M.S. Jamdar, J.
1. The petitioner has been arrested on 6-9-1985 on the allegation that he was actively associated in smuggling of contraband goods, found in two trucks bearing No. MMK 3512 and MTG 2276, which were intercepted by the officers of Manor Police Station on Bombay-Ahmedabad Highway in the early hours of 20th March, 1985. He was produced before the Chief Metropolitan Magistrate by the Inspector of Customs, Marine & Preventive Cell, Bombay on the same day and was ordered to be remanded to jail custody till 9-9-1985.
2. On 9th September, 1985, petitioner's prayer for bail was opposed by the aforesaid officer mainly on the ground that several other persons including prime conspirators concerned in the case were yet to be traced out and that if the petitioner was granted bail, the investigation will be hampered. He also stated that the petitioner was not available before 6-9-1985 and that he had remained absent on 7th May, 1985 in other adjudication proceedings pending against him in spite of specific direction by Collector of Customs of remain present personally. The learned Chief Metropolitan Magistrate perused the statements produced before him and came to the conclusion that there was material to implicate the petitioner. He also observed that the petitioner had not surrendered to the customs authorities. He, therefore, rejected the prayer for bail and remanded the petitioner to judicial custody till 20th September, 1985. Before that the petitioner filed the present petition which was posted for orders on 20th September, 1985 to enable the petitioner to again move the Chief Metropolitan Magistrate for bail. Accordingly, the petitioner again moved the Chief Metropolitan Magistrate for bail on 20th September, 1985, but the prayer was opposed on the ground that the investigation in the case was still in progress and that two more conspirators were still at large. The learned Chief Metropolitan Magistrate again rejected the prayer for bail and remanded the petitioner to jail custody till 30th September, 1985 observing :
'The case needs investigation and the department has to gather material against this accused about his involvement. His customs statements are exculpatory and he is involved by other accused persons.'
3. Shri A.R. Gupte, learned Counsel for respondent No. 1 opposed petitioner's prayer for bail mainly on two grounds, viz., that the petitioner was absconding not only since the date of the incident in question, but also from an earlier incident, which took place on 15th August, 1984 and had not even attended the adjudication proceedings in respect of seizure of contraband goods on that day and that investigation of the present case is still in progress. According to him, even though the Collector of Customs, who was holding adjudication proceedings in respect of the earlier seizure of contraband goods, had directed the petitioner to remain personally present before him for the said adjudication proceedings, the petitioner chose to remain absent and could not be apprehended in connection with the offence in question.
4. It is true that when the residence of the petitioner was searched on 18-8-1984, in connection with the seizure made on 15th August, 1984, the petitioner was not present and that when his wife's statement was recorded on 16th November, 1984, she was unable to give his where abouts. But, it appears that on 18th October, 1984 the petitioner had addressed a letter to the Assistant Collector of Customs, explaining the circumstances in which he was unable to attend the Customs office. According to him gang of one Sharif was after him and hence he was concealing himself. He also stated that he would attend the Customs office as soon as he felt safe, or if guarantee of his safety was given by the Customs Authorities. Admittedly, no protection was afforded to the petitioner by the Customs Authorities. Mr. Gupte also could not say whether any reply was given to this letter. It is also pertinent to note that though the adjudication proceedings were instituted against the petitioner long before the present seizure, no hearing could take place till the arrest of the petitioner in this case because the Collector of Customs, who was holding the adjudication proceedings, was not available for one reason or the other. Admittedly, on 7-5-1985, the Collector of Customs had directed the Advocate appearing for the petitioner in the adjudication proceedings to keep the petitioner present on the next date which was 25th May, 1985. As the Collector of Customs was out of Bombay on 25th May, 1985, the hearing was adjourned without fixing any further date. According to the petitioner, he had attended the office of the Collector of Customs on 25th May, 1985 along with his Advocate. This claim of the petitioner is supported by the Customs and Excise Consultant Shri J.J. Wagh, who appeared for the petitioner in the adjudication proceedings and who himself is a retired Assistant Director of the Directorate of Revenue Intelligence. Shri Wagh has affirmed that the petitioner did file a preliminary reply in the adjudication proceedings under his signature in the month of March 1985, that the petitioner was in Bombay all along and was regularly instructing him and Senior Advocate Shri Parekh in connection with the said adjudication proceedings and that as per the directions of the Collector, the petitioner did remain present, but in view of the absence of the Collector, the matter was adjourned. The first respondent who has filed his affidavit in rejoinder could neither admit nor deny the affirmation that the petitioner had accompanied Shri Wagh to the Collector's office on 25th April, 1985. There is, therefore, no substance in the contention that because he was absconding, the petitioner was not making himself available in the adjudication proceedings in respect of the seizure dated 15th August, 1984.
