The main legal point established in the judgment is that the application for anticipatory bail under S.438 of Cr.P.C. can be considered premature if the investigation is still ongoing and the applicants have not yet been made accused under the Customs Act.

ORDER

1. Application for anticipatory bail under S.438 of Cr.P.C.

2. The applicants apprehend arrest in F.No.DRI/HZU/NSRU-48/ENQ-02/2020 of Directorate of Revenue Intelligence (‘DRI’, for short), Sub Regional Unit, Neloor/Vijayawada, Andhra Pradesh, with respect to imports made by M/s.Royal Imports & Exports and M/s.Spring Valley Spices through the port of Krishnapatanam, Andhra Pradesh. The 1st applicant is the proprietor of M/s.Royal Imports and Exports and also a partner of M/s.Spring Valley Spices and the 2nd applicant is the managing partner of M/s.Spring Valley Spices. They are engaged in the business of importing and trading of agricultural and other allied products including spices. The 3rd applicant is the managing partner of M/s.Unique Spices.

3. The allegation of DRI is that the aforesaid concerns imported Arecanuts from Indonesia vide two bills of entry dated 05.05.2020 by mis-declaring the consignment as coconut expeller cake rendering the goods liable for confiscation under S.111 of the Customs Act and consequently an offence under S.135 of the Act. The applicants were issued with notice from the 2nd respondent who is Senior Intelligence Officer, DRI, Kochi zonal unit and then detailed statements recorded on several days. The 3rd applicant has no connection whatsoever with the imports and he is unaware why he has been summoned in connection with the alleged violations. The applicants apprehending arrest by the respondents, had approached the Sessions Court, Ernakulam for anticipatory bail. The same was dismissed vide Annexure-17. Hence the applicants have approached this Court for indulgence.

4. Heard the learned counsel appearing for the applicants and the Central Government Counsel appearing for the DRI.

5. The learned counsel appearing for the applicants submits that the applicants have an unblemished track record in the industry and have not so far got involved in any offence violating the Customs Act. It is submitted that the finding of the learned Sessions Judge that the application for anticipatory bail is premature is not correct. For approaching the Court for relief under S.438 of Cr.P.C., it is not essential that applicant should be made an accused. Under S.104(1) of the Customs Act, if an officer of the Customs Department has reason to believe that any person in India or within the Indian Customs Waters has committed an offence punishable under Ss.132,133,135,135A or S.136, he may arrest such person. The applicants have reasonable grounds to believe that they may be arrested and hence they can approached the Court for anticipatory bail under S.438 Cr.P.C.

6. The learned CGC has filed his statement objecting to granting of anticipatory bail. Their concerns had imported goods in four containers each declaring that those goods were coconut expeller cake; but on detailed examination it was found that arecanuts were concealed in the containers along with the declared goods, which were 103 imported illegally and liable for confiscation under S.111 of the Customs Act. The goods imported were valued at Rs.1.47 crores each. The applicants were summoned under the provisions of S.108 of the Customs Act by the 2nd respondent and certain illegalities were revealed in their statements. The learned CGC relies on the decisions of this Court in Sahal v. Senior Intelligence Officer (2019 (3) KLT 12) and Kishin S.Loungani v. Union of India & Ors. (2017 (3) KLT SN 61 (C.No. 82) = 2017 (1) KHC 3) and also the decisions of the Apex Court in Ramesh Chandra Mehta v. State of West Bengal (1968 KLT SN 25 (C.No.49) SC = AIR 1970 SC 940), Union of India v. Padam Narain Aggarwai & Ors (2008) 13 SCC 305) and Assistant Collector of Central Excise, Rajahmundry v. Duncan Agro Industries Ltd. 2000 Crl.L.J. 4035) in support of his argument that S.108 of the Customs Act does not contemplate magisterial intervention and that a person called upon to make a statement before the Customs Authority under S.108 of the Customs Act cannot be said to be