HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Miscellaneous IInd Bail No. 15993/2018

Mohammad Javed S/o Abdul Jabbar B/c Muslim, R/o Gulzarpura,

Sikar Road, Village And Post Kuchaman City Distt. Nagaur, Raj.

(Accused In Custody At Central Jail Ghatgate)

----Petitioner

Versus

Union Of India, Through P.p. Custom Department, Jaipur.

----Respondent

For Petitioner(s)

:

Ms. Anubha Singh

For Respondent(s)

:

Mr. R.D. Rastogi, Addl. Solicitor

General-cum-Special Public

Prosecutor assisted by

Mr. Chandra Shekhar Sinha

Mr. Akshay Bhardwaj for Customs

Department.

HON'BLE MR. JUSTICE PANKAJ BHANDARI

Order

07/01/2019

1.

Petitioner has filed this second bail application under Section

439 of Cr.P.C.

2.

F.I.R. No. VIII(48)AP/02/2018 was registered by Inspector,

Customs Airport, Jaipur for offence under Sections 135(1)(A)(B)

(C) of of Customs Act, 1962.

3.

It is contended by counsel for the petitioner that after

rejection of the first bail application, charges have been framed

and statement of four witnesses have been recorded. As per the

prosecution case, two bags were recovered, one from Naresh and

one from petitioner Mohammad Javed. From the bag which was

recovered from Naresh, foreign currency to the value of

Rs.1,12,00,000/- was seized and from the bag which was

recovered from petitioner, foreign currency worth of

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Rs.47,00,000/- was seized.

4.

It is contended that petitioner has nothing to do with the bag

which was recovered from Naresh, as Naresh was travelling on

different PNR. As per the case made out by the prosecution, the

bag which was being carried by Naresh was to be handed over to

the petitioner, to be delivered to a person to whom Rafiq had sent

his photographs. It is argued that Rafiq has not been made an

accused and the entire story is under a shadow of doubt. On the

date when the bags were seized, foreign currency was not traced

by the Customs Department and it is only after three days that

bag was opened and currency was recovered.

5.

It is also contended that as per Section 104 of the Customs

Act, evasion above Rs.50,00,000/- is a non bailable offence even if

the bag which is shown to have been recovered from the

petitioner is taken note of the recovery was of Rs.47,00,000/-,

hence the offence would be bailable.

6.

It is also contended that statement of Rafiq has been

recorded by the Customs Department under Section 108 of the

Customs Act and he has denied knowing the petitioner.

7.

Counsel for the Union of India has opposed the present

second bail application. His contention is that there is no change in

circumstance necessitating entertaining second bail application.

8.

It is also contended that the recovery of Rs.1,12,00,000/-

from Naresh has a direct connection with the present petitioner,

hence, the offence is non-bailable. It is also contended that case

of Rafiq has been given to the Enforcement Directorate for further

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investigation, hence, the plea of petitioner that Rafiq has not been

made an accused has no force.

9.

It is also contended that recording of pre charge evidence,

framing of charges and recording of statement before the Court,

cannot be considered to be change in circumstance so as to

entertain the second bail application.

10.

I have considered the contentions.

11.

As per the prosecution case, prosecution has not been able

to establish the link between Rafiq, Naresh and Javed, as Rafiq

has denied any acquaintance with the present petitioner and

Naresh. Source of foreign currency is not established, the recovery

of bag from Naresh cannot, therefore, be considered as recovery

from Javed.

12.

Considering the above as also the contentions put forth by

counsel for the petitioner, I deem it proper to allow the present

second bail application.

13.

This second bail application is accordingly allowed and it is

directed that a