There are specific allegations against the applicant/accused that he is involved in duty evasion of about Rs. 13.0 crores by under valuing the imported white paper. The case of duty evasion on account of under valuation needs a very deep and thorough probe as it is spread across spatial and temporal boundaries. The allegations against the applicant/accused are serious in nature and in case if the applicant is armed with interim protection, certain vital aspects of case at hand shall remain unraveled for all times to come and investigation shall be scuttled mid way.
Considering the intricate nature of investigation required in the instant matter and the seriousness of allegations against the applicant/accused, I find, the instant application is bereft of any merits and the same is accordingly dismissed.
FULL TEXT OF THE PATIALA HOUSE COURT ORDER /JUDGEMENT
1. Receipt regarding payment of cost has already been placed on record by the Ld. counsel for applicant/accused.
2. Present is an application moved on behalf of applicant/accused for grant of anticipatory bail. It Is submitted that applicant is aged about 31 years and has the responsibility of his family comprising of his wife and parents. It is submitted that applicant is sole bread earner in the family. It is submitted that the father of applicant is suffering from Bipolar disorder and suffering from prolonged bouts of paranoia and regular depressive episodes. It is submitted that there is no one in the family to look after and take care of his ailing father.
3. Ld. counsel for applicant submitted that applicant is indulged in the business of importing plain white paper in rolls after obtaining clearance from custom department and making payment of custody duty as per the invoice raised by the foreign seller and then, exporting the said duty paid goods in the local markets within India. It is submitted that in the last five years, the applicant has paid a total sum of Rs.4.86 crores as import duty. It is submitted that from 20.01 .2020 to 22.01 .2020, the DRI officials conducted search at the premises of the applicant and seized various documents alongwith 311 .634 metric ton of duty paid plain white paper in rolls. It is submitted that since goods admitted valued at Rs.1 ,39,83,834/- were seized by the department against the allegation of evasion of custom duty of Rs.59,43,370/-, the said seized goods were provisionally released to the applicant vide order dated 14.07.2020 on his furnishing a bank guarantee equal to the amount of alleged duty evaded i.e. Rs.59,43,370/- and the said order has not been challenged by the department. It is submitted that the custom duty on the sale invoice amount generated by the sellers has been duly paid by the applicant; the applicant has further paid the requisite income tax on the profit generated by him by the sale of imported goods; no cash was deposited in the bank account of applicant, therefore the allegation of the department that the goods imported at a lesser value were sold at a higher rate in India is a misconceived fact.
4. It is submitted that applicant has been responding to each and every summon of the investigating agency. It is submitted that on 10.2020, the department visited the house of the applicant at Delhi without any prior notice and handed over summon dated 18.10.2020 to the family of applicant with direction to appear before the investigating agency on 20.10.2020. It is submitted that the typed date on the summon was changed by hand from 19.10.2020 to 20.10.2020 and hence, the said summon is not a valid summon in terms of circular dated 23.12.2019 of the department itself. It is submitted that under these circumstances, the applicant is apprehending his arrest in the instant matter. It is submitted that applicant is ready and willing to join the investigation as and when called by the investigating agency; there are no chances of his absconding or hampering the fair course of investigation and is ready to abide by any term or condition imposed by this court while granting him bail.
5. Ld. senior standing counsel for the department has vehemently opposed the bail application arguing that the instant application has been made by the applicant with a view to delay and discourage the investigation being conducted against M/s Essve Marketing, Delhi and the instant application is liable to dismissed on the basis of precedent already set by the Hon’ble Apex Court in the case of Union of India v. Padam Narain Aggarwal, 2008 (231) ELT 397 (SC) in Crl. Appeal No. 1575/2008 decided on 03.10.2008. It is submitted that summons have been issued to the applicant/accused for recording of his statement u/s 108 of the Customs Act and the arrest of the applicant is not contemplated at present and hence, the bail application is liable to be dismissed being premature.
