John Songate v. The Union of India

PageoNo.#o1/5 GAHC010049852023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:ooBailoAppln./661/2023 JOHNoSONGATE S/OoJABETHoSONGATEo R/OoLAKHIPUR o DIGERoCOMPUND oCACHERoDISTRICTo oPRESENToADDRESS-oPOWERoHOUSE o4THoAPBN oKAHILIPARA oP.O.oKAHILIPARA oP.S.oDISPUR o DIST.oKAMRUP(M)oASSAM oVERSUS THEoUNIONoOFoINDIA DEPARTMENToOFoCUSTOMS oREP.oBYoITSoLD.oSTANDINGoCOUNSEL oASSAM o------------ oAdvocateoforo:oMRoSoBORTHAKUR Advocateoforo:oSC oCUSTOMSoappearingoforoTHEoUNIONoOFoINDIA ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo BEFORE HONOURABLEoMR.oJUSTICEoAJIToBORTHAKUR ORDERo Page No.# 2/5

17.03.2023

Heard Mr. S Borthakur, learned counsel appearing for the accused petitioner as well as Mr. SC Keyal, learned Standing Counsel, Customs Department.

¶2By this petition under Section 439 Cr.P.C., the accused-petitioner, namely John Songate has prayed for grant of bail in connection with Customs Case No. 18/CL/IMP/AS/GAU/2022-23 arrested under Section 104 of the Customs Act, 1962 for an offence under Sections 135(1)(b), 135(1)(i)(A)/C of the Customs Act.

¶3The case diary, as called for, is placed before the Court.

¶4Mr. S Borthakur, learned counsel appearing for the accused petitioner, submits that the accused is a Police Constable attached to the 5th Battalion of Assam Police and presently on deputation. Mr. Borthakur further submits that he had taken one apartment on rent at Odalbakra, Guwahati and the seized packages were stored there in his absence by co-accused James Colney, a carpenter known to him from earlier and as such, he had no knowledge about the contents therein. Mr. Borthakur also submits that the Customs department is yet to confirm scientifically as to whether the seized substance was Ambergris. Therefore, Mr. Borthakur submits that considering the length of detention, he may be directed to be released on bail subject to suitable conditions.

¶5Per contra, Mr. S.C. Keyal, learned Standing Counsel, Customs, submits that the accused and three others acquired and possessed 11.536 kg of suspected Ambergris valued at Rs.25,95,60,000/- for commercial purpose evading customs duty. Mr. Keyal further submits that the ICAR, Cochin has returned the samples of seized Ambergris to the sender informing that the said Page No.# 3/5 Institute does not have the required Certified Reference Material (CRM) to test and conclusively establish the authenticity of the Ambergris vide the copy of letter produced. Mr. Keyal, therefore, submits that at the present stage of investigation, the bail prayer of the accused petitioner may not be considered as he has not completed statutory period of detention of 60 days.

¶6The complaint, in brief, is that on 05.02.2023, a specific information was received by the Anti-Smuggling Unit, Guwahati Customs Division about storage/concealment of 'Ambergris', a byproduct of sperm whales, within a flat located at Jyoti Path, Odalbakra, Lalganesh, Guwahati-34. Acting on the same, the officers of the said department conducted a search operation in the flat and recovered some solid waxy, irregularly shaped and sized substance having dull grey or blackish colour with a pungent smell from two cartons and a school bag weighing around 11.536 kgs. in total. Assuming the said substance to be whale vomit the Customs officials seized the same.

¶7It is noticed that the accused petitioner has been in judicial custody since

07.02.2023, that is, for 38 days.

¶8A perusal of the case diary, it is revealed that prima facie the accused petitioner imported suspected Ambergris, which is described as a solid, waxy, flammable substance of irregular shape and sizes appeared to have a dull gray or blackish colour with pungent smell and concealed the same in their apartment at Guwahati, by way of evasion of customs duty. It may be noted here that possession of Ambergris is illegal under Schedule I of the Wildlife (Protection) Act, 1972 and the Sperm Whale is protected under Schedule II of the said Act. The offence under Sections 135(1)(b)/135(1)(i)(A)/C of the Customs Act provides with imprisonment for a term which may extend to seven years and with fine and as such, the prescribed period of detention for the Page No.# 4/5 aforesaid offence is 60 days under Section 167(2)(ii) Cr.P.C.

¶9The accused was arrested after notice of appearance was served on him on the spot.

¶10The weight of the suspected Ambergris is 11.536 kgs, the approximate vaule of which in India, stated to be Rs.25,95,60,000/-. The exact identity of the seized substance is yet to be ascertained scientifically as the sample thereof is returned by the ICAR for want of testing facility vide the letter, dated

08.03.2023. The investigation is presently on at its almost final stage. The accused petitioner appears to be a permanent resident under Lakhipur P.S., Dist Cachar, Assam.

¶11Therefore, this Court is of the opinion that in view of the above reasons, more particularly, the length of detention, no further continuation of detention of the accused in the interest of the ongoing investigation is called for.

¶12Accordingly, it is provided that the accused petitioner shall be released on bail of Rs.1,00,000/-(Rupees One Lakh) with two sureties of like amount to the satisfaction of learned Chief Judicial Magistrate, Kamrup (Metro), Guwahati subject to the following conditions-

(i) That the accused petitioner shall not leave the jurisdiction of the Court of learned Chief Judicial Magistrate, Kamrup (Metro), Guwahati without written permission of the said Court till investigation is completed;

(ii) That the accused petitioner shall cooperate with the Investigating Officer as and when required;

(iii) That the accused petitioner shall not directly or indirectly make any inducement, threat or promise to any person Page No.# 5/5 acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Police Officer or the Court;

(iv) That the accused petitioner shall refrain from committing any offences similar to the one of which he is accused or suspected of commission; and

(v) That the accused petitioner shall produce copy of departmental identity card issued by the Assam Police Department before the learned Chief Judicial Magistrate, Kamrup (Metro), Guwahati for verification of his identity. Breach of any of the above conditions shall invite cancellation of the bail in accordance with law. Return the case diary. The bail application stands disposed of.

JUDGE Comparing Assistant