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TMI Blog2023 (7) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... offence alleged against them is a non-bailable offence. Be that as it may, petitioners were arrested on 18.05.2023, and they have been in custody since then. The interrogation of the petitioners ought to have been completed by now. The second petitioner is a lady and is the mother of four young children. She claims to have been induced by her husband and his cousin to act as a carrier for remuneration. Both parents of those four children are under custody. The youngest of the four children is a four-year-old. Taking into reckoning the aforesaid circumstances and the period of detention already undergone from 18-05-2023, this Court is of the opinion that further detention of the second petitioner is not essential for the purpose of an effective investigation. Therefore the second petitioner is entitled to be released on bail. However, as far as the first petitioner is considered, though the investigation has proceeded significantly, he is stated to be not cooperating. The first petitioner is the person who allegedly induced the second petitioner also to act as a carrier. The first accused is allegedly a cousin of the first petitioner. The first accused is stated to be involved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 2 and 3. Petitioners were thereafter arrested. The bail applications filed before the Magistrate Court as well as the Sessions Court were rejected, and hence recourse to this Court, seeking regular bail. 3. Sri. S. Sreekumar, the learned Senior Counsel duly instructed by Sri. Martin Jose, the learned counsel for the petitioners, contended that the offences under the Act are generally bailable, except those that are specified as non-bailable. It was further submitted that the quantity of gold seized individually from petitioners 1 and 2 alone can be reckoned and so viewed; the offence alleged against them is bailable and therefore they ought to have been released by the customs authorities themselves. The learned Senior Counsel also submitted that the second petitioner is a lady and both of them have four children, of which the youngest is only four years and the presence of the parents at home is indispensable. It was also argued that there are no antecedents against them and hence considering the period of detention already undergone, petitioners ought to be released on bail. 4. An objection was filed by the respondent opposing the bail application. Sri. Sreelal N. Warria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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, or with both. 7. The question as to whether the offences under the Act are bailable or not is specified under section 104(6) of the Act. Since section 104(1), (6) and (7) of the Act are relevant, they are extracted as below: 104. Power to arrest (1) If an officer of customs empowered in this behalf by general or special order of the Principal Commissioner of Customs or Commissioner of Customs has reason to believe that any person has committed an offence punishable under Section 132 or Section 133 or Section 135 or Section 135A or Section 136, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under section 135 relating to - (a) evasion or attempted evasion of duty exceeding fifty lakh rupees; or (b) prohibited goods notified under section 11 which ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). Thus after the amendment, offences other than those excepted under Sec. 104(6) of the Act alone are bailable. Section 104(6)(c) provides that if goods have been imported without declaration in accordance with the provisions of the Act, and the value of the goods exceeds one crore of rupees, then the offence is non-bailable. 12. Smuggling of gold has a deleterious effect on the country's economy. Curbing the menace of smuggling is essential for the economic progress of the country. The cut-off value fixed through the amendment of 2013 for the purpose of treating the conduct of illegal import or export above that value as a non-bailable offence is with an avowed purpose. Hence while dealing with innovative attempts to override the rigour of statutory prescriptions, courts cannot be oblivious to the amendment and the statutory intent behind such changes in the law. 13. If the quantity of gold illegally imported was split into different parts and carried by different persons, all of whom had the common intention, then the acts done by such persons collectively can be treated as an act done by each person individually. Such an approach is necessary, especially when a common ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a pragmatic and realistic view has to be taken in the light of the amendment made to the Act making the offences above the value of Rupees One Crore to be non-bailable. The Court observed that the word 'any person' does not mean only one person but even more than one person, if they had jointly and knowingly involved themselves in fraudulent evasion or attempted evasion of customs duty chargeable. It was also observed that if more than one person acts in concert with each other to evade or attempt to evade customs duty, all of them together can be treated as 'any person' within the meaning of section 135 of the Act. I am in agreement with the aforesaid proposition of the Rajasthan High Court. 17. Thus, the quantity collectively carried by the petitioners can be treated as the quantity carried by each of them individually for ascertaining the value of goods imported. Considering the circumstances of the case, it is held, for the purpose of this bail application, that petitioners were carrying gold individually worth more than Rs. 1.20 Crores, and hence the offence alleged against them is a non-bailable offence. 18. Be that as it may, petitioners were arre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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