2023 (9) TMI 245 - HC - Customs

Smuggling - 23 gold bullions of foreign origin - tampering of witnesses - HELD THAT - It is an admitted fact that the said gold has not been recovered from the conscious physical possession of the petitioner, who is the brother of the apprehended co-accused. He is working in the shop of Kailash Chandra Maheshwari (owner of K.P. Bullions) and therefore, he was made accused in the present case on the allegation that he assisted the apprehended co-accused person. Apart from that, there is no specific allegation against the petitioner to tamper the witnesses. Considering that the recovered gold bullions have already been confiscated by the Customs Department and punishment for the said offence is seven years imprisonment and considering the the judgment of the Apex Court in the case of SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION ANR. 2022 (8) TMI 152 - SUPREME COURT anticipatory bail granted to the petitioner. Let the petitioner be released on bail, in the event of his arrest or surrender before the learned Court below within a period of six weeks from today, on furnishing bail bond of Rs. 25,000/- (Rupees Twenty Five Thousand) with two sureties of the like amount each to the satisfaction of the learned court below where the case is pending/Successor Court in connection with DRI, Patna Unit Case No.23 of 2022-2023, arising out of Complaint Case No.376(O)/2022, subject to the conditions as laid down under Section 438(2) of the Cr.P.C. - Application allowed.

Summary

Issues involved:
The issues involved in the judgment are the apprehension of arrest under section 135(1)(b) of the Customs Act, 1962, the alleged smuggling of gold bullions, the petitioner's innocence, and the granting of anticipatory bail.

Alleged Smuggling of Gold:
The prosecution case involved a raid at Gaya Railway Station where 23 gold bullions of foreign origin were recovered from the co-accused. The co-accused implicated the petitioner in the smuggling. The petitioner's counsel argued that there was no incriminating evidence against the petitioner, and he was implicated solely based on the co-accused's statement, which was not obtained following legal procedure. The petitioner's lack of involvement with the seized gold bullion was emphasized.

Opposition to Bail:
The State and DRI opposed bail, stating that the apprehended co-accused admitted to smuggling gold from Kolkata to Kanpur for the petitioner's brother, who owned a shop where the petitioner worked as a manager. The DRI presented evidence indicating the petitioner's involvement in selling, purchasing, and dealing with smuggled gold bullions, leading to an offense under section 135(1)(b) of the Customs Act, 1962. The DRI argued that the recovered gold bullions had been confiscated and highlighted provisions of the Customs Act supporting the case against the petitioner.

Granting of Anticipatory Bail:
After considering arguments and the lack of physical possession of the gold by the petitioner, who was accused of assisting the apprehended co-accused, the court granted anticipatory bail. The court noted the absence of specific allegations of witness tampering against the petitioner. Citing a Supreme Court judgment and the severity of punishment for the offense, the court decided to release the petitioner on bail upon arrest or surrender, subject to specified conditions, including cooperation in the trial and surrender of any passport.