TMI Blog2024 (1) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... . - Hon'ble Mohd. Faiz Alam Khan, J. For the Applicant : Prabhakar Srivastava For the Opposite Party : Dipak Seth,Manish Misra ORDER Hon'ble Mohd. Faiz Alam Khan, J. 1. Heard learned counsel for the applicant as well as Shri Manish Misra, learned counsel appearing for Union of India and perused the record. 2. The present application has been moved by the accused-applicant- Mohammad Imran in D.R.I. Case No. 21/2023-24, under Section 135 of the Customs Act, Police Station- Custom Airport, District Lucknow, with the prayer to enlarge him on anticipatory bail as she is apprehending arrest in the above-mentioned case. 3. Learned counsel for the applicant submits that it is a case of false implication and nothing as claimed by the prosecution has been recovered from the possession of the applicant. 4. It is vehemently submitted that on 3.8.2023, the applicant had gone to Dubai to meet a person namely, Rahul @ Bengali and as the applicant had gone to search any work for him and the same was not made available to him, the aforesaid Rahul @ Bengali told him that there is no possibility of getting any work and he may go back to India and he al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is not entitled to be released on bail, more so when the offences have been committed pertaining to import of prohibited goods which is punishable with seven years of imprisonment. 10. In support of his contentions, Shri Manish Mishra, learned counsel for the Union of India has relied on the judgements of the High Court of Delhi passed in Nidhi Kapoor vs. Principal Commissioner and Additional Secretary to the Government of India Ors., decided on 21 August, 2023 in W.P. (C) No. 8902/2021 as well as by the coordinate Benches of this Court passed in the cases of Murli Asandas Chandiramani vs. State of U.P. and Mohd. Farook vs. Union of India through the Superintendent Customs (Prevention) Division, decided on 21.4.2015 and 8.9.2020 in Criminal Misc. Bail Application Nos. 8812 of 2015 and 16668 of 2020, respectively. 11. Having heard learned counsel for the parties and having perused the record, it is reflected that on 13.8.2023 at about 4.30 pm, the applicant arrived from Dubai through Flight No. IX 194 and having noticed some unusual luggage in his trolley bag, the same was checked and 14 gold biscuits/bars were found concealed in two artefacts and on weighing, the weight o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , collusion, wilful mis-statement or suppression of facts and such instrument has been utilised by such person or any other person, he shall be punishable,-- (i) in the case of an offence relating to,-- (A) any goods the market price of which exceeds one crore of rupees; or (B) the evasion or attempted evasion of duty exceeding fifty lakh of rupees; or (C) such categories of prohibited goods as the Central Government may, by notification in the Official Gazette, specify; or (D) fraudulently availing of or attempting to avail of drawback or any exemption from duty referred to in clause (d), if the amount of drawback or exemption from duty exceeds fifty lakh of rupees, (E) obtaining an instrument from any authority by fraud, collusion, wilful mis-statement or suppression of facts and such instrument has been utilised by any person, where the duty relatable to utilisation of the instrument exceeds fifty lakh rupeees, 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; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 133 or section 135 or section 135A 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, 1973 (2 of 1974), any offence relating to-- (a) prohibited goods; or (b) evasion or attempted evasion of duty exceeding fifty lakh rupees; or (c) fraudulently availing of or attempting to avail drawback or any exemption from duty provided under this Act, where the amount of drawback or exemption from duty exceeds fifty lakh rupees; or (d) fraudulently obtaining an instrument for the purpose s of th is Act or the Foreign Trade (Development and Regulation ) Act, 1992(22 of 1992), and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered goods exceeds Rs.One Crore then offence will be non-bailable and similarly the offence committed with regard to prohibited goods also would be non-bailable. 28. In case at hand, from the individual possession of both the applicants gold valuing less than Rs. One Crore was recovered, however, value of total gold recovered from the possession of applicants and two others was more than Rs. One Crore. 29. Therefore, question arises whether value of individually recovered gold should be considered or value of combined recovered gold should be considered. 30. In Section 135 Customs Act, term any person has been used and, in my view, it denotes to an individual. The term any person cannot be interpreted as a group of persons. From the plain reading of Section 135 Customs Act it appears that it refers to an individual. 31. Delhi High Court also in the case of Air Customs Vs. Begaim Akynova (supra) observed that punishment which is to be imposed on the accused should correspond to the gold that has solely been recovered from his possession and each person should be made answerable for the recovery of gold found in his possession. 32. Therefore, in my ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court Cases 539 with regard to multi function device observed that MFDs were not prohibited but restricted items for import and further observed that there will exist fundamental distinction between what is prohibited and what is restricted. Therefore, from the case of Atul Automation (supra) it appears that on the basis of restriction on import a good cannot be said to be prohibited good in terms of Section 2 (33) Customs Act . 39. In case as hand, according to the prosecution, gold was recovered from the possession of the applicants which was liable for confiscation under Section 111 of the Customs Act and as per Section 125 Customs Act the authority concerned may levy fine in lieu of confiscation and, therefore, it appears from the provisions of Section 11 of Customs Act gold is not prohibited goods but it is restricted goods and as per Section 125 Customs Act in lieu of confiscation fine may be levied. Therefore, as import of gold is not prohibited but restricted subject to prescribed payment of duty, thus alleged recovered gold is not prohibited goods under Section 2(33) Customs Act but it is restricted goods in view of the judgment of three Judges Bench of the Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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