Order below BA 128/2023
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RA No.170/2023
MHCC020022932023
IN THE COURT OF SPECIAL JUDGE (C.B.I.) FOR GREATER MUMBAI
BAIL APPLICATION NO.128 OF 2023
(CNR NO.MHCC02­002293­2023)
IN
CBI REMAND APPLICATION NO.170 OF 2023
IN
RC NO.0262023A0006/CBI/ACB/MUMBAI
Kumar Alok S/o Shri Gopal Prasad Srivastava,
Currently lodged at Arthur Road Prison,
Aged: 35 yrs, Occ.: Supdt. Of Customs at CSMI,
Residing at 2A/14, Kalpataru Gardens, Ashok Nagar,
Kandivali, Mumbai­400101.
.. Applicant/Accused
Versus
Central Bureau of Investigation, ACB, Mumbai,
8th floor, Plot No.C35,
‘G’ Block, Bandra Kurla Complex,
Bandar(E), Mumbai­400051.
.. Respondent/Complainant
Appearance:
Learned Counsel Mr. Niranjan Mundargi a/w learned Adv. Mr. Aditya
Talpade a/w learned Adv. Mr. Pratik Karande for the applicant.
Learned P.P. Mr. C.J. Nandode for the respondent/CBI/Complainant.
CORAM : H.H.THE SPECIAL JUDGE (C.B.I.)
SHRI D.P. SHINGADE
(Court Room No.49)
DATE : 18th February, 2023
­:ORAL ORDER:­
The applicant seeks regular bail under Section 439 of the Code of
Criminal Procedure, 1973 (in short “CrPC”) in connection with RC
Order below BA 128/2023
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RA No.170/2023
NO.0262023A0006/CBI/ACB/ MUMBAI under Section 7 of the
Prevention of Corruption Act, 1988 (as amended in 2018) (in short “PC
Act”).
2.

Heard learned Counsel Mr. Niranjan Mundargi i/b learned Adv.

Mr. Aditya Talpade a/w learned Adv. Mr. Pratik Karande for the
applicant/accused and learned P.P. Mr. C.J. Nandode for the
CBI/respondent. Perused the application, reply (Exh.2) filed by the CBI
and material on record.
3.

The applicant was arrested at 23.50 hours on 11.02.2023, since
then, he is in custody. On 10.02.2023, the respondent/CBI registered
case vide RC No. RC NO.0262023A0006/CBI/ACB/MUMBAI under
Section 7 of the PC Act against the applicant based on the complaint
dated 23.11.2022 made by Mr. Zubin Mheta regarding demand and
acceptance of bribe of Rs.35000/­ by the applicant.
4.

It is alleged in the complaint that;
(a)
Mr. Zubin Mehta and his friend Mr. Dhaval Chedda had
reached Chatrapathi Shivaji Maharaj International Airport
(in short “CSMIA”), Mumbai from Dubai on 19.11.2022 by
flight No.G8­6 of GO­First. The flight landed at CSMIA,
Mumbai at around 0400 hours on 19.11.2022.

(b)
The complainant had purchased a Gold Chain in Dubai
worth Rs.1.50 Lakhs (as per Indian currency) for personal
use. When the complainant and his friend Shri Dhaval
Mehta arrived at the CSMIA, Mumbai, he was detained by
the applicant, Supdt., Customs, Mumbai at Terminal 2 of
the Mumbai Airport, where the applicant threatened the
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RA No.170/2023
complainant by saying that the Gold Chain brought by him
was not a permissible item to import and that the
complainant would have to pay Customs Duty worth
Rs.55000/­ alongwith fine for bringing the said Gold Chain
from Dubai to India.
(c)
The applicant/public servant offered to the complainant
that if the complainant would pay a bribe of Rs.35000/­ in
cash to him, he will not make any case against the
complainant and will release him alongwith his Gold Chain.

(d)
Further,
the
accused/public
servant
pressurized
the
complainant that the bribe amount of Rs.35000/­ would be
increased in every two minutes by Rs.5000/­, if it was not
paid immediately.
(e)
Under duress and fear of coercive action by the applicant,
the complainant agreed to pay Rs.30000/­ to the
applicant/accused. However, as he was not carrying cash
with him, the accused gave the complainant two mobile
numbers viz.8652556997 and 9820975175 and directed
him to pay Rs.17000/­ and Rs.13000/­ through Google Pay
(in short “Gpay”) on the respective mobile numbers. As
demanded by the applicant, the complainant transferred
the amounts on two mobile numbers from the account of
his company namely M/s. Instaflex Packaging through
Gpay, linked to the mobile number of the complainant.
Thereafter, complainant was allowed to leave Terminal­2
by applicant without paying any Customs Duty.

