1. Heard Mr. Arun Sinha, learned counsel for the petitioner and Mr. Dipak Seth, learned counsel for the opposite party- Union of India.
2. The petitioner has challenge the order impugned dated 3 rd of March, 2011, passed by the learned Sessions Judge, Lucknow in Criminal Misc. Case No. 36 of 2011, whereby the petitioner's bail has been cancelled.
3. It is not in dispute that the petitioner was granted bail on 13 th of January, 2011 on the ground that the prosecution had not collected any evidence to connect him with the crime. He is implicated in the case mainly on the ground that the house in which Pan Masala/Gutkha factory was running, is owned by the petitioner. The court below in granting bail held that there is no prima-facie, evidence to connect the petitioner with the crime. Thereafter, the respondent-Union of India moved an application for cancellation of bail of the petitioner under Section 439 (2) of the Code of Criminal Procedure mainly on the ground that the petitioner has been found to be in constant touch with co-accused Vishnu Kant Sharma on mobile telephone which was suppressed by the petitioner from the department.
4. Accordingly, it is stated that the petitioner did not cooperate in the investigation by way of mis-leading the Officer not disclosing about his conversation with co-accused Vishnu Kant Sharma. It is further stated that co-accused Mr. Sharma submitted that he had not entered into an agreement with the petitioner; rather the petitioner had got his signature on blank papers which have been fabricated in the form of agreement.
5. The learned Sessions Judge, Lucknow after considering the aforesaid facts as well as the statement of co-accused Vishnu Kant Sharma has observed that the documents alleged as agreement entered into between the petitioner and co-accused Vishnu Kant Sharma appear to be forged as he failed to produce the original copy of the same, therefore, he cancelled the bail of the petitioner.
Mr. Arun Sinha, the learned counsel for the petitioner contended that after comparing the order of granting bail as well as cancellation of bail, it is evident that on the same very ground, the petitioner's bail has been cancelled, on which it has been granted without taking any new and fresh material. He further submits that the petitioner had never mis-used the bail; rather as and when he was called upon by the Investigating Officer as well as other departmental authorities, he cooperated each and every time even in the mid-night, he opened his door on the call of the departmental authorities and followed them to the spot. He also submitted that the Hon'ble Supreme Court has set out some grounds for cancellation of bail in the case of Manjit Prakash and others v. Shobha Devi and another, reported in [2008(62) ACC 666]. The relevant paragraphs 7 and 7 are reproduced herebelow:-
6. It is trite law that the considerations for grant of bail and cancellation of bail stand on different footings. By a majority judgment in Aslam Babalal Desai v. State of Maharashtra the circumstances when bail granted can be cancelled were highlighted in the following words: (SCC pp. 289-90, para 11):
11. On a conjoint reading of Sections 57 and 167 of the Code it is clear that the legislative object was to ensure speedy investigation after a person has been taken in custody. It expects that the investigation should be completed within 24 hours and if this is not possible within 15 days and failing that within the time stipulated in clause (a) of the proviso to Section 167(2) of the Code. The law expects that the investigation must be completed with dispatch and the role of the Magistrate is to oversee the course of investigation and to prevent abuse of the law by the investigating agency. As stated earlier, the legislative history shows that before the introduction of the proviso to Section 167(2) the maximum time allowed to the investigating agency was 15 days under sub-section (2) of Section 167 failing which the accused could be enlarged on bail. From experience this was found to be insufficient particularly in complex case and hence the proviso was added to enable the Magistrate to detain the accused in custody for a period exceeding 15 days but not exceeding the outer limit fixed under the proviso (a) to that subsection. We may here mention that the period prescribed by the proviso has been enlarged by State amendments and wherever there is such enlargement, the proviso will have to be read accordingly. The purpose and object of providing for the release of the accused under sub-section (2) of Section 167 on the failure of the investigating agency completing the investigation within the extended time allowed by the proviso was to instil a sense of urgency in the investigating agency to complete the investigation promptly and within the statutory time frame. The deeming fiction of correlating the release on bail under sub- section (2) of Section 167 with Chapter XXXIII i.e. Sections 437 and 439 of the Code, was to treat the order as one passed under the latter provisions. Once the order of release is by fiction of law an order passed under Section 437(1) or (2) or Section 439(1) it follows as a natural consequence that the said order can be cancelled under sub-section (5) of Section 437 or sub-section (2) of Section 439 on considerations relevant for cancellation of an order thereunder. As stated in Raghubir Singh v. State of Bihar2 the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or Section 439(1) can be cancelled where (I) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to."
7. It is, therefore, clear that when a person to whom bail has been granted either tries to interfere with the course of justice or attempts to tamper with evidence or witnesses or threatens witnesses or indulges in similar activities which would hamper smooth investigation or trial, bail granted can be cancelled. Rejection of bail stands on one footing, but cancellation of bail is a harsh order because it takes away the liberty of an individual granted and is not to be lightly resorted to.
He further cited another decision rendered in the case of Dolat Ram and others v. State of Haryana, reported in 1995 Supreme Court Cases (Cri) 237, the relevant paragraphs 4 is reproduced hereunder:-
4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted.
