By TIOL News Service

NEW DELHI, FEB 27, 2008 : IN 2008, the DRI wants to arrest an alleged offender for the offence committed in 2003. Why? To obtain a statement! But don’t they know that a custodial statement is not valid?

The petitioner being the working partner of one M/s Shri Balaji Oversees, a partnership firm registered in Mumbai dealing in the business of export till 2003 seeks an anticipatory bail under Section 438 of the Code of Criminal Procedure for alleged violations of provisions of Customs Act.

The petitioner during the period from June 2002 to Jan 2003 exported certain consignments covered under 8 shipping bills wherein the shipping bills covered under serial number 1-4 were made to Dubai from Bombay in Dollar value which were assessed by the Customs authorities and thereafter the drawback amount @ 12.25% was credited into the account of the petitioner and the remaining 4 consignments were exported under Repayment of State Credit Scheme (popularly known as the Rupee-Rubal Agreement) for which also the drawback back amount had been credited into the account of the petitioner. It is stated that the petitioner accordingly withdrew a sum of Rs. 32, 75,000/- but before the remaining amount of Rs. 36, 87, 493/- could be withdrawn by the petitioner, the respondent/Directorate of Revenue Intelligence authorities frozen the said account of the petitioner in 2003. On two occasions, the petitioner’s statement was recorded in April, 2003 and later in April, 2004.

3. It is the case of the petitioner that the petitioner at many instances made several requests to the DRI to de-freeze his account including the communication made on 15-10-2005, 12-11-2005 , 08-12-2005 and 06-02-2006 but to no avail and instead was issued summons dated 08-06-2006 and 04-08-2006 from DRI , Delhi requiring the presence of the petitioner which are stated to be complied with on 19-06-2006 and 04-09-2006 respectively by the petitioner. Further, a complaint u/s 173/174 of the Indian Penal Code was filed by the respondent before the ACMM , New Delhi for non-compliance of summons. The petitioner sought personal exemption from appearance on medical grounds but the ACMM issued NBWs against the petitioner. In the meantime, the petitioner filed an application for anticipatory bail before the Sessions Court, Mumbai and subsequently filed a revision petition before the Sessions Court, Delhi against the order of the ACMM , Delhi wherein the  Sessions Court, Delhi stayed the NBWs and directed the petitioner to appear before the ACMM , Delhi on 19-12-2007. On 12-12-2007 , the Sessions Court, Mumbai disposed of the said Anticipatory bail application of the petitioner as not maintainable on the ground that the respondent/ DRI did not require the petitioner to be arrested and that the offence under section 135 of the said Act was bailable. On 19-12-2007, the petitioner appeared before the ACMM , Delhi and was admitted to bail for bailable offence.

It is further submitted that the respondent DR tried to physically lift the petitioner from outside the court of ACMM , Delhi which even led to a scuffle on account of summons being served to the petitioner for appearing before the respondent soon after the court proceedings. It is the case of the petitioner that such recourse was taken by the DRI even before the petitioner could furnish his bail bonds and in spite of having given an undertaking that the petitioner was not required to be arrested. It is averred that the petitioner apprehending arrest in view of the incident of 19-12-2007 filed an anticipatory bail application before the Sessions Court, Delhi on 15-01-2008 which was dismissed on 23-01-2008. Hence the present petition wherein the High court was pleased to grant interim protection to the petitioner on his undertaking that he shall join the investigation and appear before the officer concerned of DRI . The DRI was directed to produce relevant material in a sealed cover which was so produced.

The High Court observed,

1.    The first aspect to be taken note of is that the transaction relates to the period of June, 2002 to January, 2003. The matter has been under investigation since 2003 itself when the account of the petitioner of the Duty Drawback receipt was frozen to preserve the balance amount relating to the alleged export to Russia .

2.    As per the direction of the Court, the petitioner has joined the investigation and a statement has been recorded.

3.    The grievance of the Department is that the petitioner is not forth-coming with the true facts as to how the shipment was diverted to Dubai and how the monies were routed from Dubai .

4.    The stand of the petitioner, of course, is that he has no knowledge about the same as he had only exported the goods to Russia and the transactions to Dubai could have been routed by some fictitious party in Russia and the petitioner had no reason to suspect the same.

5.    Counsel for the petitioner has rightly pointed out that there is no question of any custodial interrogation since in case of detention, the petitioner has to be sent to judicial remand.

6.    The Custom Authorities unlike the police authorities cannot take the petitioner into custody for custodial interrogation and that proposition is not even disputed by the respondent.

7.      there will be no purpose served by taking the petitioner into custody

So the Court granted grant anticipatory bail to the petitioner on the following terms and conditions:

i)             The petitioner will join the investigation as and when required by the respondent/Department;

ii)            In case the petitioner is arrested, he shall be enlarged on bail on furnishing a personal bond in the sum of Rs.5.00 lacs with one surety of the like amount.

iii)           The petitioner will not seek release of the remaining Duty Drawback amount which is lying frozen till the investigation is completed;

iv)           The petitioner will surrender his passport and consequently would not travel abroad without prior permission of the DRI , Delhi or without permission of the Court.

(See 2008-TIOL-120-HC-DEL-CUS in 'Customs' + 2008-TIOL-120-HC-DEL-CUS in 'Legal Corner')