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TMI Blog2023 (3) TMI 1293X X X X Extracts X X X X X X X X Extracts X X X X ..... . Whether alleged recovered gold was prohibited goods as if it was prohibited goods then by virtue of Section 104 (6) and 135 Customs Act, the alleged offence committed by the applicants would be non-bailable and maximum punishment provided for such offence is seven years? - HELD THAT:- From the perusal of Section 2(33) Customs Act it appears that every good is prohibited if its import or export is subject to an prohibition under the Customs Act or any other law for the time being in force. Recently three Judges Bench of the Apex Court in the case of COMMISSIONER OF CUSTOMS VERSUS M/S. ATUL AUTOMATIONS PVT. LTD., AND PARAG DOMESTIC APPLIANCES [ 2019 (1) TMI 1324 - SUPREME COURT] with regard to multi function device observed that MFDs were not prohibited but restricted items for import and further observed that there will exist fundamental distinction between what is prohibited and what is restricted. Therefore, from the case of Atul Automation, it appears that on the basis of restriction on import a good cannot be said to be prohibited good in terms of Section 2 (33) Customs Act. In case as hand, according to the prosecution, gold was recovered from the possession of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22, under Sections 135(1)(A) and 135(1)(B) of Customs Act, 1962, through Directorate of Intelligence, during pendency of the trial. BRIEF FACTS: 4. According to the prosecution, on 6.11.2022 an intelligence input was received by DRI that some persons, who were travelling in Train No.22422 in Coach-B-5 at Seat No.2, 3,54 and 56 are smuggling the foreign origin gold and they boarded in the Train from Jodhpur, Rajasthan and are going to deliver smuggled foreign origin gold in Rampur, Uttar Pradesh. Thereafter on 6.11.2022 Team of DRI Officers arrived at Rewari Junction Railway Station and when train arrived at the Junction at about 8.20 PM then Officers found that on the above mentioned seats applicants and two others were sitting and from the possession of applicant Mohammad Alam 549.5gm. gold in form for rods and from the possession of applicant Mohammad Tufail 526gm. gold in paste form were recovered. It is further alleged that from the possession of rest of accused persons, namely, Ishrat Ali 947.5gm gold and from the possession of Mohammad Naeem 525.5gm gold were recovered. Thus, as per DRI total 2548.5gm gold were recovered from the possession of applicants and two oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of combined gold recovered from the possession of all accused persons including applicants can not be considered. 10. They placed reliance on the judgment of Delhi High Court in the case of Air Customs Vs. Begaim Akynova decided on 3.1.2022 in Writ Petition (Criminal ) No.1974 of 2021. 11. Learned counsel for both the applicants further argued that from the train applicants and two others were taken to DRI Office, NOIDA and thereafter search was made and after three days they were made accused in the present matter after showing their formal arrest in the present case therefore, the procedure adopted by the DRI Officers is totally illegal and cannot be approved under the law as at the time when applicants were apprehended then neither search was taken at spot nor they were immediately arrested and thus applicants were under illegal custody of DRI for almost three days, i.e., from 6.11.2022 to 9.11.2022. 12. Learned counsels for the applicants further submit that statements recorded under Section 108 Customs Act are not admissible in view of the law laid down by the Apex Court in the case of Toofan Singh Vs. State of Tamilnadu, 2021 (4) SCC1. SUBMISSIONS ON BEHALF O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gold is more than Rs.One Crore, therefore, applicants and others committed non-bailable offences. 17. He further submits that as all the accused persons including applicants were well aware that all of them were carrying gold, therefore, they are all having conscious possession over entire recovered gold and it cannot be said that they acted individually and as they committed alleged offence as a team therefore, total value of recovered gold should be considered. 18. Learned counsel for the DRI further submits that the recovered gold is prohibited goods as its import or export is subject to certain prescribed condition, therefore, as per Section 104 Customs Act, the offence committed by applicants is non-bailable and according to Section 135 Customs Act maximum punishment for such offence is 7 years. 19. He placed reliance on the judgment of the Apex Court in the case of Om Prakash Bhatia Vs. Commissioner of Customs, Delhi, AIR 2000 SC 581. 