IN THE SUPREME COURT OF INDIA [Order XXII Rule 2(1)] CRIMINAL APPELLATE HOR Going ees UNF SPECIAL LEAVE PETITION (CRL.) NO. OF 2017 (WITH PRAYER FOR INTERIM RELIEF) [Arising out of the impugned final Judgment and Order ‘dated 49.12.2016 passed by the Hon'ble High Court of Kerala at Ernakulam in Writ Petition (Cri) No.333 of 2015] IN THE MATTER OF: KISHIN S. LOUNGANI . .Petitioner Versus UNION OF INDIA & ORS. os .Respondents WITH Gil, MP. No. of] | Application seeking exemption 2017 from filing certified copy of the impugned judgment and order. WITH Cri. M. of Application for condonation: of. 2017 dela’ \vor-IL (184-334) PAPER BOOK (FOR DETAILED INDEX KINDLY SEE INSIDE) ADVOCATE FOR THE PETITIONER : MR. AMIT K. NAINANNEXURI 26. True copy of the Order dated 01.12.2011 \64- jsS passed by Two Judges Bench of this Hon'ble Court in WP (Cri.) 247 of 2011 27. ANNEXURE-P-21 True copy of the Order dated 13.08.2013 e618 passed by this Hon'ble Court in Review Petition (Cri) 97-98 of 2013 | 7. | ANNEXURE-P-22 Copy of the Writ Petition (Crl) No.333 of 2015 \oe-24 (sans annexures) filed by the petitioner before the Hon'ble High Court of Kerala at Ernakulam. 25, ANNEXURE-P.23 eee ainiadt dated 28.11.2015 fied on| 2SO Sh behalf of Respondent No.2 in Writ Petition (Cr) No.333 of 2016. 30. | ANNEXURE-P-24 Copy of the order dated 18.02.2016 passed by 2] &- 020 the High Court of Kerala at Ernakulam in Writ Petition (Cri) No.333 of 2015 filed by the petitioner, issuing certain directions to the Respondents as set out therein. 31. ANNEXURE-P-25 Copy of the order dated 31.07.2015 passed by 22) <2 the High Court of Kerala at Ernakulam in Writ Petition (Cri) No.333 of 2015 granting interim bail to the ‘petitioner on certain conditions as set out therein 32, | ANNEXURE-P-26 | Copy of the Written Submissions dated |S 25-3L5) | 30.08.2016, 33. Crl. MP. No. of 2017 Application for exemplion trom filing certified | 386-339 copy of the impugned order. 34, | Crl, M.P, No. of 2017 | Application for Delay in Filing the present 398-389 petition.[SY ANNEXURE P-20 ITEM NO.MM-2-D COURT NO.2 SECTION X SUPREME COURT OF INDIA RECORD OF PROCEEDINGS WRIT PETITION (CRL.) NO(s). 237 OF 2011 S.RJ.PEETY STEELS PVT.LTD. Petitioner(s) VERSUS UNION OF INDIA & ANR Respondent(s) (With appin(s) for ex-Parte stay ) Date: 01/12/2011 This Petition was called on for hearing today. CORAM: HON'BLE MR, JUSTICE ALTAMAS KABIR, HON'BLE MR, JUSTICE SURINDER SINGH NIWJAR HON'BLE MR. JUSTICE J, CHELAMESWAR For Petitioner(s) Mr. Mukul Rohatgi, Sr. Adv. Mr. Nikhil Jain, Adv.-on-Record. For Respondent(s) UPON hearing counsel the Court made the following ORDER Taken on board. The issue involved in this matter has since been settled by this Court in the case of Om Prakash & Anr. Vs. Union of India and ‘Anr[W.P, (Cri.) No. 66 of 2011], decided on 30" September, 2011, wherein the provisions of Section 155 Cr.P.C. have been considered in detail.Ss The petitioners will, therefore, be at liberty to proceed before the appropriate forum for the relief sought. The petitioners will be free to raise the contentions, raised in W.P (Cri.) No.237 of 2011 [on board today), inter alia, relating to non-compliance with the provisions of Sections 155 Cr.P.C., before any other appropriate court or tribunal. The writ petition is disposed of with the aforesaid observations. Sdi- sdi- (Sheetal Dhingra) (Juginder Kaur) COURT MASTER Assistant Registrar TRUE COPY(86 ANNEXURE P-21 CHAMBER MATTER SECTION X SUPREME COURT OF INDIA RECORD OF PROCEEDINGS REVIEW PETITION (CRL.) NOs, 97-98 OF 2013 IN W.P(CRL.)NOS, 66/2011 AND 74 OF 2010 UNION OF INDIA & ANR. ETC. Petitioner(s) VERSUS OM PRAKASH & ANR ETC. Respondent(s) (With appin(s) for stay,c/delay in filing review petition and office report) Date: 13/08/2013 These Petitions were circulated today. CORAM : HON'BLE MR. JUSTICE H.L. DATTU HON'BLE MR. JUSTICE SURINDER SINGH NIJJAR HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR By Circulation UPON perusing papers the Court made the following ORDER Delay condoned. The Review Petitions are dismissed. [ Charanjeet Kaur } [Vinod Kulvi] Court Master Asstt. Registrar [ Signed order is placed on the file }IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION REVIEW PETITION (CRL.) NOS. 97-98 OF 2013 IN WRIT