6. importing plain white paper in rolls by suppressing the actual transaction value in the invoices with an intention to evade payment of appropriate duties leviable upon them. It is submitted that during investigation, it was revealed that the actual value of goods imported by declaring as “Plain White Paper in Rolls” is USD 1683.5 (approx) per Metric Ton against the declared price of USD 550/600 per Metric Ton for the import made in the year 20192020. It is submitted that goods were actually valued at Rs.3,85,89,279/-instead of 1,39,83,834 and the differential duty on the seized goods works out to be approximately Rs.59,43,370/-. It is submitted that the said seized goods were later released to the applicant by the orders of CESTAT. It is submitted that during investigations, applicant/accused was summoned time to time. It is submitted that applicant/accused has retracted his earlier statements recorded on 21 .01 .2020 and 29.01 .2020 vide his letter dated 10.03.2020. It is submitted that applicant/accused is not cooperating in the investigation and evading his appearance before the investigating agency on one pretext or the other. It is submitted that so far as correction of date is concerned, the same was made by the concerned official who also countersigned the same for its validity. It is submitted that the duty evasion by M/s Essvee Marketing, Delhi in the import of white paper on rolls by mis-declaration of the value is estimated to be around Rs.13.0 crores at present. It is submitted that investigation in the present case is still in progress and if applicant/accused is granted anticipatory bail, there is every likelihood that he may try to influence the fair course of investigation, hence, the anticipatory bail application is liable to be dismissed.
7. I have heard and considered the rival submissions made by both the parties and also gone through the material available on record.
8. It has been observed by the Hon’ble Apex Court in State of Gujarat v. Mohan Lal Jitamalji Porwal & Ors (1987) 2 SCC 364 as under:
“..The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest…”
9. In the matter of S. Jangan Mohan Reddy v. CBI (2013) 7 SCC 439, Hon’ble Apex Court has observed that:
“..15) Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.
16) While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations…”
Therefore, the economic offences are required to be treated as a separate class and bail cannot be granted as a matter of routine.
10. counsel for respondent/complainant has forcefully argued that application at hand is premature as the applicant/accused has been merely summoned for recording of his statement u/s 108 of the Customs Act. Ld. counsel for applicant/accused has drawn my attention to Para no. 25 of the affidavit cum reply filed by the respondent department. It would be pertinent to reproduce herein the relevant para for ready reference:
“… The duty evasion by M/s Essvee Marketing, Delhi, in the imports of White Paper on rolls, by mis-declaration of the value is estimated to be around Rs.13 crores (approximately) at present. Hence, in terms of Section 135 of the Customs Act, 1962, the present offence committed by the applicant would fall under the category of a non-OaiLaOLeEoffeLiRII..
11. Perusal of the relevant para would reveal that the respondent department has in categorical terms alleged that the applicant/accused has committed the offence u/s 135 of Customs Act. Considering the specific allegations, it cannot be contended that the application at hand is not maintainable being premature as from the reply itself a genuine apprehension of arrest stands substantiated. Thus, under these circumstances, it cannot be contended that the application is not maintainable being premature. (Reliance is placed upon Gurbaksh Singh Sibbia & Ors v. State of Punjab (1980) 2 SCC 565.)
12. Now, I move on to the merits of the case. There are specific allegations against the applicant/accused that he is involved in duty evasion of about Rs. 13.0 crores by under valuing the imported white paper. The case of duty evasion on account of under valuation needs a very deep and thorough probe as it is spread across spatial and temporal boundaries. The allegations against the applicant/accused are serious in nature and in case if the applicant is armed with interim protection, certain vital aspects of case at hand shall remain unraveled for all times to come and investigation shall be scuttled mid way.
13. Considering the intricate nature of investigation required in the instant matter and the seriousness of allegations against the applicant/accused, I find, the instant application is bereft of any merits and the same is accordingly dismissed.
14. Application is disposed off accordingly.
15. Copy of the order be given dasti.