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2015 (9) TMI 196 - RAJASTHAN HIGH COURT

2015 (9) TMI 196 - RAJASTHAN HIGH COURT - 2015 (321) E.L.T. 590 (Raj.) - Bail Application Smuggling of gold Statement of each of accused-petitioners 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 As value of customs duty evaded or attempted to be evaded was more than Rupees Fifty Lacs, offence committed by each of accused-petitioners was non-bailable within mean .....

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ng to any goods market price of which exceeds one crore rupees or evasion or attempted evasion of duty exceeding fifty lakh of rupees 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 kno .....

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ce 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 : Mr. Sarvesh Jain, Special Public Prosecutor ORDER Each of the accused-petitioners has filed a separate application for grant of bail under Section 439 Cr. P.C. in respect .....

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0.100 gms. valued at ₹ 9,50,530/- was recovered and seized from the possession of the accused-petitioner-Shri Abdul Ali Jaleel on 2.1.2015 at Jaipur International Airport when he arrived from Muskat by Flight No.WY0271 of Oman Air and he declared a 'nil' declaration card to the Officer on duty. During his interrogation and statement recorded under Section 108 of the Act, the accused-petitioner stated and admitted that he is involved in the smuggling of gold from a territory outside .....

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#8377; 31,68,405/- was recovered and seized from the possession of co-accused-Smt.Shilpa Uttam Chand @ Faiza and gold weighing 1167.000 gms valued at ₹ 31,68,405 was recovered and seized from the possession of co-accused-Smt.Amal Mubarak Salim on 2.1.2015. All the gold bars allegedly recovered from the possession of the accused-petitioners were ingraved with the same markings. It is to be noted that gold bars so recovered from the possession of each of the accused-petitioners were conceale .....

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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 .....

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ed-petitioners without payment of customs duty is 14047.080 gms, valued at ₹ 3,85,35,526/-. It is also the case of the respondent that examination of documents including invoices of purchase of gold recovered from the possession of the accused-petitioner-Shri Abdul Ali Jaleel and passport of each of the accused-petitioners revealed that accused-petitioner-Shri Abdul Ali Jaleel alongwith the other accusedpetitioners is indulged in smuggling of gold into India and all of them were operating .....

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n 104 of the Act. The foremost common question of law which has been raised in these bail applications is whether the offence under Section 135 of the Act for which the petitioners have been prosecuted is bailable or non-bailable and equally important question which has been raised is whether the gold allegedly imported by the petitioners on previous occasions without declaration and without paying customs duty upon it can be clubbed with the present consignment of the gold which has been import .....

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so imported and for the purpose of calculation of value of the customs duty evaded or attempted to be evaded by them. It was jointly submitted by the learned counsel for the petitioners that it is an admitted fact that the market price of the gold separately recovered and seized from the possession of each 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, therefo .....

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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 of .....

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ose of to make the offence so committed to be a non-bailable. It was further submitted by the learned counsel for the petitioners that although this Court vide order dated 5.1.2015 passed in S.B.Criminal Misc.Bail Application No.11193/2014 and S.B.Criminal Misc.Bail Application No.13466/2014 has held that the words "any goods" include not only the goods which have been seized and confiscated by the competent authority, but those goods also which escaped from seizure and confiscation an .....

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eviously imported by a person is to be added to the value of the goods imported by him on the present occasion for the purpose of calculating the market price of the total goods imported as well as for the purpose of determining the amount of customs duty which have been evaded or attempted to be evaded. It was also contended that if any person imports in India gold or any other dutiable goods without payment of customs duty, it is an independent and separate offence committed by him under the p .....

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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 togeth .....

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s 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 that in seizure-memo, the time and date of its preparation has been clearly mentioned and similarly in the arrestmemo of each of the accused-petitioners date and time has been mentioned, but so far as statement under Section 108 of the Act is concerned, although date of its recording is mentioned, but time is conspicuously absent which is a clear indicat .....