5.

The applicant was arrested and brought before this court on
12.02.2023 seeking his police custody remand of 10 days. However,
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RA No.170/2023
upon hearing both the sides, this court declined to remand the
applicant/accused in police custody and he was remanded to Judicial
Custody till 23.02.2023.
6.

The learned advocate appearing for the applicant advanced
following major submissions:
(a)
The applicant is innocent and has not committed any
offence alleged against him.

(b)
The complaint dated 23.11.2022 was received by the office
of the CBI on 24.11.2022. The alleged incident occurred on
19.11.2022. There is almost 5 days delay in lodging the
complaint. Pursuant to which an FIR dated 10.02.2023 was
registered by the CBI against the applicant. It clearly
established that there is a delay of almost about 2.5 months
for registration of the FIR and there is no cogent
explanation to justify the delay in the Remand Application.

(c)
The applicant was not caught red handed. The alleged
amounts are received on the mobile numbers of Mr. Sanjay
Joshi and Mr. Prashant Ambede.

(d)
The applicant is nowhere concerned with the said persons.
The respondent has failed to mention as to why Mr. Sanjay
Joshi and Mr. Prashant Ambede were left Scot free and the
present applicant had to succumb to the clutches of arrest
by the respondent/CBI. The CBI has failed to provide any
reasonable explanation with respect to this.

(e)
Para No.7 of the Remand Application reveals that the
applicant was merely arrested based on the alleged evasive
answers, which itself is not a reasonable reason to arrest a
particular person without establishing a proper link in the
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RA No.170/2023
alleged offence and without giving any reasonable
opportunity to the applicant to appear before the
respondent/CBI.
(f)
The respondent/CBI failed to give notice to the applicant
under Section 41­A of the CrPC as the alleged offence
under Section 7 of the PC Act is punishable upto
imprisonment for 7 years. This court has rightly recorded in
the Remand Order that it was expected from the
Investigating Officer to serve notice to the applicant under
Section 41­A of the CrPC.

(g)
The respondent has flouted the guidelines issued by the
Hon’ble Supreme Court time and again in various
precedents, wherein the Hon’ble Supreme Court in the case
of Arnesh Kumar v. State of Bihar, (2014) 9 SCC 273,
Satinder Kumar Antil v. CBI, (2022) 10 SCC 51 and
recently the Hon’ble Bombay High Court in Chanda Kochar
v. CBI in Criminal Writ Petition (St) No.22494/ 22495 of
2022 with Interim Application (St) No.54/57 of 2023
clearly mentioned that the non­compliance of Section 41­A
of the CrPC tentamounts to very stricture of law.

(h)
The compliance of notice under Section 41­A of the CrPC,
is requirement of law, which the respondent has clearly
violated in the present case. Therefore, the applicant shall
be released on bail.

(i)
Para No.8 of the Remand Application suggests that the
respondent has seized the necessary documents as per the
requisite necessity for investigation purposes, which clearly
shows that tampering of any such material is out of
question
by
the
applicant
as
the
entire
alleged
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RA No.170/2023
incriminating material is now in custody of the respondent.
7.

On the other hand, the learned P.P. vehemently opposed the
application. He made the following major submissions:
(a)
The accused is involved in the alleged crime. The
allegations in the complaint has been verified by the CBI.
After verifying the complaint, the FIR has been registered
on 24.11.2022.

(b)
The police has powers under Section 41 of the CrPC to
arrest the applicant, as he has committed the cognizable
offence.

(c)
As the accused did not co­operate the IO, he was rightly
arrested and produced before this court seeking his police
custody remand.

(d)
The statements of Mr. Sanjay Joshi and Mr. Prashant
Ambede clearly show that they have confirmed that they
have received amounts of Rs.13000/­ and Rs.17000/­ at
the instance of the applicant.

(e)
The investigation is in progress and is not completed.
Therefore, if the applicant/accused is released on bail, he
will tamper with the evidence and threaten the witnesses.

8.

