(Prayer: Criminal Original Petition filed under Section 483 of BNSS, praying to enlarge the petitioner on bail in connection with R.R.No.11 of 2026 on the file of the respondent for the Customs Act, 1962, on such terms and condition as this Hon’ble Court may deem fit and proper in the circumstances of the case, and thus render justice.)
1. The petitioner, who was arrested and remanded to judicial custody on 19.06.2026 for the alleged offence under Section 132 and 135 of the Customs Act, 1962 in R.R. No.11 of 2026 on the file of the respondent police, seeks bail.
2. The learned counsel for the petitioner would submit that the petitioner has been remanded to judicial custody on 19.06.2026 and that he has been charged under Section 132 and 135 of Customs Act, 1962. It is the contention of the learned counsel for the petitioner that the petitioner is the proprietor of M/s.Kesari Distributors and he is having ‘Import Export Code’ [‘IEC’ for the sake of convenience]. The learned counsel would further submit that in the usual course of the Custom prevails in the Export and Import business, he gave his IEC to one Rajiv Bohra on a commission basis, and that he has also done similar arrangements even in the past. He would further submit that in the course of such arrangement, it comes to light that the said Rajiv Bohra has imported certain goods by misdeclarating the same. According to the petitioner, therefore, even if there is any criminality, it should only be against the said Rajiv Bohra and not against the holder of IEC and he has nothing to do with the alleged smuggling of goods by misdeclaration. He would also rely upon the judgment of the Kerala High Court in The Proprietor Vs. The Commissioner of Customs and another reported in 2011 SCC OnLine Ker 1927 to substantiate his contention that the practice of permitting the Importer to use the IEC is not an offence. The learned counsel would also submit that though the petitioner signed the bill in his capacity as the Proprietor, his liability is confined only to the declared and disclosed goods mentioned therein. Therefore, for the alleged misdeclaration done by the other accused, this petitioner cannot be made vicariously liable.
3. Per contra, the said contention was stoutly objected by the learned Special Public Prosecutor and would contend that by virtue of the Foreign Trade Policy Circular No.06/2013, the IEC is a non-transferable statutory authorization. Therefore, whatever Import and if there is any misdeclaration, the person, who posses the Import Export license are solely responsible. It is also the submissions of the learned Special Public Prosecutor that this petitioner had deleted call records, whatapp chats and images from his mobile and that the investigation is at nascent stage. He would further submit that they are in the process of identifying the financial trials and the overseas network. Hence, would contend that if the petitioner is released on bail at this prime situation, the same would seriously affect the prosecution. He would also contend that this being a deep-rooted smuggling of prohibited items and a conspiracy of duty evasion in massive scale, the same which requires further probing. Hence, prayed to dismiss this petition.
4. I have given my anxious consideration to either side submissions.
5. The entire foundational fact of the petitioner’s arguments rest upon the defence that IEC can be used by third parties on commission basis. Since because IEC can be used by some other person, that does not mean that whatever crime the importer commits, the IEC holder can be vicariously held liable for criminal liability. In support of the said contention, the learned counsel for the petitioner relied upon the judgment of Kerala High Court in The Commissioner of Customs’s case [cited supra].
6. In the above reported case, the issue is, whether IEC can be used for the purpose of importing goods for a 3rd party?. While answering the same, the Division Bench of Kerala High Court held that, the Importer cannot consume all the materials imported, therefore, by using IEC, he may import goods on behalf of the third parties. But, the instant case is different. Here, by using the petitioner’s IEC with the connivance of this petitioner, by way of a misdeclaration the co accused imported certain prohibited articles, contrary to his declaration in the Bill of Entry. Here, the prosecution case is on the higher threshold of not only importing a different article, other than that, they declared, but those articles are banned for import and it was also not in accordance with the applicable Rules and Regulations of India. In the case in hand, the petitioner has imported goods comprising 16,50,000 Pocket Lighters in a Completely Knocked Down condition, which is prohibited for Import. The value of the above product is Rs.3,30,00,000/-. The other goods is Assorted Silver Jewelry of 4,68,282 Grams worth about Rs.12,08,16,756/- along with imitation jewelry and other imported toys without mandatory BIS certification or compliance.
7. At this juncture, it is relevant to refer the circular of the Government of India, Ministry of Commerce and Industry in Policy Circular No.6(RE-2013)/2009-2014 dated 16.09.2013, wherein it has clearly mentioned that any use of IEC other than IEC holder is a violation of Section 7 of The Foreign Trade (Regulation) Act, 1992. Therefore, since September 2013, the so called custom and practice projected by the petitioner was found to be illegal. Therefore, the very contention of the petitioner that mere permission granted to the third party to use IEC will not make him liable for any criminal Act of the Importer, is futile argument.
8. According to the prosecution, the investigation is at nascent stage and they are tracing the financial trials, overseas network and identifying the hawala routes. Though the personal liberty of the petitioner has to be viewed with utmost concern, in the above backdrop and defence of the respondent, the national interest would prevail over the petitioner’s private interest. Further, this Court also took cognizance of the ramification of the offence and the large scale of evasion of custom duty.
9. From the above narration, it is amply clear that if the petitioner is enlarged on bail, there is a possibility of tampering with the witnesses. Hence, this Court is of the view that it is not an appropriate stage to consider this bail application.
10. Accordingly, this Criminal Original Petition is dismissed.
11. After pronouncing the above order, the petitioner seeks liberty to move subsequent bail application before the Principal Sessions Court and such liberty is granted to the petitioner.
