High Court
Case Details
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Cited in this judgment
Applicant :- Damien Durning Opposite Party :- Union Of India Thru. Directorate O Revenue Intelligence Lko Counsel for Applicant :- Saurabh Shankar Srivastava,Priyesh Mishra Counsel for Opposite Party :- Digvijay Nath Dubey,Anuj Singh,Kuldeep Srivastava Hon'ble Shree Prakash Singh,J. Heard Mr. Saurabh Shankar Srivastava, learned counsel for the applicant, Mr. Kuldeep Srivastava and Mr. Anuj Singh, learned counsel for the Directorate of Revenue Intelligence, Zonal Unit, Gomti Nagar, Lucknow. The instant bail application has been filed on behalf of the applicant with the prayer to release him on bail during the trial in DRI Case No. 16 of 2024, U/s 135(1)(i)(A) for offence under Section 135(1)(b) and 135(1)(c) of the Customs Act, 1962, Police Station-DRI, Lucknow Zonal Unit, District Lucknow. As per the prosecution story, on receiving the specific information that Shashank Singh, who was travelling from Bangkok, Thailand to Lucknow on Air Asia Flight No. FD-146 on 7th of August, 2024, is carrying a large consignment of foreign origin gold for providing to one Tanveer Mustafa and the applicant also aboarded the flight, the DRI Team arrested Tanveer Mustafa and the applicant inside the Air Asia flight and took them to the Customs office at CCSI Airport, Lucknow for examination and after the examination, 3kg. of gold bars were recovered from the shirt pocket of Tanveer Mustafa, the co- accused, which was seized and other co-accused persons were also arrested after it was linked. It is contended by learned counsel for the applicant that the applicant is innocent and he has been planted by the DIR officials. He argued that at the time of alleged incident, the applicant was in his office and not aboard the aircraft, as falsely alleged, and no gold bars have ever been recovered from his possession. He submits that the allegation that the applicant facilitated the screening of the check-in baggage of one Avinash Singh, is false as the applicant was an employee of Thai Air Asia and all the chek-in baggage are screened at CCSI Airport under the sole control and supervision of Adani Enterprises Ltd. Further submission is that the whole academic background and the service period of the applicant is unblemished since 2013. He submits that all of sudden on 7th of August, 2024 at about 22:30 hours, when he was discharging his duties, his mobile phone was taken by the DRI officials and he was detained, wherein he was held in unlawful custody uptil 9th of August, 2024 but he was not produced before the Magistrate, which is in violation of the provisions of Article 22(2) of the Constitution of India and Section 104(2) of the Customs Act, 1962. Further, he was also declined the opportunity to engage the lawyer and he was subjected to torture by the DRI officials and on coercion he was got confessed for the alleged crime, which never committed by him. He submits that the investigation has been completed and now the complaint has been filed on 7th of October, 2024 and, therefore, there is no possibility that the applicant would tamper the evidences and the judicial custody or judicial custodial interrogation is not required. He has also emphasized that the law is settled that the provisions of Section 104 read with Section 135 of the Customs Act, 1962 is apparent regarding power to arrest to "any person" which indicates the individual criminal liability, whereas the case is admitted on behest of the DRI that the gold bars are not recovered from the possession of the applicant and there is no ample evidence to connect the applicant with the offence, therefore, he cannot be subjected to criminal proceedings. Apart from the above, he argued that the applicant is suffering from serious medical disease like liver and other diseases and the proper medical treatment is not possible in jail which ultimately requires a specialized medical care. He also submits that the applicant is not a flight risk and he has cooperated with the investigation proceedings. He argued that the charges have not been framed as yet and the probative value of the documents and material would be examined during the course of trial and if the applicant is released on bail, he could properly collect the documents and produce the same before the court to show his non-acquisition in the offence. Adding his argument, he submits that there is no previous criminal history of the applicant and he is languishing in jail since last 5 months. Further submission is that the offence is punishable upto 7 years and there is no such apprehension that the applicant would tamper the evidences or would threaten the witnesses. He also argued that the applicant is a law abiding citizen and he is languishing in jail since 09.08.2024 and he undertakes that in case he is granted bail, he would not misuse the liberty of the same and would always cooperate in the trial proceedings, therefore submission is that the applicant may be enlarged on bail. Per contra, learned counsel appearing for the DRI has Lucknow and the CCSI Airport, vehemently opposed the contentions abovesaid and argued that the applicant was detained and arrested while the DRI officials intercepted Panchnama/recovery proceedings were duly completed. He submits that as per the alleged record of call and chat details with respect to the present applicant-accused are concerned, it is apparent that there was a close coordination and active involvement of the applicant in smuggling of the prohibited gold. Several incriminating articles were recovered, which is strongly connected the applicant with the offence. In addition