YADAV, J. - (1.) THE present criminal miscellaneous application for anticipatory bail, under Section 438, Cr. P. C. , arises out of Customs Case DRIF No. 23/157/98-D 24 for offence under Section 135 of Customs Act, 1962 (hereinafter referred as "the Act of 1962"), regarding which, Bail Application No. 2643/2000 has been rejected by learned Sessions Judge, Jaipur City, Jaipur, vide his order dated 23. 12. 2000.
(2.) IT is borne out from perusal of the record that the accused applicant is the sole proprietor of M/s. Livia Exports, a company engaged in exporting high precision plastic drivers and gasket sets, from Jaipur. IT is alleged that the export business was done by the aforesaid company, in April to May, 1997 and in December, 1998. , whereas, it is alleged by Customs Department that the shipping bills for relevant export period contained false information, leading to fraudulent claim of drawback and benefits under DEPB Scheme to the tune of Rs. 1. 46 crores in respect of one consignment alone, exported recently through ICD, Jaipur and intercepted at Mumbai. The accused applicant is required to join the investigation, which he is deliberately and willfully avoiding. IT is further alleged by the Customs Department that the conduct of the petitioner is such that he is not entitled to any discretionary relief under Section 438, Cr. P. C. , as he is avoiding compliance of summons, issued by Customs Department and the department has no option, but to file a complaint, for non-compliance of summons against the accused applicant, for offences punishable under Sections 172, 174 and 175, IPC, before ACMM, New Delhi. After hearing, the court took cognizance and it summoned the petitioner for 31. 5. 99. In spite of various proceedings, the accused applicant is not appearing before the court of ACMM, New Delhi. In the aforesaid case, the court passed orders for issuance of non-bailable warrant, but when it resulted into fiasco, the court has issued process under Sections 82 and 83, Cr. P. C. I have heard the learned counsel for the parties, at length and perused the accusations made against the accused applicant and materials collected by Customs Department, during investigation in support of accusations made against him. It is urged by the learned counsel for the accused applicant, Shri S. R. Bajwa that granting anticipatory bail under Section 438, Cr. P. C. , lies within the discretion of the Court, which is to be regulated, to a large extent, by the facts and circumstances of each particular case. It is submitted by the learned counsel for the accused applicant, Shri Bajwa that the accused applicant is innocent and he has committed no offence under the Act of 1962. He invited my attention to paragraph-6 of the show- cause notice dated 29. 9. 2000, Annexure-E to the counter-affidavit, filed by the Customs Department, wherein it is mentioned that M/s. Livia Exports, vide their letter dated 15. 1. 99, requested for provisional release of goods and undertook not to claim any drawback or DEPB credit on those exports. The request for provisional release of the containers, was granted on 15. 1. 99. He also invited my attention to the fact that the Customs Department has already recorded statement under Section 108 of the Act of 1962, and the present process of issuing summons by the Customs Department, is prompted by gross mala fides, with intent to harass the accused applicant. The department has been harassing the accused applicant, in various ways, for the last two years, therefore the, accused applicant is entitled to be enlarged on anticipatory bail, u/s. 438 Cr. P. C. In support of his aforesaid contention, he placed reliance on a decision, rendered by a Constitutional Bench of Supreme Court, in case of Gur Bux Singh Sibbia and others vs. The State of Punjab, (1), wherein, it is propounded that a wise exercise of judicial power inevitably takes care of evil consequences, which are likely to flow out of its intemperate use either granting or refusing bail u/sec. 438, Cr. P. C. The aforesaid argument of the learned counsel for the accused applicant, Shri Bajwa, is refuted by Shri Satish Aggarwala, the learned counsel appearing on behalf of the Customs Department, with vehemence. It is urged by him that on the basis of specific information, the Directorate of Revenue Intelligence initiated investigations in respect of exports made by the petitioner under Shipping Bills Nos. 2597 to 2601 and Shipping Bills Nos. 4882 to 4884, all dated 18. 12. 98, exported from ICD, Jaipur. The goods declared on the shipping bills were gaskets and high precision drivers. The total value of the goods declared by the petitioner on the shipping bills, is approximately 8 crores, for 30 thousand sets of high precision drivers and 1. 25 lac sets of gaskets. It is brought to my notice by the learned counsel for the Customs Department that the goods were consigned to M/s. J. R. Marketing, 1628, 231, San Fernando Mission, Grandhill, CA 91344, California, USA. According to the learned counsel for the Customs Department, investigations conducted so far revealed prima facie that the value of the goods have been highly inflated, in order to avail undue benefits of drawback of DEPB credit, against the export of the said goods. Investigations conducted also revealed that the petitioner had earlier exported consignments of similar goods from ICD, Jaipur. In support of his aforesaid submission, he invited my attention to a decision, rendered by Supreme Court, in case of Dukhishyam Benupani, Asstt. Director, Enforcement Directorate (FERA) vs. Arun Kumar Bajoria (2), wherein the Supreme Court set aside the order passed by a Division Bench of Calcutta High Court, affirming the anticipatory bail, granted by trial court and also annulled the pre-arrest bail order, passed by City Sessions Judge. Practically, the petition, filed by the Enforcement Directorate, for cancellation of the pre-arrest bail under Section 438, Cr. P. C. , the bail order, which was passed by the Division Bench of Calcutta High Court, was set aside and anticipatory bail was refused, on the ground that no impediment should be created by granting anticipatory bail, moved by those offenders, who are alleged to have committed economic offences. He also cited a decision, rendered by Supreme Court, in case of Enforcement Officer, TED, Bombay Vs. Bher Chand Tikaji Bora (3), wherein, anticipatory bail to white-collar accused involved in economic offences, was refused and it is ruled that anticipatory bail should be granted only to those accused persons, when such accused applicant substantiates, with materials that he is being unnecessarily harassed by enforcement agency. It is to be observed that in case of Bher Chand Tikaji Bora (supra), the order of granting anticipatory bail was set aside by Supreme Court.
(3.) WITHOUT exploring the merit of the two versions, putforth before me in the present case, taking into account, the accusations made against the accused applicant of and the nature of evidence, collected by the Investigating Officer, in support of such accusation, I am not persuaded to enlarge the accused applicant on pre- arrest bail. Investigation in economic offences, involving crores of rupees, could not be pushed under the carpet, when this Court is satisfied that the accused applicant is adopting delaying tactics in conclusion of investigation. At this juncture, I may hasten to observe that from the aforesaid observations, no party should have an impression that his version has been disbelieved by this Court, at the stage of refusing anticipatory bail. It is reiterated that without exploring the merit of the two versions, putforth before me, by the learned counsel, appearing on behalf of the accused applicant and the learned counsel, appearing on behalf the Customs Department, after perusal of the original record, produced before me by the Customs Department, I am prima facie satisfied that the accused applicant is not entitled to be enlarged on anticipatory bail, due to stalling the investigation in the present case, without any reasonable cause and compelling the department to file a complaint under Sections 172, 174 and 175, IPC. The delaying tactics adopted by the accused applicant is writ large from perusal of steps taken by ACMM, New Delhi, in complaint filed against him, under Sections 172, 174 and 175, IPC. For the reasons, mentioned hereinabove, the present anticipatory bail application is rejected and the order dated 23. 12. 2000, passed by learned Sessions Judge, Jaipur City, Jaipur, rejecting pre-arrest bail of accused applicant is hereby affirmed. .;