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TMI Blog2024 (11) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... reflected from the records that the flat situate in chowk Lucknow was rented by the brother of the applicant and his firm and was also utilized by the applicant for his business purposes including keeping the gold ornaments. 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, 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. 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. 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 Harekri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh, Mohd Agha Haider Rizvi, Vinod Kumar Yadav For the Opposite Party : Digvijay Nath Dubey ORDER HON'BLE JASPREET SINGH, J. 1. Heard Shri Atul Verma, learned counsel for the applicant and Shri Digvijay Nath Dubey, learned counsel for the respondent. 2. This is a regular bail application filed by the applicant who has been arraigned in a Complaint Case/DRI Case No.6/2024 under Section 135 of the Customs Act, 1962, Police Station DRI, District Lucknow. 3. The applicant had earlier filed an application seeking anticipatory bail under Section 438 Cr.P.C., bearing No.793 of 2024 (Laxman Chandra J. Parai v. Union of India) which came to be rejected by this Court by means of order dated 14.05.2024. It is in furtherance thereof that the applicant surrendered before the Court concerned and he is in judicial custody since 29.06.2024. 4. The facts as borne out from the record reveals that Directorate of Revenue Intelligence (hereinafter referred to 'DRI') received specific tip and information and acting upon the same, it intercepted two persons namely Lalmohan Panja and Harekrishna Parai, two co-accused, on 20.02.2024 at around 09:20 PM from the Second AC Coach bearing No.A1 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old jewellery, (iii) Sumit Rastogi, from whose residence a locker was found of which the combination and key were with the above mentioned two detained co-accused who were apprehended with the jewellery and cash, (iv) the applicant and (v) his brother Ramkrishna Jaladhar Parai and (vi) another co-accused Abhijeet Manna. 10. The record further reveals that Sumit Rastogi was enlarged on bail by this Court by means of the order dated 03.04.2024 passed in Criminal Misc. Bail Application No.3594/2024. 11. Thereafter, two regular bail applications of the apprehended co-accused namely Lalmohan Panja and Harekrishna Parai were filed and two anticipatory bail applications were filed by the present applicant and his brother Ramkrishna Jaladhar Parai. All four came to be rejected by this Court by means of the order dated 14.05.2024 passed on four above mentioned separate bail applications. 12. In the aforesaid backdrop the present applicant Laxman Chandra J. Parai has moved the instant regular bail under Section 439 Cr.P.C. 13. Shri Atul Verma, learned counsel for the applicant has urged that the applicant is a respected businessman trading in gold and jewellery. The applicant is a proprietor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y clear prima-facie material to indicate that gold is of foreign origin apparently the provisions of Section 135 of the Customs Act is not attracted. The statement given by the two co-accused Lalmohan Panja and Harekrishna Parai cannot be used against the applicant for charging him with the offence under Section 135 of the Customs Act. 19. Shri Verma has further urged that the said gold jewellery which has been seized and recovered from the two co-accused were not in the shape of gold pieces or bars nor the same has been recovered and seized from any airport or port which could give rise of any speculation that the said gold was being smuggled in the country. On the contrary the material brought on record suggests clearly that the applicant is a bonafide businessman and has ample resources to justify the quantity of gold jewellery as well as gold pieces and the necessary corresponding transactions including payment of GST returns filed by the applicant also corroborates the level of business turnover being done by the applicant. 20. It is further submitted that the allegations in the complaint and in the counter affidavit filed in the instant bail application by the DRI, it does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication. The submission is that huge quantity of gold and cash was recovered from the two co-accused namely Lalmohan Panja and Harekrishna Parai, who are said to be the employees of the applicant and his brother Ramkrishna Jaladhar Parai. 25. It is further submitted that the documents which have been annexed with the bail application cannot be taken to be the gospel truth regarding the bonafides of the applicant. It is urged that what is important is the fact that the gold jewellery, gold pieces and cash which have been recovered has been accepted by the applicant to be that of the applicant and his brother. 26. It is further submitted that the statements of the two co-accused which has been recorded is a valuable piece of evidence. The statements of the employees of the applicant clearly indicates that the gold jewellery has been made from the gold of foreign origin. It is submitted that the two co-accused namely Lalmohan Panja and Harekrishna Parai, they worked for the applicant and his brother. They used to smuggle gold in the country from Nepal and the same is then melted to make gold jewellery and later sold to the customers. This clearly depicts bringing gold of foreign orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person can be punished for the limited offence if the ingredient as set out in the said section is made out. The maximum sentence which is prescribed in the aforesaid provisions is upto 7 years. The said section also indicates that only in terms of special circumstances, as mentioned in the said section, the sentence can be upto 7 years. 34. Section 123 of the Act mentions regarding the burden of proof in certain cases. The said section enumerates that where there is a reasonable belief that any goods have been smuggled then the burden to prove that goods have not been smuggled is on the person from whose possession the incriminating articles have been recovered and seized. This section is applicable to gold and other class of goods which may be notified by the Central Government. 35. Taking note of the respective submissions of the parties and the provisions as referred hereinabove, it reveals that the applicant is dealing with sale of gold jewellery through his firm M/s. R.L. Jewels. The said firm is a proprietorship and is duly registered with the GST and MSME. The documents filed by the applicant including his bank statement, income tax returns, GST returns, stock register an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business relates to dealing with gold jewellery. Bank statements, GST returns, Income-tax Returns, all reflect that the applicant is not at flight risk. The family of the applicant is also residing in Thane, Maharashtra and it shows that the applicant has roots in the society. 40. It is also not disputed that the applicant does not have any other criminal history except for the case at hand. The applicant has been in jail since more than 4 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. 41. It is also informed by the learned counsel for the applicant that the co-accused, namely, Ramkrishna Jaladhar Parai had already been enlarged on bail by this Court by means of its order dated 16.10.2024 passed in Criminal Misc. Bail Application No.7983 of 2024 Ramkrishna Jaladhar Parai v. Union of India and the case of the present applicant is most identical to the case co-accused Ramkrishna Jaladhar Parai. 42. Considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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