2024 (2) TMI 1272 - HC - Customs

Application for Grant of bail - smuggling foreign origin gold - No duty paid - provision of Section 135 (1)(b)(i)(A) of the Customs Act - HELD THAT - We have found that as per the materials collected by the DRI, during the course of investigation, the gold seized was smuggled to India and no document/authority could be shown by the applicant for his possession of the seized gold. Sampling was done in accordance with the provisions. There is no specific allegation on behalf of the applicant that how the provisions of law are not complied with while sampling the recovered gold. Seizure memo was prepared as per the provision, which is on record. The statement of accused-applicant is recorded by DRI which is signed by the applicant and the same is on record as annexure no.3 to the counter affidavit filed on behalf of DRI. The statements of other three co-accused were also recorded by the DRI, which was signed by them and same is on record as annexure nos.4 to 6, to the counter affidavit filed on behalf of DRI. Whatever it may be, from the materials on record and on hearing the rival submissions made by the respective learned counsel for the parties, this Court is of the view that this is not a fit case to grant bail to the applicant, at this stage, as there are materials collected during the investigation of the case that the applicant had, in his possession four gold bars weighing 2441.500 grams valued at Rs. 1,49,90,810/- covering the case by the provision of Section 135 (1)(b)(i)(A) of the Customs Act. Therefore, the prayer for bail of the applicant stands rejected.

Summary

Issues involved:
Bail application under section 135 of Customs Act, compliance with procedural requirements, recovery of gold from accused, admissibility of confessional statements, value and quantification of recovered gold, involvement of accused in smuggling, non-cognizable offences, possession of seized gold, duty payment, sampling procedure, denial of bail.

Comprehensive details of the judgment:

Bail Application:
The applicant sought bail in Case Crime No.20 of 2023 under section 135 of Customs Act, claiming innocence and false implication. Allegations include failure to obtain seizure permission, non-compliance with Customs Act procedures, lack of incriminating evidence, arbitrary statement recording, duty evaluation failure, absence of recovered gold quantity disclosure, joint recovery preparation to amplify offense gravity, lack of malafide intention, gold purity uncertainty, absence of criminal history, no conspiracy with co-accused, and cooperation assurance in trial proceedings.

Opposing Argument by DRI:
DRI contended that intelligence reports indicated smuggling by the accused from Dubai, leading to gold recovery from their belongings at the airport. Confessions were made regarding knowingly smuggling gold from Dubai, with involvement of a Dubai contact. The accused were arrested in accordance with Customs Act and Circular No.13 of 2020-Costume. The value and quantification of gold were verified by an approved assayer, justifying confiscation under Customs Act.

Legal Analysis:
The judge considered compliance with Customs Act provisions, including arrest under section 104, which allows arrest for offenses like section 135. The offense being non-bailable for goods exceeding Rs. 1 crore in value. The court found the seized gold to be smuggled, with no proof of legal possession by the applicant, distinguishing previous cases cited by the applicant's counsel. Sampling and seizure procedures were found to be in order, with recorded confessions deemed admissible.

Decision:
After reviewing the materials and arguments, the court denied bail to the applicant, citing possession of smuggled gold bars valued at Rs. 1,49,90,810 under section 135 of the Customs Act. The judge found the case not suitable for bail at that stage, based on the evidence presented during the investigation.

Conclusion:
The bail application was rejected, emphasizing the seriousness of the offense and the evidence of possession of smuggled gold by the applicant. The decision was based on the legal provisions and materials collected during the investigation, indicating the involvement of the applicant in smuggling activities.