This application has been filed seeking the release of the applicant on bail in Case Crime No. Nil of 2020, u/s 135 of Customs Act, 1962, Police Station- D.R.I. Varanasi (Directorate of Revenue Intelligence), District- Varanasi.
Heard learned counsel for the applicant and learned A.G.A. Perused the record.
Submission of counsel for the applicant is that the applicant was travelling from Guwahati to Kanpur and he was arrested from Pandit Deendayal Upadhyay Railway Station (Mughalsarai). Submission is that there is no evidence on record that the alleged gold biscuits (3652.270 gms. amounting Rs.1,42,07,330/) were smuggled by the applicant as the real owner of the said article is one D.K. Khan and the applicant was only carrying the said biscuits from Guwahati to Kanpur. Further submission is that the statement of the applicant allegedly recorded by the officials of Customs Department under section 108 of the Customs Act, 1962 is not volunteer statement of the applicant and the same was obtained by coercion.
Shri Krishna Agarawal, learned counsel for the opposite party has opposed the prayer for bail and has submitted that as the applicant could not show any relevant paper regarding the article (gold) obtained from the possession of the applicant of such quantity, it is deemed proper that the said material was being smuggled. Learned counsel in this regard has also placed reliance upon several judgments of Hon’ble Supreme Court which are held as under:-
K.I. PAVUNNY V. ASSTT. COLLECTOR (HQ), CENTRAL EXCISE COLLECTORATE in which it has been held as under :-
“8. In Ramesh Chandra Mehta v. State of W.B. [(1969) 2 SCR 461 : AIR 1970 SC 940] a Constitution Bench of this Court held at p. 466 that the Customs Officers are entrusted with the powers specifically relating to the collection of customs duties and prevention of smuggling and for that purpose they are invested with the power to search any person on reasonable suspicion, to summon, X-ray the body of the person for detecting secreted goods, to arrest a person against whom a reasonable suspicion exists that he has been guilty of an offence under the Act, to obtain a search warrant from a Magistrate, to search any place within the local limits of the jurisdiction of such Magistrate, to collect information by summoning persons to give evidence and produce documents and to adjudge confiscation. He may exercise these powers for preventing smuggling of goods dutiable or prohibited and for adjudging confiscation of those goods. For collecting evidence the Customs Officer is entitled to serve summons to produce a document or other thing or to give evidence and the person so summoned is bound to attend either in person or by an authorised agent, as such officer may direct, is bound to state the truth upon any subject respecting which he is examined or makes a statement and to produce such documents and other things as may be required. The power to arrest, the power to detain, the power to search or obtain a search warrant and the power to collect evidence are vested in the Customs Officer for enforcing compliance with the provisions of the Sea Customs Act. He is empowered to investigate into the infringement of the provisions of the Act primarily for the purpose of adjudicating forfeiture and penalty. He has no power to investigate into an offence triable by a Magistrate, nor has he the power to submit a report under Section 173 of the Code of Criminal Procedure (for short “the Code”). He can only make a complaint in writing before a competent magistrate. The above law was laid down under the Sea Customs Act, the predecessor of the Act. The ratio therein equally applies to the powers exercised by the Customs Officer under the Act. The Act enlarges his powers. The Customs Officer is not a police officer nor is he empowered to file charge-sheet under Section 173 of the Code though he conducts enquiry akin to an investigation under some of the provisions of the Code. His acts are in the nature of civil proceedings for collecting evidence to take further action to adjudicate the infringement of the Act and for imposition of penalty prescribed thereunder which would be self-evident from sub-section (4) of Section 108.”
Further in the year 2009 Hon’ble Apex Court has well considered the abovenoted facts and in the judgment of Union of India Vs. Padam Narain Agarwal Etc. AIR 2009 SC 254 has observed as follows :-
“Sections 107-09 confer power on Custom Officers to examine persons, to summon them to give evidence and to produce documents.
55. Section 108 which is a material provision, reads thus;
Power to summon persons to give evidence and produce documents.–(1) Any gazetted officer of customs duly empowered by the Central Government in this behalf, 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 produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under control of the person summoned.
(3) All persons so summoned shall be bound to attend either in person or by an authorized agent as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject, respecting which they are examined or make statements and produce such documents and other things as may be required;
Provided that the exemption under Section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section.
(4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860)
56. This section does not contemplate magisterial intervention. The power is exercised by a Gazetted Officer of the Department. It obliges the person summoned to state truth upon any subject respecting which he is examined. He is not absolved from speaking truth on the ground that such statement is admissible in evidence and could be used against him. The provision thus enables the officer to elicit truth from the person examined. The underlying object of Section 108 is to ensure that the officer questioning the person gets all the truth concerning the incident.
57. As held by Constitution Bench of this Court in Ramesh Chandra Mehta v. State of West Bengal, (1969) 2 SCR 461, a person called upon to make a statement before the Custom Authorities cannot be said to be an accused of an offence. It is, therefore, clear that if a person is called upon to make a statement under Section 108 of the Act and summon is issued for the said purpose, he is bound to comply with such direction. This view has been reiterated in several cases thereafter.
58. In Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd., (2000) 7 SCC 53, this Court stated;
“Section 108 of the Customs Act does not contemplate any magisterial intervention. The power under the said section is intended to be exercised by a gazetted officer of the Customs Department. Sub-section (3) enjoins on the person summoned by the officer to state the truth upon any subject respecting which he is examined. He is not excused from speaking the truth on the premise that such statement could be used against him. The said requirement is included in the provision for the purpose of enabling the gazetted officer to elicit the truth from the person interrogated. There is no involvement of the magistrate at that stage. The entire idea behind the provision is that the gazetted officer questioning the person must gather all the truth concerning the episode. If the statement so extracted is untrue its utility for the officer gets lost”.
