cause notice has been issued on 11/12/2008. 11. There is much substance in the submissions made by the learned Counsel appearing on behalf of the applicant that DRI Officers were afraid that the applicant may institute a case of malicious prosecution against them and, therefore, the present show cause notice dated 11/12/2008 was issued under section 124 of the Customs Act and, therefore, an apprehension is expressed that in order to get out of the said provisions under the NDPS Act, the DRI Officers may arrest him in the case under the Customs Act. The apprehension of the applicant under these circumstances, in my view, is genuine and the submission, therefore, of the learned Counsel appearing on behalf of the DRI that there is no reason to believe that the applicant would be arrested, cannot be accepted. Application for anticipatory bail, therefore, in my view, is maintainable since there is a genuine apprehension that the applicant may be arrested by DRI Officers. The observations made by the Apex Court in the case of Padam 6 Narain Aggarwal (supra), would not apply to the facts of the present case. In the same judgment, the Apex Court has referred to the observations made by the Apex Court in Gurbaksh Singh's case which observations would squarely apply to the facts of the present case. In para 38, the Supreme Court has observed as under:- “ 38. Speaking for the Court, Chandrachud, C.J. Stated:- “ Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a straitjacket. While laying down, cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when 7 it arises. Therefore, even if we were to frame a 'Code for the grant of anticipatory bail, which really is the business of the Legislature, it can be best furnish broad guide-lines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the Court, by providing that it may grant bail “if it thinks fit”. The concern of the Courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the Courts by law.” In the case of Padam Narain Aggarwal (supra), the applicants were summoned under section 108 of the Customs Act to give their statements in inquiry and, therefore, the Apex Court has observed that there was no reason to believe that the applicants would be arrested in the said case. However, in the present case, the facts are slightly different. The applicant was already arrested by DRI Officers under 8 the NDPS Act for the said incident and, after he was released on bail and after it was found that the said drug was neither narcotic drug not psychotropic substance, a fresh summons has been issued under section 124. As observed by the Apex Court in para 38 in respect of Gurubaksh Singh' case, the fact situation in this case is entirely different. 12. In the present case, in any event, all documents are available with DRI Officers. The statement of the applicant also has been recorded under section 108 of the Customs Act. The custodial interrogation under these circumstances again for the same incident, in my view, is not necessary. I do not propose to go into the larger issue as to whether such course can be adopted by DRI Officers of first arresting the applicant under the NDPS Act and then after having exhausted the police custody of 15 days and after having detained the applicant for four months, to seek again the police custody of the applicant for the offence under the another Act. I do not propose to decide in this case the issue as to whether DRI and Police Authorities can be permitted to resort to such kind of tactics. 13. In the result the following order is passed:- O R D E R Application is allowed. In the event of the applicant's arrest in connection with Show Cause Notice dated 11th December, 2008 issued by DRI authorities and in view of the offence under sections 135(1) (a) and 135(1)(c) read with 135(1)(i) of the Customs Act registered 9 against the applicant herein, he be released on bail in the sum of of Rs 25,000/- with one or two sureties in the like amount. The applicant, however, shall report to DRI authorities for a period of one week from 6th April, 2009 between 11 a.m. And 5 p.m. The application is accordingly disposed of. (V.M. KANADE, J.)