Jo Na Thang v. The Union of India

ORDER Date : 17.03.2023

Heard Mr. PN Choudhury, learned counsel appearing for the accused petitioner as well as Mr. SC Keyal, learned Standing Counsel, Customs Department. Page No.# 2/5

¶2By this petition under Section 439 Cr.P.C., the accused-petitioner, namely Jo Na Thang has prayed for grant of bail in connection with Customs Case No. 18/CL/IMP/AS/ GAU/2022-23 arrested under 7 (1) (c) of the Customs Act, 1962 also r/w provisions of Wildlife Protection Act.

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

¶4Mr. PN Choudhury, learned counsel appearing for the accused petitioner, submits that the accused has been languishing in judicial custody since 07.02.2023 and he is an uneducated youth working as a casual labour in the rural areas of Mizoram state with a family consisting of old aged ailing mother (aged about 73 years). According to Mr. Choudhury, the accused came down to Guwahati accompanied by James Colney and Pu Vanlalropuria-co-accused persons and stayed in room No.14, Lodge Kunjalata Bibah Bhawan, wherefrom the Custom Officials took him to custody without having recovered any contraband and showing any cause, but obtained his signatures on some documents without reading over to him. Mr. Choudhury submits that the Inventory of Goods under Section 110 of Customs Act was prepared at the Customs Office instead of at the Room No.14. Mr. Choudhury has raised several procedural lapses committed by the custom officials pertaining to search and alleged seizure of contraband prescribed in the Customs Act, 1962 and as such, strenuously submits that the accused may be directed to be released on bail.

¶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 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 Page No.# 3/5 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.

¶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 value 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 this almost final stage. The accused petitioner appears to be a permanent resident of Aizawl, Mizoram under Aizawl Municipal Council.

¶11Therefore, this Court is of the opinion that in view of the above reasons, more Page No.# 4/5 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 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;

(v) That out of the two sureties, one must be a government servant subject to verification of the relevant documents, if deemed necessary and after such verification, the learned Court below shall return the original documents retaining legible scanned copy thereof on record for future reference; and

(vi) That the accused/petitioner and his sureties shall produce their Voter Identity Card/ Passport/Permanent Residential Certificate, whatever is available at the time of submission of the bail bonds to be certified by the local Council Head for satisfaction of the learned Court below regarding their identity and address and then return the same retaining legible photocopy thereof on record for future reference. Breach of any of the above conditions shall invite cancellation of the bail in accordance with law. Page No.# 5/5 Return the case diary. The bail application stands disposed of.

JUDGE Comparing Assistant

Page No.# 1/5 GAHC010058892023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1035/2023 JO NA THANG S/O PHUN THAWN, R/O H. NO. V-12 P.S. AND P.O. BWNGKAWN AIZAWL, MIZORAM PIN-796014 VERSUS THE UNION OF INDIA THROUGH ANTI SMUGGLING UNIT, GUWAHATI, CUSTOM DIVISION GUWAHATI. Advocate for the Petitioner : MR. P N CHOUDHURY Advocate for the Respondent : SC, CUSTOMS BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR