Rashid Salam T.A. et al. v. Senior Intelligence Officer, Directorate of Revenue Intelligence (DRI), Kochi Zonal Unit & Sub Regional Unit, Nelloore/Vijayawada

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 15TH DAY OF FEBRUARY 2021 / 26TH MAGHA,1942** ## **Bail Appl..No.3980 OF 2020** ## **AGAINST THE ORDER/JUDGMENT IN CRMC 1196/2020 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM** ## **PETITIONER/S:** - **1 RASHID SALAM T.A. AGED 35 YEARS THOMMEN PARAMBIL HOUSE, ERATTUPETTA, KOTTAYAM 686 122.** - **2 ABDUL GAFOOR M.E, MOTHEENKUNNEL HOUSE, NEAR SAFA MOSOUE, NADAKKAL P.O. ERATTUPETTA, KOTTAYAM DISTRICT 686 121.** - **3 E.M. SHAHID** - **ENCHAKKATTU HOUSE, NADAKKAL P.O. ERTTUPETTA, KOTTAYAM DISTRICT 686 121.** **BY ADVS. SRI.M.BALAGOPAL SRI.ABU MATHEW SMT.R.DEVIKA (ALAPPUZHA) SRI.AJU MATHEW** ## **RESPONDENT/S:** - **1 THE SENIOR INTELLIGENCE OFFICER DIRECTORATE OF REVENUE INTELLIGENCE, VIJAYAWADA, SUB REGIONAL UNIT OF DRI, 4TH FLOOR, D.NO. 16-15986-1 AADHY ENCLAE CHILDREN S PARK ROAD, NELLORE, ANDHAR PRADESH 524 003. 524003** - **2 THE SENIOR INTELLIGENCE OFFICER DIRECTORATE OF REVENUE INTELLIGENCE, KOCHI ZONAL UNIT, ST. THOMAS LANE, PALLINADA, PALARIVATTOM, COCHIN 682 025.** **R1-2 BY SRI.S.MANU, CGC, DIRECTORATE OF REVENUE INTELLIGENCE KERALA REGIONAL UNIT** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 25.8.2021, THE COURT ON 15.02.2021 PASSED THE FOLLOWING:** BA 3980/2020 -2- ## O R D E R Dated this the 15[th] day of February, 2021 Application for anticipatory bail under Section 438 of Cr.P.C. 2. The applicants apprehend arrest in F. No. DRI/HZU/NSRU-48/ENQ-02/2020 of Directorate of Revenue Intelligence ('DRI', for short), Sub Regional Unit, Neloor/Vijayawada, Andhra Pradesh, with respect to imports made by M/s Royal Imports & Exports and M/s. Spring Valley Spices through the port of Krishnapatanam, Andhra Pradesh. The 1[st] applicant is the proprietor of M/s. Royal Imports and Exports and also a partner of M/s. Spring Valley Spices and the 2[nd] applicant is the managing partner of M/s.Spring Valley Spices. They are engaged in the business of importing and trading of agricultural and other allied products including spices. The 3[rd] applicant is the managing partner of M/s. Unique Spices. 3. The allegation of DRI is that the aforesaid concerns imported Arecanuts from Indonesia vide two bills of entry dated BA 3980/2020 -3- 05/05/2020 by mis-declaring the consignment as coconut expeller cake rendering the goods liable for confiscation under Section 111 of the Customs Act and consequently an offence under Section 135 of the Act. The applicants were issued with notice from the 2[nd] respondent who is Senior Intelligence Officer, DRI, Kochi zonal unit and then detailed statements recorded on several days. The 3[rd] applicant has no connection whatsoever with the imports and he is unaware why he has been summoned in connection with the alleged violations. The applicants apprehending arrest by the respondents, had approached the Sessions Court, Ernakulam for anticipatory bail. The same was dismissed vide Annexure-17. Hence the applicants have approached this Court for indulgence. 4. Heard the learned counsel appearing for the applicants and the Central Government Counsel appearing for the DRI. 5. The learned counsel appearing for the applicants submits that the applicants have an unblemished track record in the industry and have not so far got involved in any offence violating the Customs Act. It is submitted that the finding of the learned Sessions BA 3980/2020 -4- Judge that the application for anticipatory bail is premature is not correct. For approaching the Court for relief under Section 438 of Cr.P.C, it is not essential that applicant should be made an accused. Under Section 104 (1) of the Customs Act, if an officer of the Customs Department has reason to believe that any person in India or within the Indian Customs Waters has committed an offence punishable under Sections 132, 133, 135, 135A or Section 136, he may arrest such person. The applicants have reasonable grounds to believe that they may be arrested and hence they can approached the Court for anticipatory bail under Section 438 Cr.P.C. 6. The learned CGC has filed his statement objecting to granting of anticipatory bail. Their concerns had imported goods in four containers each declaring that those goods were coconut expeller cake; but on detailed examination it was found that arecanuts were concealed in the containers along with the declared goods, which were imported illegally and liable for confiscation under Section 111 of the Customs Act. The goods imported were valued at 1.47 crores each. The applicants were summoned under₹ BA 3980/2020 -5- the provisions of Section 108 