NEW DELHI, NOV 13, 2007 : REMEMBER Avinash Bhosale case where the Pune Builder got bail from a magistrate at midnight after DRI arrested him in Mumbai. The High Court had quashed the bail and Supreme Court set aside the High Court order and upheld the magistrate's bail.

Around this time we carried a case of LALIT GOEL Vs COMMISSIONER OF CENTRAL EXCISE, DELHI-I - 2007-TIOL-420-HC-DEL-CUSwherein the High Court observed,

Bail in economic offence cases - unscrupulous elements on a prowl to maximise material gains by unlawful means, needs to be placed in shackles - Personal liberty of an individual though precious, is of little value if the larger interest of the people and the Nation are at stake - the petitioner by his alleged criminal act caused loss to the public revenue, he, by diverting non-edible grade crude palm oil, meant for manufacture of washing soap, to Vansapati ghee manufacturers played for his selfish gain with the health of public at large thereby adding to the gravity of the offence - Bail plea rejected

We had also carried an article by SK Choudhuri, former Member CBEC, Bhosale a free man - SC declares alleged Customs offence as 'apparently' bailable! Is the Apex Court right?

Now get back to Lalit Goel, who is back in the High Court with a second application for bail on the ground that the offence committed by the applicant is a bailable offence in view of the latest order of Supreme Court in Avinash Bhosale v. Union of India.

Incidentally there are other twists since his last application in the High Court. The applicant submitted that

1. He has already filed a compounding application dated 14th August, 2007 as a result of which the prosecution itself may be ordered to be withdrawn by the Chief Commissioner.

2. The scheme of compounding has been formulated by the Government keeping in view the reformative penal jurisprudence.

3. He was required to arrange appropriate funds for compounding fee and for this purpose he should be out of custody.

4. Filing of compounding application shows bonafide of the applicant.

5. investigation in this case has been completed and after completion of investigation, a complaint has already been filed with ACMM, New Delhi. 04 witnesses out of total 82 witnesses have already been examined and examination of remaining witnesses will be a long drawn process.

6. He was in custody for about 07 months, the maximum sentence was 03 years.

7. The entire evidence was record based and there was no possibility of tampering with the record.

The Department submitted to the High Court that the order of the Supreme Court cited by the applicant would not apply to facts and circumstances of the present case. The order pertains to amended Section 135(1)(ii) of Customs Act, 1962 and was passed by the Hon'ble Supreme Court on the basis of material placed before it while case of applicant was under unamended provisions. It is further submitted that order of Supreme Court in Avinash Bhosale's case was per incuriam. It was not brought to the notice of the Supreme Court. The Supreme Court had already stayed the order of Mumbai High Court holding that the offence was bailable, in Criminal Appeal No. 189/2006. It was stated that in view of the judgment of Supreme Court in A.R.Antuley v. R.S.Nayak (1988) 2 SCC 602, if the decision is per incuriam, the Court should ignore it.

Considering all these facts and the fact that the applicant is in jail and the trial may take some time the High Court granted bail to the applicant if he deposits 50% of the amount levied as compounding fee.

Incidentally the compounding fee fixed by the Chief Commissioner is Rs. 2.12 crores and he has to now pay Rs. 1.1 Crores before coming out of jail. The counsel for the applicant submitted that petitioner did stupidity in filing the compounding application and the applicant was not obliged to compound the offence and pay the hefty compounding fee as asked by the Chief Commissioner.

(See 2007-TIOL-653-HC-DEL-CUS in 'Customs' + 2007-TIOL-653-HC-DEL-CUS in 'Legal Corner')