BAIL U/S 437 Cr.P.C

IN THE COURT OF LD. CHIEF METROPOLITAN MAGISTRATE, PATIALA HOUSE COURTS, NEW DELHI

BAIL APPLICATION NO.____ OF 2023

IN THE MATTER OF:-

DRI VERSUS XXXXXXXXXXXX

File No.:- XXXXXXX

U/s: 132/135 (1)(a)/135(1)(b) &

135(1)(c) Customs Act, 1962

In J.C Since xxxxxx

INDEX

Sr. No. Particulars Page No.

1. Bail application U/s 437 Cr.P.C On behalf of applicant/accused XXXXXXXX

2. List of Documents

3. Vakalatnama

DELHI APPLICANT / ACCUSED

(IN JUDICIAL CUSTODY)

THROUGH

DATED: XXXXXXXXXXXXXX

(COUNSEL)

IN THE COURT OF LD. CHIEF METROPOLITAN MAGISTRATE, PATIALA HOUSE COURTS, NEW DELHI

BAIL APPLICATION NO.____ OF 20XX

IN THE MATTER OF:-

DRI VERSUS XXXXXXXXXXXX

File No.:- XXXXXXX

U/s: 132/135 (1)(a)/135(1)(b) &

135(1)(c) Customs Act, 1962

In J.C Since 03.XX.20XX

BAIL APPLICATION U/S 437 OF Cr.P.C ON BEHALF OF THE ACCUSED/APPLICANT NAMELY XXXXXXXXX S/O XXXXXXXXXXXXXX R/O XXXXXXXXX SEEKING GRANT OF BAIL IN THE CAPTIONED FIR.

MOST RESPECTFULLY SHOWETH :-

1. That the aforesaid case has been registered against the applicant/accused by the police officials of DRI, New Delhi and the applicant/accused is a peace-loving citizen of India and is having deep roots in the society. That the applicant has been falsely implicated in the present case and the applicant is innocent and has been falsely implicated in the present case. The applicant was never summoned to join the investigation before the DRI officers.

2. That on 0X.0X.20XX, few officials reached at the applicant’s house and searched his house and when they did not find any illegal document from his house, then he brought him to their office at CGO and at their office, the applicant was shown to be arrested in the case and forced to tender an inculpatory/wrong statement. The statement was already typed & print outs were taken by the officers and the applicant was forced to sign with the pressure that if he would not sign the same then his wife would be implicated in the present case and other cases and the same without going through the contents thereof and also forced to sign on certain documents and he was detained at office from …………. to ………. and thereafter, the applicant was produced before the Ld. Duty Magistrate. The applicant was threatened by the officers/I.O that if he would open his mouth before Ld. Judge then his would be behind the bars and same thing happened on …………, when he was produced before Ld. Judge.

3. That the residence of the applicant was raided but nothing incriminating has been recovered during the search and the applicant already told to the officers that he was not aware about any subject consignment or any other information, there is no other evidence to even remotely suggest involvement of the applicant in the alleged offence.

4. That the …… 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 ……; and hence all the proceedings in the instate case including investigation and arrest of the applicant are a nullity in the eyes of law.

5. 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.

6. 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 Cr.P.C, 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.”

7. 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.

(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.

8. 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.”

9. 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.”

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

11. 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.

12. 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 and the accused is always available to submit himself to the custody of the court at any point of time and it is the basic criminal jurisprudence that the accused is considered innocent until held guilty.

13. That the accused has already suffered immensely as the accused has been in jail since 03.05.2022.

14. 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.

15. 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.

16. 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.

17. 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.

18. That even prima facie there is nothing to show either the commission of aforesaid offences of Customs Act, or the involvement of the accused in the said offence.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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 and 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.

24. 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.

25. 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.

26. 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].

27. That the Hon’ble Supreme Court of India has held in a matter titled as “Siddharam Satlingappa Mhetre V/s. 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.

28. 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.

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

30. 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 File No.xxxxxxxxxxx, U/s: 132/135 (1)(a)/135(1)(b) & 135(1)(c) Customs Act, 1962, 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

(IN JUDICIAL CUSTODY)

THROUGH

DATED: xxxxxxxxxxxxxx

Advocate

MOST RESPECTFULLY SHOWETH :-

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