2025 (4) TMI 655 - DSC - Customs

Seeking grant of regular bail - Smuggling - petitioner carried gold in the form of crude or in form of paste - personal search of petitioner and drawing of the Mahazar is in accordance with law or not - HELD THAT - The investigating officer conducting the personal search of suspected under NDPS Act he has to be conduct before nearest Gazetted Officer of any Department or nearest Magistrate. Under the Customs Act. Gazetted Officer of the Customs Department got power to conduct personal search. In this case the petitioner herself has given consent for her personal body search to SIO. Accordingly the respondent officials have conducted personal search of the petitioner. Therefore it is not necessary to respondent officers to called the other Gazetted officer. In this case the respondent officer have themselves satisfied and reasonable believed regarding concealment of the smuggling gold. Thereafter they conducted personal search and found that the petitioner has concealed the 17 gold bar in her cloth and seized the same by conducting seizer mahazar in the presence of panchas out of them one is female. On considering Sec 102 and 104 of Customs Act and circular issued by Customs Department in the year 2013 itself is one code for search seizer and arrest. Therefore it is procedure followed by the respondent officer while personal search of petitioner and seizer of Gold bars by drawing mahazar is in accordance with law and circular. The learned standing Counsel for the respondent relied on another important document i.e. business of the petitioner and accused No.2 is based on Hawala Channel. It is serious offence. A people of Bharath are looking forward to put their Nation/Bharath in the 3rd Economic place in entire world. In such circumstances if bail is granted to the petitioner it gives wrong message to public at large and it will have an bad impact and convey wrong message to the society as well as it gives wrong signal to the nation. Conclusion - The regular bail petition filed by the petitioner/accused under Section 483 of BNS Sanhita-2023 is hereby rejected. Petition dismissed.

1. ISSUES PRESENTED and CONSIDERED

The core legal issues considered in this judgment were:

Whether the petitioner/accused is entitled to the grant of bail under Section 483 of the Bharatiya Nyaya Sanhita-2023 in light of the alleged offences under Sections 135(1)(a) and 135(1)(b) of the Customs Act.
Whether the procedures followed by the respondent officials during the personal search and arrest of the petitioner were in accordance with the legal framework and guidelines provided by the Customs Act and relevant Supreme Court judgments.
Whether the petitioner's arguments regarding procedural lapses and rights violations during the search and arrest process were valid and sufficient to warrant bail.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Entitlement to Bail

Relevant Legal Framework and Precedents: The petitioner sought bail under Section 483 of the Bharatiya Nyaya Sanhita-2023, contesting the non-bailable nature of the offence under Section 135 of the Customs Act. The court examined provisions related to the non-bailable and cognizable nature of offences under the Customs Act, particularly Sections 104 and 135, and relevant Supreme Court judgments, including the recent Radhika Agarwal case.
Court's Interpretation and Reasoning: The court held that the alleged offence was cognizable and non-bailable, given the market value of the smuggled gold exceeded the statutory threshold. The court emphasized the seriousness of economic offences and the potential impact on national interests.
Key Evidence and Findings: The petitioner was found in possession of undeclared gold bars valued at over Rs. 12 crores, concealed on her person. The respondent officials followed the procedural guidelines for search and arrest, including informing the petitioner of her rights and obtaining written consent for the personal search.
Application of Law to Facts: The court applied the provisions of the Customs Act and the guidelines from the CBEC Circular to determine that the arrest and search procedures were legally compliant. The court found no procedural violations that would justify granting bail.
Treatment of Competing Arguments: The petitioner argued procedural lapses and rights violations, including the lack of separate arrest memos and non-disclosure of the officer's rank. The court found these arguments insufficient, noting compliance with legal requirements and guidelines.
Conclusions: The court concluded that the petitioner was not entitled to bail, emphasizing the gravity of economic offences and the need to uphold national economic interests.

Issue 2: Procedural Compliance in Search and Arrest

Relevant Legal Framework and Precedents: The court considered Sections 101, 102, and 104 of the Customs Act, which outline the procedures for search, seizure, and arrest. The court also referenced the D.K. Basu guidelines and the CBEC Circular on arrest and bail procedures.
Court's Interpretation and Reasoning: The court found that the respondent officials complied with the legal requirements and guidelines. The personal search was conducted by a female officer in the presence of female witnesses, and the petitioner was informed of her rights and provided written consent.
Key Evidence and Findings: The court noted that the petitioner was informed of her rights, and the search was conducted in accordance with the Customs Act provisions. The respondent officials documented the process adequately, including the valuation of the seized gold.
Application of Law to Facts: The court applied the Customs Act provisions and relevant guidelines to affirm the legality of the procedures followed during the search and arrest. The court emphasized the importance of adhering to procedural safeguards in such cases.
Treatment of Competing Arguments: The petitioner's claims of procedural lapses were countered by evidence of compliance with the Customs Act and guidelines. The court found no merit in the petitioner's arguments regarding procedural violations.
Conclusions: The court concluded that the search and arrest procedures were conducted in accordance with the law, dismissing the petitioner's claims of procedural lapses.

3. SIGNIFICANT HOLDINGS

Verbatim Quotes of Crucial Legal Reasoning: The court emphasized the higher threshold for arrest under Section 104(1) of the Customs Act compared to Section 41 of the Code, stating: "A person is said to have a 'reason to believe' a thing if they have sufficient cause to believe that thing but not otherwise."
Core Principles Established: The judgment reinforced the principle that economic offences, particularly those involving significant monetary value, warrant stringent procedural compliance and limited bail considerations. The court highlighted the importance of adhering to statutory thresholds and guidelines in arrest and search operations.
Final Determinations on Each Issue: The court denied the bail application, affirming the legality of the search and arrest procedures and emphasizing the gravity of the economic offences involved. The court underscored the need to protect national economic interests and deter economic crimes.

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