APETITION (CRL.) NO. 66 OF 2011 AND WRIT PETITION (CRL.) NO. 74 OF 2010 UNION OF INDIA AND ANR. ETC. . PETITIONER(S) Versus OM PRAKASH AND ANR. ETC. .. RESPONDENT(S) ° ORDER Delay condoned: We have gone through the Review Petitions and the connected papers, We see no reason to interfere with the order impugned. The Review Petitions are, accordingly, dismissed. (LDATTU] [SURINDER SINGH NIJJAR] [JAGDISH SINGH New Delhi, August 13,2013 TRUE COPY[ee ANNEXURE P-22 BEFORE THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM WRIT PETITION (Cri) NO. 333 of 2015 Petitioner Kishin S. Loungani, aged 67 years, Proprietor, M/s R. Kishin & Company, Room No. 208, 2"! Floor, Bherumal House, 149, Zaveri Bazaar, Mumbai - 400002 Now under judicial custody in Central Prison, Viyoor Versus Respondents. 1. Union of india through its Secretary, Ministry of Finance, Department of Revenue, New Delhi, 2. Senior Intelligence Officer, Directorate of Revenue, Palarivattom Cochin ~ 25. 3. State of Kerala Represented by Secretary to the Government of Kerala Department of Home Affairs Secretariat, Thiruvanthapuram MEMORANDUM OF WRIT PETITION (CRIMINAL) FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA ‘Address for service of notice on the petitioners:are that of their Counsel P.A, Augustian, Baby M.A, and Biju T.S, Advocates, Faizel\84 Chambers, Pullepady Cross Road, Cochin - 682 016 and that of the respondents are as stated above. STATEMENT OF FACTS Writ Petition under Article 226/227 of the Constitution of India for issuance of appropriate Writ, Order or directions quashing and setting aside the Arrest Memo dated 18.6,2015 bearing No. O.R. No. 4/15, whereby, Respondent No. 2 has arrested the petitioner in purported exercise of powers under Section 104 of the Customs Act, 4962 and consequential proceedings arising therefrom including the orders dated 18.6.2015 (EXHIBIT P-4) and 24.6.2015 (EXHIBIT P-6) passed by the Learned Additional Chief Judicial Magistrate, (Economie Offences), Emakulam, whereby the petitioner was remanded to judicial custody as also to the custody of DRI as the entire proceedings are without jurisdiction; null and void ab initio and, therefore, vitiated by the application of the legal maxims; “Debile fundamentum fallit onus", meaning, thereby, that when the foundation falls, every thing falls; and “Sublato fundamento cadit opus"; meaning thereby, in case a foundation is removed, the superstructure falls AND For issuance of appropriate writ, order or directions especially in the nature of Habeas Corpus directing the forthwith release of the petitioner from custody as his atrest and subsequent incarceration is violative of his fundamental rights, inter alia, enshrined under Article 21 of the Constitution of India. AND(QO ——— respondents to comply with the mandate of either Section 154 CrP.C. of Section 185 Cr.P.C. in the event of the specified offences under the Customs Act, 1962 being cognizable or non-cognizable in view of Section 104(4) & (5) thereof, in true spirit and compliance With the ratio of law laid down by the Hon'ble Supreme Court in “Om Prakash and another Versus Union of India and another 2011 (14) SCC 1", prior to summoning the petitioner or any other person for their appearance in any case or inquiry AND Further for’ issuance of writ, order or directions holding the investigations into the non-cognizable offence(s) under Section 135 of the Customs Act, 1962 without seeking order of the Magistrate as per Section 188 Cr.P.C, to be null and void ab initio andlor in the alternative the investigation into the cognizable offence(s) under Section 135 of the Customs Act, 1962 without recording the FIR and following the procedure prescribed under Sections 154, 186, 157, 472 CrP.C. etc. to be illegal non-est, null and void ab initio; without Jurisdiction; uncbnstitutional, arbitrary, violative of Article 14 and 21 of the Constitution of India. AND For issuance of appropriate writ, order or directions holding the amendments carried out to Section 104 and 136 of the Customs Act, 4962 vide Finance Act, 2012 w.es. 28.5.2012 and vide Finance Act, 2013 wef, 10.5.2013 classifying certain category of offences to be ‘cognizable’ and. *Non-Bailable’ being arbitrary, illegal and unconstitutional being violative of the