TMI Blog2015 (8) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... payment – Each of the petitioner should be treated to have attempted evasion of duty not only on present consignment of gold, but also for evasion of duty on import of gold on previous several occasions – As market price of gold imported exceeds one crore of rupees and value of customs duty attempted to be evaded exceeds fifty lakh of rupees, thus offence committed was non-bailable offence and were not entitled to be released on bail – Decided against Applicant. - S.B. Criminal Misc. Bail Application Nos. 11193 & 13466 of 2014 - - - Dated:- 5-1-2015 - Prashant Kumar Agarwal, J. Shri Rajeev Surana and Rajesh Goswami, for the Petitioner. Shri Tej Prakash Sharma and Sarvesh Jain, Special P.P., for the Respondent. ORDER Although, the aforesaid two applications for grant of bail have arisen from different cases registered under the provisions of the Customs Act, 1962 (hereinafter to be referred as the Act ) and they were heard separately, but as both these applications involves a common question of law, therefore, they are being disposed of by this common order. Copy of the order may be placed in each of the files. 2. S.B. Criminal Misc. Bail Application No. 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner placed them on the partition wall of the cabin of the washroom. On search being made one boarding pass and one Indian Customs Declaration Form filled by the petitioner were also recovered from his possession. According to the Customs authorities the current market value of the gold bars so recovered from the possession of the petitioner was assessed to be ₹ 81 lacs only. It is the further case of the prosecution that when the statement of the petitioner was recorded under Section 108 of the Act, it was admitted by him that on previous 11 occasions on different dates and at different Airports of India he smuggled gold total weight 9400 gms. in the form of gold/gold chains/gold bangles. It is also the case of the prosecution that the scrutiny of passport of the petitioner revealed that he is a frequent flier and he visited India from different places outside India during the period from 14-2-2012 to 13-9-2014 as mentioned in the complaint filed by the Customs authorities against the petitioner in the competent Court. In brief the case of the prosecution is that if the gold smuggled by the petitioner on previous occasions is clubbed with the gold brought by him without decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner is entitled to be released on bail as of right as provided under Section 436 of Cr.P.C. It was further submitted that there is no provision in the Act or any other law permitting the customs authorities/prosecution to club gold or any other dutiable goods, if any, imported by each of the petitioner on any previous occasion with the present consignment of the gold to assess the total value of the gold for the purpose of Section 104 and 135 of the Act or to assess the evasion or attempted evasion of the customs duty payable upon it. It was submitted that if any person imports into India any dutiable goods without declaration or without paying customs duty upon it, it is an independent offence for which he can be prosecuted but such person cannot be prosecuted for the previous evasion of customs duty along with the present offence. It was contended that the prosecution without any authority of law has clubbed the previous alleged import of gold by each of the petitioner with the present import of the gold with a sole purpose of to make the offence committed to be non bailable. In support of their submissions, learned counsel for the petitioners relied upon some case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovides that all offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained, whereas sub-section (2) provides that all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 11. Thus, it is clear that unless some special procedure is provided under any other law for regulating the manner or place of investigating, inquiring into, trial, or otherwise dealing with the offences punishable under the other law, the offences punishable under such other law are also to be investigated, inquired into, tried or otherwise dealt with according to the provisions provided under the Code. 12. Section 5 of the Code provides that nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce on goods imported into India. It is not in dispute that customs duty is also leviable on gold or gold items. 18. For the purpose of determination of question of law raised in the present applications Sections 100, 101, 102, 104, 107, 108, 110 and 111 of the Act are also relevant which may be quoted in entirety as below:- SECTION 100. Power to search suspected persons entering or leaving India, etc. - (1) If the proper officer has reason to believe that any person to whom this section applies has secreted about his person, any goods liable to confiscation or any documents relating thereto, he may search that person. (2) This section applies to the following persons, namely: - (a) any person who has landed from or is about to board, or is on board any vessel within the Indian customs waters; (b) any person who has landed from or is about to board, or is on board a foreign-going aircraft; (c) any person who has got out of, or is about to get into, or is in, a vehicle, which has arrived from, or is to proceed to any place outside India; (d) any person not included in clauses (a), (b) or (c) who has entered or is about to leave India; (e) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35A or section 136, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested under sub-section (1) shall, without unnecessary delay, be taken to a magistrate. (3) Where an officer of customs has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police-station has and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898). (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), an offence under this Act shall