Vishesh Jain v. Department of Revenue Intelligence

1. This is a petition under Section 438 read with Section 482 Cr.P.C for grant of anticipatory bail in the event of arrest of the petitioner in File No. DRI/AZU/GI-02/E.NQ-01/(INT-02)/2020 dated 11.03.2020, registered at Department of Revenue Intelligence for offences under Section 135 of the Customs Act, 1962.

2. The facts leading to this petition are as follows: 2021:DHC:1446 a) The petitioner imports white paper through his concern “M/s Essvee Marketing”. The material on record shows that a search operation was conducted on 20.01.2020 and 21.01.2020 at the office, go-down and the residential premises of the petitioner. The material collected during the raid shows that the petitioner had grossly undervalued the White paper rolls imported by his firm “M/s Essvee Marketing” and had evaded the customs duty. b) The petitioner had declared the value of White paper in rolls of 591 numbers of 308.408 Metric Tonnes (for short MTs) to be of Rs.1,40,27,815/- (Rupees One Crore Forty Lakhs Twenty Seven Thousand Eight Hundred Fifteen Only) while the correct value of the goods was valued at Rs.4,23,02,119/- (Rupees Four Crore Twenty Three Lakhs Two Thousand One Hundred Nineteen Only). c) The material on record further shows that the petitioner had approached the Hon’ble Customs, Excise and Service Tax Appellate Tribunal (for short ‘the CESTAT’) at Ahmedabad for the provisional release of the seized goods. d) The CESTAT directed that the goods can be released if the petitioner executes a bond of 100% value of the goods and gives a bank guarantee for 100% of differential duty amount. e) Apprehending arrest the petitioner filed an application for grant of anticipatory bail before the Session Court. The Additional Session Judge-02, Patiala House Courts, New Delhi granted interim protection to the petitioner herein. f) By an order dated 28.01.2021, the learned Additional Session Judge dismissed the application for grant of anticipatory bail on the ground that there are specific allegations against the petitioner herein that he is involved in duty evasion of about Rs.13.0 crores by under valuing the imported white paper. g) Thereafter the petitioner has approached this Court for grant of anticipatory bail.

3. Mr. Ramesh Gupta, learned Senior Counsel appearing for the petitioner contends that the goods which were seized by the Customs Authorities had been released by order dated 14.07.2020, passed by the Customs Excise and Service Tax Appellate, and this order has not been challenged by the DRI. He states that all the evidence required for this case are already in the custody of the Customs Department. He would state that after this Court has granted interim protection to the petitioner, the petitioner has been repeatedly showing up for investigation. He states that the petitioner had joined investigation on 23.10.2020 at DRI, Delhi and has joined investigation on 27.10.2020, 28.10.2020, 02.11.2020, 04.12/2020, 08.12.2020 and 14.12.2020 at DRI Ahmedabad. He would state that as far offences under Sections 132 and 135 of the Customs Act, 1962 are concerned, no useful purpose would be served in arresting the petitioner as there is nothing left to be unearthed.

4. Per contra, Mr. Harpreet Singh, Senior Standing Counsel appearing for the DRI contends that the petitioner is a habitual offender. He would state that the petitioner was arrested by Gujarat State Authorities in a case of fraudulent claim of VAT refund to the tune of Rs.5.13 Crores. The High Court of Gujarat granted bail to the petitioner by an order dated 12.09.2016 in CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 17611/2018 directing the petitioner herein to deposit Rs. 25 lakhs within a period of two weeks before the trial Court and further deposit an amount of Rs.[1] Crore within a period of six and half months before the concerned Trial Court from the date of actual release.

