Allahabad High Court
Dipu Chaudhary vs Union Of India Thru. Directorate Of … on 27 January, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2025:AHC-LKO:5636 Court No. - 15 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11512 of 2024 Applicant :- Dipu Chaudhary Opposite Party :- Union Of India Thru. Directorate Of Revenue Intelligence , Zonal Unit Lko. Counsel for Applicant :- Purnendu Chakravarty,Nitin Mathur Counsel for Opposite Party :- Digvijay Nath Dubey,Anuj Singh,Kuldeep Srivastava Hon'ble Shree Prakash Singh,J.
Heard Mr. Purendu Chakravarty, Advocate assisted by Mr. Aishwarya Saxena, learned counsel for the applicant and Mr. Anuj Singh, Advocate and Mr. Kuldeep Srivastava, learned counsel for the Directorate of Revenue Intelligence, Zonal Unit, Gomti Nagar, Lucknow.
The instant bail application has been filed on behalf of the applicant with the prayer to release him on bail during the trial in DRI Case No. 16 of 2024, U/s 135 of the Customs Act, 1962, Police Station-DRI, District-Lucknow.
As per the prosecution story, the Directorate of Revenue Intelligence team intercepted and detained the applicant on 07-08-2024 at CCS International Airport, Lucknow in presence of two witnesses, who were waiting at departure gate number at 10.45 P.M. and a blue cabin bag was recovered,whereafter a personal search was done and one black coloured cheque.in, was alleged to be recovered having currency notes of U.S. Dollars, total 2125 in number and the applicant-accused was informed to have violated the provisions of section 77 of the Customs Act, 1962 (hereinafter referred to as ‘Act, 1962’) and Foreign Exchange Management Regulations,2000 and Foreign Exchange Management Act, 1999.The Foreign Currency so recovered was seized under the provisions of section 113 readwith section 2 (22) of the Customs Act, 1962. On 07-08-2024, another search and seizure was also done at arrival lobby of the airport, at the time when the Air Asia Flight FD 146, landed at 10.20 P.M. and three co-accused namely Tanveer Mustafa, Damien During and Shashank Singh, were detained and from personal search of Tanveer Mustafa, 3 gold bullions wrapped in a black coloured tissue paper, was recovered and nothing was recovered from the other two co-accused persons. The third search and seizure was also done at 10.30 P.M. at Crystal Apartment, wherein Ratnesh Pandey and Deepu Chaudhary were detained and some articles were recovered and thus, on 09-08-2024, the applicant and the other co-accused persons were arrested.
Contention of learned counsel for the applicant is that the applicant is innocent and has falsely been implicated in the instant matter due to ulterior motive. He argued that after the arrest of the applicant and other co-accused persons on 09-08-2024, the investigation proceeded and the same was concluded and ultimately, the complaint has been filed on 07-10-2024. He submits that it is important to point out that D.R.I. officials requested for police remand of custodial interrogation of the accused persons, which was rejected by the trial court vide order dated 04-09-2024. He also submits that the complaint has been filed on 07-10-2024 and now, no custodial interrogation is required. He submits that the plethora of documents, in 879 pages, has been filed and the study and reply is required properly, and if the applicant-accused will remain in jail, he will be deprived of.
Further submission is that the forensic report, which has been obtained from an agency namely, Pragmatic Education Society, is not authorized by the government as the same is not in consonance with the requirement of section 45 and section 65-B of the Indian Evidence Act as well as section 79-A of the Information Technology Act. He next submits that nothing has been recovered from the possession of the applicant, though the conversations with one, Ratnesh Pandey, is recorded, but, opposite party has failed to corroborate that what benefit the applicant has derived from those conversations and thus, there is no material evidence against the applicant so as to connect him in the instant matter.
Learned counsel for the applicant has emphasized that so far as the confessional statement of the applicant-accused recorded under section 108 of the Act,1962 is concerned, the same cannot be bare basis of conviction of an accused, unless the same is corroborated with the other evidences.
He also submits that the applicant is, admittedly, the driver of Mr. Ratnesh Pandey and, therefore, the conversation in between Ratnesh Pandey and his colleague with the present applicant is natural. He also added that the opposite party has failed to collect any cogent piece of evidence against the applicant.