not be cognizable. (5) Save as otherwise provided in sub-section (4), all other offences under the Act shall be non-cognizable. (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under Section 135 relating to- (a) evasion or attempted evasion of duty exceeding fifty lakh rupees; or (b) prohibited goods notified under section 11 which are also notified under sub-clause (c) of clause (i) of sub-section (1) of section 135; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer. (1A) The Central Government may, having regard to the perishable or hazardous nature of any goods, depreciation in the value of the goods with the passage of time, constraints of storage space for the goods or any other relevant considerations, by notification in the Official Gazette, specify the goods or class of goods which shall, as soon as may be after its seizure under sub-section (1), be disposed of by the proper officer in such manner as the Central Government may, from time to time, determine after following the procedure hereinafter specified. (1B) Where any goods, being goods specified under sub-section (1A), have been seized by a proper officer under sub-section (1), he shall prepare an inventory of such goods containing such details relating to their description, quality, quantity, mark, numbers, country of origin and other particulars as the proper officer may consider relevant to the identity of the goods in any proceedings under this Act and shall make an application to a Magistrate for the purpose of - (a) certifying the correctness of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifest or import report which are not so mentioned; (g) any dutiable or prohibited goods which are unloaded from a conveyance in contravention of the provisions of section 32, other than goods inadvertently unloaded but included in the record kept under sub-section (2) of section 45; (h) any dutiable or prohibited goods unloaded or attempted to be unloaded in contravention of the provisions of section 33 or section 34; (i) any dutiable or prohibited goods found concealed in any manner in any package either before or after the unloading thereof; (j) any dutiable or prohibited goods removed or attempted to be removed from a customs area or a warehouse without the permission of the proper officer or contrary to the terms of such permission; (k) any dutiable or prohibited goods imported by land in respect of which the order permitting clearance of the goods required to be produced under section 109 is not produced or which do not correspond in any material particular with the specification contained therein; (l) any dutiable or prohibited goods which are not included or are in excess of those included in the entry made under this Act, or in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in the present cases is bailable or non-bailable. 21. Under section 107 of the Act a special procedure has been provided empowering a competent officer of customs during the course of any inquiry in connection with the smuggling of any goods requiring any person to produce or deliver any document or thing relevant to the enquiry and also to examine any person acquainted with the facts and circumstances of the case. Similarly, a special procedure has also been provided under Section 108 of the Act empowering a gazetted officer of customs to summon any person whose attendance he considers necessary either to give evidence or to produce document or any other thing in any inquiry which such officer is making under the Act. It is the case of the prosecution that each of the petitioner was examined and his statement was recorded by the empowered gazetted officer under this provision and each of the petitioner has admitted in his statement that on previous several occasions consignments of gold were brought by him into India from a place outside India without declaration and without paying customs duty upon them. 22. Section 135 of the Act is also relevant which is as below: SE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the contrary to be recorded in the judgment of the court such imprisonment shall not be for less than one year. (3) For the purposes of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than one year, namely :- (i) the fact that the accused has been convicted for the first time for an offence under this Act; (ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods which are the subject matter of such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence; (iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party to the commission of the offence; (iv) the age of the accused. 23. A close look at the aforesaid provision for the present purpose shows that if any person in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25. Thus, my answer to the legal question raised in the present applications is that the gold or gold items imported by each of the petitioner on previous occasions without declaration and without paying customs duty is to be clubbed with the present consignment of gold which has been imported by him without declaration and without payment of customs duty. If it is so done, prima facie it is clear that the market price of gold so imported by each of the petitioner exceeds one crore of rupees and the value of the customs duty evaded or attempted to be evaded exceeds fifty lakh of rupees and thus the offence committed by each of the petitioner is a non-bailable offence within the purview of sub-section (6) of Section 104 of the Act and petitioners are not entitled to be released on bail as of right as provided under Section 436 of the Code. 26. So far as the case law relied upon on behalf of the parties is concerned, it is of no help to them as the question of law raised in the present cases was neither under consideration nor decided in them. 27. So far as grant of bail to the petitioners on merit is concerned, looking to the gravity of the offence and likelihood of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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