TMI Blog2015 (4) TMI 1362X X X X Extracts X X X X X X X X Extracts X X X X ..... g goods. Merely because the goods have not been recovered from the possession of the applicant will not mollify the gravity of offence. The applicant without coming into physical contact with the smuggled gold may yet be liable for having been concerned in its importation. It has been said that a man may be miles and miles away from the gold and yet if proof is available that he had an interest in or was concerned in its illegal transportation then he would be guilty of the offence and in the present case from the statement of the applicant and other arrested accused person it is quite evident that he did take some part in the series of steps which culminated in the gold being brought in the country. The statements of the applicant and other accused persons so recorded under Section 108 of the Custom Act are distinct and different from statement recorded by the police officers during the course of investigation under Criminal Procedure Code. It is a material piece of evidence collected by the Custom officials statement made by another accused persons inculpating the applicant therein, can be used as a substantive piece of evidence. The said statements under Section 108 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary action be taken under the provisions of Custom Act for which the D.R.I. officers were called upon. The G.R.P. Officers handed over the case to the D.R.I. officers for necessary action under the provisions of the Custom Act. The various valuers were called upon by the D.R.I. officers for determining the weight and value of the foreign origin gold bars and the valuer report was submitted on 11.12.2014 wherein the actual weight of the recovered foreign gold was found to be 4,076.00 gms., valued by ₹ 1,09,98,018. (` one crore, nine lacs, ninety eight thousand and eighteen) in stead of 4,050 gms. as recovered by G.R.P., Mughalsarai. The inventory of all the seized articles were prepared and was confiscated under Section 111 (1) of the Custom Act as the two arrested persons were clandestinely carrying the smuggled foreign origin gold for which they have violated Section 77 of the Custom Act. The statements were also recorded under Section 108 of the Custom Act before the Senior Intelligence Officer, D.R.I., Varanasi. They have accepted the illegal smuggling of gold and categorically stated that the illegally brought gold to be delivered to the applicant at Nagpur and in h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... languishing in jail. A bail application was moved on behalf of the applicant before the Special Chief Judicial Magistrate, Varanasi who rejected the bail application by order dated 22.2.2015. The applicant approached the court of Sessions and the Additional Sessions Judge also rejected the bail application of the applicant by order dated 11.2.2015. 5. The submission of the learned counsel for the applicant is that the applicant is maliciously being prosecuted in the present case as he has been made accused in a every collusive manner. The applicant who was staying in Hotel Mansovar at Varanasi alongwith Manoj Jatmal, Suresh and Virendra Lalwani were taken away by the Officers of D.R.I. and they assured that by depositing the default of duty they will be released and for that purpose-they came to Varanasi with ₹ 5,14,000 and when in the evening they reached near the bus stand they had taken forcibly to his office and made them accused. The remaining other persons Manoj, Suresh and Virendra Lalwani have been released with their goods and the officers forcibly taken them away the money of the applicant to the tune of ₹ 5,14,000 and made him accused in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in his defence is all against the evidence on record. The applicant is deeply involved as he is well known to each other who have committed offence of smuggling of foreign origin gold bars, which is against the interest of economy of the nation. Thus, the two arrested persons alongwith gold could not produce any valid papers regarding importation of foreign origin gold bars. The applicant is trying to set up a case only to escape the penal action. It is also pertinent to mention that Prahlad Setia who is involved in the smuggling of foreign origin gold is still away from the enquiry as he is not turning up to the summons for recording of his statement and he is making all efforts to evade the appearance before the authorities when there is clinching material against the applicant and other accused persons in the involvement of smuggling of foreign origin gold. Since, the enquiry is still going on in case the applicant is enlarged on bail there is every possibility that he may abscond and again indulge in the crime of illegal smuggling hence the applicant does not deserve to be enlarged on bail. Having considered the submission of the learned counsel for the parties and have gone ..... 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