V.K.SINGHAL,.J. - (1.) THIS is a Second Bail Application which has been submitted by the petitioners. The first bail application was dismissed on 13.5.1992. In this case, 190 gold biscuits valuing about Rs. 106,40,000/ - and silver weighing 161.600 kg valuing about Rs. 14,84,280/ - was recovered on 18.4.1992 from a Jeep No. GJ -2 -A -1258 in which the petitioner Gain Singh was sitting on the front seat and the petitioner Padma Ram was found on the driver's seat. The gold biscuits were having foreign marks. These items were seized considering them to have been brought by way of smuggling and the petitioners were arrested. The custody of the petitioners was handed over to the Customs Officers by the police on 20th April 1992 and the statements under Section 108 of the Customs Act were recorded. The submission of the learned counsel for the petitioner is that the recovery of the item have already been made and that the petitioners cannot be detained by way of punishment and that the offence under the Customs Act is not a cognizable offence. The learned counsel for the petitioner has submitted that this court has held in cases where further recovery is not to be made and the complaint has already been filed and the petitioners are required no more for the purpose of investigation and there is no other accused, then they should be released on bail and for this purpose reliance has been placed on the decision of this court in Vijay Kumar and Others v. State of Rajasthan1. It has been submitted that because of changed policy of the Government by which it is permitted to import gold in the country, the liberal view should be taken as has been done by this court in the case of Rahim Khan v. Union of India2. It is submitted that since the offence under the Customs Act is not a cognizable offence and even the Customs officers have the power to release the persons on bail under Section 104(3) of the Customs Act, then the provisions of Section 167 Cr.P.C. are not applicable and the petitioner should be released on bail. It has also been submitted that there is no necessity for the continued detention and that the refusal of grant of bail may amount to punishment and in view of the decision of the Hon'ble Supreme Court in A.I.R 1978 S.C. 4293, the petitioner should be released on bail.
(2.) MR . Praveen Balwada the learned counsel for the Customs Department has submitted that the activities of the smuggling have increased in the border area and because of the various drawbacks, the persons who are indulged in the smuggling activities cannot be apprehended every time. The area of being a desert area and near to Pakistan, the petitioners must have been indulged in the smuggling activities since long and the way in which the secret cavities have been made in the vehicle shows the irregular activities of the smuggling gold and silver and that the new policies of the Government has not properly been understood and the persons who are indulged in the nefarious activities cannot be released on bail on this ground. It has further been submitted that the statements of the witnesses have not been completed and that the petitioners, if released, would again indulge in the same activities and would try to influence the witnesses. I have considered over the matter. In the Statements given by the petitioners, the name of Jamin has also been given. In the copy of the complaint filed it has been mentioned that the application for anticipatory bail of Jamin S/o Calla is pending in the court of Special Judicial Magistrate, Jaipur. This shows that there are other accused in the case and it has also been mentioned in the complaint that the additional complaint shall be filed after completing the investigation. It would not be proper at this stage to comment on the merits of the case. The arguments of the learned counsel for the respondent have a considerable weight that if the petitioners are released, they may influence number of witnesses of which the statements are yet to be made. The judgment relied upon in the case of Bhagirath Singh Judeja v. State of Gujarat4 has no application as that was a case where the prayer was made for cancellation of the bail. The Hon'ble Supreme Court has observed that the power to grant the bail is not to be exercised as if the punishment before the trial is being imposed. The only material consideration in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. That was a case where social and political workers were attacked. Similarly in Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, A.I.R. 1978 S.C. 429 is of no help to the petitioners as that was a case for grant of bail when the matter was pending before the Hon 'ble Supreme Court and during the pendency of the trial and when the appeal was pending in the High Court they have not abused the trust reposed by the court. In this judgment it has also been observed that the legal principle and practice validate the court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. Similarly the judgment relied upon by the learned counsel for the petitioner for granting of bail are based on their own facts.
(3.) WHETHER to grant bail or not to grant the bail is a judicial discretion which has to be exercised by a judge on the consideration of various factors and the facts of that particular case. Simply because the bail has been granted in some other cases it cannot be considered as a proposition of law that in a case where the complaint has been filed, the bail must be granted as of right. In the present case, the complaint which has been submitted is not the final complaint as it has been mentioned that the other accused persons namely Jamin has not been arrested and the investigation is going on and there is Possibility of further additional complaint. Besides this, the statements of the witnesses are yet to be recorded. The matter involved where the recovery of more than a crore of rupees have been made. Further investigation may bring more facts on record. Looking to the facts and circumstances of the case, I am of the view that the bail application deserves to be dismissed. However, it is observed that the statements of the witnesses should be recorded as quickly as possible. This second bail application is hereby dismissed. Application dismissed. 1. S.B. Cri. Misc Bail Application No. 1448/92 decided on 21.4.1992. 2. S.B. Cri. Misc. Bail application No. 1712/92 decided on 7.5.1992. 3. A.I.R 1978 S.C. 429. 4. A.I.R. 1984 S.C. 372. ===========================================================================;