Adding his arguments, he submits that the now the investigation proceedings have been concluded and the complaint has been filed and as such, there is no possibility that the applicant will tamper the evidences or would threaten the witnesses. He also submits that the charges have not been framed yet and the probative value of all documents and materials would be examined during the trial. Further submission is that there is a case criminal history of the applicant which has been explained and he is languishing in jail since last five months. He added that the offence is punishable upto 7 years and there is no flight risk or tampering of the evidences by the applicant. Further submission is that the applicant is a law abiding citizen and he is languishing in jail since 09-08-2024 and he undertakes that in case, he is granted bail, he will not misuse the liberty of the same and would cooperate in the trial proceedings. Therefore, submission is that the applicant may be enlarged on bail.
Per contra, learned counsel appearing for the D.R.I. has vehemently opposed the contentions abovesaid and argued that the applicant was detained and arrested while the D.R.I. officials intercepted the CCS Airport, Lucknow and the Panchnama/recovery proceedings were duly completed. He submits that as per the call details record, the present applicant-accused had 112 times conversations with co-accused, Ratnesh Pandey and 23 times with Avinash in between 01-07-2024 to 07-08-2024 and 17 telephonic communications on the day of incident, which indicates that there was a close coordination and active involvement of the applicant in smuggling of the prohibited gold. He further argued that the forensic examination of the mobile phone of the applicant-accused is also connects him with the offence and there is a strong evidence with respect to coordination in between applicant-accused and them. In addition to it, he submits that the statement of the applicant-accused recorded under section 108 of the Act,1962, is enough to establish that the applicant has committed offence and the same is strong evidence against him. He submits that the statement of the accused-applicant recorded under section 108 of the Act, 1962, is much stronger as the same is distinct from the statement recorded by the police officer under the provisions of section 161 of Cr.P.C.
He next argued that time and again, the Hon’ble Apex Court has considered the economic offences serious and distinct from the other nature of offences as there is a vast impact over the society and those have deep rooted conspiracies and those are not the offences, which are said to be committed in a sudden provocation of peaked moments. It is committed with a great criminal design for profit to such accused, which ruins the economy of the state and therefore, such offences are class apart from the other crimes.
During course of his arguments, he has placed reliance on the several ratio of Judgments of Hon’ble Apex Court rendered in the case of Percy Rustomji Basta Vs. The State of Maharashtra, reported in AIR 1971 SC 1087 and Commissioner of Customs (Imports) Mumbai Vs. Ganpati Overseas Through its Proprietor Shri Yashpal Sharma and Another, reported in (2023) 10 Supreme Court Cases 484.
Having heard learned counsels for the parties and after perusal of material placed on record, it transpires that the applicant was intercepted by the D.R.I. officials at CCS International Airport, Lucknow and from the other co-accused persons, the gold bullion was recovered, whereas the applicant is connected with the present matter as the D.R.I. is said to be collected the evidence of conversations in between Ratnesh Pandey, one of the co-accused person and the present applicant, but, the fact remains that there is no strong evidence that in consonance with the conversations, any transaction has ever been done or the D.R.I. has failed to place any evidence that those conversations were specifically with respect to the offence, which is said to be committed.
Further much emphasis is drawn on the statement of the present applicant-accused recorded under section 108 of the Act,1962 and the argument is placed on behest of the D.R.I. officials that the confessional statement itself is enough to convict the applicant.
Though, it has been held by the Hon’ble Apex Court in the case of Romesh Chandra Mehta Vs State of West Bengal, reported in (1969) 2 SCR 461, that the custom officers are not the police officers and the statement recorded under section 108 of the Act,1962, is admissible in evidence, though there seems to be no quarrel regarding the same, whereas the further issue is that can the statement of an accused recorded under section 108 of the Act,1962, blindly be accepted without any corroboration of other evidences ? Infact, the admissibility of an evidence is one aspect of the matter and the conviction can lead only on the basis of the confessional statement recorded under section 108 of the Act,1962 is the other aspect of the matter and the answer would be no.
