An application for pre-arrest bail is premature when a notice is issued under Section 108 of the Customs Act to record the petitioner's statement, as it does not amount to the petitioner being accused of an offence.

The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (‘Code’, for the sake of brevity), for an order of pre-arrest bail.

2.The petitioner apprehends arrest in O.R. No.1/2023-24/CPD-TCR of the Customs Preventive Division, Thrissur, for allegedly committing the offences under Sections 135 & 137 of the Customs Act, 1962 (in short, ‘ Act’).

3.The concise case of the prosecution is that: on 03.08.2023, on receiving information that a consignment of gold in compound form was being carried by a person named ‘Noufal Bavunni’, on the Abu Dhabi Kochi flight No.IX420, the officers of Customs (Preventive), kept surveillance outside the Cochin International Airport. On the arrival of the said passenger, they recovered 1450 grams of gold compound from him. The said person was arrested on the spot. Another person named Rasheed K., who had gone to receive the gold from Noufal Bavunni was also arrested with Rs.50,000/-, which was to be paid as the remuneration to Noufal Bavunni. 1341.5 grams of gold was extracted from the seized gold compound. During the interrogation of Noufal Bavunni and Rasheed K, it was revealed that they were actively involved in smuggling activities, which was led by one Mohammed Azharudheen from Thrissur, who was also arrested. It was revealed that the gold smuggled from abroad was being distributed in Koduvally and other places. The accused furnished the mobile numbers of the people to whom the gold was being given. In the investigation conducted to trace out the owners of the mobile numbers, it was unveiled that one of the mobile numbers, i.e., ‘7736694791’ belonged to one Javid of Koduvally. He had made 2900 calls to the mobile number ‘9072724852’, which was the number of Rishal (the petitioner). On verification of the mobile number ‘9072724852’, it was found that it is owned by Riyas, the brother of the petitioner. But, in the truecaller application, the owner’s name is shown as ‘Rishal Kdly’. There is prima facie evidence that the mobile number was being used by the petitioner. The petitioner has not responded to the summons issued by the Department.

4.Heard; Sri. B. Muhammed Shaheel, the learned counsel appearing for the petitioner and Sri. P.G. Jayashankar, the learned Standing Counsel appearing for the respondent.

5.The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. There is no material to establish that the petitioner is involved in the crime. It is solely on the basis of the alleged interrogation of Noufal Bavunni, Rasheed K, Mohammed Azharudheen and Javid that the respondent is trying to implicate the petitioner in the crime. The mobile number allegedly used by the petitioner i.e.,’+971553159571’ is a number from the United Arab Emirates. The petitioner is a 20-year-old student doing his graduation in commerce at Malabar Christian College, Kozhikode. The petitioner is apprehensive that if he appears before the respondent, he would be arrested and remanded to judicial custody. The learned counsel relied on the decisions of the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and Anr. [AIR 2020 SC 831], Gurbaksh Singh Sibbia v. State of Punjab [AIR 1980 SC 1632], Satender Kumar Antil v. Central Bureau of Investigation [AIR 2022 SC 3386] and Arnesh Kumar v. State of Bihar [AIR 2014 SC 2756] to fortify his contentions. He prayed the application may be allowed.

6.The learned Standing Counsel for the respondent vehemently opposed the application. He submitted that the application is not maintainable in law as the respondent has only issued a notice to the petitioner under Section 108 of the Act, to record his statement, which is a statutory power. It is trite law in Union of India v. Padam Narain Aggarwal & Ors. [ (2008)13 SCC 305 ] and State of Gujarat v. Choodamani Parmeswaran Iyer & Anr.[MANU/SC/992/2023] that an application for pre-arrest bail is premature when a notice is issued und