of the Customs Act by the 2[nd] respondent and certain illegalities were revealed in their statements. The learned CGC relies on the decisions of this Court in Sahal vs. Senior Intelligence Officer [2019 (3) KLT 12] and Kishin S. Loungani vs. Union of India and others [2017 (1) KHC 3] and also the decisions of the Apex Court in Ramesh Chandra Mehta vs. State of West Bengal [AIR 1970 SC 940] , Union of India vs. Padam Narain Aggarwal and Ors [(2008) 13 SCC 305] and Assistant Collector of Central Excise, Rajahmundry vs. Duncan Agro Industries Ltd. [2000 Crl.L.J 4035] in support of his argument that Section 108 of the Customs Act does not contemplate magisterial intervention and that a person called upon to make a statement before the Customs Authority under Section 108 of the Customs Act cannot be said to be accused of an offence. Hence, it is prayed that the application for anticipatory bail may be dismissed. 7. Per contra, the learned counsel appearing for the applicants would submit that the facts and circumstances of the decisions relied on by the respondents and also by the learned BA 3980/2020 -6- Sessions Judge are entirely different from the facts and circumstances of the case in hand. In Padam Narain's case (supra) the petitioner had in response to the summons received under Section 108 of the Customs Act approached the High Court of Rajasthan for anticipatory bail instead of appearing before the authorities. The High Court held that the application was premature but still directed the customs officers not to arrest the applicant without prior notice. The Apex Court held that the blanket order of not to arrest could not be made. In the case in hand the applicants had in response to the summons received, appeared before the investigating officer and had also given statements. It is further submitted that Section 104 of the Customs Act was amended with effect from 28/05/2012 whereby certain offences were made cognizable by virtue of which a person can be arrested without warrant if the officer is satisfied that such person has committed non-bailable offence punishable under the Act. In the instant case, detailed statements have been recorded and all the documents as also the allegedly offending goods have been seized and therefore BA 3980/2020 -7- the apprehension of the applicants that they may be arrested is well-founded and hence the application for anticipatory bail is sustainable. In the decision in Ramesh Chandra Mehta (supra), the consideration was whether the statement under Section 108 of the Customs Act was hit by Section 25 of the Evidence Act. Hence, the decisions relied upon by the CGC do not squarely apply to the facts and circumstances of this case, submits the learned counsel for the applicants. 8. After having heard the submissions made on either side and after perusing the documents made available, I find that the investigation of the case is still progressing and the applicants have not yet been made accused. Until a complaint is filed, the person against whom the enquiries commenced under the Customs Act does not stand in the character of a person accused of an offence under Section 135. In Padam Narain's case, it was held that the power to arrest a person by a Customs Officer is statutory in character and cannot be interfered with. Referring to Section 108 of the Customs Act, it was held that Section 108 does not contemplate BA 3980/2020 -8- magisterial intervention. The power is exercised by a Gazetted Officer of the Department. It obliges the person summoned to state truth upon any subject with respect to which he is examined. He is not absolved from speaking truth on the ground that such statement is admissible in evidence and could be used against him. Section 108 of the Customs Act enables the officer to elicit truth from the person examined. The underlying object of S.108 is to ensure that the officer questioning the person gets all the truth concerning the incident. It was also held that the statements recorded under S.108 of the Customs Act are distinct and different from the statements recorded by Police Officers during the course of investigation under the Code. The Supreme Court had followed the decisions in Ramesh Chandra Mehta and Duncan Agro Industries Ltd. cited above in the discussions made. 9. The fact that the applicants have been summoned by the 2[nd] respondent a number of times under Section 108 and that their statements were recorded, by itself would not entail them to seek anticipatory bail. The application for anticipatory bail is still BA 3980/2020 -9- premature and the applicants are therefore not entitled to the relief of anticipatory bail. The bail application is dismissed. **Sd/-** **ASHOK MENON** **JUDGE** jg