Non-appearance before the investigating authority can disentitle an applicant from seeking anticipatory bail.

JUDGMENT

Tushar Rao Gedela, J.

[The proceeding has been conducted through Hybrid mode]

1. This is an application under Section 438 Cr.P.C., 1973 filed by the applicant seeking anticipatory bail in file No.DRI-HQ-CI/C50D/INT/13/2022 being investigated by the respondent-Directorate of Revenue Intelligence (for Short "DRI").

2. The case of the prosecution is that the applicant was running dummy entities through untrained and random individuals. It is alleged that one such entity was M/s. Green Globe Enterprises, which imported three consignments in the month of December 2022. The same were intercepted by the DRI on allegations of evasion of duty and based thereon the case was instituted.

3. Mr. N. Hariharan, learned senior counsel appearing for the applicant submits that it is a matter of record that the applicant is not a Director/Partner/Key Managerial person/employee of the said entity. He further submits that the actual partners of the said entity, one Sh. Mukesh and Sh. Rajbeer, in their statements have categorically mentioned that the said entity was incorporated on the instructions of one Manjeet and not the applicant.

4. Learned senior counsel also submits that the entire case is on documentary evidence, the same already being in possession and custody of DRI, there is no purpose in seeking custodial interrogation of the application by the DRI.

5. Mr. Hariharan learned senior counsel submits that the applicant in the present case is seeking anticipatory bail apprehending arrest at the hands of DRI. Learned senior counsel submits that the contention of the DRI that it is merely summoning the application under Section 108 of Customs Act, 1962 (for short "the Act") is a misnomer since the DRI has already made up its mind to arrest the applicant.

6. To support the aforesaid submissions, learned senior counsel draws attention of this Court to the notices issued under Section 108 of the Customs Act issued by the DRI, whereby the applicant has been directed to appear in an inquiry in connection with "investigation in respect of imported goods by M/s Green Globe". According to learned senior counsel the use of the word "investigation" stands in contradistinction to the word "inquiry" inasmuch as the investigation is a stage where the agency could, if so required, arrest any person who appears to it to be culpable in any of the cognizable offences. In other words, learned senior counsel submits that the apprehension of arrest as contemplated under Section 438 Cr.P.C, 1973 is present and real and established simply by the issuance of notices for the purposes of "investigation".

7. That apart, learned senior counsel also invites attention of this Court to the reply filed by the DRI particularly to para 8 sub-para (iii) to submit that the allegation contained in the sub para themselves point out to the fact that the DRI has already come to a conclusion that the applicant is the main person who is operating the said entity viz. M/s. Green Globe Enterprises and has utilized Sh. Mukesh Chand and Sh. Rajbeer as dummy Directors. Learned senior counsel also points out that according to investigations carried out, the said Sh. Mukesh Chand is a Painter by profession and Sh. Rajbeer is an employed person, both having absolutely no knowledge regarding import and export and are persons of meagre means according to their statement. From this, learned counsel submits that the apprehension of the applicant that the DRI has not only completed its investigation but also has apparently and allegedly come to a conclusion that the applicant has not only a role to play in the said offences but also the main person on whose behest the said offences have taken place, though behind the scenes and in disguise by the present applicant.

8. To the same effect, learned senior counsel refers to paragraphs 11, 12 and 14 of the said reply to find support of the submission that the apprehension of arrest is clear and present. Learned senior counsel relies up