Bail application under Section 437 CrPC in DRI customs case
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IN THE COURT OF THE LD. CHIEF METROPOLITAN MAGISTRATE, PATIALA HOUSE COURTS, NEW DELHI
BAIL APPLICATION NO. Bail application number OF Year of the bail application
IN THE MATTER OF:-
DRIVERSUS Accused's name
File No.: DRI file number
U/s 132/135(1)(a)/135(1)(b) & 135(1)(c), Customs Act, 1962
In judicial custody since Date of being taken into judicial custody
INDEX
Sr. No.Particulars Page No.
1.Bail application under Section 437 Cr.P.C. on behalf of the applicant/accused Accused's name
2.List of documents
3.Vakalatnama
DELHIAPPLICANT / ACCUSED
(IN JUDICIAL CUSTODY)
THROUGH
DATED: Date of index
(COUNSEL)
IN THE COURT OF THE LD. CHIEF METROPOLITAN MAGISTRATE, PATIALA HOUSE COURTS, NEW DELHI
BAIL APPLICATION NO. Bail application number OF Year of the bail application
IN THE MATTER OF:-
DRIVERSUS Accused's name
File No.: DRI file number
U/s 132/135(1)(a)/135(1)(b) & 135(1)(c), Customs Act, 1962
In judicial custody since Date of search of residence and arrest
BAIL APPLICATION UNDER SECTION 437 OF THE Cr.P.C. ON BEHALF OF THE ACCUSED/APPLICANT, NAMELY Accused's name, S/O Accused's father's name, R/O Accused's residential address, SEEKING GRANT OF BAIL IN THE CAPTIONED CASE.
MOST RESPECTFULLY SHOWETH:-
1.That the aforesaid case has been registered against the applicant/accused by the officers of the DRI, New Delhi. The applicant/accused is a peace-loving citizen of India with deep roots in society. The applicant has been falsely implicated in the present case, is innocent, and was never summoned to join the investigation by the DRI officers.
2.That on Date of search of residence and arrest, certain officials visited the applicant's residence and conducted a search thereof. Upon not finding any illegal document in his house, they took him to their office at CGO, where he was shown as arrested in the present case and was compelled to tender an inculpatary statement. The statement had already been typed and printed by the officers, and the applicant was coerced into signing it under the threat that, if he did not do so, his wife would be implicated in the present and other cases. The applicant signed the statement, as also certain other documents, without being permitted to go through their contents. He was detained at the office from Time detention at DRI office began to Time detention at DRI office ended, and was thereafter produced before the Ld. Duty Magistrate. The applicant was threatened by the officers/investigating officer that he would be sent behind bars if he spoke before the Ld. Judge, and the same in fact transpired on Date of production before the judge, when he was produced before the Ld. Judge.
3.That although the residence of the applicant was raided, nothing incriminating was recovered during the search. The applicant had already informed the officers that he was not aware of the subject consignment or any other information pertaining thereto, and there is no evidence whatsoever to even remotely suggest the involvement of the applicant in the alleged offence.
4.That the officers of the Name of investigating agency/officers are not "proper officers", as held by the Hon'ble Supreme Court in the case of Cannon India Pvt. Ltd. v. Commissioner of Customs, decided on Date of Cannon India judgment; consequently, all proceedings in the instant case, including the investigation and the arrest of the applicant, are a nullity in the eyes of law.
5.That it is a cardinal principle of criminal law that jail is an exception and bail is a right, since the personal liberty of a citizen is paramount and can be curtailed only on real and duly substantiated grounds, and not on the whims and fancies of officers exercising executive power. It is trite law that bail ought not to be withheld as a punishment, as held by the Hon'ble High Court in H.B. Chaturvedi v. CBI, reported as 171 (2010) DLT 223, and by the Hon'ble Supreme Court in Sanjay Chandra v. CBI, reported as 2012 (1) SCC 240.
6.That in the case of Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118, it has been held that "In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub-section (3) of Section 437 Cr.P.C, if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life."
7.That the Hon'ble High Court in the case of Jitender Kumar v. Govt. of NCT of Delhi, 2016 (10) JCC 652, has held as under:-
"10. From a plain reading of the above decisions, the following legal position emerges, in so far as is relevant for the determination of the present bail application:-
(a)The gravity of the offence alone cannot be a decisive ground to deny bail.
(b)The protection of personal liberty has to be weighed against the object of securing the attendance of the accused at trial.
(c)The accused is presumed to be innocent until found guilty and convicted.
(d)The Court must consider the unnecessary burden on the State of keeping in custody a person who is yet to be proved guilty.
(e)Personal liberty is constitutionally protected unless necessity requires detention.
(f)Enlargement on bail is the rule and committal to jail, an exception."
8.That, in the light of the golden principles laid down from time to time by the higher Courts, it is submitted that in Dipak Subhash Chandra Mehta v. CBI, (2012) 4 SCC 134, the Hon'ble Apex Court held that *"the court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. The Court granting bail has to consider, among other circumstances, the factors such as:_
a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence;
b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and
c) prima facie satisfaction of the court in support of the charge.
_In addition to the same, the Court, while considering a petition for grant of bail in a non-bailable offence, apart from the seriousness of the offence, has also to note the likelihood of the accused fleeing from justice and of tampering with the prosecution witnesses."*
9.That in Anil Mahajan v. Commissioner of Customs, (2000) 84 DLT 854, it was held that "there is no hard and fast rule and no inflexible principle governing the exercise of such discretion by the Courts. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or refusing bail. The answer to the question whether to grant bail or not depends upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."
