Facts of the Case

The applicant, Vibhore Rastogi, filed a bail application under Section 439 CrPC in connection with Case Crime No. 12 of 2022 registered by the Department of Revenue Intelligence (DRI), Lucknow, for offences punishable under Section 135 of the Customs Act, 1962.

According to the prosecution, officials of the Department of Revenue Intelligence intercepted a Tata Harrier vehicle and apprehended the applicant along with three other persons. During the search, 2,297.840 grams of foreign-origin gold, four mobile phones, and the vehicle were seized.

The prosecution alleged that the smuggled gold had been transported to Mirzapur for melting to remove foreign-origin markings before being transported to Lucknow.

The applicant claimed that he was the proprietor of a registered bullion trading firm engaged in the lawful business of bullion trading and asserted ownership of the seized gold. He also stated that the relevant GST liabilities had been discharged and that the alleged offence was compoundable under Section 137 of the Customs Act.

Issues Involved

  1. Whether the applicant was entitled to bail under Section 439 CrPC in a prosecution under Section 135 of the Customs Act.
  2. Whether the nature of the alleged offence and available material justified continued detention during trial.
  3. Whether parity with a co-accused already granted bail should be extended to the applicant.
  4. Whether the possibility of absconding or tampering with evidence warranted denial of bail.

Petitioner's Arguments

The applicant submitted that:

  • He was innocent and had been falsely implicated.
  • He was a registered bullion trader carrying on a legitimate business.
  • His firm was duly registered under the GST laws.
  • The offence fell within the category of compoundable offences under Section 137 of the Customs Act.
  • The alleged offence was triable by a Magistrate and carried a maximum punishment of seven years.
  • He was the bona fide owner of the seized gold.
  • Necessary payments, including GST relating to the seized goods, had already been made.
  • A co-accused had already been granted bail by the High Court, and therefore he deserved bail on the ground of parity.
  • He had no criminal antecedents.
  • There was no possibility of absconding or influencing witnesses.
  • He had remained in custody since 6 July 2022 and undertook not to misuse the liberty of bail.

Respondent's Arguments

The Department of Revenue Intelligence opposed the bail application and contended that:

  • The seized gold was smuggled foreign-origin gold.
  • The allegations involved serious offences affecting public interest.
  • Delay in lodging the FIR could not be treated as fatal while deciding the bail application.
  • If released, the applicant might indulge in similar illegal activities and misuse the liberty of bail.

Court Order / Findings

The Allahabad High Court observed that while considering a bail application, the Court must evaluate:

  • The nature and gravity of the accusation.
  • The evidence available.
  • The severity of punishment.
  • The character and conduct of the accused.
  • His role in the alleged offence.
  • Criminal antecedents.
  • Possibility of tampering with evidence or influencing witnesses.

After considering the overall facts and relying upon the principles laid down by the Supreme Court in State of Rajasthan v. Balchand @ Baliay, Gudikanti Narasimhulu v. Public Prosecutor, Ram Govind Upadhyay v. Sudarshan Singh, Prasanta Kumar Sarkar v. Ashis Chatterjee, and Mahipal v. Rajesh Kumar, the Court held that the applicant had made out a fit case for grant of bail.

Accordingly, the bail application was allowed, subject to several conditions, including:

  • No tampering with evidence.
  • No intimidation of witnesses.
  • Regular appearance before the trial court.
  • No unnecessary adjournments.
  • No involvement in any criminal activity after release.
  • Violation of the conditions would constitute grounds for cancellation of bail.

The Court also clarified that the observations made in the bail order were confined solely to deciding the bail application and would not influence the trial on merits.

Important Clarification

This judgment is only a bail order and does not determine the guilt or innocence of the applicant.

The High Court specifically directed that:

  • The trial court shall independently appreciate the evidence.
  • The observations made while granting bail shall not prejudice the trial.
  • Bail was granted considering the settled principles governing bail, the facts of the case, and parity with the co-accused, without expressing any opinion on the merits.

Sections Involved

  • Section 135 of the Customs Act, 1962
  • Section 137 of the Customs Act, 1962
  • Section 439 of the Code of Criminal Procedure, 1973 (CrPC)

Link to Download the Order

https://www.mytaxexpert.co.in/uploads/1785403729_2400compressed.pdf

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