2023 (7) TMI 76 - HC - Customs

Seeking enlargement on regular bail - bailable offence or not - import of gold the market price of which exceeds Rupees One Crore - offence under section 135 of the Customs Act 1962 - HELD THAT - The word person appearing in section 135 of the Act should not be given a narrow interpretation to defeat the legal provision. Thus if more persons than one act in concert with each other to evade or attempt to evade customs duty the combined value of the articles can be treated as the value of goods imported by each such person. The collection of such persons will have to be treated as falling within the term any person in section 135 of the Act. The quantity collectively carried by the petitioners can be treated as the quantity carried by each of them individually for ascertaining the value of goods imported. Considering the circumstances of the case it is held for the purpose of this bail application that petitioners were carrying gold individually worth more than Rs. 1.20 Crores and hence the offence alleged against them is a non-bailable offence. Be that as it may petitioners were arrested on 18.05.2023 and they have been in custody since then. The interrogation of the petitioners ought to have been completed by now. The second petitioner is a lady and is the mother of four young children. She claims to have been induced by her husband and his cousin to act as a carrier for remuneration. Both parents of those four children are under custody. The youngest of the four children is a four-year-old. Taking into reckoning the aforesaid circumstances and the period of detention already undergone from 18-05-2023 this Court is of the opinion that further detention of the second petitioner is not essential for the purpose of an effective investigation. Therefore the second petitioner is entitled to be released on bail. However as far as the first petitioner is considered though the investigation has proceeded significantly he is stated to be not cooperating. The first petitioner is the person who allegedly induced the second petitioner also to act as a carrier. The first accused is allegedly a cousin of the first petitioner. The first accused is stated to be involved in several smuggling activities. More information is yet to be obtained regarding the antecedents of the first accused. Non-cooperation of the first petitioner is prejudicing the investigation - the first petitioner is not entitled to be released on bail at this juncture. The bail application of the first petitioner is dismissed and that of the second petitioner is allowed on the conditions imposed - bail application is allowed in part.

Summary

Issues Involved:
1. Determination of whether the offence under Section 135 of the Customs Act is bailable.
2. Consideration of bail for the petitioners based on their individual circumstances and the nature of the offence.

Summary:

1. Determination of whether the offence under Section 135 of the Customs Act is bailable:

The petitioners, husband and wife, were indicted under Section 135 of the Customs Act, 1962, for importing gold exceeding Rupees One Crore. They sought bail under Section 439 of the Code of Criminal Procedure, 1973.

The Customs Department argued that offences under Section 135 are non-bailable if the market price of the illegally imported goods exceeds Rupees One Crore. The petitioners collectively imported gold worth more than Rupees One Crore, making the offence non-bailable. The Court examined the relevant statutory provisions, including Sections 104(6) and 135 of the Customs Act, which clarify that if the market price of the goods exceeds Rupees One Crore, the offence is non-bailable.

The Court noted that innovative methods are used by smugglers to evade the law, including using family members as carriers. It was emphasized that the cumulative value of the goods carried by individuals with a common intention can be considered collectively. The Court referred to the General Clauses Act, 1897, which defines 'person' to include a body of individuals, supporting a broader interpretation of the term 'any person' under Section 135 of the Customs Act.

2. Consideration of bail for the petitioners based on their individual circumstances and the nature of the offence:

The petitioners were arrested on 18.05.2023 and had been in custody since then. The second petitioner, a lady and mother of four young children, claimed she was induced by her husband and his cousin to act as a carrier for remuneration. Considering her circumstances and the period of detention, the Court found that further detention of the second petitioner was not essential for an effective investigation and granted her bail with conditions.

However, the first petitioner was not cooperating with the investigation, and his release could prejudice the ongoing investigation. Therefore, the Court denied bail to the first petitioner.

Conclusion:

The bail application of the first petitioner was dismissed, while the second petitioner was granted bail under specific conditions, including executing a bond, cooperating with the investigation, not intimidating witnesses, not committing similar offences, and not leaving Kerala without permission.