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TMI Blog2024 (10) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... icant has been in jail since more than 3 months and apparently the DRI has not demonstrated any reason or purpose for which the custody of the applicant is required any more. It is also not disputed that the maximum sentence as prescribed under Section 135 of the Customs Act is upto 7 years and is triable by Magistrate and the complaint has already been filed. Considering the nature of allegations and accusation against the applicant, the severity of the punishment if convicted including the fact that the applicant is not at flight risk nor it has been apprehended by the DRI that the applicant is in a position to tamper with evidence or influence any witness and that the charge under Section 135 of the Customs Act is yet to be established in trial also noticing the period of incarceration as well as the fact that the personal liberty of the applicant is a precious fundamental right which has to be balanced in the context with the punishment which may finally be awarded upon conclusion of trial, hence, at this stage, without expressing any opinion on the merits of the case, this Court is of the view that the applicant is entitled to be released on bail. Let the applicant Ramkrishna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axman Chandra Parai, situate in a Flat, in Chowk area of Lucknow from where additional 7,700 grams of gold jewellery is said to have been recovered and valued at Rs. 3,69,60,000/-. 6. The detained two co-accused namely Lalmohan Panja and Harekrishna Parai also revealed that another locker was kept in the residence of another co-accused Sumit Rastogi. The premises of Sumit Rastogi was also searched and a locker was recovered from the said premises. The keys to the said locker were available with the two detained co-accused persons who were being questioned and upon opening of the said locker 20,500 grams of gold jewellery was found in the said locker valued at Rs. 12,42,62,400/-. 7. Three test samples marked as S1, S2 and S3 were drawn from the seized gold jewellery as well as 41.9 grams of gold pieces and were sent to the Director Central Revenue Control Laboratory at New Delhi and its report indicated that the first sample marked as S1 was composed of 98.42% of gold (by weight), the second sample S2 was an alloy containing gold, silver and copper with primary gold content of 74.38% (by weight) and the third sample S3 indicated that it was an alloy of gold, silver and copper with g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocurement and sale of gold, GST returns which includes the sale of jewellery made from gold. The sale proceeds received from the customers is deposited in the bank account of the firm maintained with the ICICI Bank Limited, situate in Ostwal, D. Darshana Building, Near Jain Mandir, Thane (Maharashtra). 16. It is further urged that the applicant has paid GST to the concerned Department and the relevant statements of bank account, the GST returns, income-tax returns, registration of firm of the applicant with the GST Department and with MSME have been annexed with the bail application to clearly demonstrate that the applicant is a bonafide businessman having a respectable position in the market and the applicant has been paying his taxes and he has been falsely implicated in the instant case. 17. The thrust of the submissions of Shri Verma is that the complaint has been filed against the applicant under Section 135 of the Customs Act. It is urged that in order to attract the aforesaid offence in terms of Section 135 of the Customs Act there must be prima-facie indication that the gold jewellery which is said to have been confiscated and seized by the DRI is made from gold of foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... theless it will not amount to any smuggling or evasion of duty to invoke the provisions under the Customs Act. 22. Even at best, if it is considered to be a case of evasion of custom duty (though not conceded) the applicant can only be subjected to penalties. The gold jewellery as recovered may not have had any BIS marking even then it could be a mere violation of the provisions of Bureau of Indian Standards Act, 2016 against which some penalty can be imposed upon the applicant but nonetheless a case for keeping the applicant in custody is not made out. 23. It is further submitted that the applicant has been in jail since 29.06.2024 and the complaint has already been filed on the basis of material available with the Department and no interest has been shown by the DRI that the custody of the applicant is required for any further investigation or interrogation. The Department already had made a search of the residence and the office premises of the applicant maintained in Thane, Maharashtra and at Lucknow and it has already seized all articles which the Department thought was incriminating, hence, there is no apprehension that the applicant will be at flight risk or would tamper wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the pictures of the gold items so much so that even immediately prior to the apprehending of the two co-accused, the applicant and his brother were in touch with the detained co-accused including Sumit Kumar Rastogi and there is sufficient material to implicate the applicant and the co-accused in terms of Section 135 of the Customs Act. 28. It is further urged that the statements of two detained co-accused as well as the applicant is not hit by Section 25 of the Indian Evidence Act as it is now well settled that the statement of the accused before the custom officer (who is not a police officer) can be used against the applicant. 29. In light of the aforesaid, the statement of the co-accused and the confession recorded therein that the gold jewellery was made of gold from foreign origin and looking into the quantum of the cash recovered and the gold jewellery, the complicity of the applicant is duly established. Hence, the bail application deserves to be rejected. 30. The parties have exchanged copious pleadings. The applicant has filed the bail application along with documents to which the Department submitted its counter affidavit dated 29.07.2024. The applicant then filed his re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack or exemption from duty exceeds [fifty lakh] of rupees 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, or with both.] [(2) If any person convicted of on offence under this section or under subsection (1) of Section 136 is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence 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]. (3) For the purposes of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than [one year], namely ( i ) the fact that the accused has been convicted for the first time for an offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business purposes including keeping the gold ornaments. 37. The record further indicates that despite filing various affidavits by the applicant either in support of the bail application or in rejoinder affidavit to the counter affidavit filed by the DRI and two supplementary rejoinder affidavits yet there is no plausible explanation insofar as cash recovered from the co-accused is concerned, except that the said cash belonged to the applicant and his brother as it was generated from the sale of jewellery. 38. Prima-facie record reflects that the quantum of business generated by the applicant through his firm can give rise to the turnover as suggested and the applicant may have the necessary resources to justify the availability of the quantity of gold and jewellery. 39. It is also not the case of the DRI that the aforesaid gold/jewellery/cash was recovered from the airport or from a railway station near a border town from where the gold of foreign origin could be smuggled. Except for the incriminating statement made by the two co-accused namely Lalmohan Panja and Harekrishna Parai, there is nothing to indicate with clarity that the gold or gold jewellery which has been recovered a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 2. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 3. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge-sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held as under:- 21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, necessity is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be depriv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. (iii) The applicant will not leave the country without the written leave of the trial Court. (iv) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. (v) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law. (vi) The applicant shall neither influence any witness nor tamper with any evidence after his release. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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