Bombay High Court

Bombay High Court

Nazeem vs Asstt. Collector Of Customs And ... on 30 July, 1991
Equivalent citations: 1992 CriLJ 390
Bench: M Saldanha
ORDER
1. At the outset, Mr. Arun Gupte, learned Counsel representing the Department, has challenged the
maintainability of this application by pointing out that under the Code of Criminal Procedure, 1973, there is
no specific power of review vested in a superior Court and that, consequently, this application itself is legally
still-born. Admittedly, the Customs Department had originally filed Criminal Application No. 1100 of 1990
against the order of the learned Additional Sessions Judge, Greater Bombay, dated 10-5-1990. The
Department had also filed a companion Criminal Application No. 1101 of 1990 against an order of the same
date wherein the order passed by the learned Additional Sessions Judge in favour of the husband had been
assailed. The husband's case i.e., the companion application, has been disposed of by me through judgment
and order dated 20-6-1991. Criminal Application No. 1100 of 1990 was heard by me on 3-5-1991 and a
detailed order came to be passed on that day, which was done after hearing the parties. A reference to that
order will show that Mr. Pathare appearing on behalf of the respondent-wife waived the prayer that her bail
amount should be reduced from Rs. 30,00,000/- and he confined his application to the relaxation of the
conditions imposed on the wife. Mr. Gupte at the time, in view of this position, was not required to press the
application on behalf of the Department regarding its opposition to the reduction of the bail amount because
the question did not arise. Mr. Gupte did make his submissions with regard to the conditions imposed on the
wife and he, therefore, submitted that once the matter was disposed of on merits through the order dated
3-5-1991, it was wholly impermissible for the party concerned to once again present another application
which is for a reconsideration of that order.
2. Mr. Gupte submitted that in law there is no provision for review of an order of this type and he elaborated
by pointing out that the inherent powers of the High Court under Section 482 of the Code of Criminal
Procedure are to be used in entirely different circumstances and cannot be equated or confused with the
powers of review. It was his submission that drawing on the principles enunciated in the Code of Civil
Procedure that there would be a complete bar of a issue estoppel against a litigant who desires to reagitate
substantially the matter under the cloak of an application for review/reconsideration. Mr. Pathare has
countered these submissions by pointing out that, in the first instance, this is a fresh application made by him,
therefore, the Court is entitled to consider the matter de novo, the only limitation being that unless he is able
to justify another application within a period of 2 months the Court may refuse to hear the matter. He has also
emphasised the fact that in my earlier order dated 3-5-1991, I have very clearly recorded the fact that Mr.
Pathare has waived his right to contest the issue regarding the bail amount. Mr. Pathare has explained that it
was the laat working day, that the matter could not have been argued in detail at that time, that his client
would have had to wait till the Court re-opened after summer vacation to obtain any orders and since the
matter had been pending for a full year since May, 1989, he was expressly instructed not to argue the bail
issue and only to canvass the question regarding the other terms. Mr. Pathare has also relied on the fact that a
judgment has been delivered by me on 28-6-1991 and that as a consequence of that judgment in the
companion matter, he would as of right, be entitled to pray for corresponding orders in this proceeding.
3. It is unnecessary for me to examine in detail the point regarding the Court's powers of review because I
have held in no uncertain terms in the earlier judgment and order dated 28-6-1991 that orders pertaining to the
grant of bail and incidental terms are essentially interim orders which are always capable of modification. The
power of review is one which will pertain to final orders and it is well-settled that even in criminal
proceedings the High Court can exercise its inherent powers of review under Section 482 of the Code of
Criminal Procedure in the situations that are now well-crystallised. In this case, the record shows that Mr.
Pathare did not argue the point regarding reduction of bail and he was justified in not having done so because
the Department desired to seriously contest that aspect of the matter for which reason the companion Criminal
Nazeem vs Asstt. Collector Of Customs And ... on 30 July, 1991
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Application No. 1101 of 1990 had been adjourned till after the vacation on that very day.
