Full Judgment
Sat Pal, J.
(1) This is a petition for grant of bail under Section 439 of the Criminal Procedure Code.
(2) The case of the prosecution is that the Directorate of Revenue Intelligence (Hqrs.), New Delhi, received an intelligence report that one consignment which was being imported in the name of Mr. Khalid A1 Shorbaji. Attache, Embassy of State of Palestine, contained contraband gold.Accordingly, the said consignment was thoroughly examined in the presence of said Diplomat which resulted in the recovery and seizure of 300 foreign marked gold biscuits of 10 tolas each from the cooking range and 200 foreign marked gold biscuits of 10 tolas each from the washing machine. In his detailed note dated 25/01/1992 Mr. Khalid stated that Trilochan Singh Khurana arranged the import of these goods but he denied the knowledge of ownership of 500 gold biscuits.
(3) It is alleged that the statement of Trilochan Singh Khurana was recorded under Section 108 of the Customs Act. 1962 (for short called 'the Act') on 25/01/1992. In his statement he stated that he was dealing in the import of electronic and household articles for Diplomats and Embassy staff and the above mentioned gold was smuggled at the instance of The petitioner. He also stated that for the import of such consignment, he used to charge Rs. 50.000.00 for each shipment. He also stated that in July1991 the petitioner smuggled 400/500 pieces consisting of gold biscuits Along with items of electronic.
(4) It is then alleged that after this the statement of the petitioner was also recorded under Section 108 of the Act on 25/01/1992. The petitioner stated that about a year ago he came into contact with one Haji Aziz-Al-Raba of Dubai and said Haji offered him Rs. 1000.00 per gold biscuit of 10 tolas each for smuggling the same into India. He further stated that on his return to India he contacted co-accused Trilochan Singh Khurana of Diplomatic Agency and in terms of settlement arrived at with him, a sum of Rs.50.000.00 as commission for each consignment containing gold biscuits was, to be paid to said Trilochan Singh Khurana. He also stated that in July 1991 Trilochan Singh Khurana arranged import of one consignment in the name of one Diplomat and the said consignment contained 750 foreign marked gold biscuits of 10 tolas each and the said biscuits were handed over by The petitioner to a person as per instructions of said Haji of Dubai. He also admitted that he received a sum of Rs. 7,50,000.00 as commission from the said Haji of Dubai against the aforesaid consignment and out of this amount he paid Rs. 50.000.00 to the co-accused Trilochan Singh Khurana.
(5) It further stated that in December 1991, said Haji of Dubai asked the petitioner to arrange a diplomatic consignment so that another lot of gold biscuite could be sent to India and thereafter one order was procured by co-accused Trilochan Singh Khurana in the name of Mr. Khalid Al Shorbaji.This consignment wag dispatched by flight No. EK-702 dated 14/01/1992 which on examination resulted in recovery and seizure of 500 foreign marked gold biscuits as stated above.
(6) Thereafter, both the petitioner and co-accused Trilochan Singh Khurana were arrested on 26/01/1992.
(7) Mr. Herjinder Singh learned Counsel for the petitioner submitted that the present case is based on the statements of the petitioner and of Trilochan Singh Khurana recorded under Section 108 of the Act. He further submitted that except these two statements, there is no evidence involving the petitioner in the case. Learned Counsel drew my attention to the application submitted by the petitioner on 26/01/1992 itself before the Duty Magistrate (copy of which is at page 15 of the paper book)wherein he retracted his statement recorded under Section 108 of the Act and specifically stated that he was beaten and harassed and under pressure some papers were signed by him. He also drew my attention to another application filed by the petitioner on the same date before the Duty Magistrate wherein again he alleged that the officers of Dri physically tortured him and made him to write/sign some papers under dictation. He further submitted that in the same way the co-accused Trilochan Singh Khurana also retracted hit statement vide his application dated 26/01/1992 submitted before the Duty Magistrate. Learned Counsel contended that the retracted confession of the petitioner as well as of the co-accused is not a substantive piece of evidence and it can only be used to lend assurance if there is other independent evidence. In support of his submissions learned Counsel placed reliance on Supreme Court judgments in Haroom Haji Abdullav. State of Maharashtra, : [1968]2SCR641 Haricharan Kurmi v. State ofBihar, Air 1968 Sc 1163, a judgment of Bombay High Court in Stale of Maharashtra v. Sayed Mohamed If ashim Al Musavi, : 1991(51)ELT41(Bom) anda recent judgment of this Court in Cr- M(M) No. 929 of 1993-Rwf Singhalv. Union of India, dated 5/05/1993.
(8) Learned Counsel further submitted that under Section 135 of the Act the maximum punishment is seven years and the petitioner has been in jail from 26/01/1992 till 12/01/1993 when he was granted bail because of heart ailment. In this connection learned Counsel drew my attention to the medical certificate issued by Dr. Rakesh Verma. Heart Specialist of Dr. Ram Manohar Lohia Hospital, New Delhi wherein it has been stated that in view of the recent unstable angina the petitioner has been hospitalized from 31.31993 to 24.1993 (CR No. 8875). It is further stated in the certificate that in view of the shortage of beds, he could not be hospitalised for long and he was required to attend the hospital at regular intervals say one/two week' interval.
(9) Lastly learned Counsel submitted that the orders of detention in respect of the petitioner as also the co-accused Trilochan Singh Khurana have already been quashed by a learned Single Judge of this Court on 1 2/02/1992.
(10) He, thereforee, contended that in view of the facts mentionedabove, the petitioner should be released on bail.
