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2021 (7) TMI 1155 - HC - CustomsSmuggling - Foreign Origin (FO) Gold - recovery of the gold from the secret cavity beneath the driver s seat of that vehicle - recording of statements u/s 108 of the Customs Act, 1962 - HELD THAT - The case diary which has been produced in a sealed cover, has been perused. Undisputedly, the investigation is pending and Challan has not been filed so far. Having regard to the nature of material which has come on record, the release of the applicants during the pendency of the investigation would not be proper as the prosecution is in the process of collecting further evidence against them - application dismissed.
Issues involved:
1. Bail application under Section 439 Cr.P.C. for accused charged under Sections 104 and 135 of the Customs Act. 2. Interpretation of legal precedents regarding bail eligibility in Customs Act offenses. 3. Admissibility of evidence and statements under section 108 of the Customs Act. 4. Consideration of GST invoices in cases of seized smuggled items. 5. Impact of the 2013 amendment on the bailable nature of offenses under the Customs Act. Analysis: 1. The applicants sought bail under Section 439 Cr.P.C. for offenses under Sections 104 and 135 of the Customs Act. The case involved the recovery of 79 bars of Foreign Origin Gold from a vehicle, implicating the applicants indirectly through alleged connections to the gold's owner. The defense argued for bail citing Supreme Court judgments in Arnesh Kumar and Arnab Goswami cases, emphasizing the bailable nature of Customs Act offenses as per the Om Prakash case. 2. The defense contended that the offenses under the Customs Act are bailable, relying on legal precedents like Sayyed M. Masud case and Noor Aga case to support their argument. They highlighted that the purpose of such offenses is duty recovery, distinguishing them from IPC offenses. The defense also stressed the limited sentence for the offense under section 135, further justifying the bail application. 3. The defense presented arguments regarding the admissibility of statements under section 108 of the Customs Act, asserting that the statements of the accused individuals did not directly implicate the applicants. However, the prosecution opposed the bail, emphasizing the significance of the statements and the ongoing investigation, indicating the need for further evidence collection before considering bail. 4. The defense introduced GST invoices from Saheli Jewellers to support their claim that the gold bars were legally purchased, referencing judgments from Patna and Kerala High Courts to strengthen their position. In contrast, the prosecution dismissed the relevance of the invoices, asserting that the seized Swiss gold bars were smuggled items, making the invoices inconsequential to the case. 5. The prosecution relied on the 2013 amendment to argue that Customs Act offenses are now non-bailable, citing the Gujarat High Court's order and the Supreme Court's decision in K.I.Pavunny case. They highlighted the inadmissibility of statements made to Customs officers under section 25 of the Evidence Act, emphasizing the changed legal landscape post-amendment. Ultimately, the court dismissed the bail applications, considering the ongoing investigation and the need for further evidence collection before revisiting the bail request.
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