20. He further submits that applicant Mohammad Aalam was earlier also involved in act of smuggling with regard to foreign currency of US Dollar and Euros in the year 2020. He further submits that applicant Mohammad Tufail was also bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person, he shall be punishable,-- (i) in the case of an offence relating to,-- (A) any goods the market price of which exceeds one crore of rupees; or (B) the evasion or attempted evasion of duty exceeding fifty lakh of rupees; or (C) such categories of prohibited goods as the Central Government may, by notification in the Official Gazette, specify; or (D) fraudulently availing of or attempting to avail of drawback or any exemption from duty referred to in clause (d), if the amount of drawback or exemption from duty exceeds fifty lakh of rupees, (E) obtaining an instrument from any authority by fraud, collusion, wilful mis-statement or suppression of facts and such instrument has been utilised by any person, where the duty relatable to utilisation of the instrument exceeds fifty lakh rupeees, with imprisonment for a term which may extend to seven years and with fine: Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than one year; (ii) in any other case, with imprisonment for a term which may extend to three years, or with fine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him of the grounds for such arrest. (2) Every person arrested under sub-section (1) shall, without unnecessary delay, be taken to a magistrate. (3) Where an officer of customs has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police-station has and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898). (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any offence relating to-- (a) prohibited goods; or (b) evasion or attempted evasion of duty exceeding fifty lakh rupees; or (c) fraudulently availing of or attempting to avail drawback or any exemption from duty provided under this Act, where the amount of drawback or exemption from duty exceeds fifty lakh rupees; or (d) fraudulently obtaining an instrument for the purpose s of th is Act or the Foreign Trade (Development and Regulation ) Act, 1992(22 of 1992), and such instrument is utilised under this Act, where duty relatable to such utilisation of instrument exceeds, fifty lakh rupees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so would be non-bailable. 28. In case at hand, from the individual possession of both the applicants gold valuing less than Rs. One Crore was recovered, however, value of total gold recovered from the possession of applicants and two others was more than Rs. One Crore. 29. Therefore, question arises whether value of individually recovered gold should be considered or value of combined recovered gold should be considered. 30. In Section 135 Customs Act, term any person has been used and, in my view, it denotes to an individual. The term any person cannot be interpreted as a group of persons. From the plain reading of Section 135 Customs Act it appears that it refers to an individual. 31. Delhi High Court also in the case of Air Customs Vs. Begaim Akynova (supra) observed that punishment which is to be imposed on the accused should correspond to the gold that has solely been recovered from his possession and each person should be made answerable for the recovery of gold found in his possession. 32. Therefore, in my view, for the purpose of Section 135 Customs Act value of individually recovered gold should be considered and not the value of combined recovered gold. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l exist fundamental distinction between what is prohibited and what is restricted. Therefore, from the case of Atul Automation (supra) it appears that on the basis of restriction on import a good cannot be said to be prohibited good in terms of Section 2 (33) Customs Act . 39. In case as hand, according to the prosecution, gold was recovered from the possession of the applicants which was liable for confiscation under Section 111 of the Customs Act and as per Section 125 Customs Act the authority concerned may levy fine in lieu of confiscation and, therefore, it appears from the provisions of Section 11 of Customs Act gold is not prohibited goods but it is restricted goods and as per Section 125 Customs Act in lieu of confiscation fine may be levied. Therefore, as import of gold is not prohibited but restricted subject to prescribed payment of duty, thus alleged recovered gold is not prohibited goods under Section 2(33) Customs Act but it is restricted goods in view of the judgment of three Judges Bench of the Apex Court in the case of Atul Automation (supra). 40. Therefore, from the discussions made above, it appears that applicants committed offence under the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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