Luke K. George v. Superintendent of Customs, Customs (Preventive) Commissionerate, Kochi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941 Bail Appl..No. 1300 of 2019** **O.R.NO.05/2018 OF HQ (PREVENTIVE) UNIT, CUSTOMS PREVENTIVE COMMISSIONERATE, COCHI.** ## **PETITIONER/ACCUSED:** **LUKE K.GEORGE, AGED 53 YEARS, SUPERINTENDENT OF CENTRAL EXCISE AND CUSTOMS, ELSA COTTAGE, CHARA 26, CHANDANA GARDENS, KUDAPPANAKUNNU, THIRUVANANTHAPURAM-695043.** **BY ADVS. SRI.B.RAMAN PILLAI (SR.) MAHESH BHANU.S SMT.MANJU E.R. SRI.E.VIJIN KARTHIK SRI.M.SUNILKUMAR SRI.R.ANIL SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.THOMAS SABU VADAKEKUT** ## **RESPONDENT/COMPLAINANT:** **SUPERINTENDENT OF CUSTOMS, CUSTOMS(PREVENTIVE) COMMISSIONERATE, COCHIN, REPRESENTED BY ITS STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** **BY SRI.SASTHAMANGALAM AJITHKUMAR-PP FOR CUSTOMS** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.1300/2019 2 ## **ORDER** This application is filed under Section 438 of the Cr.P.C. 2. The applicant herein is a serving Superintendent of Central Excise and Customs. He was served with a notice under Section 108 of the Customs Act by the Commissioner of Customs, calling upon him to appear before the Customs Officer in connection with the investigation in O.R. No.5 of 2018 of the HQ (Preventive) Unit, Customs Preventive Commissionerate, Kochi. Apprehending arrest and detention, he approached the learned Sessions Judge seeking an order of pre-arrest bail. The same was dismissed by Annexure-L order, which led to the filing of this petition. 3. It would be pertinent to mention at this juncture that the the applicant had approached this Court earlier seeking the very same relief. However, in the course of arguments, the learned counsel appearing for the applicant sought permission to withdraw the petition. The same was allowed reserving his rights to initiate proceedings in accordance with law. B.A.1300/2019 3 4. A brief summary of the allegations against the applicant can be stated thus :- Secret information was received by the Customs Department that M/s. Plus Max (P) Ltd., the licensee permitted to operate the duty free shop at the Trivandrum International Airport, was engaged in illegal sales of foreign made foreign liquor (FMFL). A preliminary investigation was conducted and the allegations were prima facie found to be true. An ultimatum was given to the licensee to produce the records to which they responded by raising a contention that their computer was hacked. After some delay, they came up with an excel data sheet containing details of sales done. A detailed verification was conducted and it threw up more discrepancies and violations, which according to the customs, revealed that the licensee had violated various provisions of Act and had evaded sums running into Crores by way of customs duty. 5. Certain Airline Operators were summoned and they were questioned. Some of them are alleged to have disclosed that the applicant herein, for some purported investigation, had contacted them through his personal email id and had demanded the Passenger Manifest Data from the operators. It is the case of the customs that B.A.1300/2019 4 the applicant had handed over the data so obtained to the licensee to enable them to manipulate their sales data for hoodwinking the customs. 6. The officer investigating the crime came to the unmistakable conclusion that the applicant was in close contact with the licensee and their employees; that licensee had sought his help for getting hold of the Passenger Manifest Data from the Airlines; that he had enjoyed the hospitality of the licensee during the pendency of the investigation; that he was in constant touch over phone as borne out from the CDR details; and that he had sent messages through WhatsApp to the sales executive of the licensee showing a deeper and clandestine nexus and questionable dealings. The applicant was thus summoned to appear before the investigating officer. He evaded the summons and later approached this Court as well as the Sessions Court . However, he was not granted any relief. 7. Sri. B. Raman Pillai, the learned Senior counsel appearing for the applicant, submitted that the applicant has nothing to do with the search and seizure alleged to have been carried out by the customs at the premises of the licensee. Certain Senior Officers of the customs department took exception to some messages posted by the B.A.1300/2019 5 applicant in a common WhatsApp group and they entered into a conspiracy to implicate the applicant on false accusations. According to the learned senior counsel, the solitary allegation against the applicant is that he had issued a letter calling upon the airline operators demanding the passenger details of inbound passengers from September 2017 to December 15, 2017. The said letter was issued in his capacity as an officer of customs to aid an ongoing investigation. He would vehemently contend that the allegations are cryptic and vague and the applicant is being victimized for no fault of his. The learned senior counsel would further contend that the applicant had issued Annexure-C reply detailing his version of the events, wherein he had reiterated his contentions. It is further submitted that the applicant was afflicted with septic arthritis of left knee and had to undergo arthroscopic Arthrotomy at Kovai Medical Center, Coimbatore. His presence at Coimbatore is now being highlighted to show that he was in constant touch with the licensee and their employees. The learned senior counsel would also place heavy reliance on the judgment of this Court passed in W.P.(C) No. 21063 of 2018 filed by M/s. Plus Max Duty Free (Private) Ltd., wherein this Court had permitted the Company to carry on business operations under the strict supervision of the department officials and had ordered that the B.A.1300/2019 6 investigation be transferred to some other officer other than the 10[th] respondent in the writ petition. If the applicant appears before the authorities, it is certain that he would be implicated in some serious non-bailable offenses and subjected to custodial torture, contends the learned senior Counsel. 