Upon considering rival submissions of both the sides, it is clear
that the complaint dated 23.11.2022 was received by the CBI on
24.11.2022 about the alleged incident occurred on 19.11.2022.
However, it is pertinent to note that the FIR was registered on
10.02.2023 i.e. after 2 months and 17 days. Neither the FIR nor the
Remand Application shows that why there was such inordinate delay in
registration of the FIR dated 10.02.2022. It is sought to be contended
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RA No.170/2023
by the CBI that some time was consumed for verification of the
complaint such as to complete other formalities. But, there is no
material on that point available in the Case Diary. The offence under
Section 7 of the PC Act is punishable with imprisonment upto 7 years.
9.

Admittedly, the accused was not caught red handed by accepting
the bribe amount. Since, the FIR was registered on 10.02.2023, after
the delay of more than 2 months and the accused was arrested and
brought before this court for seeking his police custody, the court
recorded observation in the Remand Order that it was expected from
the Investigating Officer to serve notice to the accused under Section
41­A of the CrPC. Till seeking his police custody, there was no material
on record to show that Mr. Sanjay Joshi and Mr. Prashant Ambede had
confirmed that they had received the amounts of Rs.13000/­ and
Rs.17000/­, on their accounts by Gpay, on the instructions of the
applicant. However, it appears that the supplementary statement of Mr.
Sanjay Joshi dated 14.02.2023 shows that he had received Rs.13000/­
from the complainant at the instance of the applicant. So also, the
statement of Mr. Prashant Ambede dated 12.02.2023 shows that on
19.11.2022, he has received amount of Rs.17000/­ from the
complainant at the instance of the applicant.
10.

As stated above, at the time of the remand, there was no material
to suggest that the bribe amount of Rs.13000/­ and Rs.17000/­ was
confirmed by Mr. Sanjay Joshi and Mr. Prashant Ambede. The court
observed in the Remand Order that the IO was expected to serve notice
to the applicant/accused under Section 41­A of the CrPC. The Hon’ble
Apex Court in Satinder Kumar Antil v. CBI (supra) has held that the
“courts will have to satisfy themselves on the due compliance of this
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RA No.170/2023
provision. Any non­compliance would entitle the accused to a grant of
bail.”
11.

In view of the above circumstances, this court is of the opinion
that the applicant is in custody for six days. The offence under Section 7
of the PC Act is punishable with imprisonment upto for 7 years. No
fruitful purpose will be served by keeping the applicant behind the bars.
The grounds raised opposing the application by the CBI that the
applicant may tamper with material evidence likely to be collected
during investigation, can be taken care of by imposing certain
conditions.
12.

In view of the above, this court is inclined to enlarge the
applicant on regular bail on certain terms and conditions. Hence, the
following order:
: ORDER :
1. Bail Application No.128 of 2023 is hereby allowed on
following conditions.
(i)
Applicant Kumar Alok S/o Shri Gopal Prasad Srivastava
shall be released on regular bail on executing P.R. bond of
Rs.50,000/­ with one or more sureties in the like amount in
connection
with
crime
number
NO.0262023A0006/CBI/ACB/MUMBAI
i.e.

for the
RC
offence
punishable under Section 7 of the PC Act.
(ii)
The applicant neither personally or through anyone make
any attempt to influence witnesses nor tamper with the
evidence.

(iii)
The applicant shall not commit an offence similar to the
offence of which he is accused or suspected.

Order below BA 128/2023
(iv)
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RA No.170/2023
The applicant shall not leave India without prior permission
of the Court.

(v)
The applicant shall attend the CBI office, Mumbai on every
Monday between 11 a.m. to 2 p.m. to mark his presence for
one month.

(vi)
The applicant shall join the investigation as and when
called upon to do so before the authorities of CBI.

(vii) The applicant shall attend all the dates in the Court unless
prevented by any reasonable cause.
(viii) Once the trial begins, the applicant shall not in any
manner, try to delay the trial.

Digitally
signed by
DADASO
PANDURANG
DADASO
PANDURANG SHINGADE
SHINGADE
Date:
2023.02.20
17:17:54
+0530
(D.P. Shingade)
Special Judge (CBI),
City Civil And Sessions Court,
Gr. Mumbai
Date : 18.02.2023
Date of Dictation
: 18.02.2023.
Date of Transcription
: 18.02.2023 & 20.02.2023.
Date of signature
: 20.02.2023.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE
TIME
STENOGRAPHER NAME
20.02.2023
At about
05: 17 p.m.

Tushar P. Kuwar
Name of the Judge
(With Court Room No.)

H.H.J. SHRI. D.P. Shingade
(Court Room No.49)
Date of pronouncement of Order
18.02.2023
Order signed by P.O. on
20.02.2023
Order uploaded on
20.02.2023