constitutional protection19 guaranteed Articles 14, 21 and 22 of the Constitution and consequently ultra vires, inter alia on the following counts:- a. Such amendments are vague; ambiguous; leading to confusion and absurdity as well as in repugnancy with the other provisions in the Customs Act, 1962 (as amended) inasmuch as the same are based upon the quantum of alleged evasion and such quantum could only be determined upon the culmination of the Adjudication Proceedings by way of Show Cause Notice; Such alleged quantum of evasion or attempted evasion of duty or fraudulent claim of drawback which is the basis for the categorization of the offence as “Cognizable” or “Non- Bailable", cannot be assessed by clubbing of different, distinct and separate transactions relating to evasion etc. as each such independent transaction would constitute a separate and distinct offence by applying the fundamental provisions contained in Chapter XVII Part 'B’ of the Code of Criminal Procedure especially Section 219 thereof. AND In the alternative to the prayer supra, for issuance of appropriate Writ, Order or Directions praying that this Hon'ble Court may read down, expound, elaborate and delineate the scope and ambit of provisions of Customs Act, 1962 (as amended) especially those relating to Chapter XII (Searches, Seizure and Arrest) especially Section 104; Chapter XVI (Offences and Prosecutions) especially Section 135 thereof (Evasion of duty or prohibitions), Section 137 (Cognizance ofad (S26 offences) etc. in harmony as well as in juxtaposition with Article 21 of the Constitution of India while striking balance with the individual right for fair procedure as also to ensure that resort to the penal action is taken by the Authorities within the sweep of such legal parameters. AND For issuance of appropriate writ, order or directions reading down, expounding, deliberating and interpreting the scope as well as perspective of Section 108 of the Customs Act, 1962 since the said sacrosanct provision has become a subject of abuse and misuse by the respondents who are adopting arm twisting and browbeating methods to extort and extract self- incriminating statements on the pretext of the same being ‘admissible in evidence’, as the manner of invocation of Section 108 Customs Act and the interpretation of the same being accorded by the respondents is completely in contravention to the settled law of the land including the ratio of law laid down by the Hon'ble Supreme Court, inter alia, in “Noor Aga Vs. State of Punjab, (2008) 16 SCC 417"; “Nirmal Singh Pehalwan @ Nimma v. Inspector, Customs, Customs House, Punjab; (2011) 12 SCC 298", “Vinod Solanki v. Union of India; (2008) 16 SCC 537” as well as the recent judgment rendered by an Hon'ble Two Judges Bench of the Hon'ble Supreme Court in "Tofan Singh Versus State of Tamil Nadu (2013) 16 Supreme Court Cases 31”, whereby, the matter has been referred to a larger bench in a case relating to NDPS Act and Customs Act (provisions contained In Section 67 of NDPS.\92 Act and 108 of Customs Act), inter alia, to resolve the issue as to whether such a statement is to be treated as statement under Section 161 of the Code or it partakes the character ofa statement under Section 164 of the Code as also whether the officer investigating the matter under these special oe enactments would qualify as a police officer or not. MOST RESPECTFULLY SHOWETH: 1.’ That the petitioner is approaching this Hon'ble Court in peculiar circumstances, wherein, various actions taken by the Respondents in arresting the petitioner; incarcerating him in custody; seeking his remand and threatening with criminal prosecution, without following any mandate of law as well as the procedure established by law, in violation of the Fundamental Rights of the petitioner, inter alia, as guaranteed under Article 24 of the Constitution of India. The Respondents have conducted themselves in a manner hitherto unknown to the settled tenets of criminal jurisprudence while a glaringly violating the constitutional mandate, thereby, leaving the petitioner with no other efficacious remedy except to approach this Hon'ble Court while by way of its extraordinary Writ jurisdiction under Article 226/227 of the Constitution of India. 