Mr.Shreyas Pramod Daga v. Union of India & Anr.

Mr.Subhash Jha i/by M/s.Law Global for the Petitioner in both the petitions. Ms.Heena P. Shah i/by Mr.D.N.Salvi for the Respondent No.1 in both the petitions. Mr.J.P.Yagnik, A.P.P for the Respondent No.2 in both the petitions. CORAM : A.S.OKA, J. : A.S.OKA, J. CORAM CORAM : A.S.OKA, J. DATE : 04th August 2008. P.C.: . The submissions of the learned counsel for the parties were heard on the last date. It will be necessary to refer to the facts of the case in the brief. The petitioner in both petitions is the same. The petitioner was arrested by the 1st respondent alleging commission of offences under the Customs Act,

1962. The petitioner applied for bail. The petitioner was enlarged on bail by order dated 08th September 1999. : 2 : The petitioner was enlarged on bail subject to furnishing P.R bond of Rs.6 lakhs and subject to condition that he will not leave the jurisdiction of Bombay without prior permission of the Court. The petitioner was also directed to surrender his passport. There were further orders passed by the learned Magistrate from time to time permitting the petitioner to visit abroad subject to conditions incorporated in the said order.

2. On 30th June 2006 the Commissioner of Customs imposed penalty of Rs.2 crores on the petitioner and also directed confiscation of goods under question. By order dated 31st March 2006, Additional Director General of foreign trade dropped the allegations levelled in show-cause notice against M/s.Betul Oils & Flours Limited of which the petitioner was the Managing Director. The show-cause notice was issued to the said company under section 8(6), 9(4) and 11(2) of the Foreign Trade (Development and Regulation) Act, 1992. Reliance has been placed on order dated 12th March 2007 passed by the Customs Excise and Service Tax Appellate Tribunal (hereinafter referred to as CESTAT). By the said order, the order of the Commissioner imposing penalty was quashed and set aside. As stated earlier, : 3 : the penalty was imposed on the petitioner and the said company i.e Betul Oils and Floors Ltd on the ground that export goods under claim by advance licence were mis-declared in order to get undue benefit for import of raw materials to which the said company was not entitled to. The contention raised in Writ Petition No.1218 of 2008 is that though the petitioner was arrested and enlarged on bail in September 1999, till today there is no complaint filed against the petitioner. The prayer in the petition is for cancellation of bail bonds furnished by the petitioner in the trial Court and for relaxation of other conditions imposed while granting bail.

3. In Writ Petition No.1506 of 2008 the challenge is to that part of the order of the learned Magistrate passed on 08th September 1999 by which a condition was imposed of surrender of passport.

4. The learned counsel appearing for the 1st respondent has tendered on record a communication issued by Mr.N.M.Vengurlekar, Deputy Commissioner of Customs (SIIB-IMP) stating therein that no appeal has been preferred against the order of the CESTAT dated 12th March 2007 and the said order has reached finality. In : 4 : the said communication it is stated that no prosecution in this case has been initiated against the company and against the petitioner herein. The said communication is taken on record and marked "X" for identification. The learned counsel appearing for the 1st respondent has also placed on record a communication by Deputy Commissioner of Customs (Import). Here again it is stated that no appeal has been preferred by the 1st respondent against the order of CESTAT and no prosecution in this case has been initiated against the petitioner and his company. The said communication is taken on record and marked "Y" for identification. The learned counsel for the 1st respondent submitted that in view of the said communications appropriate order be passed. The learned counsel appearing for the petitioner has relied upon various decisions of the Apex Court and this Court. He has also placed reliance on order dated 21st January 1998 passed by this Court in Misc. Application No.483 of 1997 (Jairam Vallabhdas Jara Vs. C.B.I). He submitted that admittedly the show cause notice has been dropped and order of the CESTAT setting aside imposition of penalty has become final. He pointed out that till today there is no complaint filed against the petitioner on the basis of which he was arrested and was later on released on bail. : 5 :

5. I have considered the submissions. For a period of nine years, no complaint has been admittedly filed against the petitioner alleging commission of any offence on the basis of allegations contained in the show cause notice issued by the Directorate General of Foreign Trade. As no prosecution is initiated against the petitioner for a long period of nine years, he cannot remain subjected to the conditions incorporated in the order granting bail. The concerned respondents have not come out with the case that in near future the complaint is likely to be filed. Hence, the petitioner must succeed. Therefore, the bail bond furnished by the petitioner deserves to be cancelled in view of peculiar facts of the case as noted above.

6. The petitions are disposed of by passing following order: (i) The bail bonds submitted by the petitioner on the basis of order dated 08th September 1999 passed by the learned Magistrate are cancelled. The conditions imposed by the said order dated 08th September 1999 including the condition of surrender of passport stand : 6 : cancelled. (ii) It is made clear that this order is passed without prejudice to the right of the 1st respondent of filing appropriate proceedings/complaint against the petitioner in accordance with law and this order shall not be construed to mean that any adjudication has been made in respect of the allegations against the petitioner. (iii) The parties and concerned authorities to act upon an authenticated copy of this order. (A.S.Oka,J)