Once bail is granted, it should not be cancelled in a mechanical manner without there being any supervening circumstances: High Court of Delhi

IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on : 10.01.2022 SHAIL ANAND AND ANR Through: Mr. Satish Aggarwala Sr. SPP and Mr. Gagan Vaswani Advocate .... Petitioner Through: Mr. Akshay Anand Advocate with Ms. Prarthana Gund Ms. Archana and Mr. Tushar Anand CRL.M.C. 2019 2020 and CRL. MA. 15157 2020 .... Petitioner Through: Mr. Satish Aggarwala Sr. SPP and Mr. Gagan Vaswani Advocate ANKIT MADAN AND ANR Through: Mr.Sunil K. Mittal Advocate HON BLE MR. JUSTICE RAJNISH BHATNAGAR RAJNISH BHATNAGAR J These are the petitions filed by the petitioner Customs department under section 482 Cr.P.C. seeking setting aside of order dated Crl.M.C. 2017 2020 and 2019 2020 14.10.2020 by way of which the respondents i.e. Shail Anand and Tarush Anand in Crl. M.C. 2017 2020 and Ankit Madan and Anil Madan in Crl. M.C. 2019 2020 were granted bail for the offences under sections 132 and 135 of Customs Act 1962 2. Brief facts of the case are that on the basis of specific intelligence the officers of Air Customs had recovered and seized 04 watches valued at Rs. 51 55 887 from the possession of the respondents on their arrival at T 3 New Delhi by Flight No. UK 224 dated 23.09.2020 from Dubai to Delhi on 24.09.2020. In their respective voluntary statements tendered under Section 108 of Customs Act 1962 the persons namely Shail Anand Tarush Anand Ankit Madan and Anil Madan inter alia admitted the recovery seizure and other incriminating facts. Thereafter FIR was registered and investigation was taken up I have heard learned counsel for the petitioner learned counsel for the respondents and also perused the reply filed on behalf of respondents It is submitted by the counsel for the petitioner that the learned CMM while granting bail to the respondents did not deal with all submissions made on behalf of the petitioner department and none of the judgments cited by the petitioner department were taken into is further submitted that learned CMM did not appreciate that watches which are case property in the present case are covered by Section 123 of the Customs Act 1962 and also the plea of Crl.M.C. 2017 2020 and 2019 2020 the petitioner department that investigation was going on and grant of the initial stage of investigation particularly in economic offences had been deprecated is further submitted that respondents are not only involved in smuggling of wrist watches but are also part of the hawala racket which is a case of international ramification. Lastly is prayed that bail granted to the all respondents vide order dated 14.10.2020 be cancelled 5. On the other hand is submitted by learned counsel respondents that there are no malafides in the Impugned Order dated 14.10.2020 passed by learned CMM. It is further submitted that respondents have already deposited the amount as per direction of the learned CMM towards the Customs duty. It is further submitted that the watches seized at the airport had already been released vide order dated 16.07.2021 passed by customs authority and the penalty imposed on the respondents have already been paid by them. It is submitted that there are two essential conditions mandatory for the maintenance of bail being granted to accused first that he shall be available for the trial proceedings and he shall not flee from the hands of justice and second that accused will not tamper with the evidence. It is further submitted that none of the condition has been violated by the respondents also there are no allegations against the respondents that they ever tried to tamper with the evidence. It is further submitted that there is no likelihood of tampering with the evidence and accordingly Crl.M.C. 2017 2020 and 2019 2020 the learned CMM has rightly granted bail to the respondents after duly considering the facts of the case. It is further submitted that cancellation can only be done in cases of supervening circumstances which are totally lacking in the present case In this regard Three Judges Bench of Hon ble the Supreme Court in Statevs. Sanjay Gandhi 1978(2) SCC 411 has made the following elemental distinction in defining the nature of exercise while cancelling bail Rejection of bail when bail is applied for is one thing cancellation of bail already granted is quite another. It is easier to reject a bail application in a non bailable case than to cancel a bail already granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if by reason of supervening circumstances it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial Further the Hon ble Supreme Court in Dolat Ram v. State of Haryana 1995) 1 SCC 349 has also laid down guidelines to Courts while deciding the question of cancellation of bail already granted. Para 4 of judgment reads as follows Crl.M.C. 2017 2020 and 2019 2020 “4. Rejection of bail in a non bailable case at the initial stage and the cancellation of bail so granted have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. Generally speaking the grounds for cancellation of bail broadlyare: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner... However bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles it appears were lost sight of by the High Court when it decided to cancel the bail already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non bailable case in the first instance and the cancellation of bail already granted is settled that once bail granted