2. That the entire proceedings initiated against the petitioner are null and void ab initio; otiose and nugatory, inter alia, on the following counts:- i. Petitioner has been arrested for contravening the provisions of Section 135 of the Customs Act, 1962iii. (VY upon the accusations re. fraudulent drawback claim for certain exports made during 2007 to 2012 and 2012 to 2015, whereas, prior to the amendment brought in Section 104 of the Customs Act wed. 28.5.2012 and 40.5.2013, the offences under Section 135 (supra) were "Non-Cognizable” and “Bailabl There is a grave violation of Article 20(1) of the Constitution of India as the subsequent amendment changing the nature of the offence from “Non- Cognizable" to “Cognizable” and from “Bailable” to “Non-Bailable” could not have been retrospectively applied in the case of the petitioner who is alleged. to have commitied the violations re. fraudulent availment of drawback w.e.f, 2007-08 onwards (Vide T. Barai versus Henry Ah, Hoe (1983) 1 SCC 177); The arrest of the petitioner is in contravention to the provisions of Section 41 Cr.P.C. read with the ratio of law laid down by the Hon'ble Supreme Court in “Arnesh Kumar Versus State of Bihar (2014) 8 SCC 273” which makes it mandatory that in any case where the offence is punishable with imprisonment for a term which may extend to 7 years, the police officer may not automatically arrest the accused and the Magistrate is not required to authorize the detention casually and mechanically; The arrest of the petitioner is bad, illegal and wholly arbitrary in view of grave violation of ratio laid down byvi (PS the Hon'ble Supreme Court in its Constitution Bench judgment in “Lalita Kumari Versus Government of U.P. and others (2014) 2 SCC 1" as also in view of “Joginder Kumar Versus of U.P. (1994) 4 SCC 260." No legitimate arrest could have been made and/or prosecution can ever be launched unless the quantification of the alleged availment of Drawback is made by way of Adjudication Proceedings re. Show Cause Notice (‘vide Commissioner of Customs, Calcutta and others Versus M.M. Exports and another (2010) 15 Supreme Court Cases. 647) which in the instant case has not been issued so far, The arrest of the petitioner is absolutely unconstitutional and illegal as no mandatory procedure as prescribed under Chapter XIl of Cr.P.C. re. Cognizable Offences or Non-Cognizable offences (Sections 154, 155, 156, 157, 458, 170, 172, 173 Cr.P.C.) has been followed, thereby, rendering the proceedings to be vitiated being violative of Article 21 of the Constitution of India. 3, That inter alia, following questions of law arise for a kind determination by this Hon'ble Court:- QUESTION OF LAW : Whether the amendments dated 28.5.2012 and 10.5.2013 classifying certain category of offences to be “Cognizable"and ~ “Non-bailable", are vague; ambiguous; leading to confusion and absurdity as well as in repugnancy with the other - ne TEES@ ¢ MM. [Fe provisions in the Customs Act, 1962 and, thus, violative of the constitutional protection guaranteed under Article 14, 21 and 22(1) of the Constitution of India and, therefore, illegal arbitrary, unconstitutional and as such, ultra vires? Whether the impugned amendments supra classifying certain category of offences to be cognizable and classifying certain category of offences to be non-bailable, based upon the quantum of alleged evasion and attempted evasion of duty/fraudulent availment of drawback is equally vague, ambiguous and in repugnaney with the other provisions under the Act, as the question of quantum of evasion of duty; attempted evasion of duty; market price of the goods could only be determined on the touchstone of preponderance of probabilities upon the culmination of the Adjudication Proceedings? Whether no legitimate arrest could have been made and/or prosecution can ever be launched unless the quantification of the alleged fraudulent availment of drawback is made by way of Adjudication Proceedings re. Show Cause Notice (‘vide Commissioner of Customs, Calcutta and others Versus M.M. Exports and another (2010) 15 Supreme Court Cases 647) Which in the instant case has not even been issued so far? Whether the alleged quantum of fraudulent availment of drawback which is the basis for the categorization of the offence