2024 (11) TMI 1149 - HC - Customs

Bail application of the accused-applicant - gold recovered from the possession of the applicant from there car - Officers of D.R.I., NOIDA on information intercepted a Car at Kashi Toll Plaza on Delhi-Meerut Expressway and found package wrapped with brown colour tape and found a yellow metal bar in rectangular shape was found which was weighing 999 grams - as submitted that co-accused Naman Jain has a jewellery shop in the name of 'Namokar Jewellers' and the gold recovered from the applicant was from the stock of co-accused Naman Jain which he was carrying to melt and make jewellery. It is also submitted that the recovered gold from the applicant has not been found to have any kind of mark attached to the smuggled gold nor has it been proved by the Investigator that the said gold was brought into India by smuggling HELD THAT - Having regard to the entire facts and circumstances and keeping in view the fact that in the matter trial has not started even yet and the complicity of the accused applicant is yet to be determined in trial, the gold seized is in the possession of the Department, the offence appears to be compoundable by virtue of Section 137(3) of the Customs Act and there is nothing on record to demonstrate that the applicant, if enlarged on bail, would in any way adversely affect the trial, no criminal antecedent to the credit of the applicant, his willingness and readiness to deposit the adequate customs duty over the said gold, the applicant is in jail since 17.6.2024, without further commenting upon the merits of the case, the applicant has made out a case for bail. Accordingly, the bail application of the accused-applicant is allowed. Let the applicant involved in Case No. 29 of 2024 under Sections 135(1)(a), (b), 135(1)(i)(a) of Customs Duty Act, 1962, Police Station D.R.I. NOIDA, District Gautam Budh Nagar be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to few conditions.

Summary

Issues: Bail application under Sections 135(1)(a), (b), 135(1)(i)(a) of Customs Duty Act, 1962

Analysis:
1. The bail application was filed by the applicant involved in a case under Sections 135(1)(a), (b), 135(1)(i)(a) of the Customs Duty Act, 1962. The prosecution alleged that the applicant was found in possession of gold, suspected to be smuggled, during a car interception at a toll plaza. The recovery included gold bars and jewelry items from the applicant and another person in the car.

2. The applicant claimed innocence, stating that he was falsely implicated and had no knowledge of the alleged offense. It was argued that the recovered gold belonged to a co-accused who owned a jewelry shop and that the applicant was merely an employee. The defense contended that the gold was not proven to be smuggled and the investigation conducted by D.R.I. Officers was flawed.

3. The defense further argued that the recovery memo and inventory were prepared improperly, and the prosecution's evidence lacked corroboration. It was emphasized that the recovered gold fell under the "restricted category" and not the "prohibited category," which would only require payment of customs duty. Additionally, it was claimed that the value of the gold recovered was below the threshold for prosecution, making the offense compoundable.

4. The defense cited circulars and legal provisions to support the bail application, highlighting previous cases where bail was granted in similar circumstances. The defense also challenged the legality of the order rejecting bail by the Sessions Judge and emphasized the applicant's willingness to cooperate in the trial if granted bail.

5. The opposition argued that the recovery of gold from both accused persons in the car should be considered a joint recovery, exceeding the Rupees One Crore limit. It was contended that the applicant failed to provide a satisfactory explanation for possessing the illegal gold and was involved in smuggling activities. The opposition stressed that the prosecution had followed all statutory provisions and there was no possibility of false implication at that stage.

6. After considering the submissions and the record, the court found that as the trial had not commenced, the accused's complicity was yet to be determined. The court noted that the offense appeared to be compoundable under the Customs Act, and the applicant had no criminal antecedents. The court granted bail to the applicant, subject to specific conditions, including appearance before the trial court, non-involvement in criminal activities, surrender of passport, and compliance with bail conditions.

7. The court allowed the bail application, directing the release of the applicant on furnishing a personal bond and sureties. Breach of bail conditions would empower the prosecution to seek bail cancellation.