should not be cancelled in a mechanical manner without there being any supervening circumstances which are not conducive to fair trial. It cannot be cancelled on a request from the side of the complainant investigating agency unless and until Crl.M.C. 2017 2020 and 2019 2020 it is established that the same is being misused and it is no longer conducive in the interest of justice to allow the accused any further to remain on bail. No doubt the bail can be cancelled only in those discerning few cases where it is established that a person to whom the concession of bail has been granted is misusing the same In the instant case there are no allegations of any tampering with the evidences. There are also no allegations that the respondents are at flight risk or there is any likelihood of absconding. The petitioner department has not been able to make out a case of supervening circumstances on the basis of which the bail granted to the respondents should be cancelled and nothing has been brought on record to show the respondents have towering personalities that presence out on bail would in any manner investigationof the case or that they are in any manner threat to the fair trial of this case. Nothing has been brought on record that the respondents in any manner have violated the terms and condition of the order granting them bail It is pertinent to mention here that watches which were seized at the airport had already been released vide order dated 16.07.2021 passed by customs authority and also the penalty which was being imposed on the respondents have already been paid by them. Petitioner department also failed to answer that what purpose would be served if the bail is Crl.M.C. 2017 2020 and 2019 2020 cancelled and what further enquiry is to be done after cancellation of bail by taking them into custody. So I see no reason for cancellation of bail of respondents in the present case. Therefore relying upon the judgments Statevs. Sanjay GandhiDolat Ram v. State of Haryanaand also that all the facts and circumstances required for an order of cancellation of bail to be passed are missing in the present case the present petitions along with pending applications are dismissed JANUARY 10 2022 RAJNISH BHATNAGAR J Crl.M.C. 2017 2020 and 2019 2020 Page 

Summary: Rejection of bail when bail is applied for is one thing and cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail already granted. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if by reason of supervening circumstances. Once bail is granted, it should not be cancelled in a mechanical manner without there being any supervening circumstances which are not conducive to fair trial. These were stated by High Court of Delhi, consisting Justice Rajnish Bhatnagar in the case of Air Customs vs. Shail Anand &amp; Anr. [CRL.M.C. 2017/2020] on 10.01.2022. The facts of the case are that on the basis of specific intelligence, the officers of Air Customs had recovered and seized 04 watches valued at Rs. 51,55,887 from the possession of the respondents on arrival at T-3 of New Delhi airport by Flight from Dubai to Delhi on 24.09.2020. In their respective voluntary statements tendered under Section 108 of Customs Act, 1962 the persons namely Shail Anand, Tarush Anand, Ankit Madan and Anil Madan inter-alia admitted the recovery, seizure and other incriminating facts. Thereafter, FIR was registered and investigation was taken up. The respondents i.e. Shail Anand, Tarush Anand, Ankit Madan and Anil Madan were granted bail for the offences under sections 132 and 135 of Customs Act, 1962. The Counsel for the petitioner submitted that the learned CMM while granting bail to the respondents did not deal with all the submissions made on behalf of the petitioner department and none of the judgments cited by the petitioner department were taken into consideration. It was further submitted that learned CMM did not appreciate that watches which are case property in the present case are covered by Section 123 of the Customs Act, 1962 and also the plea of the petitioner department that investigation was going on and grant of bail at the initial stage of investigation particularly in economic offences should be deprecated. It was further submitted that the respondents are not only involved in smuggling of wrist watches but are also part of the hawala racket which is a case of international ramification. Therefore, it was prayed that bail granted to the all the respondents should be cancelled. The Counsel for the respondents submitted that there are no malafides in the Impugned Order dated passed by learned CMM as the respondents have already deposited the amount as per direction of the learned CMM, towards the Customs duty. It was further submitted that the watches seized at the airport were already released by customs authority and the penalty imposed on the respondents were paid by them. It was contended that there are two essential conditions mandatory for the maintenance of bail being granted to accused, first, that he shall be available for the trial proceedings and he shall not flee from the hands of justice and second that accused will not tamper with the evidence. Therefore, it was submitted that none of the condition can be violated by the respondents as there are no allegations against the respondents that they ever tried to tamper with the evidence. It was lastly submitted that the cancellation can only be done in cases of supervening circumstances which are totally lacking in the present case.