High Court
Case Details
Neutral Citation No. - 2024:AHC:114752 Court No. - 86 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16327 of 2024 Applicant :- Arvind Chandrakant Kadam Opposite Party :- Union of India Counsel for Applicant :- Amarnath Tripathi Counsel for Opposite Party :- G.A.,Krishna Agarawal Hon'ble Nalin Kumar Srivastava,J. 1. Heard learned counsel for the applicant, learned A.G.A for the State as well as learned counsel for the opposite party no.2 and perused the record. 2. This bail application has been filed by the applicant - Arvind Chandrakant Kadam involved in case crime no.NIL of 2024 under Section 135 Customs Duty Act, 1962, Police Station D.R.I., District Varanasi. 3. According to prosecution version, the Officers of D.R.I., Varanasi on information intercepted the present accused applicant
Legal Reasoning
and one Amit Srirang Jadhav in respect of smuggled golden bars, who were travelling in Train No.15658 (Bramhputra Express, Coach No. H-1, Berth Nos. D-11 and D-12) at Deen Dayal Upadhyay Junction Railway Station on 6.1.2024 at 4.30 p.m. and they were brought to the D.R.I. Office at Sigra, Varanasi and on search 16 golden bars valuing Rs.1,66,27,499/- from present accused applicant and 4 golden bars from co-accused Amit Srirang Jadhav valuing Rs. 41,56,640/- were recovered and the value thereof was affirmed by the authorized valuer. Recovery memo, inventory and seizure order were duly prepared and a complaint was filed before the Competent Court at Varanasi which was registered as Case No. 12513 of 2024. 4. It has been submitted by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. He has no concern with the alleged offence. It is further submitted that the applicant has a jewellery shop in the name of 'Shilpa Jewellery' having GST No. 33ADLFS1839F1Z1 in the partnership of his wife. He has allegedly admitted his guilt during interrogation and has also disclosed that the recovered gold was received by him on 5.1.2024 at about 10.00 a.m. from an unknown person at Kamakhya, as claimed by the prosecution. The prosecution further claims that he has further confessed that the said gold is foreign and smuggled gold and he was going to deliver it to one Mustafa, resident of Koyambatur. It is further submitted that the alleged confession made by the accused applicant before the D.R.I. Officers is nothing but a false and concocted story of the prosecution. It is also submitted that as a matter of fact no smuggled gold was recovered from his possession, as alleged by the prosecution. It is further submitted that according to the provisions of Section 135 of the Customs Act, 1962, the offence alleged against the applicant is punishable with the imprisonment only upto a period of one year. It is also submitted that the investigation conducted by the D.R.I. Officers is completely faulty and only on the basis of suspicion and alleged confession made by the applicant, without any cogent previous information, the alleged recovery has been shown by the D.R.I. Officers. It is also submitted that there is no evidence at all on record that the alleged golden bars belong to the present applicant. It is also submitted that the learned Sessions Court at Varanasi, without considering the evidence on record, in an illegal manner, rejected the bail application moved by the applicant. It is also submitted that due to the lack of any corroborative evidence, statement under section 108 of the Customs Act cannot be read against the maker of the statement. It is also submitted that the gold, allegedly recovered from his possession, falls into the 'restricted category' and not in the 'prohibited category', which requires only customs duty to be paid. It is further submitted that since the value of the gold allegedly recovered from the possession of the applicant is less than Rupees Two Crores, no prosecution can be operated against the applicant and by virtue of Section 114 of the Customs Act, the offence is compoundable. The applicant is ready and willing to pay the customs duty due to him and averments to this effect have also been made in the rejoinder affidavit filed on behalf of the applicant. It is notable that the Additional Commissioner of the department has itself issued a compounding notice to him and the purpose of the Customs Act is to recover the amount and not to punish the accused. It is also submitted that the impugned order passed by the Additional Sessions Judge, Varanasi, whereby the application for bail moved by the applicant was rejected, is an illegal order and it cannot be sustained in law and the said submissions find force by the order dated 7.2.2024 passed by the Additional District and Sessions Judge, Court No.14/ Special Judge, Gangster Act, Varanasi whereby the application for bail moved by co-accused Amit Srirang Jadhav was allowed and he was granted bail. It is further submitted that as per the Circular No. 13/22-Customs, F.No. CBIC-21/209/2022-INV-Customs-CBEC, dated 16.8.2022 issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes & Customs, New Delhi, no prosecution may be launched against the applicant, and as per the aforesaid Circular arrest in respect of an offence under the Customs Act should be affected only in exceptional situations. It is also submitted that earlier the case of involvement of foreign currency having value upto Rupees Fifty Lakhs was included in the head of 'exceptional situations' but now this limit has been exceeded to Rupees Two Crores or more by virtue of the aforesaid Circular. It is also submitted that the applicant has been languishing in jail since 7.1.2024. It is lastly submitted that in the fact and circumstances of the case and in view of the specific rules and law the accused applicant is entitled for bail and in case he is released on bail, he will not misuse the liberty and is ready to cooperate in the trial. 