Heard Mr. Arvind Verma, learned Senior Advocate assisted by Mr. Sangam Lal Kesarwani, learned counsel for the applicant and Mr. Krishna Agarwal, learned counsel for Directorate of Revenue Intelligence (DRI) and perused the record of the case.
By means of this application, the applicant has prayed for quashing of condition Nos. 1 and 2 imposed by the Special Chief Judicial Magistrate, Meerut while granting bail to the accused-applicant vide order dated 24.5.2019 in Case Crime No. 01 of 2019, under Section 135(1)(a) and Section 135 (1) and (b) of Custom Act, 1962, police station DRI Noida, district Gautam Budh Nagar. The applicant is aggrieved by condition Nos. 1 and 2, which are as under:
1. The applicant shall deposit a sum of Rs. 1,00,00000/- (rupees one crore) as bank guarantee (security) in the court.
2. The applicant shall deposit a sum of Rs. 50,00,000/- (rupees fifty lac) before the concerned department by way of cash/cheque/draft.
The applicant can get the aforesaid conditions complied with through his agent or family members, which shall, however, be subject to the final decision of the case."
It is noted that earlier for the same cause of action, the applicant has filed an Application Under Section 482 Cr.P.C. No. 21444 of 2019, which was dismissed as not pressed with liberty to file fresh application. However, instead of filing application under Section 482 Cr.P.C, learned counsel for the applicant has filed this application under Section 439(a)(b) of Cr.P.C.
Learned counsel for the applicant submits that the applicant has falsely and maliciously been roped in the present case with some ulterior motive by the officials of Directorate of Revenue Intelligence. Learned counsel for the applicant further submits that neither any First Information Report nor any complaint has been filed against the applicant. Learned counsel for the applicant also submits that the conditions imposed by the learned Magistrate are exorbitant and unreasonable, which are against the intent and object of the provisions of Section 167(2) Cr.P.C. Learned counsel for the applicant next submitted that due to heavy and unwarranted conditions imposed by the learned Magistrate, the applicant is still languishing in jail after his release on 24.5.2019 as he is not in a position to fulfill the conditions imposed by the learned Magistrate.
In support of his submissions that the conditions imposed by the learned Magistrate should be reasonable and not exorbitant, learned counsel for the applicant has relied upon the judgements of Hon'ble Supreme Court in the case of Sumit Mehta Vs. State of NCT of Delhi (Criminal Appeal No. 1436 of 2013, decided on 13.9.2013) and Ashok Kumar Sahu Vs. Director General, Central Excise Intelligence (2006) 45 AIC 498.
Placing reliance upon the decision of Hon'ble Supreme Court in Union of India Vs. Nirala Yadav alias Deepak Yadav, (2014) 9 SCC 457, learned counsel for the applicant further submits that after the expiry of statutory period of sixty or ninety days as the case may be, the Magistrate is bound to release the accused-applicant on bail.
On the other hand, Shri Krishna Agarwal, learned counsel for DRI contends that as per Notification 27/2015-Cus dated 23.10.2015, the investigation in such cases may be completed in time bound manner preferably within six months.
Learned counsel for the DRI further contends that in Y.S. Jagan Mohan Reddy Vs. Central Bureau of Investigation, 2013 (2) ACR 2244, even after expiry of statutory period, the bail was rejected by the Special Judge, CBI and the High Court. Hon'ble Supreme Court upheld both the orders and granted time to the C.B.I to complete the investigation and file charge sheet.
Placing reliance upon a judgement of learned Single Judge of this Court in Barkat Vs. State of U.P. and others, (2019 (1) ACR 779, learned counsel for DRI next submitted that period of submission of charge sheet is 180 days and not 90 days. The relevant portion of the judgement reads as under:
"The act of the revisionist being one that in the teeth of Section 2(viii-b)(iii), the same would constitute an offence punishable prima facie under Section 27-A of the Act, and, it is on that basis, though without saying so explicitly, that the learned Trial Judge has proceeded to reach his conclusions. Else, there was no occasion to refer to the provisions of Section 2(viii-a) of the Act [incorrectly referred to on basis of the pre-re-numbered provisions as Section 2(viii-a)] mentioned in the judgment impugned. The Trial Judge has proceeded on the basis, amongst others, that as an offence under Section 27-A of the Act is disclosed, the modified calendar enlarging time to 180 days, in place of 90 days provided by Section 167 Cr.P.C., comes into play by virtue of Section 36-A(4) of the Act. This being the period of time applicable and available to the Investigating Agency to file a charge sheet, no default bail can be claimed by the revisionist under the provisions of Section 167(2) of the Act."
At the outset, it may be mentioned that learned counsel for the parties have advanced arguments on merits of the case and in support of their submissions they have also relied upon certain judgements of Hon'ble Supreme Court as well as of this Court. Since, the limited issue before this Court is as to whether condition Nos. 1 and 2 imposed by the Special Chief Judicial Magistrate, while granting bail to the accused-applicant vide order dated 24.5.2019 in Case Crime No. 01 of 2019, under Section 135(1)(a) and Section 135 (1) and (b) of Custom Act, 1962, police station DRI Noida, district Gautam Budh Nagar are appropriate and proper, I do not think it necessary to delve into the merits of the case.
It may be mentioned that bail has been granted to the accused-applicant by resorting to the provisions of Section 167 (2) Cr.P.C and not on merits.
The allegations against the applicant is of evasion of tax/duty to the tune of Rs. 3.45 crore (rupees three crore and forty five lac only. The investigation is still pending and charge sheet has not yet been submitted. Since, the investigation has not yet culminated, at this stage, prima facie, it cannot be said that the applicant has actually evaded tax as alleged in the prosecution story. Although, the bail has been granted to the applicant vide order dated 24.5.2019, but he is still languishing in jail for not complying with the conditions imposed by the learned Magistrate.
In my view the interest of justice would be served if condition No. 1 of the order dated 24.5.2019 granting bail is modified to the extent that instead of Rs. 1,00,00000/- (rupees one crore), the applicant shall deposit a sum of Rs. 50,00,000/- (rupees fifty lac) only as bank guarantee (security) in the court. Condition Nos. 2, 3 and 4 of the order of learned Magistrate shall remain the same.
However, it is provided that if the respondents are aggrieved by the order granting bail, they may file bail cancellation application or take other recourse available to them in law.
With the aforesaid observations, this application is disposed of.
Order Date :- 30.7.2019 Ishrat