8. Sri. Sasthamangalam S. Ajith Kumar, the learned standing counsel appearing for the Department of Customs, has strenuously opposed the prayer. It is submitted that the applicant was served with numerous summons calling upon him to appear before the investigating officer. However, the same was not complied with. It is further submitted that the investigation conducted till date has revealed that the applicant obtained the Passenger Manifest Data from various airline operators and had handed over the same to the licensee, who, in turn, have used the said data to prepare false documents with a view to evade customs duty. He would further content that the Anti Corruption Branch of the CBI has initiated an investigation into these allegations as huge loss was caused to the exchequer. He would further contend that this Court while passing Annexure-M judgment, had not interfered with the investigation, except for suggesting that some other officer should take up the B.A.1300/2019 7 investigation. The learned standing counsel would persuasively argue that the applicant, who is bound to serve the nation with utmost honesty and integrity, has worked hand in glove with a Malaysian firm and while doing so, interfered with the investigation in a serious case of evasion of customs duty. To substantiate his contentions, the learned standing counsel has placed reliance on certain photographs showing the applicant rollicking in the Company of the licensee and their employees and also certain WhatsApp chat transcripts between the applicant and one of the employees evidencing some unholy nexus between them. 9. I have anxiously considered the submissions advanced and have meticulously gone through the records. 10. I remind myself of the law laid down in **Naranjan Singh v. Prabhakar Rajaram Kharote** [AIR 1980 SC 785] and in **Puran v. Rambilas** [2001 (6) SCC 338], wherein it was held that at the time of consideration of bail application, the Courts are not expected to discuss the merits or demerits of the evidence collected against the accused. A detailed examination of the evidence or an elaborate documentation of the merits of the case has also to be avoided. B.A.1300/2019 8 11. The specific allegation is that the applicant herein, while holding a high office in the office of customs, collected Passenger Manifest Data from from Airline Operators and handed it over to the licensee to enable them to manipulate their sales data in respect of foreign made foreign liquor sold by them from the duty free shops. The investigation is in the early stages and though numerous summons were issued to the applicant under Section 108 of the Cr.P.C, he has not cared to appear. 12. As has been held by Constitution Bench of the Apex Court in **Ramesh Chandra Mehta v. State of West Bengal** [(1969) 2 SCR 461] a person called upon to make a statement before the Custom Authorities cannot be said to be an accused of an offence. It is, therefore, clear that if a person is called upon to make a statement under Section 108 of the Act and summons is issued for the said purpose, he is bound to comply with such direction. This view has been reiterated in **Union of India v. Padam Narain Aggarwal** [(2008) 13 SCC 305]. 13. The power to arrest such a person person, who appears before a Custom Officer, is statutory in character and cannot be ordinarily be interfered with. However, the provisions are categorical B.A.1300/2019 9 in nature and it states that such power of arrest can be exercised only in those cases where the Custom Officer has `reason to believe' that a person has been guilty of an offence punishable under Sections 132, 133, 135, 135A or 136 of the Act. In other words, the power can only be exercised on objective facts of commission of an offence enumerated and in those cases, wherein the Custom Officer has reason to believe that a person sought to be arrested has been guilty of commission of such offence. The power to arrest thus is circumscribed by objective considerations and cannot be exercised on whims, caprice or fancy of the officer. The section also obliges the Custom Officer to inform the person arrested of the grounds of arrest as soon as may be. The law requires such person to be produced before a Magistrate `without unnecessary delay'. In other words, the law allows a Custom Officer to exercise power to arrest a person, who has committed certain offences, but at the same time, takes due care to ensure individual freedom and liberty by laying down norms and providing safeguards so that the power of arrest is not abused or misused by the authorities. 14. Having gone through the materials, I find that the allegations against the applicant, cannot, at this stage, be stated to be B.A.1300/2019 10 frivolous or vexatious. Certain incriminating materials are produced before this Court showing his complicity. The contention of the learned senior counsel appearing for the applicant that his personal relationship with the licensee and their employees cannot have any bearing in the facts and circumstances cannot be accepted. A deeper probe into the allegations are not warranted at this stage. The notice having been issued by a senior officer, the applicant will have to appear and comply with the directions. His apprehension that he would inevitably be arrested and tortured appears to be misconceived. The power to arrest is circumscribed by objective considerations and cannot be exercised on whims, caprice or fancy of the officer. The nature and gravity of the allegations are such that I am not persuaded to arm the applicant with an order of anticipatory bail. This application will stand dismissed. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** KRJ //TRUE COPY// P.A. TO JUDGE