IN THE COURT OF MS.XXXXX ; LD. A.C.M.M.; XXXXX HOUSE COURTS, NEW DELHI.

BAIL APPLICATION NO.____ OF 20__.

IN THE MATTER OF :-

DRI                  VERSUS           XXXXXXXXXXXX

File No._______________

U/s: 132/135 Customs Act

In J.C. since __________

BAIL APPLICATION UNDER SECTION 437 OF CODE OF CRIMINAL PROCEDURE ON BEHALF OF THE ACCUSED / APPLICANT NAMELY XXXXXX SEEKING GRANT OF BAIL IN THE CAPTIONED FIR.

MOST RESPECTFULLY SHOWETH :-

1.          That the aforesaid FIR has been registered against the applicant / accused in the aforesaid case by the police officials of DRI, New Delhi.

2.          That the applicant/accused is a peace loving citizen of India and is having deep roots in the society. That the applicant having business of trading various items like teak wood, covid material etc. and having one firm namely M/s. XXXXX Pvt. Ltd. At XXX , Ground Floor, XXXXXXXXX Nagar, , Delhi-1100XX. Applicant never ever export of red sanders in the name of other dummy firm / companies. Hence, the applicant falsely implicated in the present case.

3.          That the applicant is innocent and has been falsely implicated in the present case. The applicant was summoned to join investigation and appeared before the DRI officers. The applicant was forced and coerced to tender an inculpatory statement. The statement was typed and the applicant was made to sign the same without going through the contents thereof and also forced to sign on certain documents and blank papers. On 03.05.2022 the applicant was detained and produced before the Ld. Duty Magistrate. The applicant retracted from his statement on being produced before the Ld. Magistrate which was duly recorded.

4.          That the residence and office premises of the applicant were raided during investigation and nothing incriminating has been recovered during the search. The subject consignment was consigned to the co-accused Mr. XXXXXXXX. Documents were also recovered from the godown which was being run by the co-accused. Hence, apart form the retracted statements of the co-accused and the retracted statement of the applicant, there is no other evidence to even remotely suggests involvement of the applicant in the alleged offence.

5.          That the DRI officers are not proper officers as held by the Hon’ble Supreme Court in the case of Cannon India Pvt. Ltd. Vs Commissioner of Customs; on 09.03.2021; and hence all the proceedings in the instate case including investigation and arrest of the applicant are a nullity in the eyes of law.

6.          That the applicant has cooperated in the investigation and has appeared before the DRI officers on his own. Hence, conduct of the applicant is overboard. Statement of the applicant has been recorded at length and he is not required for any further investigation. No custodial interrogation of the applicant has been done in jail. Hence, no useful purpose is being served by keeping the applicant in custody.

7.          That jail is an exception and bail is a right which is a cardinal principal of criminal law as a personal liberty of a citizen is paramount and can be curtailed only on account of real and duly substantiated grounds and not on the whims and fancies of offices exercising executive power. It is trite law that bail should not be withheld as punishment as held by the Hon’ble High Court in the case of H.B. Chaturvedi Vs CBI reported as 171(2010) DLT223 and the Hon’ble Supreme Court in the case of Sanjay Chandra Vs CBI reported as 2012(1) SCC 240.

8.          That in the case of Gurcharan Singh Vs State (Delhi Admn.) (1978) 1 SCC 118, it has been held that “In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub-section (3) of Section 437 CrPC if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life.”

9.          That the Hon’ble High Court in the case of Jitender Kumar Vs Govt. of NCT of Delhi, 2016 (10) JCC 652 has held as under;-

“10.  From a plain reading of the above decisions of the following legal position emerges, in so far as is relevant for the determination of the present bail application;-

(a) Gravity of the offence alone cannot be a decisive ground to deny bail.

(b) The protection of personal liberty has to be weighed with the object of securing attendance of the accused at trial.

(c) The accused is presumed to be innocent until he is found guilty and convicted.

(d) The Court must consider the unnecessary burden on the State to keep in custody a person who is yet to be proved guilty.

(e) Personal liberty is constitutionally protected unless necessity requires detention.

(f)   The enlargement on bail is the rule and committal to jail, an exception.

10.       That in the light of golden principles laid down laid down from time to time by the higher Courts. In Dipak Subhash Chandra Mehta Vs CBI (2012) 4 SCC 134 Hon’ble Apex Court held that “the court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. The Court granting bail has to consider, among other circumstances, the factors such as

a)   the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence;

b)   reasonable apprehension of tampering with the witness or apprehension of threat to the complainant and;

c)    prima facie satisfaction of the court in support of the charge.

In addition to the same, the Court while considering a petition for grant of bail in a non-bailable offence apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted.”

11.       In Anil Mahajan Vs Commissioner of Customs; (2000) 84 DLT 854, it was held that “there is no hard and fast rule and no inflexible principle governing the exercise of such discretion by the Courts. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or refusing bail. The answer to the question whether to grant bail or not depends upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.”

