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2023 (3) TMI 1293 - HC - CustomsSmuggling - gold of foreign origin - prohibited goods - statements of accused recorded under Sections 108 Customs Act - whether value of individually recovered gold should be considered or value of combined recovered gold should be considered? - Sections 104 and 135 of Customs Act. HELD THAT - In Section 135 Customs Act, term any person has been used and 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. Delhi High Court also in the case of AIR CUSTOMS VERSUS BEGAIM AKYNOVA 2022 (1) TMI 137 - DELHI HIGH COURT 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 - for the purpose of Section 135 Customs Act value of individually recovered gold should be considered and not the value of combined recovered gold. Whether alleged recovered gold was prohibited goods as if it was prohibited goods then by virtue of Section 104 (6) and 135 Customs Act, the alleged offence committed by the applicants would be non-bailable and maximum punishment provided for such offence is seven years? - HELD THAT - From the perusal of Section 2(33) Customs Act it appears that every good is prohibited if its import or export is subject to an prohibition under the Customs Act or any other law for the time being in force. Recently three Judges Bench of the Apex Court in the case of COMMISSIONER OF CUSTOMS VERSUS M/S. ATUL AUTOMATIONS PVT. LTD., AND PARAG DOMESTIC APPLIANCES 2019 (1) TMI 1324 - SUPREME COURT 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, 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. 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. The applicants committed offence under the provisions of Customs Act for which maximum punishment is three years and as their case does not fall under Section 104 (6) Customs Act, therefore, by virtue of Section 104(7) Customs Act the alleged offence committed by applicants is bailable one, therefore, they are entitled to be released on bail. Let the applicants-Mohd. Tufail and Mohammad Alam be released on bail in the case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the conditions imposed - application allowed.
Issues Involved:
1. Legality of the arrest and procedure followed by the Directorate of Revenue Intelligence (DRI). 2. Whether the offense under Sections 135(1)(A) and 135(1)(B) of the Customs Act, 1962 is bailable. 3. Admissibility of statements recorded under Section 108 of the Customs Act. 4. Whether the recovered gold qualifies as "prohibited goods" under the Customs Act. 5. Consideration of the value of individually recovered gold versus combined recovered gold for determining bail. Summary: 1. Legality of the arrest and procedure followed by DRI: The applicants argued that they were forcibly apprehended from the train and falsely implicated in the case. They were not immediately arrested or searched at the spot, which they claimed was illegal. The DRI countered, stating that the applicants were apprehended based on specific intelligence and that the procedure followed was lawful. 2. Bailability of the offense under Sections 135(1)(A) and 135(1)(B) of the Customs Act: The applicants contended that since the value of gold recovered from each individual was less than Rs. One Crore, the offense should be bailable. The DRI argued that the combined value of the gold recovered from all accused exceeded Rs. One Crore, making the offense non-bailable under Sections 104 and 135 of the Customs Act. The court concluded that the term "any person" in Section 135 refers to an individual, and thus, the value of individually recovered gold should be considered, making the offense bailable. 3. Admissibility of statements recorded under Section 108 of the Customs Act: The applicants claimed that statements recorded under Section 108 of the Customs Act are not admissible, citing the Supreme Court's decision in Toofan Singh v. State of Tamil Nadu. The DRI contended that such statements are admissible as Customs Officers are not considered police officers. The court did not find this argument decisive in determining bail. 4. Whether the recovered gold qualifies as "prohibited goods": The court examined whether the recovered gold was "prohibited goods" under Section 2(33) of the Customs Act. It referred to the Supreme Court's judgment in Commissioner of Customs v. Atul Automation Pvt. Ltd., which distinguished between prohibited and restricted goods. The court concluded that the recovered gold was restricted, not prohibited, making the offense bailable. 5. Consideration of the value of individually recovered gold versus combined recovered gold: The court held that for the purpose of Section 135 of the Customs Act, the value of gold recovered from each individual should be considered separately. Since the value of gold recovered from each applicant was less than Rs. One Crore, the offense was deemed bailable. Conclusion: The court determined that the offense committed by the applicants was bailable and granted bail, subject to certain conditions, including appearing before the trial court on fixed dates, not tampering with evidence, and not engaging in criminal activities. The bail applications were allowed, and the applicants were ordered to be released on bail.
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