- (1.) AGGRIEVED by an order passed on April 7, 2008, by the Learned District and sessions Judge, Barasat, North 24-Parganas, in connection with Criminal revision No. 86/2008 directing the Customs Authority to return the accused/opposite party no. 1, Jose Marcio Barreto Ramires, his Brazilian passport No. C. O. ? 740121, withheld in connection with the Customs Case No. C-384/2008 relating to the offences punishable under Section 132/135 of the customs Act, the petitioner moves the instant criminal revision.
(2.) MR. Biswa Ranjan Ghoshal, the learned Senior Counsel appearing with Mr. Ujjwal Dutta, advocate on behalf of the petitioner, submitted that the order of returning the Passport to the accused/opposite party is wholly illegal and erroneous and vehemently urged that the learned Court below should not have made the order for return of Passport to the accused/opposite party no. 1 due to the following reasons; (a) The investigation of the case is at a very nascent stage and the presence of the accused/opposite party no. 1 is very much necessary to work out the information transpired from his statement recorded under Section 108 of the customs Act, to identify the racket operating in illegal and unauthorized dealing of foreign exchanges and to apprehend the miscreants involved. (b) This is a revenue related offence and the accused/opposite party no. 1 was caught red-handed while trying to leave the country with foreign exchange without necessary permission and authority. (c) Allowing the accused/opposite party no. 1 to leave the country would tantamount to stay of the investigation of the case which is not permissible in law at this stage. (d) The accused/opposite party no. 1 is still required to submit several documents in support of his legal acquisition, possession and exportation of the foreign currency recovered from his possession. The Passport in question is a document which is very much relevant in connection with the aforesaid case against him. (e) The accused/opposite party no. 1 is a holder of a tourist Visa and in the event he did not turn up during the adjudication proceedings and trial, there is no efficacious and adequate process available in law to ensure his attendance. (f) The Learned Sessions Judge has no jurisdiction to pass an order for release of Passport. (g) The Passport in question has been directed to be returned on execution of a bond by the Secretary, Mohan Bagan Athletic Club however the said Club Secretary has no machinery to control the movement of the accused and to ensure his return in India during trial. (h) Further interrogations of the accused/opposite party no. 1 is still necessary to ascertain and recover the documents in support of his legal acquisition, possession and exportation of the foreign currencies in question. (i) There is no effective guarantee that the accused/opposite party no. 1 would come back to India and shall face his trial. (j) The accused has met the Investigating Officer only twice once on March 24, 2008 and again on April 8, 2008 and on April 11, 2008 when the department officials had been to his residence at around 2. 00 P. M. to serve a summon under Section 108 of the Customs Act, whereby he was required to appear before the Investigating Officer on the self-same day at around 4. 00 P. M. he was not available at his residence. (k) His further interrogation is necessary as he not yet disclosed the particulars of the places and identity of the person from whom such foreign exchange were purchased. Lastly, Mr. Ghoshal contended that the submissions of the Learned a. P. P. of the Customs Authority before the Learned Chief Judicial Magistrate, barasat that the accused/opposite party no. 1 is a person of good fame and not a smuggler and he did not have any objection in the matter of his bail as well as the submissions of the Learned P. P. before the Learned Sessions Judge that if the Court passes an order for return of Passport that should be for a limited period are absolutely their personal opinions and such an undue concession given by them without the consent of the Customs Authority and thus is not binding on the department. Further to his aforesaid submissions Mr. Ghoshal referred the self-same decisions relied in the Court below on behalf of the customs Authority which are as follows; (i) P. O. Thomas and Ors. Vs. Union of India, reported in 1999 Cri. L. J. 1028, (ii) Remo Paul Altoe Vs. Union of India, reported in 1977 Cri. L. J. 1933, (iii) Haradhan Das and Anr. Vs. Collector of Customs, reported in 1987 C Cr Lr (Cal) 10, (iv) Randhir Singh Vs. Directorate of Revenue intelligence, reported in 1986 Cri. L. J. 1208.
(3.) ON the other hand, Mr. Joymalya Bagchi appearing with Mr. Siladitya sanyal, the learned advocate on behalf of the accused/opposite party no. 1 submitted that the order for return of the Passport does not suffer from any illegality or impropriety and same is fully justified, and does not deserve any interference by this Court. In support of his contention Mr. Bagchi further submitted as follows; (a) The accused/opposite party no. 1 immediately after being intercepted by the customs officials at the Airport Lounge confessed the amount of foreign currency, had in his possessions in excess of the permissible limit and further disclosed the place and the source wherefrom he acquired those foreign currencies. (b) The accused/opposite party no. 1 not only co-operated with the investigating agency from the beginning, in his voluntary statement he also disclosed the truth immediately after his arrest then again in terms of condition of bail he met the Investigating Officer of the case and disclosed everything as regards to the occurrence. He always co-operates with the investigating agency in every possible way and there is no allegation to the contrary. (c) The accused/opposite party no. 1 has acquired the aforesaid foreign currencies out of his hard earn income which he received by playing football for a particular local football club of Kolkata. (d) The accused/opposite party no. 1 has no criminal antecedent either in India or at his native country. (e) The Passport in question was never seized by the Customs authority but he voluntarily handed over the same to them. (f) The accused/opposite party, a professional football player who is in India for pretty long time along with his family including his wife and two minor daughters and both of his daughters are studied in a school at Calcutta and during his long stay in India, was never involved in any crime. (g) The accused/opposite party no. 1 has paid necessary taxes against his income. (h) The accused/opposite party no. 1 after his long stay in India was going to his native country to join his wife and two minor daughters, who left india a couple of days earlier for a short holiday and was supposed to return back to this country on or before 25th of May, 2008 as under an agreement with a particular football club of Calcutta he is bound to play for them in the coming sessions. (i) The apprehension of the customs authority that if he is permitted to go to his native place at Brazil and if he does not return there is no scope for the customs authority to secure and compel his attendance in the court during the trial is without any foundation inasmuch India has signed an extradition Treaty with Brazil which will ensure his presence before the Court during the trial of the aforesaid case, if he does not return to India on his own. (j) There is no reason for avoiding due process of law by the accused/opposite party no. 1 and he is willing and agreeable to furnish any kind of security which this Court may seem fit and proper against the return of his passport for a limited period. (k) Lastly, Mr. Bagchi submitted that before the Learned Chief judicial Magistrate, Barasat it was the admitted case of the customs authority that the accused/opposite party no. 1 is not a smuggler or a criminal and his prayer for bail was not opposed and similarly before the District and Sessions judge, Barasat the Learned Public Prosecutor representing the customs authority also openly submitted that if the passport is returned to him that may be for a limited period. Mr. Bagchi vehemently urged before this Court that at no point of time the customs authority disowned such submissions of their counsels and thus they cannot now be permitted to contradict and dispute the same for the first time before this Court after long lapse of time just to maintain this application. Mr. Bagchi in support of his contention relied upon two decisions of the Hon'ble Apex Court one in the case of Miss Marie Andre Laclerc vs. State (Delhi Administration) and Ors. , reported in (1984) 2 SCC 443, where the Apex Court returned the Passport for a limited period against the security money and personal bonds to a foreign nationals who had been serving life sentence and facing trials in other criminal cases. Similarly, in the case of Gian singh Vs. State of Rajasthan, reported in (1999) 5 SCC 694, the Apex Court directed return of Passport to a British Citizen settled down in England, on his executing a bond with two sureties. ;