4. Coming to the merits of the case, the complaint against the husband and wife is a common one and the
order dated 10-5-1990 which is assailed by the Customs Department in this case proceeds on the same footing
as the order passed in the husband's case, which has already been decided by this Court recently. I have
already dealt in detail with the aspects concerning the correctness or otherwise of the powers exercised by the
learned Additional Sessions Judge in my earlier judgment and order dated 28-6-1991 and the same reasoning
will hold good in the present case. For the reasons recorded in that judgment, the order of the learned
Additional Sessions Judge dated 10-5-1990 will have to be set aside and Criminal Application No. 1100 of
1990 filed by the Customs Department will have to be allowed. However, as I have done in the previous
proceedings, it is necessary to modify the earlier orders passed by the different Courts along certain lines
which shall proceed to do.
5. I have pointed out to Mr. Gupte that as a consequence of my having entertained the present application
which, in substance, would have the effect of reviewing the order dated 3-5-1991 passed in Criminal
Application No. 1100 of 1991 that the Department shall be entitled to make its submissions with regard to all
aspects of the matter in both the applications. I have accordingly heard the submissions advanced by Mr.
Gupte and by Mr. Pathare, both on points of law as also with regard to the merits of the respective
applications. Mr. Pathare has assailed the approach on the part of the Customs Department who have sought
to proceed against the present applicant-wife by virtue of her relationship with Abdul Gani, who is the main
accused in the Customs proceedings. Mr. Pathare vehemently submitted that there never existed, and even
to-day does not exist, any case against his client and that, in fact, the Court should pass an order discharging
her. He made a serious grievance of the fact that merely because of her marriage to the original accused, the
wife has been prosecuted and that she is being continuously harassed right through these proceedings. He
went to the extent of alleging non-application of mind on the part of the Customs Authorities and produced
before me a copy of the complaint on the basis of which he submitted that merely because his client is a
partner and a director with the husband in various businesses, both in India and abroad, and merely because
she is a joint owner of various properties with him that she has been indiscriminately dragged into the serious
prosecutions on charges of gold smuggling. Undoubtedly, Mr. Pathare is doing his duty by his clients, but I do
not find any justification for the charges against the Customs Department or its Counsel. If anybody, it is his
clients who have been in the wrong by not making themselves available for long periods of time and thereby
inviting strong orders from the Courts. The Department is fully justified in having followed up this case with
tenacity and deserves to be complimented in the circumstances.
6. Mr. Gupta has been vehement in his defence of the Customs Authorities and he assured this Court that he
will justify the grounds on which the Department has proceed against the wife by showing that she was a
participant in the commission of various offences. Mr. Gupta's principal point was that the present applicant
had moved the High Court for quashing of the proceedings against her and that a learned single Judge of this
Court had dismissed the petition. Mr. Gupte is right in his submission that the issue in question cannot be
re-agitated as long as that order stands.
7. At this stage, Mr. Pathare submitted that since this case is being argued threadbare and since for these
purposes at least this Court is considering the material against his client that the issue of discharge should also
be gone into. I have very clearly pointed out to Mr. Pathare that the scope of this application is very limited
and that this is not an application for review of the order passed by Kolse Patil, J., (as he then was). If ground
exists for a review or if the applicant has fresh, further or new material, the applicant is entitled to request this
Court to consider that question, but it will have to be done separately and not in the course of the present
application.
8. Alternatively, Mr. Pathare has requested for expedition of the trial as his client is a lady and a permanent
resident of Calicut. The complaint has been filed quite some time back and the learned Trial Magistrate should
expedite the hearing as the Department is equally anxious to have the case decided.
Nazeem vs Asstt. Collector Of Customs And ... on 30 July, 1991
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9. On a consideration of the case on merits, the point of time at which the present orders are being passed and
all other relevant circumstances, I have in my order dated 28-6-1991 directed that the applicant's husband be
released on bail on his furnishing one or more sureties in the sum of Rs. 20,00,000/-. I have clearly mentioned
in that order that one of the special factors taken into consideration was that property worth several crores of
rupees has been provided as security and, therefore, it is unnecessary to insist on a further surety for a very
high amount.
10. In relation to that order, it is necessary to take into account certain circumstances, namely, that as far as
the present applicant is concerned, admittedly, she is not the main accused. Though I have refused to examine
the question as to whether she is entitled to a discharge, on a perusal of the material placed before me, it does
appear that her implication is essentially by association. That she is the joint owner of the property worth
crores of rupees in respect of which title-deeds have already been deposited and in respect of which she has
been directed to file a joint undertaking before the criminal Court is a matter of record. This Court (Guttal, J.)
had taken into consideration at an earlier point of time the fact that where husband and wife are both accused
persons the aggregate of the bail orders in both the cases will have to be taken into consideration by the Court
because ultimately it is to this extent that they will have to provide the aggregate surety. Having regard to all
these factors, to my mind, one or more sureties in the sum of Rs. 5,00,000/- would be adequate as far as the
present applicant is concerned.
