2022 (8) TMI 77 - HC - Customs

Seeking grant of Bail - Smuggling - foreign markings Gold Bars - burden to prove - presence of corroborative evidences or not - section 123 of Customs Act,1962 - HELD THAT - At present the prosecution is relying upon the statement of applicant recorded under section 108 of Customs Act which as per the judgement in the case of UNION OF INDIA VERSUS KISAN RATAN SINGH, KALU SINGH RAJPUT AND STATE OF MAHARASHTRA 2020 (1) TMI 510 - BOMBAY HIGH COURT , GOPI CHAND SONI AND ORS. VERSUS CUSTOMS, EXCISE SERVICE TAX APPELLATE TRIBUNAL AND ORS. 2011 (8) TMI 1366 - ALLAHABAD HIGH COURT and SEVANTILAL KARSONDAS MODI VERSUS STATE OF MAHARASHTRA 1979 (1) TMI 113 - SUPREME COURT cannot be a sole basis of conviction in absence of corroborative evidence. At the stage of consideration of bail application of the accused this court finds that complaint against the applicant has already been filed, show cause notice for confiscation of gold and imposing penalty has already been issued against the applicant. In order to attract section 123 of Customs Act,1962, it is essential that goods must be smuggled.It means goods of foreign origin and imported from abroad. There must be something proving their importation from abroad. Only an account of being unaccounted they cannot be inferred to be smuggled, they may be stolen too. Applicant claims that he has no passport and will not leave the country his whole family and business is at Kannuaj and Kanpur. There is no possibility of tampering with witnesses. Keeping in view the nature of the offence, argument advanced on behalf of the parties, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of DATARAM SINGH VERSUS STATE OF UTTAR PRADESH AND ANR. 2018 (2) TMI 410 - SUPREME COURT and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. Let the applicant be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to conditions imposed - Bail application allowed.

Summary

Issues:
Bail application under Section 135 of the Customs Act during trial.

Analysis:
The bail application was filed on behalf of the applicant seeking release during the trial in a case involving the recovery of foreign origin gold bars and cash from the applicant's premises. The applicant was alleged to be involved in smuggling activities, leading to the filing of a complaint under Section 135 of the Customs Act. The applicant denied the allegations, claiming the gold was purchased locally and the statement recorded by authorities was under duress. The applicant offered to deposit customs duty and highlighted the lack of evidence linking him to smuggling activities.

The applicant's counsel relied on various case laws to support the bail application, emphasizing the requirement of corroborative evidence to convict under Section 108 of the Customs Act. The opposite party vehemently opposed the bail application, citing the recovery of illegal gold and cash from the applicant. The court considered previous judgments emphasizing the need for corroborative evidence and the inadmissibility of coerced confessions under the Customs Act.

After evaluating the arguments, the court found that the prosecution primarily relied on the applicant's statement under Section 108, which alone was insufficient for conviction without corroborative evidence. The court noted that the applicant had been in custody since the incident, had no criminal history, and posed no flight risk. Citing relevant case law, including the importance of balancing individual liberty and societal interests, the court granted bail to the applicant.

The court imposed several conditions for the applicant's release on bail, including surrendering any passport, providing a bank guarantee, refraining from tampering with evidence or engaging in criminal activities, and cooperating with the trial proceedings. Breach of these conditions could lead to the cancellation of bail. The court's decision was based on the nature of the offence, the applicant's conduct, and considerations of justice and individual rights as per constitutional mandates and judicial precedents.