to it, he submits that the statement of the applicant-accused recorded under section 108 of the Act, 1962, is enough to establish that the applicant has committed offence and the same is strong evidence against him. He submits that the statement of the accused-applicant recorded under section 108 of the Act, 1962, is much stronger as the same is distinct from the statement recorded by the police officer under the provisions of section 161 of Cr.P.C. He next argued that time and again, the Hon'ble Apex Court has considered the economic offences serious and distinct from the other nature of offences as there is a vast impact over the society and those have deep rooted conspiracies and those are not the offences, which are said to be committed in a sudden provocation of peaked moments. It is committed with a great criminal design for profit to such accused, which ruins the economy of the State and therefore, such offences are class apart from the other crimes. During the course of his arguments, he has placed reliance on the several ratio of Judgments of Hon'ble Apex Court rendered in the case of Percy Rustomji Basta Vs. The State of Maharashtra, reported in AIR 1971 SC 1087 and Commissioner of Customs (Imports) Mumbai Vs. Ganpati Overseas Through its Proprietor Shri Yashpal Sharma and Another, reported in (2023) 10 Supreme Court Cases 484. Considering the submissions of learned counsel for the parties and after perusal of material placed on record, it transpires that some interception was done by the D.R.I. officials at CCS International Airport, Lucknow, from where the co-accused person, namely, Tanvir Mustafa and other said accused persons were arrested, wherein 3 kg. gold was recovered from the front shirt pocket of Tanvir Mustafa and the present applicant has also been detained at CCSI Airport, Lucknow and while searching the call details and other evidences, the applicant was allegedly found involved. From perusal of the 'Panchnama', it also reveals that no articles either of prohibited category or restricted category are recovered from the possession of the applicant or his house and, therefore, prima facie, there seems to be no strong evidence against the applicant. Further, so far as the present applicant is concerned, he is an employe of thai Air Asia, and thus, his presence over there is not unexpected. So far as the emphasize which is drawn by the DRI officials for the statement of the accused recorded under Section 108 of the Customs ACt, 1962, the same cannot lead alone the ground for conviction. Though, it has been held by the Hon'ble Apex Court in the case of Romesh Chandra Mehta Vs State of West Bengal, reported in (1969) 2 SCR 461, that the custom officers are not the police officers and the statement recorded under section 108 of the Act,1962, is admissible in evidence, though there seems to be no quarrel regarding the same, whereas the further issue is that can the statement of an accused recorded under section 108 of the Act,1962, blindly be accepted without any corroboration of other evidences ? Infact, the admissibility of an evidence is one aspect of the matter and the conviction can lead only on the basis of the confessional statement recorded under section 108 of the Act,1962 is the other aspect of the matter and the answer would be no. This issue is dealt with in the case of Union of India Vs. Kisan Ratan Singh and others by the Hon'ble High Court at Bombay (Criminal Appeal No 621 of 2001 decided on 7th January, 2020), vide Judgment and order dated 07-01-2022. Paragraph no. 9 of the Judgment is quoted hereinunder :- "9. Various Courts have kept all these things in mind and come to a conclusion that in the absence of any corroboration by an independent and reliable witness, a statement recorded under Section 108 in isolation could not be relied upon. For this, I find support in State of Maharashtra V/s. Harshad Vaherbhai Patel & Ors.1 and unreported judgment of this court in
1. 2012 (1) Bom.C.R.(Cri)500 Gauri Gaekwad 8/11 211.Apeal-621- 2001.doc Shri Malki Singh V/s. Suresh Kumar Himatlal Parmar in Criminal Appeal No.228 of 1999 delivered on 29-11-2019. Paragraph 8 of Malki Singh's judgment reads as under : "8. It is no doubt true that under Section 104 of the Customs Act 1962, the Customs Officer is vested with power to arrest if he has reason to believe that any person has committed an offence punishable under Section 135 or 135 A of the Customs Act. Under Section 108 of the Customs Act, the Customs Officer is also vested with power to summon persons to give evidence documents and all persons so summoned are bound to attend, on being summoned. The statement made to the Custom Officer is not hit by Section 25 of the Indian Evidence Act, 1872, the position of law being very well settled that the Custom Officers are not police officers and resultantly, a statement made to the Custom Officer is not hit by Section 25. At the same time, the position of a retracted confession is also well settled :- without any independent corroboration it cannot sustain a conviction and retracted confession may form basis of conviction without corroboration if it is found to be perfectly voluntary, true and trustworthy. The Court is duty bound to examine whether the statement referred to as a confessional statement meets the test of truthfulness and being voluntary in nature. In absence of any independent material brought on record by the appellant, the Chief Metropolitan Magistrate was perfectly justified in acquitting the accused no.2. In absence of any evidence corroborating the statement of the accused no.2 made before the Custom Officer on 24 th March 1996 under Section 108 of the Customs