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lso available on record to show that each of the petitioners was in conscious possession of the gold allegedly recovered. No evidence has also been collected with regard to the dealing of the gold previously imported by the petitioners i.e. whether it was sold in the market or used otherwise and in absence of such evidence, it cannot be said gold was smuggled by the petitioners or by any of them on previous occasions also. In support of their submissions, learned counsel for the petitioners reli .....

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g for the Customs Department controverting the submissions made on behalf of the petitioners submitted that there is no bar in the Act or any other law to club the previous import of gold or any other dutiable goods without declaration and without paying customs duty by the same person or jointly by more than one person with the present import of the gold or other goods, if by any means it comes to the knowledge of the competent authority and, therefore, each of the petitioners can be prosecuted .....

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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 .....

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consignments of the dutiable goods imported jointly by more than one person if it is found that it has been done by them in connivance with each other. It was contended that if the present consignment of the gold recovered and seized from the possession of each of the petitioners is clubbed together and if it is further clubbed with the previous consignments of gold imported jointly by them, the market value of the same far exceeds one crore rupees and the amount of the customs duty evaded or a .....

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08 of the Act is a material and admissible piece of evidence which can legally be used for the purpose of proving commission of an offence under the provisions of the Act more particularly if it is not retracted by the accused at the earliest occasion. In the present case, such statement of each of the accused-petitioners was recorded by the competent officer as soon as he was detained for interrogation and, therefore, it can legally be used against them more particularly in view of the fact tha .....

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in connivance to each other not only on the present occasion i.e. on 2.1.2015 at Jaipur International Airport, but also on several previous occasions 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 .....

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tted 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 behalf of the respective parties and the material made available on record as well as the relevant legal provisions and the case law. Fir .....

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Officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making under this Act. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (3) All persons so .....

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aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860. In the case of Naresh J. Sukhawani Vs. Union of India reported in 1996 (83) E.L.T.258 (SC), Hon'ble Supreme Court held that the statement made before the Customs Officials is not a statement under Section 161 Cr.P.C. Therefore, it is a material piece of evidence collected by the Customs Officials under Section 108 of the Act. That material incriminates the a .....

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thin 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 can .....

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an inquiry under Section 108 or during confiscation proceedings is not that of an accused within the meaning of Section 24 of the Evidence Act. In the case of Union of India Vs. Padam Narain Aggarwal reported in (2008) 13 SCC 305, it was held by the Hon'ble Supreme Court that Section 108 of the Customs Act does not contemplate magistrarial intervention. The statements recorded under Section 108 of the Act are distinct and different from the statements recorded by the police officers during t .....

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cident. The power is exercised by a gazetted officer of the Department. It obliges the person summoned to state truth upon any subject respecting which he is examined. He is not absolved from speaking truth on the ground that such statement is admissible in evidence and could be used against him. The provision thus enables the officer to elicit truth from the person examined. In the case of Labh Singh Vs. Union of India reported in 2002 Cr.L.J. 28 (Raj.), Single Bench of this High Court held tha .....

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ed by the Full Bench of the Hon'ble Madras High Court in the case of Roshan Beevi Vs. Joint Secretary to the Government of Tamilnadu reported in 1984 Cr.L.J. 134 (Madras). In view of the well settled legal position, it is held that the statement recorded under Section 108 of the each of the accusedpetitioners in the present case is a material 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 .....

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s 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- .....

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Air. Petitioner Abdul Ali Jaleel was found in possession of gold weighing 350.100 gms. valued at ₹ 9,50,530/-, petitioner-Smt.Shilpa Uttam Chand @ Faiza was found in possession of gold weighing 1167.000 gms. valued at ₹ 31,68,405/- and accused-petitioner-Smt.Amal Mubarak Salim was also found in possession of gold weighing 1167.000 gms. valued at ₹ 31,68,405/- and thus, total gold weighing 2684.100 gms.valued at ₹ 72,87,311/- was recovered from the joint possession of the .....