5. Per contra, the application for bail was vehemently opposed by the counsel for D.R.I. and it has been argued that the gold retrieved from the possession of the applicant being of huge quantity falls within the 'prohibited category' and the market price of the said gold exceeds more than Rupees One and half Crore. It is further submitted that no plausible explanation has been offered by the applicant in respect of his possession over the illegal gold. It is also submitted that on the basis of cogent information, the accused applicant was intercepted and he was found involved in smuggling of illegal gold of huge quantity. It is also submitted that the prosecution has been launched against the applicant after complying with all the statutory provisions and there is no possibility of false implication of the accused applicant at this stage and he had been acting as a carrier of the smuggled gold. It is also submitted that if the value of the smuggled gold was less than Rupees One Crore, the offence would be bailable and non- cognizable but this is not so in the present case and moreover in this case the value of the gold is not material but the issue to be taken into account is that the said gold falls in the prohibited category. It is also submitted that no notice for compounding of the offence was ever sent to the accused applicant by the Department and the notice dated 31.1.2024 has been wrongly interpreted by the applicant as it is a notice under Section 150 of the Customs Act which has no concern with the compounding of the matter. By virtue of Section 135(i)(A) of the Customs Act, the offence in this matter is punishable with the imprisonment for a period of seven years and not for a period of one year, as submitted by the learned counsel for the applicant. It is also submitted that the purpose and object of the Customs Act is not only to assess the evasion of Customs Duty and to recover it but it is punishable as well. It is further submitted that the language of Section 125 of the Customs Act makes it clear that the Officer adjudging the matter entertains a discretion to give the owner of the goods an option to pay in lieu of confiscation such fine as the said officer thinks fit. The word 'may' has been used in Section 125 of the Customs Act but such discretion has not been used so far in this matter and the accused applicant or the owner of the gold seized has not been given any option to pay in lieu of confiscation such fine as the said Officer thinks fit so far in this matter. On these grounds, prayer for rejection of bail has been made. 6. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record carefully. 7. Having regard to the entire facts and circumstances and keeping in view the fact that in the matter trial has not started even yet and the complicity of the accused applicant is yet to be determined in trial, the gold seized is in the possession of the Department, the offence appears to be compoundable by virtue of Section 137(3) of the Customs Act and there is nothing on record to demonstrate that the applicant, if enlarged on bail, would in any way adversely affect the trial, no criminal antecedent to the credit of the applicant, his willingness and readiness to deposit the adequate customs duty over the said gold, the applicant is in jail since 7.1.2024, without commenting upon the merits of the case, I am of the opinion that the applicant has made out a case for bail. 8. Accordingly, the bail application of the accused-applicant is allowed. 9. Let the applicant - Arvind Chandrakant Kadam involved in case crime no. NIL of 2024 under Section 135 Customs Duty Act, 1962, Police Station D.R.I., District Varanasi be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. (i). The applicant will appear before the trial court on the date fixed, unless personal presence is exempted. (iii). The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. (iv). The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. (v). The applicant shall not indulge in any criminal and anti-social activity. (vi). The applicant shall surrender his passport, if any, to the concerned Trial Court forthwith and shall not leave the country without previous permission of the Court. 10. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court. Order Date :- 16.7.2024 safi Digitally signed by :- MAHBOOB SAFI High Court of Judicature at Allahabad