Rafeeh v. Union of India

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 21[ST] DAY OF MARCH 2024 / 1ST CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 1858 OF 2024 ``` ``` CRIME NO.79/2024 OF , ``` ## **`PETITIONER/ACCUSED:`** ``` RAFEEKH, AGED 34 YEARS S/O.MAMMI VAKKELA VALAPPIL, KOLLANUR PALAKKAD, ERAVAKKAD., PIN - 679552 ``` ## **`BY ADV NIREESH MATHEW`** ## **`RESPONDENT/COMPLAINANT:`** ``` UNION OF INDIA REP. BY THE SUPERINTENDENT OF CUSTOMS, AIR CUSTOMS COCHIN,REP. BY STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 ``` ``` BY ADV P.G. JAYASHANKAR PGJ ``` ## **`OTHER PRESENT:`** ## **`SR PP SRI C S HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A. No.1858 of 2024 2 ## **Dated this the 21[st] day of March, 2024** ## **O R D E R** The application filed under Section 439 of the Code of Criminal Procedure, 1973 (‘the Code’ for short) by the sole accused in O.S. No.79/2024 of the AIR Customs, Cochin International Airport, Ernakulam registered against the petitioner for allegedly committing the offence under Section 135 of the Customs Act ( ‘the Act’ for short). The petitioner was arrested on 15.02.2024. 2. The crux of the prosecution case, is that; On 15.02.2024, the Officers of Air Intelligence Unit, Cochin International Airport, Nedumbassery, intercepted the petitioner and found him to have smuggled a gold weighing 1599.00 grams made up of 24 carat gold, B.A. No.1858 of 2024 3 having a market value of Rs. 1,01,04,081/- and also found from his body gold paste weighing 683.00 grams of 24 carat purity, having a market value of Rs.37,32,507/-. Thus, the accused has committed the above offence. 3. Heard; Sri. Nireesh Mathew, the learned counsel appearing for the petitioner and Sri.P.G. Jayasankar. the learned Special Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. The offence under Section 135 of the Act will not be attracted to the facts of the case. Notwithstanding the above contentions, the petitioner does not have any criminal antecedents. He has been in judicial custody since 15.02.2024. The investigation in the case is practically complete, and the recovery has been effected. B.A. No.1858 of 2024 4 Hence, the application may be allowed. 5. The learned Special Public Prosecutor seriously opposed the application. He contended that the investigation in the case is only at a nascent stage. The Investigating Officer is looking into all aspects, particularly if other persons are involved in the crime. The petitioner has committed a heinous offence by smuggling gold into the country in contravention of the provisions of the Act. If the petitioner is released on bail at this stage, he may intimidate the witnesses and tamper with the evidence. Hence, the application may be dismissed. 6. The allegation against the petitioner is that he has smuggled gold into the country having a market value of Rs.1,38,36,588/-, in contravention of the provisions of the Act. 7. The petitioner had filed an application under Section 437 of the Code, before the Jurisdictional B.A. No.1858 of 2024 5 Magistrate by filing CMP.No.990/2024. By Annexure A1 order, the learned Magistrate dismissed the application principally on the grounds that the investigation in the case is in its preliminary stage, the petitioner’s custodial interrogation is necessary, and the release of the petitioner will send a wrong message to society. 8. In **Sanjay Chandra v. CBI, [2012 1 SCC 40]** , the Honourable Supreme Court has categorically held that the fundamental postulate of criminal jurisprudence is the presumption of innocence until a person is found guilty. Any imprisonment prior to conviction is to be considered as punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct. 9. In **Dataram Singh v. State of U.P., [(2018) 3 SCC 22]** the Honourable Supreme Court observed that grant of bail is a rule and putting a person in jail is an B.A. No.1858 of 2024 6 exception. Even though the grant of bail is entirely the discretion of the court, it has to be evaluated based on the facts and circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner. 10. Subsequently, in **State of Kerala v. Raneef** , [(2011) 1 SCC 784], the Honourable Supreme Court has again held that undertrial prisoners detained in jail for indefinite periods, without any sufficient reason or due to the delay in concluding the trial, will tantamount to infringement of their right to life guaranteed under Article 21 of the Constitution. 11. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar, especially taking into consideration the facts that the petitioner has been in judicial custody since 15.02.2024, that the recovery has been effected, and that B.A. No.1858 of 2024 7 the investigation in the case, so far as the petitioner is concerned, is practically complete, I am of the definite view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: (i) The petitioner shall appear before the Investigating Officer on every Tuesday and Saturday between 9 a.m. and 11 a.m till the final report (complaint) is filed. He shall also appear before the Investigating Officer as and when required; B.A. No.1858 of 2024 8 (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioner shall not commit any offence while he is on bail; (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; - (v) The petitioner shall furnish his present address, B.A. No.1858 of 2024 9 and his mobile phone number and the place where he proposes to stay till the final report is laid; (vi) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (vii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (viii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the B.A. No.1858 of 2024 10 petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].** ``` Sd/- ``` **C.S.DIAS, JUDGE** mtk/21.03.24