TMI Blog2015 (9) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... Further offence under Section 135 of Act for evasion or attempted evasion of duty must be treated to be continuous offence until customs duty is paid upon goods which have been imported without payment of customs duty upon them – Expression "Any person" used in Section 135 of Act does not mean only one person but more than one person also if they jointly and knowingly involve themselves for fraudulent evasion or attempted evasion of customs duty chargeable of goods – If more than one person acting in concert with each other has evaded or attempts to evade customs duty, each of them should be treated as "Any Person" within meaning of Section 135. Looking to gravity of offence, petitioners are not entitled to bail on merit – Also accused-petitioners permanently reside in Muskat and it is unlikely that they will return to India to face trial once bail is granted to them – Consequently, all applications for grant of bail hereby, dismissed – Decided against Accused. - S.B. Criminal Misc. Bail Application No.1870/2015, 1547/2015, 1257/2015 - - - Dated:- 26-3-2015 - Mr. Prashant kumar Agarwal, J. For the Petitioner : Mr. M.K. Kaushik, Mr. Pankaj Gupta For the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that she was caught on 1.6.2014 at Mumbai Airport by Customs Officers with gold bangles weighing 1184 gms. valued at ₹ 29,03,263/-. Accusedpetitioner-Smt.Amal Mubark Salim also admitted that she was apprehended at Mumbai Airport by the customs authorities on 26.5.2014 with 1200 gms. gold bangles. It is the case of respondent-department that at the Mumbai Airport the aforesaid gold was imported by the accused petitioners without declaration and making payment of customs duty. Each of the accused-petitioners also admitted that all of them have jointly smuggled the gold which has been seized by the customs authorities on 2.1.2015 at Jaipur International Airport. Thus, total gold weighing 2684.100 gms.valued at ₹ 72,87,311/- was recovered from the joint possession of the accused-petitioners on 2.1.2015 at Jaipur International Airport. Statement of each of the accused-petitioners recorded under Section 108 of the Act further revealed that accused-petitioners jointly and in connivance to each other on previous several occasions smuggled gold into India without declaration and payment of customs duty to the tune of 11362.980 gms. valued at ₹ 3,12,48,195/-. It is the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of the petitioners is less than Rupees One crore within the meaning of Section 135 of the Act and the customs duty which was attempted to be evaded does not exeed ₹ 50 lacs and, therefore, the offence committed by each of them is bailable as provided under sub-section (7) of Section 104 of the Act and each of the petitioners is entitled to be released on bail as of right as provided under Section 436 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 petitioners on any previous occasion with the present consignment of the gold to assess the market price of the same 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 including gold without declaration or without paying customs duty upon it, it is an independent and separate offence for which he can be prosecuted, but such person can not be prosecuted for previous evasion of customs duty alongwith the present offence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in Section 135 of the Act means a single person and not more than one person. It was also submitted that no documentary evidence except statement of each of the accused-petitioners recorded under Section 108 of the Act is available on record in support of the fact that the gold recovered and seized on 2.1.2015 at Jaipur International Airport was jointly and in connivance with each other was imported by the petitioners and similarly no other evidence has been collected to show that each of the accused-petitioners either individually or together with each other imported gold on some previous occasions without payment of customs duty. Apart from that, the alleged statement of each of the petitioners is not admissible in evidence as it is clear that it was recorded when each of them was under the custody of the customs officials. It is an admitted fact that after the petitioners were taken into custody for interrogation, they were not allowed to undertake free movements and they were continuously under detention of the customs officials and, therefore, such statement is of no evidentiary value even at this stage of the proceedings. It was brought to the knowledge of the Court th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the previous offences committed by him by filing common complaint. It was further submitted that if it is found that more than one person jointly and in connivance to each other have imported gold or any other dutiable goods without paying customs duty, then it must be held that all of them have jointly committed the offence under the provisions of the Act and for the purpose of calculating the market price of the goods so imported and value of the customs duty evaded or attempted to be evaded the total value of the goods imported by them must be taken into consideration. It was also submitted that if it is found that more than one person not only on the present occasion, but on previous occasions also have jointly imported gold or any other dutiable goods without payment of customs duty then for the purpose of aforesaid calculation total market price of the goods or total value of the duty evaded is to be taken into consideration. It was further submitted that the object for which the Act has been enacted by the legislature permits the concerned authorities to club all the consignments of the dutiable goods imported by a person without declaration and/or without paying the customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s more particularly in the year 2014 at different Airports of India. It was further submitted that the statement recorded under Section 108 of the Act cannot be questioned on the ground that although it bears the date on which it was recorded, but it does not bear the time and, therefore, it must be held that it was recorded when the petitioners were under arrest. It was also contended that there is difference between arrest and custody of a person. Merely because a person has been taken into custody by a competent authority or detained for interrogation, it cannot be said that such person was arrested formally. It was also submitted that this Court after considering all aspects of the matter vide order dated 5.1.2015 passed in the aforesaid previous bail applications has rightly held that an offence previously committed by a person is a continuous offence and for the purpose of calculating market price of the goods or value of the customs duty evaded or attempted to be evaded the consignments imported on previous occasions can be clubbed with the present consignment and, therefore, there is no reason to take a