(11) Mr. Sawhney, learned Counsel appearing on behalf of therespondent, submitted that in the present case the recovery and seizure of gold is to the tune of Rs. 3 crores. He further submitted that the cooking range and washing machine were opened in the presence of the DiplomatMr. Khalid Ahmad Al Shorbaji who in his note had stated that the goods in question were imported into India through Trilochan Singh Khurana, the intending agent. Trilochan Singh Khurana in his statement stated that the import of consignment was at the instance of the petitioner. Learned Counsel submitted that in view of the statements which are quite comprehensive and detailed ones, the question of retraction of the said statements becomes irrelevant. He drew my attention to the statement of the petitioner recorded under Section 108 of the Act wherein he had given full history as to how he came in contact with Haji of Dubai. The amount of commission he got in the earlier consignment and the amount he would have got in the present consignment has also been stated.
(12) The learned Counsel further submitted that a mere bald statement that the petitioner was pressurised to give a particular statement should not have any effect on point that the statement was not voluntarily given,particularly in view of the fact that the statement is a detailed one. In support of his submissions learned Counsel placed reliance on a Supreme Court judgment in Hem Raj Denial v. State of Ajmer. : 1954 CriLJ1313 .
(13) The learned Counsel also submitted that. the complaint was filed against the petitioner and co-accused Trilochan Singh Khurana on 1 8/03/1992 and the case could not proceed as the petitioner and co-accused had been seeking adjournments, on one pretext or the other and as a result of that only one witness out of 11 witnesses could be examined so far. He,therefore, contended that the petitioner is not entitled for bail.
(14) I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties and have also perused the statements of the petitioner and of the co-accused Trilochan Singh Khurana recorded under Section 108 of the Act. From the statements of the petitioner and Trilochan Singh Khurana I find that these statements contain elaborate details as to how the petitioner came into contact with Haji of Dubai and further how he contacted the intending agent and also details about his earlier consignment of 750 gold biscuits for which he received a commission ofRs. 7,50,000.00 from Haji out of which he paid Rs. 50,000.00 to Trilochan Singh Khurana. Similarly, Trilochan Singh Khurana in his statement has given complete details regarding his arrest in New York in a drugs case in1985. Trilochan Singh Khurana has also stated that in the event of specific shipment he was to get Rs. 50,000.00 for such shipment and clarifying the meaning of specific shipment, he stated that it meant where smuggled contraband gold was to come. He has also admitted that at an earlier occasion The petitioner smuggled over 400/500 packets in the shipment consisting of gold biscuits Along with items of electronics. He also admitted that even in the present consignment be would have got a sum of Rs. 50,000.00 from The petitioner in case the smuggled gold had not been detected and seized by the DRI officers.
(15) In view of the detailed statements of both the accused, primafacie, for the purpose of deciding this petition, it cannot be said that these statements were obtained under pressure and coercion. As stated herein above the petitioner is allegedly not only involved in the present consignment but in his statement he has admitted that on an earlier occasion he was involved in respect of the consignment of 750 gold biscuits for which he was paidRs. 7,50,000.00 by Haji of Dubai. The fact that the gold was concealed in the cooking range and washing machine at the instance of the petitioner provides corroborative evidence regarding the gold being smuggled from Dubai intoIndia. In view of the fact that the petitioner is involved in the Smuggling activities in more than one consignment and on more than one occasion involving gold worth crores of rupees as admitted by him in his statement, Iam of the view that it is not a fit case for grant of bail to the petitioner.The view I have taken, finds support from a decision of this Court inCr. M(M) No. 641/91- Sanjay Verma v. State, decided on 8/04/1991.
(16) In this connection I may refer to the following observations from a judgment of the Supreme Court reported in State of Gujarat v. Mohanlal Jitamalji Porwal and Another, : 1987 CriLJ1061 :-
'THE entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions beingaroused. 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 Notional Interest.'
(17) As regards the judgments cited by the learned Counsel for The petitioner on the retraction of statement, I am of the view that these judgments are not relevant to the facts of the present case as the statement of The petitioner is quite comprehensive and detailed one and is corroborated by the statement of the co-accused Trilochan Singh Khurana which is again a detailed one. As regards the case of Ravi Singhal (supra), the ratio of that judgment is also not applicable to the facts of the present case as in that case the main point which weighed with the learned Single Judge of this Court was that the petitioner in that case was discriminated inasmuch as the main accused were not apprehended whereas the petitioner was apprehended.But in the present case, there is no allegation of such discrimination.
(18) In the result I find no merit in the petition and the same isdismissed.
(19) The petitioner was granted interim bail granted in January 1993on the ground that he was suffering from unstable angina and as the interim bail was extended from time to time in view of the medical report ofDr. Rakesh Verma, Heart Specialist of Dr. Ram Manohar Lohia Hospital.New Delhi vide letter No. NIC/3610/93 dated 6/04/1993 (copy of which is at page 117 of the paper book). In this report it has been stated that in view of the shortage of beds he cannot be hospitalised. Since the report is of early April 1993, I direct the petitioner to appear within a week from the date of this order before the Head of Cardiology Department/Cardiologist of Dr. Ram Manohar Lohia Hospital, New Delhi, who will submit the latest report of the petitioner to this Court directly within a week thereafter. For the purpose of interim bail, the case is adjourned to 18/06/1993. Meanwhile, the interim bail is extended till the next date of hearing on the game terms and conditions.
(20) I further direct that a copy of the last para of this order be sent to the Medical Superintendent. Dr. Ram Manohar Lohia Hospital, NewDelhi, for information and compliance.