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TMI Blog2024 (10) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... in judicial custody since 29.06.2024. 4. The facts as borne out from the record reveals that Directorate of Revenue Intelligence (hereinafter referred to 'DRI') received specific tip and information and acting upon the same, it intercepted two persons namely Lalmohan Panja and Harekrishna Parai, two co-accused, on 20.02.2024 at around 09:20 PM from the Second AC Coach bearing No.A1 of Pushpak Express (Train No.12533) from Charbagh Railway Station, Lucknow and their baggage was searched. From their three Trolley Bags, 558.900 Grams of Gold allegedly of foreign origin valued at Rs. 3,29,25,000/- and cash in Indian Currency worth Rs. 3.28/- Crores is said to have been recovered. It was informed by the two co-accused that they were travelling to Mumbai to deliver the above recovered gold and ornaments and cash currency to its owners namely Ramkrishna Jaladhar Parai (the applicant) and his brother namely Laxman Chandra Parai (another co-accused). 5. Upon further questioning and as per information revealed by the two co-accused follow up search was conducted in the office premises, of the applicant and his brother co-accused Laxman Chandra Parai, situate in a Flat, in Chowk are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 14.05.2024 passed on four above mentioned separate bail applications. 12. In the aforesaid backdrop the present applicant Ramkrishna Jaladhar Parai has moved the instant regular bail under Section 439 Cr.P.C. 13. Shri Atul Verma, learned counsel for the applicant has urged that the applicant is a respected businessman trading in gold and jewellery. The applicant is a proprietor of firm named and styled as M/s. Ram Laxman & Company which was formally incorporated in the year 2017, even though the applicant has been an income tax payee since last 10 years. The firm of the applicant namely M/s. Ram Laxman & Company is duly registered under the Goods, Service Tax (GST) and it also registered with the Ministry as a Micro, Small and Medium Enterprise (MSME). 14. The submission of the learned counsel for the applicant is that the applicant procures gold and thereafter the same is used for making jewellery and ornaments which is sold across the country to its customers. 15. It is urged that in the regular course of business, the applicant maintains proper books of accounts which inter-alia includes stock register, ledgers which reflects the procurement and sale of gold, GST retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sources to justify the quantity of gold jewellery as well as gold pieces and the necessary corresponding transactions including payment of GST returns filed by the applicant also corroborates the level of business turnover being done by the applicant. 20. It is further submitted that the allegations in the complaint and in the counter affidavit filed in the instant bail application by the DRI, it does not dispute the genuineness of the bank account statement, GST returns and income-tax returns including the documents relating to the stock register maintained by the applicant and it all points to the business turnover of the applicant and his firm and as such the business dealing of the applicant in respect of gold and jewellery is properly documented and accounted for. 21. However, insofar as the cash component is concerned, the same has been derived from the sale of gold jewellery and the same is claimed by the applicant and his brother, the co-accused Laxman Chandra Parai as their own. The cash amount had it not been seized, it would have been deposited by the applicant in the firm account upon which necessary taxes would have been paid but nevertheless it will not amount to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly indicates that the gold jewellery has been made from the gold of foreign origin. It is submitted that the two co-accused namely Lalmohan Panja and Harekrishna Parai, they worked for the applicant and his brother. They used to smuggle gold in the country from Nepal and the same is then melted to make gold jewellery and later sold to the customers. This clearly depicts bringing gold of foreign origin in the country and clearly a case under Section 135 of the Customs Act is made out. 27. Shri Dubey has further urged that in terms of Section 135, the burden is on the applicant to disprove that the gold or the ornament with which it has been made is not of foreign origin. It is further submitted that during the investigation and recording of the statements of the co-accused and the applicant it revealed that the applicant, his brother and the another co-accused namely Lalmohan Panja and Harekrishna Parai, Sumit Kumar Rastogi and Abhijeet Manna were in constant touch with each other on mobile phone as referred from the call data and record of the phone calls of the applicants and other co-accused. Apart from being in touch with each other they even shared the pictures of the gold i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being imposed under this Act or any other law for the time being in force with respect to such goods; or (b) acquires possession of or is in any way concerned in carrying, removing, 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 export of goods, 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... muggled is on the person from whose possession the incriminating articles have been recovered and seized. This section is applicable to gold and other class of goods which may be notified by the Central Government. 36. Taking note of the respective submissions of the parties and the provisions as referred hereinabove, it reveals that the applicant is dealing with sale of gold jewellery through his firm M/s. Ram Laxman & Company. The said firm is a proprietorship and is duly registered with the GST and MSME. The documents filed by the applicant including his bank statement, income tax returns, GST returns, stock register and other business related documents, prima-facie, indicate that the applicant is a businessman dealing with gold and gold jewellery. The statement given by the applicant also reflects that two persons who were apprehended namely Lalmohan Panja and Harekrishna Parai were the employees of the applicant and his brother. They too gave the statement that the jewellery and the cash belonged to the applicant and his brother. It is also reflected from the records that the flat situate in chowk Lucknow was rented by the applicant and his firm and was utilized by the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or purpose for which the custody of the applicant is required any more. It is also not disputed that the maximum sentence as prescribed under Section 135 of the Customs Act is upto 7 years and is triable by Magistrate and the complaint has already been filed. 42. At this stage, the observations of the Apex Court in the case of Dataram Singh v. State of U.P. & Another, (2018) 3 SCC 22 is gainfully recalled wherein it has held as under:- "1.A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Sibbia v. State of Punjab [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] in which it is observed that it was held way back in Nagendra Nath Chakravarti, In re [Nagendra Nath Chakravarti, In re, 1923 SCC OnLine Cal 318 : AIR 1924 Cal 476] that bail is not to be withheld as a punishment. Reference was also made to Emperor v. H.L. Hutchinson [Emperor v. H.L. Hutchinson, 1931 SCC OnLine All 14 : AIR 1931 All 356] wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days. 6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory." 43. The Apex Court in Sanjay Chandra v. Central Bureau of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rceration as well as the fact that the personal liberty of the applicant is a precious fundamental right which has to be balanced in the context with the punishment which may finally be awarded upon conclusion of trial, hence, at this stage, without expressing any opinion on the merits of the case, this Court is of the view that the applicant is entitled to be released on bail. 45. Let the applicant Ramkrishna Jaladhar Parai involved in Complaint Case/DRI Case No.6/2024 under Section 135 of the Customs Act, 1962, Police Station DRI, District Lucknow be released on bail on his furnishing a personal bond with two reliable sureties each in the like amount to the satisfaction of the court concerned. 46. At the time of executing required sureties the following conditions shall be imposed in the interest of justice. (i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (ii) The applicant shall remain present before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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