Sathis Kumar Sadanandan and Roshan Kumar Linganathan v. The Assistant Commissioner of Customs, Air Customs, Cochin International Airport, Nedumbassery

``` 2024:KER:58873 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 6[TH] DAY OF AUGUST 2024 / 15TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 6396 OF 2024 OS No.219/2024 OF AIR CUSTOMS, COCHIN INTERNATIONAL AIRPORT ``` ## **`PETITIONER(S)/ACCUSED:`** ``` SATHIS KUMAR SADANANDAN AGED 53 YEARS S/O. SADANANDAN, RESIDING AT PERSIARAN MURNI 1, TAMAN SRI TANJONG, TANJONG RAMBUTAN, PERAK STATE, MALASYIA COUNTRY, PIN – 31250 ``` ``` BY ADV. ``` ``` M.S.SAJEEV KUMAR ``` ## **`RESPONDENT(S):`** ``` THE ASSISTANT COMMISSIONER OF CUSTOMS AIR CUSTOMS, COCHIN INTERNATIONAL AIRPORT, NEDUMBASSERY, PIN – 683 111 ``` ``` BY ADV. ``` ``` P.G. JAYASHANKAR (SPECIAL PUBLIC PROSECUTOR) ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.Nos.6396 & 6399/2024 ``` ``` 2024:KER:58873 ``` ``` 2 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 6[TH] DAY OF AUGUST 2024 / 15TH SRAVANA, 1946 ``` ## **`BAIL APPL. NO. 6399 OF 2024`** ``` OS No.219/2024 OF AIR CUSTOMS, COCHIN INTERNATIONAL AIRPORT ``` ## **`PETITIONER(S)/ ACCUSED:`** ``` ROSHAN KUMAR LINGANATHAN AGED 24 YEARS S/O. LINGANATHAN, RESIDING AT NO.21, JALAN SERULING 43, TAMAN KLANG JAYA, KLANG STATE, MALASYIA COUNTRY, PIN - 41200 ``` ``` BY ADV. M.S.SAJEEV KUMAR ``` ## **`RESPONDENT( S ) :`** ``` THE ASSISTANT COMMISSIONER OF CUSTOMS AIR CUSTOMS, COCHIN INTERNATIONAL AIRPORT, NEDUMBASSERY, PIN – 683 111 ``` ``` BY ADV. P.G. JAYASHANKAR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.Nos.6396 & 6399/2024 ``` ``` 2024:KER:58873 ``` ``` 3 ``` **==> picture [58 x 57] intentionally omitted <==** ## **C O M M O N O R D E R** ## **Dated this the 06[th] day of August, 2024** The applications are filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, ‘BNSS’) by the accused 1 and 2 in O.S No. 219/2024 of the Air Customs, Cochin International Airport, which is registered against them for allegedly committing the offences punishable under Sections 132 and 135 of the Customs Act, 1962. The petitioners were arrested and remanded to judicial custody on 04.06.2024. B.A No.6399 of 2024 is filed by the 1[st] accused and B.A No.6396 of 2024 is filed by the 2[nd] accused. As the applications arise out of the same crime, they were consolidated, jointly heard and are being disposed off by this common order. 2. The gist of the prosecution case is that; on 04.06.2024, the accused 1 and 2, who are Malaysian citizens, arrived at Cochin International Airport. They ``` BAIL APPL.Nos.6396 & 6399/2024 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:58873 ``` ``` 4 ``` were intercepted and questioned by the customs officials. In the search conducted on them, five capsules each, containing gold paste were seized from their conscious possession having a total weight of 1875.91 grams. Thus, the accused have committed the above offences. 3. Heard; Sri. M.S Sajeev Kumar, the learned counsel appearing for the petitioners and Sri. P.G Jayasankar, the learned Special Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioners submitted that the petitioners are innocent of the accusations levelled them. There is no against material to substantiate that the petitioners have committed the above offences. In any given case, the petitioners have been in judicial custody for the last 61 days, the investigation in the case is not complete and the complaint has not been laid. Therefore, the petitioners are entitled to statutory bail as prescribed ``` BAIL APPL.Nos.6396 & 6399/2024 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:58873 ``` ``` 5 ``` under sub-section (2) of Section 167 of the Code of Criminal Procedure (in short, ‘Code’). Hence, the bail applications may be allowed. 5. The learned Special Public Prosecutor seriously opposed the application. He submitted that the investigation is in progress. He submitted that if the petitioners are enlarged on bail, since they are Malaysian citizens, they may flee from justice. Therefore, the applications may be dismissed. 