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TMI Blog2015 (8) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... oner has been dismissed by the Additional Sessions Judge No. 10, Jaipur Metropolitan vide order dated 24-9-2014, whereas the S.B. Criminal Misc. Bail Application No. 13466/14 has been jointly filed by accused-petitioners Shri Najibullah & Qais under Section 439 Cr.P.C. in respect of Case No. (VIII) (10) AP/23/2014 Customs (Preventive), Jaipur for the same offences and their application for grant of bail has been dismissed by the Additional Sessions Judge No. 10, Jaipur Metropolitan vide order dated 16-10-2014. The common question of law which has arisen in these bail applications is whether the offences under Section 135 of the Act for which the petitioners have been prosecuted is bailable or non-bailable and the equally important question which has been raised in these applications is whether the goods imported by the petitioners on previous occasion without declaration of the same and without paying customs duty upon them can be clubbed with the present goods which have been imported by them without declaration and without paying customs duty upon them. 3. Before considering the arguments submitted by the learned counsel for the parties and the relevant legal provisions, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... msp;The case of the prosecution in brief is that the petitioners, who are Afgan Nationals, arrived at Jaipur International Airport on 26-7-2014 from Abu Dhabi by Ethihad Airlines Flight No. EY-208 and while they were passing through exit gate after submitting a nil declaration, on their physical inspection the competent officers of the Customs Department recovered 9 gold bars from each of the petitioner weighing 1050 gms and thus in total 2100 gms gold was recovered from the joint possession of the petitioners and the market value of the gold so recovered was assessed to be Rs. 58,80,000/-. It is further the case of the prosecution that when statement of each of the petitioner was recorded under Section 108 of the Act, it was admitted by them that on previous occasions also they brought gold without declaration and without making payment of customs duty upon it and the market value of total quantity of the gold so imported by them comes to be Rs. 5,08,68,664/- involving customs duty amounting to Rs. 1,83,38,153/-. It is also the case of the prosecution that a number of documents such as invoices, receipts, declarations recovered from the possession of the petitioners also reveal th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customs duty by the same person with the present import of the gold if by any means it comes to the knowledge of the competent authority and, therefore, each of the petitioner can be prosecuted not only for the present offence, but also for the previous offences committed by him by filing a common complaint. It was further submitted that the object for which the Act has been enacted by the legislature permits the concerned authorities to club all the consignments of the dutiable goods imported by a person without declaration and/or without paying the customs duty for the purpose of assessing the market value of the same and also for the purpose of calculation of the customs duty which has been evaded or attempted to have been evaded. It was contended that if the present consignment of the gold recovered from the possession of each of petitioners is clubbed with the previous consignments of gold imported by each of them, the market value of the same far exceeds one crore rupees and the amount of the customs duty evaded or attempted to be evaded also exceeds Rs. 50 lacs and, therefore, the offence committed by each of the petitioner is a non-bailable offence within the meaning of sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be applied. The existence of a special law does not exclude the operation of the code unless the special law expressely or impliedly provides in that behalf in which case, the special law will apply otherwise the Code will apply. Thus, it is to be seen whether there is any provision in the Act which expressely or impliedly provides that the offences or any of them punishable under the Act are/is bailable. 14. Clause (a) of Section 2 of the Code provides which offence is bailable and which is non-bailable offence. According to this provision "bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non bailable offence" means any other offence. Thus, it is clear that unless an offence is expressely or impliedly made bailable by any other law for the time in force, the question whether an offence is bailable or not is to be determined as provided in the First Schedule of the Code. 15. It is not disputed that the Act deals with the law relating to levy of duties of customs. 16. According to Clause (14) of Section 2 of the Act "dutiable goods" means any goods whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his behalf by general or special order of the Commissioner of Customs, has reason to believe that any person has secreted about his person any goods of the description specified in sub-section (2) which are liable to confiscation, or documents relating thereto, he may search that person. (2) The goods referred to in sub-section (1) are the following :- (a) gold; (b) diamonds; (c) manufactures of gold or diamonds; (d) watches; (e) any other class of goods which the Central Government may, be notification in the Official Gazette, specify. SECTION 102. Persons to be searched may require to be taken before gazetted officer of customs or magistrate. - (1) When any officer of customs is about to search any person under the provisions of section 100 or section 101, the officer of customs shall, if such person so requires, take him