59. It is thus clear that statements recorded under Section 108 of the Act are distinct and different from statements recorded by Police Officers during the course of investigation under the Code.”
After perusal of the aforesaid judgment, it is very clear that the statement recorded under Section 108 of the Act is admissible as evidence, hence, the arguments advanced by the applicant is not sustainable.
Lastly, learned counsel for the applicant has also tried to place reliance upon the judgment of Hon’ble Apex Court in Om Prakash Bhatia Vs. Commissioner of Customs, Delhi AIR 200 SC 581 and submitted that it is a bailable offence.
In the counter of argument advanced by learned counsel for the applicant, Shri Krishna Agarawal, learned counsel for opposite party has brought the attention of the Court towards the judgment of Mahendra Soni Vs. State of U.P. and submitted that the case of Om Prakash Bhatia Vs. Commissioner of Customs, Delhi AIR 200 SC 581 is being well discussed and considered by the preceding Bench of this Court in case of Mahendra Soni Vs. State of U.P. passed in Criminal Misc. Bail Application No.33313 of 2019. He further submits that it has been held in the aforesaid judgment that it is a non-bailable offence. The relevant paragraphs of the judgment are being quoted here :-
“It has been argued by the learned counsel for the applicant that the applicant is innocent. The applicant has not committed any crime but due to ulterior motive, he has been challaned in the present case falsely. The applicant has not claimed ownership of the alleged gold bars and he has been falsely implicated as nothing was recovered from his possession. Two gold bars are alleged to have been recovered from the possession of the applicant and the same were valued at Rs. 66,94, 640/-, therefore, as per the relevant provision, the alleged office is bailable offence as the same is below Rs. 1 crore. In support of his plea, learned counsel for the applicant has placed reliance upon the judgment of the Apex Court in the case of Om Prakash & Another Vs. Union of India & Another reported in (2012) 3 SCC (Cri) 1249, wherein after considering the relevant provisions of the Act, 1962, the Apex Court has held that the offence committed is said to be bailable offence under the Act, 1962. The applicant has no criminal history. It is next contended that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. The applicant is in jail since 14th February, 2019.
Per contra, learned counsel for the opposite party no.1 and the learned A.G.A. for the State have opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. They have submitted that the contention of the learned counsel for the applicant that the applicant has not committed any crime has only been stated to be rejected on the ground that the applicant was apprehended with huge quantity of the smuggled foreign origin gold along with the co-accused Sanjay Kumar Agrwal. Both the accused could not show any valid papers of the impugned gold bards and categorically admitted in their statement tendered under Section 108 of the Act, that the same were smuggled from neighbouring country Bangladesh and the specific marks have intentionally been erased so as to avoid identification. They have further submitted that the contention of the learned counsel for the applicant that the applicant is not the owner of the alleged gold bars as nothing has been recovered from his possession is also liable to be rejected on the ground that on the information received, when the officers of D.R.I. intercepted the applicant and the co-accused Sanjay Kumar Agrawal, upon enquiry whether they were carrying any contraband/gold bars etc., they accepted that they were carrying foreign origin gold bards with them concealed in waist belt worn by the applicant and in the trousers’ pocket and shoes worn by the co-accused Sanjay Kumar Agrawal.
Learned counsel for the opposite party no.2 as well as learned A.G.A. for the State have next submitted that both the accused persons, namely, the applicant and the co-accused Sanjay Kumar Agarwal were travelling together, therefore, recovery is to be seen in that manner and five gold bars of 4,996.05 grams, which were of the value of Rs. 1, 67,36, 767/- has been done from the applicant as well as from the co-accused Sanjay Kumar Agrawal. It is further submitted that the same were seized under Section 110 of the Act, 1962 under the reasonable plea that they have brought the alleged gold bars India from Bangladesh in violation of provisions of Sections 7 (1) (C), 11 and 46 of the Act, 1962 read with Rule 3 (2) & (3) of the Foreign Trade (Development and Regulation) Act, 1962 and Rules 11 and 12 of the Rules, 1993. They have next submitted that the recovered gold bars were liable to be confiscated under Section 111 of the Act, 1962. The panchnama proceedings were also drawn in the presence of two independent witnesses. It is further submitted that the judgment relied upon by the learned counsel for the applicant in the case of Om Prakash & Another (Supra) has no application as the recovered gold bars as prohibited goods, as defined under Section 2 (33) of the Act, 1962. Learned counsel for the opposite party no.2 and the learned A.G.A. for the State have referred to Section 104 (6) (c) and 104 (6) (d) of the Act, 1962 for the proposition of law that the alleged offence committed by the applicant and the co-accused are not bailable offence. For ready reference, Section 104 (6) (c) and 104 (6) (d) of the Act, 1962 reads as follows:
“104. Power to arrest:—………….
(6) Notwithstanding anything contained in the Code of criminal Procedure 1973 (2 of 1974), an offence punishable under Section 135 relating to—-
(c) import or 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 lack rupees, shall be non-bailable.”
After considering all the arguments advanced by the parties and the judgments relied upon by the parties and further considering to the nature of offence, its gravity and the evidence in support of it and the overall circumstances of this case, this Court is of the view that the applicant has not made out a case for bail.
The prayer for bail of the applicant therefore, stands rejected.