James Colney v. The Union of India

ORDER

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 Page No.# 2/5 James Colney 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 has been in judicial custody for 39 days, despite being absolutely innocent. Mr. Borthakur further submits that the accused was arrested on mere suspicion of having illegally possessed Ambergris along with other three co-accused persons. According to Mr. Borthakur, learned counsel, a distant relative namely Jo Na Thang kept some sealed cartons in their apartment for safe keeping saying that the same contained medicinal herbs, which he was supposed to deliver to some unknown person and as such, the accused allowed keeping the same supposing those cartons contained medicinal herbs, on good faith. Mr. Borthakur also submits that the Customs Department has not caused any scientific examination of the seized substance resulting in his unnecessary detention in judicial custody for a long period. Mr. Borthakur, therefore, submits that the accused petitioner may be directed to be enlarged on bail subject to any condition.

¶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 Institute does not have the required Certified Reference Material (CRM) to test and conclusively establish the authenticity of the Ambergris vide the copy of Page No.# 3/5 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 aforesaid offence is 60 days under Section 167(2)(ii) Cr.P.C. Page No.# 4/5

¶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 Mahur P.S., North Cachar Hills, District Dima Hasao, 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 acquainted with the facts of the case so as to dissuade him from disclosing Page No.# 5/5 such facts to the Police Officer or the Court; and

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

Page No.# 1/5 GAHC010049852023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./856/2023 JAMES COLNEY C/O CILEI MAHUR R/O NORTH CACHER, SILCHAR, ASSAM-78883 VERSUS THE UNION OF INDIA DEPARTMENT OF CUSTOMS, REP BY ITS LD. STANDING COUNSEL, ASSAM Advocate for the Petitioner : MR S BORTHAKUR Advocate for the Respondent : SC, CUSTOMS BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR