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2023 (3) TMI 1293 - HC - CustomsSmuggling - gold of foreign origin - prohibited goods - statements of accused recorded under Sections 108 Customs Act - whether value of individually recovered gold should be considered or value of combined recovered gold should be considered? - Sections 104 and 135 of Customs Act. HELD THAT:- In Section 135 Customs Act, term "any person" has been used and it denotes to an individual. The term "any person" cannot be interpreted as a group of persons. From the plain reading of Section 135 Customs Act it appears that it refers to an individual. Delhi High Court also in the case of AIR CUSTOMS VERSUS BEGAIM AKYNOVA [2022 (1) TMI 137 - DELHI HIGH COURT] observed that punishment which is to be imposed on the accused should correspond to the gold that has solely been recovered from his possession and each person should be made answerable for the recovery of gold found in his possession - for the purpose of Section 135 Customs Act value of individually recovered gold should be considered and not the value of combined recovered gold. Whether alleged recovered gold was prohibited goods as if it was prohibited goods then by virtue of Section 104 (6) and 135 Customs Act, the alleged offence committed by the applicants would be non-bailable and maximum punishment provided for such offence is seven years? - HELD THAT:- From the perusal of Section 2(33) Customs Act it appears that every good is prohibited if its import or export is subject to an prohibition under the Customs Act or any other law for the time being in force. Recently three Judges Bench of the Apex Court in the case of COMMISSIONER OF CUSTOMS VERSUS M/S. ATUL AUTOMATIONS PVT. LTD., AND PARAG DOMESTIC APPLIANCES [2019 (1) TMI 1324 - SUPREME COURT] with regard to multi function device observed that MFDs were not prohibited but restricted items for import and further observed that there will exist fundamental distinction between what is prohibited and what is restricted. Therefore, from the case of Atul Automation, it appears that on the basis of restriction on import a good cannot be said to be prohibited good in terms of Section 2 (33) Customs Act. In case as hand, according to the prosecution, gold was recovered from the possession of the applicants which was liable for confiscation under Section 111 of the Customs Act and as per Section 125 Customs Act the authority concerned may levy fine in lieu of confiscation and, therefore, it appears from the provisions of Section 11 of Customs Act gold is not prohibited goods but it is restricted goods and as per Section 125 Customs Act in lieu of confiscation fine may be levied. Therefore, as import of gold is not prohibited but restricted subject to prescribed payment of duty, thus alleged recovered gold is not prohibited goods under Section 2(33) Customs Act but it is restricted goods. The applicants committed offence under the provisions of Customs Act for which maximum punishment is three years and as their case does not fall under Section 104 (6) Customs Act, therefore, by virtue of Section 104(7) Customs Act the alleged offence committed by applicants is bailable one, therefore, they are entitled to be released on bail. Let the applicants-Mohd. Tufail and Mohammad Alam be released on bail in the case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the conditions imposed - application allowed.
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