as. “Cognizable” or "Non-Ballable’, cannot be assessed by clubbing of different, distinct and separate transactions relating to evasion etc. as each such independent snare HERES SSSIeo ¢ Vi Vil. Vill. (G4 transaction would constitute a separate and distinct offence by applying the fundamental provisions contained in Chapter XVI Part 'B’ of the Code of Criminal Procedure especially Section 219 thereof? Whether on account of inherent confusion, vagueness, ambiguity, absurdity and repugnancy with the other provisions of Customs Act which has been caused by the impugned amendments, it is imperative that such provisions are set aside as being ultra vires of the constitution or they are read down in a manner harmonious to the attainment of the Objectives of the Act while striking balance with the individual rights for fair procedure? Whether having regard to the statutory scheme is it necessary for an appropriate officer to file an FIR with respect to the Customs Act, offences that are ‘cognizable’ before commencing investigation, subsequent to the amendments introduced in 2012 and 2013 to the Customs Act (after judgment was rendered by the Hon'ble Supreme Court in Om Prakash's case (supra)? Whether in the case of non-cognizable offences permission is required from the magistrate under Section 155 Cr.P.C. to investigate or carry on any inquiry with respect to offences under the Customs Act? : Whether the officers exercising jurisdiction under the Customs Act, 1962 are “police officers” for the purposes of the Cr.P.C. and whether the mandatory provisions of Cr.P.C. relating to@ ¢ Ix. Xi, XiL. ie investigation regarding cognizable or non-cognizable are required to be followed? Whether Section 4(2) of Cr.P.C. will apply to investigation under the Act especially where there is no specific provision under the Customs Act for investigations qua cognizable or non-cognizable offences? Whether there is a grave violation of Article 20(1) of the Constitution of India as the subsequent amendment changing the nature of the offence from ‘Non-Cognizable” to “Cognizable" and from “Bailable" to "Non-Bailable” could not have been retrospectively applied in the case of the petitioner who is alleged to have committed the violations w.ef, 2007 onwards? Whether the arrest of the petitioner is in contravention to the provisions of Section 41 Cr.P.C. read with the ratio of law laid down by the Hon'ble Supreme Court in "Amesh Kumar Versus State of Bihar (2014) 8 SCC 273” which makes It mandatory that in any case where the offence is punishable with imprisonment for a term which may extend to 7 years, the police officer may not automatically arrest the accused and the Magistrate is not required to authorize the detention casually and mechanically? Whether the arrest of the petitioner is bad, illegal and wholly arbitrary in view of grave violation of ratio laid down by the Hon'ble Supreme Court in its Constitution Bench judgment in “Lalita Kumari Versus Government of U.P: and others (2014) 299 SCC 1” as also in view of “Joginder Kumar Versus of UP. (1994) 4 SCC 260"? That a brief chronology of the facts and circumstances Is apt to be highlighted et seriatim as under:- PROFILE OF THE PETITIONER 44 42 4.3 Petitioner is more than 67 years of age’ and suffering from several age related ailments that have rendered him virtually incapacitated to undertake many ordinary pursuits of life. Petitioner has led a life of dignity and honour. Though certain proceedings in the past have taken place relating to the petitioner's business, however, the petitioner has successfully been absolved/exonerated without any adversity. The petitioner has been in the Export Business since 1969 and has lately been into Export-Import of sports goods. The petitioner's concern is a Government recognized Export House since almost the last decade. As stated above, exports of Sports Goods like footballs, goalkeeper gloves, golf balls and winter sports gloves started since June 2007 from Mumbai. Exports ere made through two Proprietary Firms under the name of : i. R. Kishin & Co. (Sole Proprietorship Firm in the name of petitioner); ji, RP Trading Co. (Sole Proprietorship Firm in the name of petitioner's wife Smt. Rekha Loungani). Though the petitioner's wife has been named as sole proprietor of the aforesaid firm, however, it is a matter of factEO and record that she is merely a Proprietor on paper and has not even a remote connection with the conduct of the business of the firm, She does not participate in business activity and is merely a house wife and even no worthwhile document has been signed by her relating to any transactions whatsoever. UNLAWEUL, FALSE, ILLEGAL ARREST AND CONSEQUENTIAL WHOLLY NON-EST PROCEEDINGS BEING INITIATED AGAINST THE PETITIONER ETC, BY THE RESPONDENTS. 