5. Mr. Singh would state that despite various summons being issued to the petitioner for appearance before the DRI, the petitioner did not honour the summons citing vague reasons. It is stated by Mr. Singh that the petitioner had categorically accepted the fact that he has indulged into undervaluation of the paper imported in rolls and also narrated as to how he has generated the differential amount in cash and how he has transferred money through non-banking/hawala channels to the account of the overseas supplier in the statements given by him. Mr. Singh also further states that summons dated 06.08.2020 was issued to the petitioner for appearance on 18.08.2020, but citing the excuse of pandemic the petitioner requested for Video Conferencing to record his statement. Another summons dated 14.09.2020 was issued to him for appearance on 28.09.2020 before the DRI but he petitioner again did not appear before DRI. Mr. Singh argues that the petitioner wants to appear before the authority only when he is armed with the protection of anticipatory bail. He further states that after getting protection from this Court, without any summons the petitioner presented himself before the DRI Office and stated that he is prepared to join investigation. It is also contended that the petitioner is involved in duty evasion of about Rs.13 crores for which the petitioner be convicted under Section 135 of the Customs Act 1962 and awarded imprisonment for a period of seven years. It is further stated by Mr. Singh that the petitioner is also involved in transfer of money through non-banking/hawala channels.

6. Mr. Singh would rely on the judgments of the Supreme Court in State of Gujarat v. Mohan Lal Jitamalji Porwal & Ors, (1987) 2 SCC 364, and Y. S. Jangan Mohan Reddy v. CBI, (2013) 7 SCC 439, to contend that economic offences have to be visited with a different approach. He would contend that the economic offences which involve loss of public funds needs to be viewed very seriously since they affect the economy of the country as a whole posing serious threats to the financial health of the country.

7. Heard Mr. Ramesh Gupta, learned Senior Advocate appearing for the petitioner and Mr. Harpreet Singh, learned Senior Standing Counsel for the DRI and perused the documents.

8. The allegation against the petitioner is that on a raid to his office premises, go-down premises and the residence premises it was found that he had grossly under-valued the white paper roll imported by him. He had declared the value of imported goods at only Rs.1,40,27,815/- (Rupees One Crore Forty Lakhs Twenty Seven Thousand Eight Hundred Fifteen Only) while the correct value of the goods was valued at Rs.4,23,02,119/- (Rupees Four Crore Twenty Three Lakhs Two Thousand One Hundred Nineteen Only). It is also alleged that when the accounts of the past years were examined, it was found that the petitioner had been involved in the undervaluation of goods to the tune of Rs.13 crores. It is the contention of the petitioner that he wants to join the investigation whereas the DRI has taken the specific stand that whenever the petitioner is called for investigation, unless he is armed with the protection of the Court, he is not prepared to join the investigation. Be that as it may. All the documents are in the custody of the Customs. When specifically asked as to why Customs Authorities require the custody of the petitioner, no specific answer is forthcoming. As stated earlier, all the documents are in custody of the Customs Department. This particular case involves violation of Section 132 and 135 of the Customs Act, 1962. The allegation that the petitioner is involved in transfer of money through non-banking/hawala channels is a subject matter of investigation by another authority and as and when and if and when investigation in this regard is initiated by other authorities to prove the involvement of the petitioner in the transfer of money through nonbanking/hawala channels they can arrest the petitioner if a case is registered against him. Since this issue is not germane to the facts of the present petition, this Court is not inclined to go into this issue. The petitioner has been granted protection by this Court on 05.02.2021. The petitioner stated that he is prepared to join the investigation. Section 41A of the Cr.P.C provides that where the arrest of a person is not required under the provisions of Section 41(1), the Police Officer shall issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. If the petitioner is required for investigation then an appropriate notice under Section 41A can be given to him directing to appear/join the investigation. In view of the above this Court is inclined to grant bail in the event of arrest to the petitioner in File No. DRI/AZU/GI-02/E.NQ-01/(INT-02)/2020 dated 11.03.2020, registered at Department of Revenue Intelligence for offences under Section 135 of the Customs Act, 1962 with the following conditions: a) The petitioner shall join investigation and shall appear before the authorities on being given three day Notice by the Authorities to join investigation. Failure to join investigation or not co-operating during the investigation shall entail immediate cancellation of the bail granted to the petitioner by this Court. b) The petitioner is directed to furnishing a personal bond in the sum of Rs.1,00,000/- with two sureties in the like amount to the satisfaction of the Trial Court. c) The petitioner is directed to give all his mobile numbers to the Investigating Officer and he shall keep them operational at all times.

9. Accordingly, the application is disposed of with the abovementioned observations/directions.

SUBRAMONIUM PRASAD, J. APRIL 26, 2021 Rahul