Since the learned Sessions Judge has taken note of statement of co- accused Vishnu Kant Sharma in cancelling the petitioner's bail, the learned counsel for the petitioner further submits that in the case of Mohtesham Mohd. Ismail Versus Spl. Director, Enforcement Directorate, reported in 2007 (220) E.L.T. 3 (S.C.), the Hon'ble Supreme Court has held that the confession of co-accused cannot be treated as substantive evidence. The court must seek corroboration of purported confession from independent sources. The relevant paragraphs 15 and 16 are reproduced hereunder:-
15. Apart therefrom the High Court was bound to take into consideration the factum of retraction of the confession by the appellant. It is now a well-settled principle of law that a confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of the conclusion deducible therefrom.
16. We may, however, notice that recently in Francis Stanly @ Stalin V. Intelligence Officer, Narcotic Control Bureau, Thiruventhapuram [2006(13) SCALE 386], this court has emphasized that confession only if found to be voluntary and free from pressure, can be accepted. A confession purported to have been made before an authority would require a closure scrutiny. It is furthermore now well-settled that the court must seek corroboration of the purported confession from independent sources.
8. Learned counsel for the petitioner further submits that there must be some very cogent and overwhelming circumstances for an order seeking cancellation of the bail as the concellation of bail by the court is not an ordinary step. Even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. In support of his submission, he cited the decision of Hon'ble Supreme Court rendered in the case of Bhagirathsinh Judeja v. State of Gujarat, reported in 1984 Supreme Court Cases (Cri) 63.
On the other hand, Mr. Dipak Seth, learned counsel for the opposite party submits that the inquiry by the Officer of the department is a judicial proceeding as is provided under Section 14 of the Central Excise Act, 1944. The Section 14 of the said Act is extracted herebelow:-
14. Power to summon persons to give evidence and produce documents in inquiries under this Act.- (1) Any Central Excise Officer duly empowered by the Central Government in this behalf shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making for any of the purposes of this Act. A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.
(2) All persons so summoned shall be bound to attend, either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required: Provided that the exemptions under sections 132 and 133 of the Code of Civil Procedure (5 of 1908) shall be applicable to requisitions for attendance under this section.
(3) Every such inquiry as aforesaid shall be deemed to be a judicial proceedings within the meaning of8 section 193 and section 228 of the Indian Penal Code (45 of 1860).
9. He further submits that the statement made before the Customs Officials is a material piece of evidence and the statement of a person made for another person which inculpates not only himself but also another person can be used as substantive evidence against that another person. In support of his submission, he cited the decision of Hon'ble Supreme Court rendered in the case of Naresh J. Sukhawani v. Union of India, reported in 1995 Supp (4) Supreme Court Cases 663, the relevant paragraph 4 is reproduced hereunder:-
4. It must be remembered that the statement made before the Customs Officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is material piece of evidence colleced by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr. Dudani's statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as 'substantive evidence' connecting the petitioner with the contravention by exporting foreign currency out of India. Therefore, we do not think that there is any illegality in the order of confiscation of foreign currency and imposition of penalty. There is no ground warranting reduction of fine.
10. The learned counsel for the respondent further supported his version by relying the decisions of Hon'ble Supreme Court rendered in the cases of K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin, reported in (1997) 3 Supreme Court Cases 721 and Assistant Collector of Central Excise Rajamundrry v. Duncan Agro Industries Ltd. and others, reported in (2007) 7 Supreme Court Cases 53.
11. The learned counsel for the opposite party also discussed the factum of fraud with the allegation that the petitioner has committed fraud by producing the document which is not in existence only just to get the benefit of bail and since the document is based on fraud, the benefit provided on the basis of fraudulent document, on the event of disclosure of fraud, must be ended as fraud vitiates everything. He further cited the decision of Hon'ble Supreme Court rendered in the case of A.V. Papayya Sastry and others v. Govt. of A.P. And others, reported in (2007) 4 Supreme Court Cases 221. The relevant paragraphs 26 and 29 are reproduced hereunder:-
26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants.
29. The Court proceeded to state:
"A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party".
12. Upon perusal of the record, I find that it is not in dispute that the house in question in which the said objectionable factory was running, belongs to the petitioner as he is owner of the said house. The said factory i.e. for manufacturing the Pan Masala/Gutkha was running without licence as neither the petitioner being owner nor Vishnu Kant Sharma (tenant) has been able to produce the same. Though, it is a case of the petitioner that he rented the said portion of the house to co-accused Vishnu Kant Sharma who was running the factory and in support of which he filed a photocopy of the document (agreement) but he failed to produce the original copy of the said document of agreement before the court. The explanation for that given by the petitioner is that the original copy was retained by the tenant whereas earlier he admitted that the said document was in his custody. Thus, for the said document, he recorded the contradictory statements. Though, nobody has been able to produce the licence of factory and they are shifting the responsibility from one to other but it cannot be believed that the petitioner was not aware regarding running of said factory, may be by his tenant. In light of the provision of the Central Excise Act, the statement of the coaccused is very much relevant which establishes that prima-facie, connivance of the petitioner in running the factory cannot be denied. Even if it is assumed that the factory was run by the tenant( co-accused) who is in jail, but before his arrest, he has been found in constant touch of the petitioner on mobile telephone. Therefore, either the petitioner has mis-used the bail or not but offence being public offence, I am of the view that the learned Sessions Judge has not committed any error in cancelling the petitioner's bail.
13. The petition is, therefore, dismissed.
14. However, two weeks' time from today is provided to the petitioner to surrender before the court below. For two weeks, no coercive action shall be taken against him.