5. The seizure, out of which the present proceedings arise, was effected on 28th March, 1985. Admittedly, no summonses were issued to the petitioner in respect of the seizure in the present case. There is nothing to show that the petitioner was even made aware that he was wanted by the customs authorities in connection with the seizure made on 20th March, 1985 on the Bombay-Ahmedabad Highway. Admittedly, no efforts were made to send the summons by registered post, nor was any summons pasted to the door of his house, nor was such service attempted, nor any such summons was handed over to the inmates of his house. According to Shri Gupte, a complete secrecy was observed in order to see that the petitioner is not made aware that he was wanted by the customs authorities in connection with the seizure in question. This, according to Shri Gupte was necessary to ensure that the petitioner did not hamper the investigation. This reason may be valid. It may also be a wise policy but the fact remains that the customs authorities never intimated to the petitioner that he was wanted in connection with the present seizure and that he should make himself available for the purpose of investigation. It cannot, therefore, be said that the petitioner was absconding and was deliberately making himself unavailable to the customs authorities even though he was required by them for the purpose of investigation.
6. Equally unsustainable is the contention that the investigation is not yet complete and petitioner's custody is necessary for that purpose. Obviously, the investigation commenced on 20th March, 1985 and interrogation of persons alleged to be connected with the smuggling of the contraband goods commenced on the very next day. Whatever role the petitioner is alleged to have played in smuggling of the contraband goods in question became known to the Customs Officers, investigating the matter some months before the petitioner was arrested. It is also significant to note that the adjudication proceedings in respect of the seizure in question have been commenced already by the Collector of Customs (Preventive), Marine & Preventive Division, Bombay, as can be seen from copy of adjudication notice dated 9th September, 1985, served on the petitioner. In the annexure to this notice, the Additional Collector has explained in detail as to how the petitioner and others were concerned in the offence in question. Such an exhaustive narration of the case could not have been made unless the investigation was practically complete. The recitals in the annexure also falsify the contention that some other conspirators are yet to be apprehended. There is nothing in this annexure which is accompanied by a list of documents relied upon by the department to support the contention. There is, therefore, no valid reason for refusing bail to the petitioner. It must also be remembered that even though six months have elapsed since the seizure, no complaint is filed as yet. The petitioner is in custody of the customs authorities from 6th September, 1985 and this period was enough for the Customs authorities to complete the investigation against the petitioner.
7. In the result, the petitioner is allowed. However, in view of the vastness of the smuggling activity, it would be appropriate to direct the petitioner to furnish heavy security and to put him to stringent conditions.
8. The petitioner is released on bail on his furnishing security for Rs. 2,00,000/- with one or more securities in like amount on the following conditions :
(i) that the petitioner shall personally remain present before the Customs authorities for the adjudication proceedings in respect of the present seizure as well as the seizure dated 15th August, 1984 and shall make himself available as and when required by the customs authorities investigating the present case ;
(ii) that he shall not leave Bombay without permission of the Customs authorities; and
(iii) that he shall surrender his passport, if any, to the Customs authorities.
Liberty to the petitioner to deposit cash amount by way of security.