Kunal Kishor v. Economic Offence Unit
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.19633 of 2024 Arising Out of PS. Case No.-20 Year-2023 Thana- D.R.I District- Patna ====================================================== Kunal Kishor, aged about 42 years, Son of Sri Raj Kishore Sinha, Resident of Lane No. 1, Near Jail Press, Shastri Nagar, Police Station - Rampur, District - Gaya.
... ... Petitioner
Versus
1. Economic Offence Unit.
2. Union of India through D.R.I., Regional Unit, Patna. ... ... Opposite Parties ====================================================== Appearance :
For the Petitioner :
Mr. Ramakant Sharma, Sr. Advocate, Mr. Rakesh Kumar Sharma, Advocate For the D.R.I.
:
Mr. Anshuman Singh, Sr. S.C. D.R.I. and Mr.
Ranjay Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE CHANDRA PRAKASH SINGH ORAL ORDER 28-08-2024 Heard learned senior counsel for the petitioner as well as learned senior counsel for the D.R.I.
2. The petitioner has preferred this application for grant of regular bail in connection with Economic offence Case No. 85(O) of 2023 (D.R.I Patna Unit Case No. 20/2023-24) dated 13.12.2023 registered for the offences punishable under Sections 135(1)(a), 135(1)(b) of the Customs Act.
3. As per the prosecution case, the informant being the Intelligence Officer, DRI, Regional Unit, Patna, gave a written petition to the Special Court, Economic Offence, Patna, in the light of specific intelligence input received regarding a syndicate involved in smuggling of foreign origin gold from
2/7 Yangoon (Myanmar) to Gaya (Bihar) through Gaya International Airport with active involvement of Marshals deputed in the flights and flight handling executives working at Gaya International Airport. It is further alleged that the kingpin of the said syndicate was Md. Salim operating from Yangoon while Arun Kumar and Pappu Kumar are Senior Customer Service Executive, Air India Airport Service Limited (AIASL), helped the syndicate in collecting foreign origin gold from Marshals in the flight and deliver it safely to Kunal Kishore (petitioner) who was the former employee of (AIASL) for further delivery to Md. Hassan who used to deliver it to customers as per direction of Md. Salim. It is also alleged that consignment of gold was planned to be smuggled on 13.12.
2023 via two Myanmar International Flights UB-7001 and 8M-601 coming to Gaya from Yangoon. Thereafter, a search was made by a constituted team at the residence of Kunal Kishore (petitioner), recipient of foreign origin gold and in that course, US $ 1,24,000/- was recovered which was given to him by Md. Hassan as commission from the sale proceeds of smuggled foreign gold. Thereafter, a raid was conducted at the residence of Md. Hassan and Rs. 8,40,000/- was recovered which was collected by him after delivery of smuggled foreign origin gold.
3/7 One team of DRI Officers identified two staffs of AIASL, Gaya International Airport, namely, Arun Kumar and Pappu Kumar and Marshal Mr. Ko Ko Latt of Myanmar International Flight No. 8M-601 and Marshal Mr. Htin Linn Phyo of Flight No. UB7001. Thus, three packets containing 9 foreign origin gold bar were recovered from the possession of Arun Kumar, three packets containing 9 foreign origin gold bar were recovered from the possession of Marshal, Mr. KO KO Latt which were to be handed over to Pappu Kumar and 3 packets containing 7 foreign origin gold bar were recovered from the possession of Marshal Mr. HTIN LINN PHYO. Thus, total weight of all the recovered 25 gold bars were 12004 grams worth Rs. 7,38,24,600/- as per the valuation and weight of the gold bars done by the goldsmith. The accused persons could not give any satisfactorily reply regarding recovery of the above mentioned articles.