6. The prosecution allegation against the petitioners is that, they were each, found in conscious possession of 1875.91 grams of gold paste concealed in five capsules. The fact remains that the petitioners were arrested and remanded to judicial custody on 04.06.2024, that is for more than 61 days. Furthermore, the offences alleged against the petitioners are punishable for a period of below ten years, the investigation in the case is not complete and the complaint has not been laid. ``` BAIL APPL.Nos.6396 & 6399/2024 ``` ``` 2024:KER:58873 ``` ``` 6 ``` **==> picture [58 x 57] intentionally omitted <==** ## 7. Subsections (1) and (2) of Section 167 of the Code of Criminal Procedure, 1973 reads as follows:- 167. Procedure when investigation cannot be completed in twenty-four hours.—(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that— 2 [(a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding— ``` BAIL APPL.Nos.6396 & 6399/2024 ``` ``` 2024:KER:58873 ``` ``` 7 ``` **==> picture [58 x 57] intentionally omitted <==** (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;] 8. A three-Judge Bench of the Honourable Supreme Court in **Uday Mohanlal Acharya v. State of Maharashtra** [(2001) 5 SCC 453], reiterated the legal proposition in **Sanjay Dutt v.State through C.B.I., Bombay** (supra). In paragraph 13 (3) it was opined thus: "13. x x x x x x (3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the ``` BAIL APPL.Nos.6396 & 6399/2024 ``` ``` 8 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:58873 ``` ## Magistrate.” ## (emphasis added) 9. In the instant case, as the petitioners have been in judicial custody for the last 61 days, the investigation in the case is not complete, all the offences alleged against the petitioners are punishable for a period up to ten years, and the Investigating Officer has not laid the complaint till date. Hence, I am satisfied that the petitioners are entitled to be released on compulsive bail, since it is their indefeasible right under Section 167(2) of the Code. Hence, I allow the bail application. In the result, the applications are allowed, by directing the petitioners to be released on bail on them 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 petitioners shall appear before the ``` BAIL APPL.Nos.6396 & 6399/2024 ``` ``` 9 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:58873 ``` Officer on Investigating every Saturday between 9 a.m. and 11 a.m till the filing of the complaint. They shall have also appear before the Investigating Officer on every third Saturday till the conclusion of the trial in O.S No.219 of 2024; - (ii) The petitioners 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 petitioners shall not commit any offence while they are on bail; - (iv) The petitioners shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passport, he shall file affidavits to the effect before the court below on the date of execution of the bond; - (v) The petitioners shall not leave the territorial jurisdiction of the Court of Sessions, Ernakulam without the previous permission of ``` BAIL APPL.Nos.6396 & 6399/2024 ``` ``` 2024:KER:58873 ``` ``` 10 ``` **==> picture [58 x 57] intentionally omitted <==** ## the jurisdictional court. - (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. - (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. - (vii)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 petitioners even while the petitioners are 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]. **C.S.DIAS, JUDGE** JJ ``` BAIL APPL.Nos.6396 & 6399/2024 ``` ``` 2024:KER:58873 ``` ``` 11 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`APPENDIX OF BAIL APPL. 6396/2024`** ## **`PETITIONER’S ANNEXURES`** ``` Annexure A1TRUE COPY OF THE SEIZURE MEMO DATED 04-06-2024 ``` ``` Annexure A2TRUE COPY OF THE ORDER DATED 19-06-2024 IN C.M.P NO.2888/2024, PASSED BY THE HON’BLE ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCES) COURT, ERNAKULAM ``` ``` Annexure A3TRUE COPY OF THE ORDER DATED 17-07-2024 IN C.M.P NO: 3332/2024 PASSED BY THE HON’BLE ACJM (EO) COURT, ERNAKULAM ``` ## **`APPENDIX OF BAIL APPL. 6399/2024`** ## **`PETITIONER ANNEXURES`** ``` Annexure-A1TRUE COPY OF THE SEIZURE MEMO DATED 04-06-2024 ``` ``` Annexure-A2TRUE COPY OF THE ORDER DATED 19-06-2024 IN C.M.P NO.2888/2024, PASSED BY THE HON'BLE ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCES) COURT AT ERNAKULAM. ``` ``` Annexure-A3TRUE COPY OF THE ORDER DATED 17-07-2024 IN C.M.P NO: 3332/2024 PASSED BY THE HON’BLE ACJM (EO) COURT, ERNAKULAM ``` ``` //TRUE COPY// PA TO JUDGE ```