10.That the subject alleged goods and all alleged related documents are in the possession of the department. Hence, there is no likelihood of the applicant tampering with the evidence in any manner.
11.That the investigation qua the applicant is complete and he is not required for any further investigation. Hence, no useful purpose is served by keeping the applicant in custody, which would amount to punishment without trial.
12.That the investigation in the said case is already over, and there being absolutely no chance of the accused fleeing from the process of law, the accused is entitled to bail. The accused shall always remain available to submit himself to the custody of this Court at any point of time, and it is a basic tenet of criminal jurisprudence that an accused is considered innocent until held guilty.
13.That the accused has already suffered immensely, having been in judicial custody since Date of arrest / start of judicial custody.
14.That it may not be out of context to point out that the Hon'ble Supreme Court in the matter of Sanjay Chandra Vs. CBI (2012) 1 SCC 40 has once again upheld the fundamental principle of criminal jurisprudence of "bail and not jail", and has observed that it has been stated time and again that bail is the rule and committal to jail an exception. It has also been observed that the refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.
15.That the applicant / accused, being an under-trial prisoner, cannot be detained in jail custody for an indefinite period, as the same would violate Article 21 of the Constitution. Every person who is detained or arrested is entitled to a speedy trial.
16.That the trial is likely to take considerable time, and the accused, who is presently in jail, would have to remain incarcerated for longer than the period of detention had he been convicted. It would not be in the interest of justice for the accused to remain in jail for an indefinite period.
17.That Section 437 Cr.P.C. itself provides that, while granting bail, the Court may impose the condition that such person shall not commit an offence similar to the offence of which he is accused or suspected of the commission of which he is suspected.
18.That even on a prima facie basis, there is nothing to show either the commission of the aforesaid offences under the Customs Act, or the involvement of the accused in the said offence.
19.That the allegations are false, frivolous and totally vague, and constitute an attempt to implicate the applicant in a false and fabricated case. The applicant is, therefore, entitled to the grant of bail on the ground of parity.
20.That in State of Rajasthan v. Balchand, the Supreme Court laid down that the basic rule is bail and not jail, except where there are circumstances suggestive of fleeing from justice, repeating offences, intimidating witnesses and the like.
21.That the Hon'ble Supreme Court has held, in no uncertain terms, that bail and not jail should be the rule, as laid down in the matters of Sanjay Chandra and P. Chidambaram, wherein bail was granted even in economic offences of a large magnitude.
22.That the right to bail is not to be denied merely on account of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him pending trial, and, at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, so as to ensure that he will submit to the jurisdiction of the Court and remain in attendance thereon whenever his presence is required.
23.That it is well settled that bail is not to be withheld as a punishment. The object of bail is to secure the attendance of the accused at the trial, and the proper test to be applied in determining whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. The applicant / accused has deep roots in society and is a married person having a family, and there is absolutely no question of the applicant / accused not facing the trial. Once the aforesaid tests are satisfied, the applicant / accused is entitled to the grant of bail. Moreover, an accused who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody.
24.That the freedom of the individual is as necessary for the survival of society as it is for the purposes of the individual. A person seeking bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom by the acceptance of such conditions as this Hon'ble Court may deem fit to impose.
25.That since the offences alleged to have been committed by the applicant are punishable with imprisonment for a period of up to seven years, the present bail application is to be considered while keeping in mind the principles enunciated by the Hon'ble Supreme Court in Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273.
26.That the Hon'ble Supreme Court has taken the view that when there is a delay in the trial, bail should be granted to the accused [See Babba v. State of Maharashtra, (2005) 11 SCC 569, Vivek Kumar v. State of U.P., (2000) 9 SCC 443, Mahesh Kumar Bhawsinghka v. State of Delhi, (2000) 9 SCC 383].
27.That the Hon'ble Supreme Court of India has held in a matter titled "Siddharam Satlingappa Mhetre V/s. State of Maharashtra & Ors." (2011) 1 SCC 694 that: "It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided."
28.That the prosecution, by its artful manipulation and by concealing certain facts, has perhaps succeeded in getting the FIR registered against the applicant. It is the humble submission of the applicant that the facts stated in the FIR qua the applicant are absolutely false and have no truthful bearing.
29.That it is further submitted that the accused / applicant is not required for further investigation, and no further recovery is required to be made from the applicant / accused. The accused / applicant undertakes to appear before this Hon'ble Court as and when required, and shall not misuse the liberty of bail granted by this Hon'ble Court.
30.That it is further submitted that the applicant / accused seeks the permission of this Hon'ble Court to urge additional grounds which may be made available to him at the time of the hearing of the present application.
PRAYER
In view of the above, it is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to grant bail to the applicant / accused in File No.DRI file number, under Sections 132/135(1)(a)/135(1)(b) & 135(1)(c) of the Customs Act, 1962, and may release the applicant / accused on bail in the interest of justice.
It is further prayed that this Hon'ble Court may be pleased to pass such other and further order(s) as this Hon'ble Court deems fit, reasonable and proper on the facts and circumstances of the case.
DELHIAPPLICANT / ACCUSED
(IN JUDICIAL CUSTODY)
THROUGH
DATEDDate of signing the application
Advocate