2023 (4) TMI 839 - HC - Customs

Seeking grant of anticipatory bail - gold allegedly recovered and seized is owned by the firm of the applicant and was being transported to its branch office at Jaipur from Kolkata (head office) - HELD THAT - It is evident and accepted to the parties that co-accused Sumit Verma from whose possession 3000 grams of gold is said to have been recovered of the value of Rs. 1,75,55,000/- has not been apprehended from any exit or entry point to or from the territory of India. The case of the D.R.I. as is reflected from the submissions made by Shri Digvijay Nath Dubey is that the applicant before this Court and co-accused Sumit Verma have failed to produce any document or conclusive proof which may show that the ownership of the gold belongs to them and in absence of any conclusive proof pertaining to the ownership, the gold in all probability should be presumed is to be smuggled in the territory of India and as it has also been confessed by Sumit Verma. Having regard to all the facts and circumstances of the case including the guidelines which has been issued by the Government of India, Ministry of Defence, Department of Revenue dated 16.8.2022 pertaining to the arrest of various offenders of the Customs Act as well as the fact that alleged offences against the applicant are punishable with upto seven years of imprisonment and gold has not been recovered from the possession of applicant, in the considered opinion of this Court the liberty of the applicant may be protected for some time, subject to his cooperation in the investigation - Let better counter affidavit be filed by the DRI mentioning therein about the culpability of the applicant more so in the background of the fact that the gold recovered from the co-accused Sumit Verma has not been apprehended from any exit or entry point to or from the territory of India and a representation is alleged to be pending before DRI, submitted by Mr. Ranjan Soni, partner of the firm. Let this case be listed on 3.5.2023.

Summary

Issues: Anticipatory Bail Application under Section 135 of Custom Act, 1962

Ownership of Gold:
The applicant, a partner of a jewelry firm, seeks anticipatory bail in a case where gold was seized from an employee. The firm claims ownership of the gold and asserts it was being transferred internally from Kolkata to Jaipur for redesigning. The applicant's representative provided documents supporting the ownership claim.

Legal Guidelines and Arrest:
The applicant argues against arrest citing a circular limiting arrest for customs offenses involving goods over Rs. 2,00,00,000. The value of the gold seized is Rs. 1,75,55,000, below the threshold. The applicant's cooperation in the investigation is emphasized to protect his liberty.

Opposing Arguments and Investigation:
The DRI opposes bail, stating the gold was recovered from the employee based on intelligence, implicating the applicant. They claim lack of proof of ownership and non-cooperation in the investigation. The DRI seeks to establish the applicant's culpability through a counter affidavit.

Court Decision and Conditions:
The Court considers the guidelines restricting arrest for offenses below Rs. 2,00,00,000 and grants anticipatory bail to the applicant until the next hearing. Conditions include appearing before the investigating officer, surrendering the passport, and cooperating in the investigation. Non-compliance may lead to the vacation of the interim order. The case is listed for further proceedings on a specified date.