44 45 In an act of brazen highhandedness, Respondent No. 2 conducted a raid/search at the office, Warehouse, Residence of the petitioner at Mumbai. They continued with the same till midnight. In the wee hours of the night intervening 16/17.6.2015, the petitioner was taken into illegal confinement and further taken to the office of DRI, Mumbai, where he remained till morning. The petitioner was not allowed to sleep and subjected to grave distress. He was forced, compelled and threatened to make a confessional self-incriminating statement while, inter. alia, threatening him of implicating his wife and son. On account of barbaric treatment meted out to him, the petitioner's health condition severely deteriorated and was taken to the hospital run by Municipal Corporation of Greater Mumbai as he was complaining of hypertension and dizziness. Copy of the OPD Slip dated 17.6.2015 issued by the Municipal Corporation of Greater Mumbai Hospital is being annexed herewith as EXHIBIT46 47 48 4.9 2O| On 18.6.2045, the petitioner arrived at the office of DRI. Cochin at 1:00 P.M. and he was thereafter formally shown to be arrested at 8:00 P.M. Further, confessional/self- incriminating statement of the petitioner was recorded under threat, duress, coercion and force. At about 9:40 P.M. the petitioner was produced before the Jurisdictional Magistrate, who remanded him to judicial custody. Following documents are apt to be appended:- i. Copy of the Arrest Memo dated 18.6.2015 is being annexed herewith as EXHIBIT P-2; ii. Copy of the occurrence report dated 18.6.2015 submitted before the Court by Respondent No. 2 is being annexed herewith as EXHIBIT P-3. ili, Copy of the order sheet reflecting orders dated 18.6,.2015 and 226.2015 passed by the Leamed Magistrate is being annexed herewith as EXHIBIT P-4. A prayer: for bail was filed on behalf of the petitioner on 49.6:2015 which was adjourned from time to time. Copy of the bail application dated 19.6.2016 filed by the petitioner is being annexed herewith as EXHIBIT P-5. In the meanwhile on 24.6.2015, the custody of the petitioner was sought by DRI Mumbai on the basis of production warrant Which was rejected ‘by the Learned Court, however, the petitioner was remanded to custody of DRI Cochin. Petitioner was again subjected to threat, duress, coercion and under such compelling circumstances, his confessional/self- : E a ase sr ee SUSEat 4.10 44 44 8 or incriminating statement(s) were recorded. Copy of the order dated 24.6.2015 is being annexed herewith as EXHIBIT P-6. On 25.6.2015, petitioner was again remanded to judicial custody where he is lying incarcerated till today. The hearing on the bail application of the petitioner was adjourned to 266.2015 on the request of the Investigating Agency that they require some more time to investigate. Written objections to the petitioner bail application were also filed by Respondent No. 2 on 26,6.2015, copy of which is being annexed herewith as EXHIBIT P-7. On 27.6.2015, additional submissions re. objections to the petitioner's bail application were filed by Respondent No. 2 before the Court, copy of which is being annexed herewith as EXHIBIT P-8. On 2.7.2015, the petitioner filed detailed comprehensive Additional/Further Submissions in the application for bail filed on his behalf. In the said additional/further submissions, the petitioner categorically highlighted that: he was .not only arrested in a gross violation of the law of the land and in apparent overreach of the procedure established by law but the DRI officers also indulged in barbaric physical and mental torture as well as threats to the petitioner. He further vehemently denied to have made any. self-incriminating statement(s) and categorically termed such statements as being “concocted, false and are a result of threat, duress and coercion and have been doctored, tutored, created as well as cc entnmanenenenenrenht nse EESTI44 3 444 203 fabricated by the DRI". That apart, the petitioner also highlighted that his arrest was wholly illegal as Respondent No. 2 has not followed the mandatory procedure as prescribed under Chapter XI of the Cr.P.C. relating to either cognizable or non-cognizable offences in grave violation of the dictum of law laid down by the Supreme Court in “Om Prakash and another Vs. Union of India and another 2011 (14) SCC 1”. The petitioner also highlighted that since the statements recorded by the DRI, were the sole basis of his arrest without any independent corroborative material, such an arrest was nullity in the eyes of law. Petitioner also raised s sanguine issue that there was no basis for DRI to conclude that offences would be cognizable and nor-bailable as no competent/proper Adjudicating Authority had arrived at any finding that “the petitioner: or his firm had availed any specific amount of drawback in a fraudulent manner. Copy of the Further/Additional Submissions dated 2.7.2015 is being annexed herewith as EXHIBIT P-9. Pertinently, no reply or rebuttal was ever made by the DRI to the said detailed and categoric averments made by the petitioner in his aforestated further/additional submissions. Vide order dated 3.7.2015, the Learned Additional Chief Judicial Magistrate (E.0) Emakulam rejected the ball application of the petitioner on wholly untenable grounds. Apart from being legally unsustainable, the order proceeds on factually incorrect premises which has rendered the same to PSSA BE REE ' | | | |04 be wholly non-est. Copy of the order dated 3.7.2015 is being annexed herewith as EXHIBIT P-10. 4.15 A bare glance at the order dated 3.7.2015 supra passed by the Learned Court would show the following factual errors and omissions:- ili. In Para No. 8(1), it is observed that the petitioner was arrested on 16.6.2015, which is factually incorrect. Though the petitioner has been in illegally custody of the DRI since 16.6.2015 but he was shown to be arrested on 18.6.2015; It is ndt discernible as to on what basis the Learned Court observed in Para No. 8(2) that "Recovery of incriminating documents showing fraudulent transactions was done.” No document. recovered would not even prima facie show any fraudulent transaction; A strange observation has been made in Para No. 6(3) that the petitioner has been not denied the allegations re. “imported goods were re-packed from a godown at Panvel and transported to Cochin Port by road and again the same gods exported by accused to a firm in Dubai.” Right from the first available opportunity, the petitioner has been denied all accusations and has categorically stated that the case set up against him is false and even the statements recorded by the DRI are a clear abuse of power and authority by the officials concerned;vi. vii, viii. QOS In Para No. 8 (4), (8), (6), (7), the Court has relied upon the alleged self-ncriminating/confessional statement of the petitioner which was not supported by any corroborative material and in the absence of any specific denial by the DRI that the statement(s) were procuted under threat, duress and coercion, reliance placed upon such statements by the Court is definitely beyond legal yardsticks and parameters; Though the Court categorically observed that the DRI had claimed the alleged fraudulent availment of drawback as long back as in 2007, but it failed to consider that the offences under the Customs Act were made cognizable and non-bailable only by the subsequent amendments we. 28.5.2012 and 10.85.2013; Though the court was clearly apprised of the judgment of the Hon'ble Supreme Court rendered in Om Prakash's case supra, however, in a strange and shocking manner, court observed in Para No. 11 that “The above decision is not related to Customs Act’; The Court arrived at an absurd conclusion in Para No. 8 that “Occurrence Report” filed by DRI “can be treated as good as F.I.R.”