11. Mr. Pathare, learned Counsel appearing on behalf of the applicant, has placed strong reliance on the
celebrated judgment of the Supreme Court in the case of Hussainara Khatoon v. State of Bihar, , wherein the
Supreme Court has deprecated the
antiquated practice relating to pretrial release which is ordered only on the basis of bail with sureties and the
procedure of adopting a schedule that is akin to the nature of the charge. The Court had strongly advocated
that it is very necessary that all relevant circumstances be taken into account and, in other words, that each
case be individually appraised. Mr. Gupta pointed out that the decision in question related to an extreme case,
namely, the pathetic plight of desperately poor persons in Bihar who remained in jail for almost uncertain
periods of time merely because they were too poor to be able to afford sureties. He commented that the
present Accused is virtually at the other end of the economic scale and that such a decision should not even be
referred to in the present proceedings. The salutary principles laid down in that decision are precisely the ones
that have been borne in mind by me while evaluating the question as to how much would be a fair quantum
while deciding the present proceedings. It is on the basis of these tenets that I have held that at this point of
time surety in the sum of Rs. 5,00,000/- would be adequate.
12. As regards the other contentions in the light of the directions issued in the companion case, the present
applicant shall also be permitted to leave Bombay whenever she so desires provided her learned advocate
informs the Customs Department of her whereabouts. The special condition of exemption from personal
attendance before the trial Court shall also apply as far as the present applicant is concerned because it has
been pointed out on her behalf that she is a family person and normally resides at Calicut along with her
children, though she undertakes to remain present before the Bombay Court whenever necessary. The
directions that are now being issued will, therefore, be in supersession of the earlier orders passed by this
Court and by the learned Chief Matropolitan Magistrate. I am not making any separate order with regard to
the quantum for the cash bail amount because Mr. Pathare has stated that the applicant will furnish a requisite
surety and apply for the refund of the amount deposited by her in the trial Court.
13. Accordingly, Criminal Application No. 1100 of 1990 and Miscellaneous Application No. 1245 of 1991
are both allowed. In modification of the earlier orders passed, it is directed as follows :-
a) That the judgment and order of the learned Additional Sessions Judge, Greater Bombay, dated 10-5-1990 is
set aside.
Nazeem vs Asstt. Collector Of Customs And ... on 30 July, 1991
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b) The applicant shall be released on bail on her furnishing one or more sureties in the aggregate sum of Rs.
5,00,000/- to the satisfaction of the Trial Court. On the acceptance of the surety/sureties and completion of the
fresh bail formalities, the Trial Court shall refund to the applicant the amount of Rs. 20,00,000/- that has been
deposited by the applicant with the Trial Court.
c) The applicant shall be permitted to leave Bombay during the pendency of the proceedings before the Trial
Court and to proceed to Calicut or, if necessary, to any part of India provided her learned advocate informs the
Customs Authorities of her whereabouts. The applicant's learned advocate Miss Kasle shall also ensure that
the applicant remains present before the Court whenever required on being given 7 day's notice by the
Customs Department.
d) The applicant shall be exempted from personal attendance before the Trial Court provided she is
represented on each date of hearing by her learned advocate and on the condition that the applicant will
remain present before the Court as and when directed to do so by the learned Trial Magistrate.
e) The applicant shall not leave India without the permission of this Court and the applicant shall also deposit
forthwith with the Customs Authorities any other passports that she may be in possession of in her present
name or in any other name.
f) The applicant shall execute the joint undertaking in respect of the properties as directed in Criminal
Application No. 1101 of 1990 before she is released on bail pursuant to this order.
g) The trial to be expedited.
14. Mr. Gupte, Ld. Counsel for the Department prays for stay of operation of this order for a period of one
month. Mr. Pathare has strongly objected principally on the ground that this case has been pending since over
one year, i.e., since 10-5-1990. I do not consider any valid reason having been adduced for stay of the order
and hence the application is rejected.
15. Order accordingly.
Nazeem vs Asstt. Collector Of Customs And ... on 30 July, 1991
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