without unnecessary delay to the nearest gazetted officer of customs or magistrate. (2) If such requisition is made, the officer of customs may detain the person making it until he can bring him before the gazetted office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export of any goods which have not been declared in accordance with the provisions of this Act and the market price of which exceeds one crore rupees; or (d) fraudulently availing of or attempt to avail of drawback or any exemption, from duty provided under this Act, if the amount of drawback or exemption from duty exceeds fifty lakh rupees, shall be non-bailable. SECTION 107. Power to examine persons. - Any officer of customs empowered in this behalf by general or special order of the Commissioner of Customs may, during the course of any enquiry in connection with the smuggling of any goods, - (a) require any person to produce or deliver any document or thing relevant to the enquiry; (b) examine any person acquainted with the facts and circumstances of the case. SECTION 108. Power to summon persons to give evidence and produce documents. - (1) Any Gazetted Officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making under this Act. (2) A summons to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of the Magistrate, photographs of such goods, and certifying such photographs as true; or (c) allowing to draw representative samples of such goods, in the presence of the Magistrate, and certifying the correctness of any list of samples so drawn. (1C) Where an application is made under sub-section (1B), the Magistrate shall, as soon as may be, allow the application. (2) Where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a) of section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized : Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Commissioner of Customs for a period not exceeding six months. (3) The proper officer may seize any documents or things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act. (4) The person from whose custody any documents are seized under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learance of the goods required to be produced under section 109 is not produced or which do not correspond in any material particular with the specification contained therein; (l) any dutiable or prohibited goods which are not included or are in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under section 77; (m) any goods which do not correspond in respect of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under section 77 in respect thereof, or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to sub-section (1) of section 54; (n) any dutiable or prohibited goods transitted with or without transhipment or attempted to be so transitted in contravention of the provisions of Chapter VIII; (o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king under the Act. It is the case of the prosecution that each of the petitioner was examined and his statement was recorded by the empowered gazetted officer under this provision and each of the petitioner has admitted in his statement that on previous several occasions consignments of gold were brought by him into India from a place outside India without declaration and without paying customs duty upon them. 22. Section 135 of the Act is also relevant which is as below: SECTION 135. Evasion of duty or prohibitions. - (1) Without prejudice to any action that may be taken under this Act, if any person - (a) is in relation to any goods in any way knowingly concerned in misdeclaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods; or (b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods which are the subject matter of such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence; (iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party to the commission of the offence; (iv) the age of the accused. 23. A close look at the aforesaid provision for the present purpose shows that if any person in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon shall be punishable with imprisonment for a term which may extend to seven years and with fine in the case of an offence relating to any goods the market price of which exceeds one crore rupees or evasion or attempted evasion of duty exceeds fifty lakh of rupees. A close reading of the above provision makes it very clear that it takes into its sweepn "any goods" if the accused knowingly involves himself in fraudulent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ket price of gold so imported by each of the petitioner exceeds one crore of rupees and the value of the customs duty evaded or attempted to be evaded exceeds fifty lakh of rupees and thus the offence committed by each of the petitioner is a non-bailable offence within the purview of sub-section (6) of Section 104 of the Act and petitioners are not entitled to be released on bail as of right as provided under Section 436 of the Code. 26. So far as the case law relied upon on behalf of the parties is concerned, it is of no help to them as the question of law raised in the present cases was neither under consideration nor decided in them. 27. So far as grant of bail to the petitioners on merit is concerned, looking to the gravity of the offence and likelihood of the repetetion of the same, petitioners are not entitled benefit of bail on merit also. In economic offences as in the present cases, interest of the National Economy is adeversely effected and, therefore, while considering the question of grant of bail to an accused, it should be seen whether it is desirable in national interest or not. 28. Consequently, both the applications for grant of bail under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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