12.       That the subject goods and all related documents are in possession of the department. Hence, there is no likelihood of the applicant tampering with evidence n any manner.

13.       That the investigation qua the applicant is complete and he is not required for any further investigation. Hence, no useful purpose is being served in keeping the applicant in custody which amounts to punishment without trial.

14.       It is submitted that the co-accused who is consignee of the goods and from whom the goods recovered. Hence the applicant is entitled to bail on the ground of parity.

15.       That the investigation of the said case already being over and there being absolutely no chance of the accused fleeing away from the process of law, the accused is entitled to bail.

16.       That the accused is always available to submit himself to the custody of the court at any point of time.

17.       That, it is the basic criminal jurisprudence that the accused is considered innocent until held guilty.

18.       That the accused has already suffered immensely as the accused has been in jail since ……...2022 i.e. now more than ……. months from the date of arrest has been passed.

19.       That it may not be out of context to point out that the Hon’ble Supreme Court in the matter of Sanjay Chandra Vs. CBI (2012) 1 SCC 40 has again upheld the fundamental principle of criminal jurisprudence “bail and not jail” and has observed that time and again is has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.

20.       That the applicant / accused who is under trial prisoner cannot be detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial.

21.       That the trial may take considerable time and the accused, who is in jail, has to remain in jail longer than the period of detention, had he been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period.

22.       That Section 437 Cr.P.C. itself provides that the court can impose the condition while granting bail that such person shall not commit an offence similar to the offence of which he is accused or suspected, of the commission of which he is suspected.

23.       That even prima facie there is nothing to show either the commission of aforesaid offence under Section 110(2) of Customs Act, or the involvement of the accused in the said offence.

24.       That applicant is not required for any custodial interrogation as applicant had been in Police custody since ……2022 which itself suggest that applicant is not required in the present case.

25.       That the allegations are false, frivolous and totally vague and it an attempt to implicate the applicant into false and fabricated case and applicant is entitled for grant of bail on the ground of parity.

26.       That in State of Rajasthan v. Balchand, the Supreme Court laid down that the basic rule is bail, not jail, except where there are circumstances suggestive of fleeing from justice or repeating offences or intimidating witnesses and the like.

27.       That the Hon'ble Supreme Court in no uncertain terms has held that bail and not jail should be the rule, held in the matters of Sanjay Chandra and P. Chidambaram where bail was granted even in economic offences of a large magnitude.

28.       That right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.

29.       That it is well settled that the bail is not to be withheld as a punishment. The object of bail is to secure the attendance of the accused at the trial, and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. The applicant / accused has deep roots in the society and is a married person having a family and there is absolutely no question that the applicant / accused will not face the trial.

30.       That once the aforesaid tests are satisfied, the applicant / accused is entitled to grant of bail. Moreover, an accused who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody.

31.       That the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, as this Hon’ble Court may deem fit.

32.       That since the offences alleged to have been committed by the Applicant are those punishable with imprisonment for a period of up to seven years, the present Bail Application is to be considered while keeping in mind the principles enunciated by the Hon’ble Supreme Court in Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273.

33.       That Hon’ble Supreme Court has taken the view that when there is a delay in the trial, bail should be granted to the accused [See Babba v. State of Maharashtra, (2005) 11 SCC 569, Vivek Kumar v. State of U.P., (2000) 9 SCC 443, Mahesh Kumar Bhawsinghka v. State of Delhi, (2000) 9 SCC 383].

34.       That the Hon’ble Supreme Court of India has held in a matter titled as “Siddharam Satlingappa Mhetre Vs. State of Maharashtra & Ors.” (2011) 1 SCC 694 that; “It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided.

35.       That prosecution with their artful manipulation and by concealing certain facts has perhaps succeeding in getting the FIR registered against the applicant but it is humble submission of the applicant that the facts stated in the FIR qua the applicant in abruptly false, has no truthful bearing in it.

36.       That it is further submitted that accused / applicant is not required for further investigation and no further recovery is required from the applicant / accused.

37.       That accused / applicant undertake to appear before this Hon'ble Court as and when required before this Hon'ble Court and applicant / accused will not misuse the liberty of bail of this Hon'ble Court.

38.       That it is further submitted that the applicant / accused seeks the permission of this Hon'ble Court to urge additional ground which would be made available to him at the time of hearing of the present application.

PRAYER

In view of the above, it is therefore, respectfully prayed that this Hon'ble Court may be pleased to grant bail to the applicant / accused in Enquiry No.XXXX  under Section 110 (2) of Customs Act registered with Police Station XXXXX , New Delhi and may release the applicant / accused on bail in the interest of justice.

Pass any other or further order(s) that this Hon'ble Court deems fit, reasonable and proper on the facts and circumstances of the case.

DELHI                                           APPLICANT / ACCUSED

THROUGH

DATED:      

ADVOCATE