different view now. I have considered the submissions made on be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of K.I. Pavunny Vs. Assistant Collector reported in (1997) 3 SCC 721, a judgment rendered by three Judge Bench of the Apex Court it was held that the confessional statement made before a custom officer, is admissible, as he is not a police officer, within the meaning of Section 25 of the Evidence Act, though he is invested with many of the powers, which an officer-incharge of a Police Station exercise, while investigating an offence. It was also held that though a customs officer, is a person in authority, within the meaning of Section 24 of the Evidence Act, by reason of a statutory compulsion of recording the statement of the accused, pursuant to his appearance either after issuance of the summons or after his surrender, such statement cannot be characterised to have been obtained by threat, inducement or promise and the self same statement, is admissible in evidence on the complaint laid by the customs officers. It was further held that a person suspected by a customs officer of having committed an offence under the Act at that stage is not an accused and he becomes an accused only when summons are issued by a competent Court pursuant to a complaint lodged by the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al piece of evidence and it is admissible in evidence atleast for the purpose of disposal of these bail applications more particularly in view of the fact that it is not even the case of petitioners themselves that they have retracted from these statements or they were forced, induced or threatened by the customs officials to make such statements. Perusal of material available on record, including statements of petitioners recorded under Section 108 of the Act and the entries made in their passports and invoices of purchase of gold, prima facie reveals that : (a) The petitioners are frequent fliers from outside India to India at different Airports from time to time and more particularly in the year 2014. Accused-petitioner-Smt. Shilpa Uttam Chand @ Faiza visited 15 times during the period from 24.8.2014 to 2.1.2015, whereas accused-petitioner-Smt.Amal Mubarak Salim Al Reiyami visited 13 times between 20.12.2013 to 2.1.2015. Apart from Jaipur International Airport, they arrived at Mumbai, Chennai and Hyderabad Airports also. It is also clear that their stay in India was very short period and some times only for a single day. (b) Accused-petitioner-Smt.Shilpa Uttam Chand @ F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttempted to be evaded is more than ₹ 50 lacs. (g) Gold recovered from the possession of Smt.Amal Mubarak Salim was concealed in her footwear by the remaining two accused. Now, it is to be considered whether offence for which each of the petitioners has been accused in the present cases is bailable and each of them is entitled to be released on bail as of right without considering the merit of the case. Clause (a) of Section 2 of the Criminal Procedure Code provides which offence is bailable and which is non-bailable offence. According to this provision bailable offence means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and non-bailable offence means any other offence. Thus, it is clear that unless an offence is expressely or impliedly made bailable by any other law for the time in force, the question whether an offence is bailable or not is to be determined as provided in the First Schedule of the Code. It is now further to be seen whether there is any provision in the Act which expressly or impliedly provides that the offences or any of them under the Act are/is is bailabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (1) of section 135; or (c) import or export of any goods which have not been declared in accordance with the provisions of the Act and the market price of which exceeds one crore rupees; or (d) fraudulently availing of or attempt to avail of drawback or any exemption from duty provided under the Act, if the amount of drawback or exemption from duty exceeds fifty lakh rupees. Sub-section (7) of Section 104 of the Act provides that all other offences under the Act are bailable. Thus, it is clear that by way of enactment of sub-section (6) and (7) of Section 104 of the Act it has been specifically provided that under the provisions of the Act which offences are non-bailable and which are bailable and, therefore, it cannot be disputed that provisions of the Code are not relevant and applicable to determine whether the offence committed by each of the petitioners in the present cases is bailable or non-bailable. Section 135 of the Act is also relevant which is as below: SECTION 135. Evasion of duty or prohibitions. (1) Without prejudice to any action that may be taken under this Act, if any person - (a) is in relation to any goods in any way knowingly concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 thereon shall be punishable with imprisonment for a term which may extend to seven years and with fine in the case of an offence relating to any goods the market price of which exceeds one crore rupees or evasion or attempted evasion of duty exceeding fifty lakh of rupees. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rb the menance rather which encourages it. The legal question raised in the above applications was answered by this Court in the following words: Thus, my answer to the legal question raised in the present applications is that the gold or gold items imported by each of the petitioners 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 petitioners 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 subsection (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. There is no reason now to take a different view. I am of further view that previous transactions can be taken into account for the purpose of determining whether the import of alleged go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intly and knowingly involve themselves for fraudulent evasion or attempted evasion of customs duty chargeable of goods. If more than one person acting in concert with each other has evaded or attempts to evade customs duty, each of them should be treated as Any Person within the meaning of Section 135 of the Act. So far as grant of bail to the petitioners on merit is concerned, looking to the gravity of the offence and likelihood of the repetition of the same, petitioners are not entitled to bail on merit also. In economic offences as in the present cases interest of the national economy is adversely effected and, therefore, while considering the question of grant of bail to an accused, it should be seen whether it is desirable in national interest or not. Hon'ble Supreme Court in the case of State of Gujarat Vs. Mohanlal Jitamalji Porwal and anr. reported in AIR 1987 SC 1321 has observed as under:- The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate des ..... X X X X Extracts X X X X X X X X Extracts X X X X
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