This issue is dealt with in the case of Union of India Vs. Kisan Ratan Singh and others by the Hon’ble High Court at Bombay(Criminal Appeal No 621 of 2001 decided on 7th January, 2020), vide Judgment and order dated 07-01-2022. Paragraph no. 9 of the Judgment is quoted hereinunder :-
“9. Various Courts have kept all these things in mind and come to a conclusion that in the absence of any corroboration by an independent and reliable witness, a statement recorded under Section 108 in isolation could not be relied upon. For this, I find support in State of Maharashtra V/s. Harshad Vaherbhai Patel & Ors.1 and unreported judgment of this court in
1. 2012 (1) Bom.C.R.(Cri)500 Gauri Gaekwad 8/11 211.Apeal-621-2001.doc Shri Malki Singh V/s. Suresh Kumar Himatlal Parmar in Criminal Appeal No.228 of 1999 delivered on 29-11-2019. Paragraph 8 of Malki Singh’s judgment reads as under:
“8. It is no doubt true that under Section 104 of the Customs Act 1962, the Customs Officer is vested with power to arrest if he has reason to believe that any person has committed an offence punishable under Section 135 or 135 A of the Customs Act. Under Section 108 of the Customs Act, the Customs Officer is also vested with power to summon persons to give evidence documents and all persons so summoned are bound to attend, on being summoned. The statement made to the Custom Officer is not hit by Section 25 of the Indian Evidence Act, 1872, the position of law being very well settled that the Custom Officers are not police officers and resultantly, a statement made to the Custom Officer is not hit by Section 25. At the same time, the position of a retracted confession is also well settled :-
without any independent corroboration it cannot sustain a conviction and retracted confession may form basis of conviction without corroboration if it is found to be perfectly voluntary, true and trustworthy. The Court is duty bound to examine whether the statement referred to as a confessional statement meets the test of truthfulness and being voluntary in nature. In absence of any independent material brought on record by the appellant, the Chief Metropolitan Magistrate was perfectly justified in acquitting the accused no.2. In absence of any evidence corroborating the statement of the accused no.2 made before the Custom Officer on 24 th March 1996 under Section 108 of the Customs Act, the statement in isolation do not warrant conviction, particularly when it is retracted with a plea of coercion.”
This court is of the opinion that the confessional statement of an accused recorded under section 108 of the Act,1962, cannot blindly be accepted unless it is corroborated by any independent evidence/material as the same would not lead to conviction. The examination of confessional statement of the accused is essentially required so as to find out that the same is not taken under coercion or under extraneous influences. The trial court has also to be conscious enough while examining the correctness and voluntariness of the nature of the statement of the accused.
I have also noticed the fact that no gold is recovered from the possession of the applicant and the D.R.I. officials have failed to strongly corroborate the story,though, the investigation is completed and the complaint has also been instituted, therefore,there seems no possibility that the applicant would tamper the evidences or would threaten the witnesses. Further the custodial interrogation also seems to be unreasonable and uncalled for at this stage as no plausible argument/reasons are accorded.
Further whether the alleged smuggled gold is under the prohibited category of gold or the restricted gold,is also one of the question, which is to be looked into by the trial court at the subsequent stage.
It has also been noticed that the applicant has a case criminal history, which has been explained in paragraph 38 of the bail application and he is languishing in jail since 09-08-2024 coupled with the fact that he has undertaken that if he is granted bail, he will not misuse the liberty of the same and would cooperate in the trial proceedings.
Considering the submissions of learned counsel of both sides, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and, without expressing any view on the merits of the case, I find it to be a fit case of bail.
Let the applicant-Dipu Chaudhary, involved in the aforementioned crime be released on bail, on his furnishing a personal bond and two sureties each in the like amount, to the satisfaction of the court concerned, with the following conditions:-
(1) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, or otherwise during the investigation or trial;
(2) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. He shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code;
(3) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C.; and
(4) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, the trial court shall initiate proceedings against him, in accordance with law under Section 174-A of the Indian Penal Code.
The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison.
It is clarified that the observations made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the merits of the case.
Order Date :- 27.1.2025
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