2025 (3) TMI 1038 - HC - Customs

Seeking grant of regular bail during the pendency of the trial - smuggling of Gold - bailable or non-bailable under Section 104 of the Customs Act 1962 in view of value of gold - admissibility and relevance of the statements recorded under Section 108 of the Customs Act 1962 - applicant argued that the complaint is confined only to the alleged recovery of 2000 gms of gold and the recovery effected from the house of Ankit Jindal being in the nature of ornaments is not the subject matter or case property for his prosecution for violation of the provisions of Customs Act 1962 - HELD THAT - This Court finds that the officials of the DRI had intercepted a roadways bus wherein accused persons Anil Kumar Sharma and Sudhir Kumar were travelling and from them 1 kg gold each was recovered. Of course the value of the recovered gold individually is below 1 Crore whereas collectively it is more than 1 crore but while deciding the prayer for bail this Court is not inclined to make any comment on the nature of offence whether it is bailable or non-bailable. No doubt in the case of Mohd. Tufial 2023 (3) TMI 1293 - ALLAHABAD HIGH COURT this Court has observed that the recovery effected from each accused is to be considered to determine the nature of the offence but this Court is not inclined to comment upon the nature of the alleged offence if it would fall under section 104(6) or 104(7) Customs Act 1962 as the charges against the accused have also not been framed so far. Otherwise also this issue can be effectively decided by the trial court on the strength of the evidence of the parties. The admissibility of the statements of the accused recorded under section 108 Customs Act 1962 would also be tested during trial. However considering the stand of the accused who claim that the recovered material was acquired by them in legitimate manner this Court is of the opinion that further detention of the applicants may not be necessary for any useful purpose. Concededly the investigation in the matter is complete and after filing of the complaint/ charge-sheet even the charges have not been framed against the accused therefore it is clear that the trial is yet to start. Keeping in view the nature of the crime as well as the period undergone by the applicants and the punishment provided for the alleged offences this Court deems it proper to extend the concession of regular bail to them as the conclusion of trial is likely to consume considerable time. Further the material witnesses are the officials of DRI and at present there does not seem to be any possibility of their being won over. Conclusion - Thus without meaning any expression of opinion on the merits of the case the bail application is allowed and it is ordered that the applicants Ankit Jindal Anil Kumar Sharma and Sudhir Kumar be released on regular bail subject to fulfilment of conditions imposed. Bail application allowed.

Summary

ISSUES PRESENTED and CONSIDERED

The core legal issues considered in this judgment are:

• Whether the accused persons, Anil Kumar Sharma and Sudhir Kumar, are entitled to regular bail under Section 439 of the Code of Criminal Procedure during the pendency of the trial for offenses under Sections 135(1)(a), 135(1)(b), and 135(1)(i)(A) of the Customs Act, 1962.
• Whether the nature of the offense, considering the value of the recovered gold, is bailable or non-bailable under Section 104 of the Customs Act, 1962.
• The admissibility and relevance of the statements recorded under Section 108 of the Customs Act, 1962.
• Whether the further detention of the accused is justified given the completion of the investigation and the circumstances of the case.

ISSUE-WISE DETAILED ANALYSIS

1. Entitlement to Regular Bail

Relevant Legal Framework and Precedents:

The applications for bail are considered under Section 439 of the Code of Criminal Procedure, which allows for the grant of bail to an accused during the pendency of the trial. The applicants rely on a precedent where individual recovery was considered for bail purposes.

Court's Interpretation and Reasoning:

The Court acknowledges the precedent set in the case of Mohd. Tufial, where individual recovery was considered to determine the bailability of the offense. However, the Court refrains from making a definitive comment on whether the offense is bailable or non-bailable, leaving it to the trial court to decide based on evidence.

Key Evidence and Findings:

The Court notes that the investigation is complete, and the charges have not yet been framed. The accused have been in custody since their arrest, and the trial is yet to commence.

Application of Law to Facts:

The Court considers the nature of the crime, the period of detention, and the fact that the trial is likely to take considerable time. It finds that further detention is unnecessary for any useful purpose.

Treatment of Competing Arguments:

The prosecution argues that the value of the recovered gold collectively exceeds one crore, making the offense non-bailable. The defense argues that individual recovery should be considered, making the offense bailable.

Conclusions:

The Court decides to grant bail, considering the completion of the investigation and the likely duration of the trial.

2. Nature of the Offense

Relevant Legal Framework and Precedents:

Section 104 of the Customs Act, 1962, distinguishes between bailable and non-bailable offenses based on the value of the goods involved.

Court's Interpretation and Reasoning:

The Court refrains from making a definitive ruling on the nature of the offense, leaving it to be determined by the trial court based on the evidence presented.

Key Evidence and Findings:

The Court notes the prosecution's argument regarding the collective value of the gold and the defense's reliance on individual recovery.

Application of Law to Facts:

The Court acknowledges the precedent but chooses not to comment on the nature of the offense at this stage.

Treatment of Competing Arguments:

The prosecution emphasizes the collective value, while the defense focuses on individual recovery.

Conclusions:

The Court leaves the determination of the offense's nature to the trial court.

3. Admissibility of Statements

Relevant Legal Framework and Precedents:

Section 108 of the Customs Act, 1962, allows for the recording of statements, which can be admissible in evidence.

Court's Interpretation and Reasoning:

The Court notes that the admissibility of these statements will be tested during the trial.

Key Evidence and Findings:

The statements recorded under Section 108 are part of the prosecution's case.

Application of Law to Facts:

The Court does not make a determination on admissibility at this stage.

Treatment of Competing Arguments:

The prosecution relies on these statements, while the defense questions their relevance.

Conclusions:

The Court defers the issue of admissibility to the trial.

SIGNIFICANT HOLDINGS

Core Principles Established:

The Court emphasizes the importance of considering individual circumstances and the completion of the investigation when deciding on bail applications. It also highlights the need for the trial court to determine the nature of the offense based on evidence.

Final Determinations on Each Issue:

The Court grants bail to the applicants, subject to conditions, without expressing an opinion on the merits of the case or the nature of the offense. The trial court is tasked with determining the nature of the offense and the admissibility of statements during the trial.