Bail application under Section 437 CrPC on behalf of accused in Customs Act case
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IN THE COURT OF MS.Judge's name, Ld. A.C.M.M., Court complex name HOUSE COURTS, NEW DELHI.
BAIL APPLICATION NO.Bail application number OF 20Year (last digits)
IN THE MATTER OF:-
DRIVERSUS Accused's name
File No.DRI file number
Under Sections 132/135, Customs Act
In judicial custody since Date of judicial custody
BAIL APPLICATION UNDER SECTION 437 OF THE CODE OF CRIMINAL PROCEDURE ON BEHALF OF THE ACCUSED / APPLICANT, NAMELY Applicant's name, 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.
2.That the applicant / accused is a peace-loving citizen of India and has deep roots in society. The applicant is engaged in the business of trading in various items, such as teak wood and covid-related material, and owns a firm named M/s. Applicant's firm name Pvt. Ltd., situated at Firm address building/plot, Ground Floor, Firm address locality Nagar, Delhi. The applicant never exported red sanders in the name of any other dummy firm or company. The applicant has, therefore, been falsely implicated in the present case.
3.That the applicant is innocent and has been falsely implicated in the present case. The applicant was summoned to join the investigation and duly appeared before the DRI officers. The applicant was coerced into tendering an inculpatory statement, which was typed by the officers and which the applicant was made to sign without perusing its contents; the applicant was also forced to sign certain documents and blank papers. On 03.05.2022, the applicant was detained and produced before the Ld. Duty Magistrate, and upon such production, the applicant retracted from his said statement, which retraction was duly recorded.
4.That the residence and office premises of the applicant were searched during the investigation, and nothing incriminating was recovered from them. The subject consignment was consigned to the co-accused, Mr. Co-accused's name, and the documents were also recovered from the godown which was being run by the co-accused. Apart from the retracted statement of the co-accused and the retracted statement of the applicant, therefore, there is no other evidence which even remotely suggests the involvement of the applicant in the alleged offence.
5.That the DRI officers are not "proper officers", as held by the Hon'ble Supreme Court in Cannon India Pvt. Ltd. v. Commissioner of Customs on 09.03.2021; consequently, all proceedings in the instant case, including the investigation and arrest of the applicant, are a nullity in the eyes of law.
6.That the applicant has cooperated in the investigation and has appeared before the DRI officers on his own; hence, the conduct of the applicant is beyond reproach. The statement of the applicant has been recorded at length, and he is not required for any further investigation. No custodial interrogation of the applicant has been conducted. Hence, no useful purpose would be served by keeping the applicant in custody.
7.That jail is an exception and bail is a rule, which is a cardinal principle of criminal law, 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 should not 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.
8.That in 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 CrPC 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."
9.That the Hon'ble High Court in 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)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 he is 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, the exception.
10.That, in the light of the golden principles laid down from time to time by the higher Courts, the Hon'ble Apex Court in Dipak Subhash Chandra Mehta v. CBI, (2012) 4 SCC 134, 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, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted."
11.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."
12.That the subject goods and all related documents are in the possession of the department. Hence, there is no likelihood of the applicant tampering with the evidence in any manner.
13.That the investigation qua the applicant is complete and he is not required for any further investigation. Hence, no useful purpose would be served by keeping the applicant in custody, which would amount to punishment without trial.
14.It is submitted that the co-accused is the consignee of the goods, and the goods were recovered from the co-accused. Hence, the applicant is entitled to bail on the ground of parity.
15.That the investigation of 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.
16.That the accused shall always remain available and shall submit himself to the custody of the Court at any point of time as and when required.
17.That it is a principle of basic criminal jurisprudence that an accused is considered innocent until held guilty.
18.That the accused has already suffered immensely, having remained in judicial custody since Date of custody (day and month), 2022, and a period of more than Number of months in custody months has elapsed since the date of arrest.
19.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 affirmed the fundamental principle of criminal jurisprudence that "bail is the rule and jail the exception", observing that it has been stated time and again that bail is the rule and committal to jail an exception. It was further observed that refusal of bail amounts to a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.
20.That the applicant / accused, who is an under-trial prisoner, cannot be detained in jail custody for an indefinite period, as such detention would violate Article 21 of the Constitution. Every person, whether detained or arrested, is entitled to a speedy trial.
21.That the trial is likely to take considerable time, and the accused, being in jail, may have to remain incarcerated for a period longer than the sentence of detention had he been convicted. It is not in the interest of justice that the accused should remain in jail for an indefinite period.
22.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.
23.That even on a prima facie view, there is nothing to show either the commission of the aforesaid offence under Section 110(2) of the Customs Act, or the involvement of the accused in the said offence.
24.That the applicant is not required for any custodial interrogation, as the applicant had already been in police custody since Date of police custody, 2022, which itself suggests that the applicant is not required in the present case.
25.That the allegations made against the applicant are false, frivolous and wholly vague, and constitute an attempt to implicate the applicant in a false and fabricated case. The applicant is entitled to the grant of bail on the ground of parity.
26.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 the accused fleeing from justice, repeating offences, intimidating witnesses and the like.
27.That the Hon'ble Supreme Court has held, in no uncertain terms, that bail and not jail should be the rule, as held in the matters of Sanjay Chandra and P. Chidambaram, wherein bail was granted even in economic offences of a large magnitude.
28.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 in custody pending the 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.
29.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 deciding 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.
30.That 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.
31.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 accepting such conditions as the Court may think fit to impose, and as this Hon'ble Court may deem fit.
32.That since the offences alleged to have been committed by the applicant are those 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.
33.That the Hon'ble Supreme Court has taken the view that where there is 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].
34.That the Hon'ble Supreme Court of India, in a matter titled "Siddharam Satlingappa Mhetre Vs. State of Maharashtra & Ors.", (2011) 1 SCC 694, has held 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."
35.That the prosecution, through artful manipulation and by concealing certain facts, has perhaps succeeded in getting the FIR registered against the applicant; however, it is the humble submission of the applicant that the facts stated in the FIR qua the applicant are wholly false and bear no element of truth.
36.That it is further submitted that the accused / applicant is not required for further investigation, and no further recovery is required to be effected from the applicant / accused.
37.That the accused / applicant undertakes to appear before this Hon'ble Court as and when required, and further undertakes not to misuse the liberty of bail granted by this Hon'ble Court.
38.That it is further submitted that the applicant / accused seeks the permission of this Hon'ble Court to urge such additional grounds as may be made available to him at the time of the hearing of the present application.
PRAYER
It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to grant bail to the applicant / accused in Enquiry No. Enquiry number under Section 110(2) of the Customs Act, registered with Police Station Police station name, New Delhi, and release the applicant / accused on bail in the interest of justice.
Any other or further order(s) may also be passed as this Hon'ble Court may deem fit, reasonable and proper, on the facts and circumstances of the case, in favour of the applicant / accused.
DELHIAPPLICANT / ACCUSED
THROUGH
DATED:
ADVOCATE