'Father Cannot Be Presumed To Be Aware Of Son's Surreptitious Acts' : Bombay HC Grants Relief In Habeas Petition [Read Order]

Division bench of Justice Indrajit Mahanty and Justice NB Suryawanshi heard a writ of habeas corpus filed by Dhakad's son Mayank alleging that his father's arrest was in violation of Article 22(1) of the Constitution of India and S. 104 of the Customs Act, 1962.

Case Background

According to the DRI, a syndicate has been smuggling gold into India since the year 2016; that more than 200 kgs of foreign origin gold valued at Rs.60 Crores have been smuggled by Nisar Aliyar into India in one container cleared on 26.03.2019 concealing them inside imported metal scrap, part of which has been seized by DRI; that the syndicate had smuggled more than 3000 kgs. of gold from July, 2018 to March, 2019 alone which would be valued at more than Rs.1000 Crores.

DRI arrested both Nisar and Happy Dhakad (Arvindkumar's son) for their involvement in the said smuggling. Happy Dhakad looked after all the activities of Ekdant Commercial Pvt Ltd.

Shreeni Pillai, an officer of the Directorate of Revenue Intelligence, Mumbai alleged in her arrest warrant dated August 27, 2019 that Arvindkumar aided and abetted the said smuggling. The accused was questioned on August 27 and Pillai cited Dhakad's "non-cooperative and disruptive attitude" during the questioning as one of the reasons for his arrest.

It was stated in the memorandum of arrest –

"Evidences gathered by this office indicate that being a Director of Ekdant Commercial Pvt. Ltd. You were aware of the activities of the company especially dealing and handling of smuggled gold. During your statement recorded on 27.8.2019 you have adopted a non-cooperative and disruptive attitude giving evasive answers."

Submssions

Advocate Sujay Kantawala appeared on behalf of the petitioner and submitted that the memorandum of arrest memorandum was not in consonance with the provisions of S. 104 of the Customs Act, 1962 which mandates that the Customs Officer was required to record his "reasons to believe", that the accused has committed an offence punishable under S. 132 or 133 or 135 or 135A or 136 and such "reasons to believe" and "grounds of arrest" have to be informed to the arrested person at the earliest.

Kantawala also challenged the order of Additional Chief Metropolitan Magistrate, Esplanade Court dated August 28 wherein the accused was remanded to magisterial custody till September 9, 2019 as sought by the prosecuting agency, on the ground that such remand order was passed in a mechanical manner.

Seeking interim relief for his client, Kantawala relied upon the following judgements of the Supreme Court, Madhu Limiye & Ors. AIR 1969 SC 1014 and Ram Narayan Singh Vs. State of Delhi, AIR 1953 SC 277.

APP Aruna S Pai submitted that practice of DRI in such case is to seek judicial remand and thereafter seek liberty from the Court to obtain presence of the accused for recording statement under S. 108 of the Customs Act. She asserted that during the course of hearing one associate of the accused Arvindkumar has been arrested and there is likelihood of further investigation in the matter.

Order

Court noted that both Nisar and Happy Dhakad had been released by the Advisory board of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act.

The bench observed-

"It is important to note here that in para 13 quoted hereinabove, the prosecution have stated as follows:

"Being a Director of the company and father of the accused Happy Dakhad, it is highly unlikely that he was not unaware of the surreptitious activities …."

The aforesaid description made by the prosecution does indicate that the prosecution has acted on a presumption that the detenue Arvindkumar Jain Dhakad was aware of the surreptitious activities of his son Happy Dhakad. Prima-facie it does not meet the standard, as prescribed under S. 140 of the Customs Act, 1962."

Directing Arvindkumar's release, Court asked him to appear before DRI authorities as and when required. Court also rejected Aruna Pai's request for stay on the interim order.