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Accused-petitioner-Smt.Shilpa Uttam Chand @ Faiza was apprehended at Mumbai Airport by the customs officers on 1.6.2014 with gold bangles weighing 1184.000 gms valued at ₹ 29,03,263/-, whereas Smt.Amal Mubarak Salim was caught at the same Airport on 26.5.2014 with gold bangles weighing 1200 gms. and the same was seized and confiscted by the competent authority as they failed to declare the same and did not make payment of the requisite customs duty. (f) The petitioners jointly and in conn .....

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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 "bail .....

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re is any provision in the Act which expressly or impliedly provides that the offences or any of them under the Act are/is is bailable offence. Section 104 of the Act is relevant for this purpose which is as below: SECTION 104. Power to arrest. - (1) If an officer of customs empowered in this behalf by general or special order of the Commissioner of Customs has reason to believe that any person in India or within the Indian customs waters has committed an offence punishable under section 132 or .....

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e 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 noncognizable. (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under Section 135 relating to- (a) .....

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he amount of drawback or exemption from duty exceeds fifty lakh rupees., shall be non-bailable. Thus, sub-section (6) of Section 104 of the Act provides that notwithstanding anything containing in the Code, offences punishable under Section 135 of the Act in the following circumstances shall be nonbailable. (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-secti .....

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r 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. Evas .....

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ving, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111 or Section 113, as the case may be; or (c) attempts to export any goods which he knows or has reason to believe are liable to confiscation under Section 113; or (d) fraudulently avails of or attempts to avail of drawback or any exemption from duty provided under this Act in connection with expor .....

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ck or exemption from duty exceeds fifty lakh of rupees, with imprisonment for a term which may extend to seven years and with fine: Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than one year; (ii) in any other case, with imprisonment for a term which may extend to three years, or with fine, or with both. (2) If any person convicted of an offence under this section or under sub-sec .....

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cial 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 whic .....

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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 close reading of the above provision makes it very clear that it takes into its sweep any goods if the accused knowingly involves himself in fraudulent evasion or attempted evasion of duty chargeable on such goods. In my opinion the words any goods includes not only the goods .....

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us occasions is a continuous offence and value of the gold so imported is to be added to the value of the gold imported by him on the present occasion for the purpose of calculating the market price of the total gold imported as well as for the purpose of determining the amount of the customs duty which have been evaded or attempted to be evaded. Each of the petitioners should be treated to have been arrested by the competent authority of the customs department not only for the attempted evasion .....

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cluding lapse on the part of the competent authorities, the previous import of gold or gold items by each of the petitioners without declaration or without payment of customs duty could not be detected, but later on by any means including statement recorded under Section 107 or 108 of the Act, such import comes to the knowledge of the authorities concerned, the customs duty previously evaded can be levied from such person as provided under Section 12 of the Act. When the question of adverse effe .....

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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 Sectio .....

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er the petitioners were apprehended with possession of smuggled gold on 2.1.2015 at Jaipur International Airport and disclosure statement under Section 108 of the Act were made by them and, therefore, the continuous transactions carried out by the petitioners over the period of time can rightly be reckoned together to proceed against them. Prior to the amendment made under the Finance Act, 2012 which came into force with effect from 10.5.2013, all offences under the Act were bailable and it was .....

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payment of customs duty having market price not more than one crore rupees or liable to customs duty not exceeding fifty lacs rupees at a time and in case of being apprehended, after getting bail as of right can repeat the act one or more time in the same manner. A pragmatic and realistic view is required to be taken in the light of the amendment recently made in the Act. The statement of object and reasons shows that the Act is regulatory, preventory and punitive in nature. A meaningful interp .....

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by each of the petitioners is to be considered individually and separately. In my view the expression "Any person" used in Section 135 of the 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 Perso .....

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