. Such an interpretation of law defies any logic and does not appeal even to ordinary prudence; In Para No. 9, the Learned Court observed that “Accused has not denied specifically about the allegation of having availed crores from the government4.16 447 QO exchequer as stated above.” The aforesaid observations are also bereft of any substance. The petitioner's firm etc. had been conducting its business in a lawful manner and had availed drawback etc. in a legal and transparent manner. Therefore, the question of any foul play committed by the petitioner does not arise. On the contrary, the petitioner has denied each and every accusations. It Is a-matter of record that another application for bail preferred by the petitioer before the Leamed Magistrate has been rejected vide order dated July 14, 201. Copy of the order is being annexed herewith as EXHIBIT P-11. It is also a matter of record that the petitioner had preferred an application for bail before the Court of Sessions, however, the same is prejudice to the petitioner's right to approach this Hon'ble Court by way of the Instant Writ Petition seeking issuance of a writ in the nature of Habeas Corpus. PROVISIONAL RELEASE OF GOODS FOR EXPORT 4.48 It is a matter of record that the petitioner's firm Mis R. Kishin and Company had sought the permission re. provisional export for 14 consinments for export viz. 14 bills of 7 containers of foot balls which was seized by the DRI, Cochin. Vide communication bearing F.No. SIIB/Misc/22/2015 Cus dated 8.7.2018, the Deputy Commissioner of Customs (SIIB) has since permitted the provisional release of goods seized by! BOF the DRIwhile imposing the conditions relating to execution of a bond for the total FOB value and submission of bank guarantee to the tune of Rs.50 lacs. Copy of the communication dated 8.7.2015 is being annexed herewith as EXHIBIT P-12. ARLIER EXONERATION AND. CULMINATION OF EARLIER _EXONERATION _AND_CULMINAUISK ADJUDICATING PROCEEDINGS IN. PETITIONER'S FAVOUR 4.19 4.20 it is a matter of record that the petitioner had categorically highlighted in his bail application filed before the Learned Court that in the earlier cases to which reference was made by the DRI, he was either exonerated or absolved. He had also highlighted that in similarly situated cases, the drawback claim filed by his firm were allowed by the Appellate Tribunal. In this context, copy of the order dated 10.4.2015 passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, at Mumbai in Appeal setting aside the earlier order passed by the Commissioner of Customs (Appeals) Is being annexed herewith as EXHIBIT P-13. It is further a matter of record that similarly two respective orders dated 22.5.2015 have been passed by the Commissioner of Customs (Appeals) Cochin in similar circumstances clearly holding that the drawback claim by the petitioner concem was valid, genuine and well within the parameters of law. Copies of two respective orders dated 22.5.2015 are'being annexed herewith as EXHIBIT P-14 to P= 45 respectively.4.21 4.22 4.23 ass It is further apt to highlight that the petitioner earlier was in Gold Bullion business from 1980 onwards and he had his Gold License as well then. He was implicated in a case under the Gold Control Act, however, as per the petitioner's knowledge, he was exonerated and even the seized gold was returned. Petitioner was also falsely implicated in an alleged seizure of some 28 lacs worth of Foreign Currency at Mumbai Airport in which the petitioner was completely exonerated by the Tribunal in 2001. Copy of the order dated 2.9.2001 passed by the Customs Excise Gold Tribunal Mumbai clearly holding that petitioner was not concemed with foreign currency under seizure at all, is being annexed herewith as EXHIBIT P-16. It is a matter of record that during the hearing of his bail application on 2.7.2015, the petitioner handed over a chart containing the details of exports by M/s R.Kishin and Company as well as. by M/s RP Trading before the Court clearly highlighting that the drawback amount in single respective invoices/transactions was much below Rs.60 lacs and therefore, no occasion would arise for the DRI to club all these transactions together to make the entire. quantum exceed Rs.50 lacs and consequently term the alleged offence to be cognizable and non-bailable. Copy of the Chart showing the details of the exports by both the aforesaid firms and the amount of the Drawback received is being annexed herewith as EXHIBIT P-17.