Act, the statement in isolation do not warrant conviction, particularly when it is retracted with a plea of coercion." This court is of the opinion that the confessional statement of an accused recorded under section 108 of the Act, 1962, cannot blindly be accepted unless it is corroborated by any independent evidence/material as the same would not lead to conviction. The examination of confessional statement of the accused is essentially required so as to find out that the same is not taken under coercion or under extraneous influences. The trial court has also to be conscious enough while examining the correctness and voluntariness of the nature of the statement of the accused. I have also noticed the fact that no gold is recovered from the possession of the applicant and the DRI officials have failed to strongly corroborate the story,though, the investigation is completed and the complaint has also been instituted, therefore,there seems no possibility that the applicant would tamper the evidences or would threaten the witnesses. Further the custodial interrogation also seems to be unreasonable and uncalled for at this stage as no plausible argument/reasons are accorded. Further whether the alleged smuggled gold is under the prohibited category of gold or the restricted gold,is also one of the question, which is to be looked into by the trial court at the subsequent stage. It has also been noticed that the applicant has no previous criminal history,which has been explained in paragraph 21 of the bail application and he is languishing in jail since 09.08.2024 coupled with the fact that he has undertaken that if he is granted bail, he will not misuse the liberty of the same and would cooperate in the trial proceedings. Considering the submissions of learned counsel of both sides, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and, without expressing any view on the merits of the case, I find it to be a fit case of bail. Let the applicant-Damien Durning, involved in the aforementioned crime be released on bail, on his furnishing a personal bond and two sureties (one local surety) each in the like amount, to the satisfaction of the court concerned, with the following conditions:- (1) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, or otherwise during the investigation or trial; (2) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. He shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code; (3) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C.; and (4) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, the trial court shall initiate proceedings against him, in accordance with law under Section 174-A of the Indian Penal Code. The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison. It is clarified that the observations made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the merits of the case. Order Date :- 27.1.2025 kkv/
Applicant :- Damien Durning Opposite Party :- Union Of India Thru. Directorate O Revenue Intelligence Lko Counsel for Applicant :- Saurabh Shankar Srivastava,Priyesh Mishra Counsel for Opposite Party :- Digvijay Nath Dubey,Anuj Singh,Kuldeep Srivastava Hon'ble Shree Prakash Singh,J. Heard Mr. Saurabh Shankar Srivastava, learned counsel for the applicant, Mr. Kuldeep Srivastava and Mr. Anuj Singh, learned counsel for the Directorate of Revenue Intelligence, Zonal Unit, Gomti Nagar, Lucknow. The instant bail application has been filed on behalf of the applicant with the prayer to release him on bail during the trial in DRI Case No. 16 of 2024, U/s 135(1)(i)(A) for offence under Section 135(1)(b) and 135(1)(c) of the Customs Act, 1962, Police Station-DRI, Lucknow Zonal Unit, District Lucknow. As per the prosecution story, on receiving the specific information that Shashank Singh, who was travelling from Bangkok, Thailand to Lucknow on Air Asia Flight No. FD-146 on 7th of August, 2024, is carrying a large consignment of foreign origin gold for providing to one Tanveer Mustafa and the applicant also aboarded the flight, the DRI Team arrested Tanveer Mustafa and the applicant inside the Air Asia flight and took them to the Customs office at CCSI Airport, Lucknow for examination and after the examination, 3kg. of gold bars were recovered from the shirt pocket of Tanveer Mustafa, the co- accused, which was seized and other co-accused persons were also arrested after it was linked. It is contended by learned counsel for the applicant that the applicant is innocent and he has been planted by the DIR officials. He argued that at the time of alleged incident, the applicant was in his office and not aboard the aircraft, as falsely alleged, and no gold bars have ever been recovered from his possession. He submits that the allegation that the applicant facilitated the screening of the check-in baggage of one Avinash Singh, is false as the applicant was an employee of Thai Air Asia and all the chek-in baggage are screened at CCSI Airport under the sole control and supervision of Adani Enterprises Ltd. Further submission is that the whole academic background and the service period of the applicant is unblemished since 2013. He submits that all of sudden on 7th of August, 2024 at about 22:30 hours, when he was discharging his duties, his mobile phone was taken by the DRI officials and he was detained, wherein he was held in unlawful custody uptil 9th of August, 2024 but he was not produced before the Magistrate, which is in violation of the provisions of Article 22(2) of the Constitution of India and Section 104(2) of the Customs Act, 1962. Further, he was also declined the opportunity to engage the lawyer and he was subjected to torture by the DRI officials and on coercion