4. Learned senior counsel for the petitioner has submitted that the petitioner is innocent and has falsely been implicated in this case. It is further submitted that the genuineness of prosecution story is under serious doubt so far as the case of the petitioner is concerned, the impugned smuggled gold of foreign origin was never sold so no question of recovery
4/7 of its sale proceeds arises. No gold of foreign origin has been recovered from the possession of the petitioner, hence, no case under the Customs Act is made out against the petitioner. The search and seizure at the residence of the petitioner was made in complete violation of law, rules and procedures. It is further submitted that the signature of the petitioner was forcibly obtained on several papers by the officers of the D.R.I. and the petitioner had no knowledge of the contents of those documents. The petitioner was coerced to write on few papers as per dictation of the D.R.I. officials. Thus, none of the alleged statements and signatures of the petitioner is voluntary. The persons conducting search at the house of the petitioner never tendered their personal search before entering the house of the petitioner.
The witnesses of the alleged seizure/panchanama are planted witnesses of the prosecution itself as no independent witness from neighbourhood of the petitioner's residence or vicinity has been made a witness. The petitioner is an exemployee of Air India Airport Services Limited and he was well known for his honesty and commitment. There has been adverse finding against the petitioner during his entire service career.
5/7 Bhojpuri language. It is further submitted that the other coaccused person, Mohammad Hassan @ Md. Hassan has already been granted bail by a Bench of this Court vide Cr. Misc. No. 18604 of 2024 under order dated 20.08.2024. The petitioner has clean antecedent as stated in paragraph no. 3 of the bail petition. The petitioner is in custody since 15.12.2023.
5. Learned counsel for the D.R.I has vehemently opposed the bail petition of the petitioner and submitted that the petitioner was a member of the syndicate and was involved in smuggling of foreign origin gold from Yangoon, Myanmar to Gaya, Bihar by the Flight Marshalls and further carriage/delivery of the said smuggled gold outside the Airport to the petitioner by the Airline's staff. It is further submitted that on search, a sum of Rs. 1,24,000/- US Dollars were recovered from the house of the petitioner. It is further submitted that the petitioner in his confessional statement dated 14.12.2023 has admitted his involvement in the said smuggling syndicate and has also admitted about the recovered US Dollars as the commission out of the sale proceeds of the smuggled foreign origin gold. The petitioner in his statement recorded under Section 108 of the Customs Act, 1962, admitted that he was aware of the smuggling of foreign origin gold from Gaya
6/7 International Airport and his involvement in that entire syndicate was that Md. Salim used to inform him about the quantity of gold coming by the Myanmar International Flight and he used to convey the said information to Arun Kumar and Pappu Kumar and both persons used to collect the foreign origin gold from the Marshals in the flight as per the directions of Md. Salim and the petitioner used to receive the foreign origin gold from Arun Kumar and deliver the same to Md. Hassan. He used to get a sum total of 1300 USD per kg of foreign origin gold smuggled out of Gaya International Airport and the said recovered 1,24,000 US Dollars was his commission out of the sale proceeds of the smuggled foreign origin gold and he received the said foreign currency from Md.
Hussan for the delivery of foreign origin gold smuggled out of the Gaya Airport over the last one month. Learned counsel for the D.R.I. in his counter affidavit has stated that the Detention Order No. PD12001/08/2024-COFEPOSA), dated 06.03.2024, has been issued to the petitioner by the Joint Secretary COFEPOSA, New Delhi and the said order was duly served to him on 11.03.2024.
6. Considering the aforesaid facts and circumstances of the case as well as the period of custody of the petitioner, the petitioner above named, is directed to be enlarged on bail on
7/7 furnishing bail-bond of Rs. 20,000/- (Rupees Twenty Thousand) with two sureties of the like amount each to the satisfaction of learned Special Judge, Economic Offences, Patna in connection with Economic offence Case No. 85(O) of 2023 (D.R.I Patna Unit Case No. 20/2023- 24) with further:- (I) The petitioner is directed to remain physically present before the learned court below on each and every date, failing which on two consecutive dates without reasonable cause, the bail bonds of the petitioner is liable to be cancelled.
7. The application stands allowed.
(Chandra Prakash Singh, J) U.K./- U T