Neutral Citation No.- 2025:AHC-LKO:13963 Reserved Court No. - 15 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 793 of 2025 Applicant :- Farmaan Opposite Party :- Union Of India Thru. Director Of Revenue Intelligence Zonal Office Lko. Counsel for Applicant :- Pradeep Kumar Rai,Lallan Rai,Prakarsh Pandey,Praveen Kumar Shukla Counsel for Opposite Party :- Digvijay Nath Dubey Hon'ble Shree Prakash Singh,J. Supplementary affidavit filed today by the counsel for the applicant is taken on record. Heard learned counsel for the applicant, Shri Digvijay Nath Dubey, learned counsel appearing for D.R.I. and perused the record. The instant bail application has been filed on behalf of the applicant with the prayer to release him on bail during the trial in D.R.I. Case No. 21 of 2024, under Section 135 of Customs Act, 1962 (hereinafter referred to as 'the Act, 1962') Police Station- D.R.I., Zonal Unit, Lucknow, District- Lucknow. As per the prosecution story, on the basis of suspicion, the accused-applicant was detained by CISF at Ayodhya airport on 04.12.2024 and the DRI team was informed who reached the Ayodhya airport at 09.45 pm and two witnesses from Lucknow were accompanied by them. The accused Farman accepted before the DRI officials and the witnesses that he has smuggled the prohibited gold and prima facie, it was informed by the DRI officials to the witnesses that the weight of the said gold is about 1721.100 gms along with the packet and on the request of the accused- applicant, the proceedings of seizure were done at the regional office of DRI, Vishal Khand, Gomti Nagar, Lucknow and he was arrested on 05.12.2024. Contention of learned counsel for the applicant is that the applicant is innocent and has falsely been implicated in the instant matter due to ulterior motive. He submits that the applicant was arrested at the Ayodhya airport and the search proceeding is admittedly conducted by the DRI officials at Lucknow and further, the witnesses were taken by the DRI officials from Lucknow and they are not the witnesses of inhabitant of the local area, but those are the pocket witnesses. He next submits that the provision of Section 102(4) of the Act, 1962 provides that the search proceedings shall be attended by two or more witnesses, who shall be called upon by the officials concerned. Referring the aforesaid, he submits that the search proceedings conducted by the DRI officials are in contravention of the aforesaid provisions and further, it is clear that the search is not done in the presence of two independent witnesses, which transpires from the perusal of the recovery memo prepared at the time of search. He also submits that so far as the statement of the accused- applicant recorded under Section 108 of the Act, 1962 is concerned, that is not a free and independent statement, but the same has been taken under coercion and, therefore, without corroborating with any other evidence, that is not admissible. He also added that there is no substantial evidence against the applicant so as to connect him with the offence. He further added that the investigation has been completed and the complaint case has been instituted and, therefore, there seems to be no possibility that the applicant would tamper the evidence or would threaten the witnesses. It is also submitted that the punishment is less than 7 years and there is no possibility of conclusion of trial in near future. Further, the applicant has no previous criminal history and he is languishing in jail since 05.12.2024. Concluding his arguments, he submits that for doing effective pairvi of the complaint case, it is the best course that the applicant should be released on bail so that he could take all defence. He further submits that the applicant undertakes that in case, he is granted bail, he will not misuse the liberty of the same and would cooperate in the trial proceedings. Per contra, learned counsel appearing for DRI has opposed the contentions aforesaid and submits that on the information received by the CISF, the accused-applicant was detained at Ayodhya airport and thereafter, the CISF intimated to the DRI officials who reached the Ayodhya airport and recovered the prohibited gold bars of 1721.100 gms in presence of the witnesses and further, in presence of two witnesses, the search proceeding was also conducted. He further submits that the gold bars recovered from the possession of the applicant are of prohibited quality and, as such, the chain of offence is complete as the gold bars recovered have been smuggled and the persons, who were involved in smuggling the aforesaid, have also corroborated the story of the prosecution. He next added that if the applicant is released on bail, he may tamper the evidences. He argued that the nature of offence is serious and in fact, this kind of offences vitally impacts the society, may not be directly but indirectly and, thus, the applicant is not entitled for any relief. Having heard learned counsels for the parties and after perusal of material placed on record, it transpires that the applicant was arrested at Ayodhya airport and he was detained firstly by the CISF and thereafter, on the intimation to the DRI officials, the team reached at Ayodhya airport and detained the accused-applicant and recovered gold bars from his possession in the presence of two witnesses. When this Court examines the matter in it's fact and law, it transpires that the provision of Section 102(4) of the Act, 1962 provides that the search shall be done in presence of two witnesses and it is the officer of customs who shall call upon two or more persons to attend and witnessed the search and in the presence of such persons, the search will be conducted and such witnesses shall sign over the search proceedings. In the case in hand, it is an admitted fact that the witnesses were taken by the DRI officials from Lucknow, but they were not taken inside the Ayodhya airport. Further, the search proceeding is conducted at Lucknow which is about 125 kms away from Ayodhya and that cannot be termed as the nearest place where the search proceeding was conducted. It is also noticeable that the ground of arrest has been provided in a very casual manner while mentioning all those in the arrest memo. So far as the confessional statement of the accused-applicant, under Section 108 of the Act, 1962 is concerned, it is emphasized by the applicant that the same has been taken under coercion and, as such, that is disputed and without the other corroborating evidence, the same cannot be relied upon. Further, the investigation proceedings have been completed and the complaint case has been instituted and there is no history of any conduct of the applicant that he has ever absconded from any proceeding of law. This Court also considered that if the applicant would remain in jail, he would not be able to properly do the pairvi of the complaint case. Further, the applicant has no previous criminal history and he is languishing in jail since 05.12.2024 coupled with the fact that he has undertaken that if he is granted bail, he will not misuse the liberty of the same and would cooperate in the trial proceedings. Considering the submissions of learned counsel of both sides, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and, without expressing any view on the merits of the case, I find it to be a fit case of bail. Let the applicant- Farmaan involved in the aforementioned crime be released on bail, on his furnishing a personal bond and two sureties each in the like amount, to the satisfaction of the court concerned, with the following conditions:- (1) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, or otherwise during the investigation or trial; (2) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. He shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code; (3) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C.; and (4) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, the trial court shall initiate proceedings against him, in accordance with law under Section 174-A of the Indian Penal Code. The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison. It is clarified that the observations made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the merits of the case. Order Date :- 7.3.2025 Shravan Digitally signed by :- SHRAVAN KUMAR High Court of Judicature at Allahabad, Lucknow Bench