he was got confessed for the alleged crime, which never committed by him. He submits that the investigation has been completed and now the complaint has been filed on 7th of October, 2024 and, therefore, there is no possibility that the applicant would tamper the evidences and the judicial custody or judicial custodial interrogation is not required. He has also emphasized that the law is settled that the provisions of Section 104 read with Section 135 of the Customs Act, 1962 is apparent regarding power to arrest to "any person" which indicates the individual criminal liability, whereas the case is admitted on behest of the DRI that the gold bars are not recovered from the possession of the applicant and there is no ample evidence to connect the applicant with the offence, therefore, he cannot be subjected to criminal proceedings. Apart from the above, he argued that the applicant is suffering from serious medical disease like liver and other diseases and the proper medical treatment is not possible in jail which ultimately requires a specialized medical care. He also submits that the applicant is not a flight risk and he has cooperated with the investigation proceedings. He argued that the charges have not been framed as yet and the probative value of the documents and material would be examined during the course of trial and if the applicant is released on bail, he could properly collect the documents and produce the same before the court to show his non-acquisition in the offence. Adding his argument, he submits that there is no previous criminal history of the applicant and he is languishing in jail since last 5 months. Further submission is that the offence is punishable upto 7 years and there is no such apprehension that the applicant would tamper the evidences or would threaten the witnesses. He also argued that the applicant is a law abiding citizen and he is languishing in jail since 09.08.2024 and he undertakes that in case he is granted bail, he would not misuse the liberty of the same and would always cooperate in the trial proceedings, therefore submission is that the applicant may be enlarged on bail. Per contra, learned counsel appearing for the DRI has Lucknow and the CCSI Airport, vehemently opposed the contentions abovesaid and argued that the applicant was detained and arrested while the DRI officials intercepted Panchnama/recovery proceedings were duly completed. He submits that as per the alleged record of call and chat details with respect to the present applicant-accused are concerned, it is apparent that there was a close coordination and active involvement of the applicant in smuggling of the prohibited gold. Several incriminating articles were recovered, which is strongly connected the applicant with the offence. In addition to it, he submits that the statement of the applicant-accused recorded under section 108 of the Act, 1962, is enough to establish that the applicant has committed offence and the same is strong evidence against him. He submits that the statement of the accused-applicant recorded under section 108 of the Act, 1962, is much stronger as the same is distinct from the statement recorded by the police officer under the provisions of section 161 of Cr.P.C. He next argued that time and again, the Hon'ble Apex Court has considered the economic offences serious and distinct from the other nature of offences as there is a vast impact over the society and those have deep rooted conspiracies and those are not the offences, which are said to be committed in a sudden provocation of peaked moments. It is committed with a great criminal design for profit to such accused, which ruins the economy of the State and therefore, such offences are class apart from the other crimes. During the course of his arguments, he has placed reliance on the several ratio of Judgments of Hon'ble Apex Court rendered in the case of Percy Rustomji Basta Vs. The State of Maharashtra, reported in AIR 1971 SC 1087 and Commissioner of Customs (Imports) Mumbai Vs. Ganpati Overseas Through its Proprietor Shri Yashpal Sharma and Another, reported in (2023) 10 Supreme Court Cases 484. Considering the submissions of learned counsel for the parties and after perusal of material placed on record, it transpires that some interception was done by the D.R.I. officials at CCS International Airport, Lucknow, from where the co-accused person, namely, Tanvir Mustafa and other said accused persons were arrested, wherein 3 kg. gold was recovered from the front shirt pocket of Tanvir Mustafa and the present applicant has also been detained at CCSI Airport, Lucknow and while searching the call details and other evidences, the applicant was allegedly found involved. From perusal of the 'Panchnama', it also reveals that no articles either of prohibited category or restricted category are recovered from the possession of the applicant or his house and, therefore, prima facie, there seems to be no strong evidence against the applicant. Further, so far as the present applicant is concerned, he is an employe of thai Air Asia, and thus, his presence over there is not unexpected. So far as the emphasize which is drawn by the DRI officials for the statement of the accused recorded under Section 108 of the Customs ACt, 1962, the same cannot lead alone the ground for conviction. Though, it has been held by the Hon'ble Apex Court in the case of Romesh Chandra Mehta Vs State of West Bengal, reported in (1969) 2 SCR 461, that the custom officers are not the police officers and the statement recorded under section 108 of the Act,1962, is admissible in evidence, though there seems to be no quarrel regarding the same, whereas the further issue is that can the statement of an accused recorded under section 108 of the Act,1962, blindly be accepted without any corroboration of other evidences ? Infact, the admissibility of an evidence is one aspect of the matter and the conviction can lead only on the basis of the confessional statement recorded under section 108 of the Act,1962 is the other aspect of the matter and the answer would be no. This issue is dealt with in the case of Union of India Vs. Kisan Ratan Singh and others by the Hon'ble High Court at Bombay (Criminal Appeal No 621 of 2001 decided on 7th January, 2020), vide Judgment and order dated 07-01-2022. Paragraph no. 9 of the Judgment is quoted hereinunder :- "9. Various Courts have kept all these things in mind and come to a conclusion that in the absence of any corroboration by an independent and reliable witness, a statement recorded under Section 108 in isolation could not be relied upon. For this, I find support in State of Maharashtra V/s. Harshad Vaherbhai Patel & Ors.1 and unreported judgment of this court in
1. 2012 (1) Bom.C.R.(Cri)500 Gauri Gaekwad 8/11 211.Apeal-621- 2001.doc Shri Malki Singh V/s. Suresh Kumar Himatlal Parmar in Criminal Appeal No.228 of 1999 delivered on 29-11-2019. Paragraph 8 of Malki Singh's judgment reads as under : "8. It is no doubt true that under Section 104 of the Customs Act 1962, the Customs Officer is vested with power to arrest if he has reason to believe that any person has committed an offence punishable under Section 135 or 135 A of the Customs Act. Under Section 108 of the Customs Act, the Customs Officer is also vested with power to summon persons to give evidence documents and all persons so summoned are bound to attend, on being summoned. The statement made to the Custom Officer is not hit by Section 25 of the Indian Evidence Act, 1872, the position of law being very well settled that the Custom Officers are not police officers and resultantly, a statement made to the Custom Officer is not hit by Section 25. At the same time, the position of a retracted confession is also well settled :- without any independent corroboration it cannot sustain a conviction and retracted confession may form basis of conviction without corroboration if it is found to be perfectly voluntary, true and trustworthy. The Court is duty bound to examine whether the statement referred to as a confessional statement meets the test of truthfulness and being voluntary in nature. In absence of any independent material brought on record by the appellant, the Chief Metropolitan Magistrate was perfectly justified in acquitting the accused no.2. In absence of any evidence corroborating the statement of the accused no.2 made before the Custom Officer on 24 th March 1996 under Section 108 of the Customs Act, the statement in isolation do not warrant conviction, particularly when it is retracted with a plea of coercion." This court is of the opinion that the confessional statement of an accused recorded under section 108 of the Act, 1962, cannot blindly be accepted unless it is corroborated by any independent evidence/material as the same would not lead to conviction. The examination of confessional statement of the accused is essentially required so as to find out that the same is not taken under coercion or under extraneous influences. The trial court has also to be conscious enough while examining the correctness and voluntariness of the nature of the statement of the accused. I have also noticed the fact that no gold is recovered from the possession of the applicant and the DRI officials have failed to strongly corroborate the story,though, the investigation is completed and the complaint has also been instituted, therefore,there seems no possibility that the applicant would tamper the evidences or would threaten the witnesses. Further the custodial interrogation also seems to be unreasonable and uncalled for at this stage as no plausible argument/reasons are accorded. Further whether the alleged smuggled gold is under the prohibited category of gold or the restricted gold,is also one of the question, which is to be looked into by the trial court at the subsequent stage. It has also been noticed that the applicant has no previous criminal history,which has been explained in paragraph 21 of the bail application and he is languishing in jail since 09.08.2024 coupled with the fact that he has undertaken that if he is granted bail, he will not misuse the liberty of the same and would cooperate in the trial proceedings. Considering the submissions of learned counsel of both sides, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and, without expressing any view on the merits of the case, I find it to be a fit case of bail. Let the applicant-Damien Durning, involved in the aforementioned crime be released on bail, on his furnishing a personal bond and two sureties (one local surety) each in the like amount, to the satisfaction of the court concerned, with the following conditions:- (1) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, or otherwise during the investigation or trial; (2) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. He shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code; (3) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C.; and (4) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, the trial court shall initiate proceedings against him, in accordance with law under Section 174-A of the Indian Penal Code. The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison. It is clarified that the observations made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the merits of the case. Order Date :- 27.1.2025 kkv/