Madhya Pradesh High Court
Vaibhav Jain vs The Directorate Of Revenue ... on 19 July, 2021
Author: Prakash Shrivastava
Bench: Prakash Shrivastava
M.Cr.C.No.29331/2021
M.Cr.C.No.29664/2021
1
HIGH COURT OF MADHYA PRADESH
M.Cr.C.No.29331/2021
(Prakash Sankhla @ Prakash Jain Vs. Directorate of Revenue
Intelligence Bhopal)
M.Cr.C.No.29664/2021
(Vaibhav Jain Vs. Directorate of Revenue Intelligence, Bhopal)
JABALPUR : 19/07/2021
Shri Anil Khare, learned Senior counsel with Smt.Manjit
P.S.Chuckal, Advocate for the applicant in
M.Cr.C.No.29331/2021.
Shri Hardik Modh, learned counsel with Shri V.V.Jain,
Advocate for the applicant in M.Cr.C.No.29664/2021.
Shri Amit Seth, learned counsel for the respondent.
Shri Sandeep Patel, Investigating Officer from the Directorate of Revenue Intelligence, Bhopal is also present through video conferencing.
Heard through video conferencing. Case diary perused.
These are first applications filed by the applicants (accused) under Section 439 Cr.P.C. for grant of bail.
The applicants are in custody for the offence punishable under Sections 104 and 135 of the Customs Act registered with the Directorate of Revenue Intelligence, Bhopal, District Bhopal, in Crime No.I.N.T.13/E.N.Q9/2021.
The allegation in the present case is that on 24.5.2020 a Maruti Swift Vehicle No.MP-15-CA-9382 was intercepted at Chitora Toll, Sagar, and from the secret cavity beneath the driver's seat of that vehicle 79 bars of Foreign Origin (FO) Gold were recovered. The three persons occupying the vehicle were Dheeraj Rai, Satyam Saini and Nathan Singh Thakur. The gold bars were weighing 7800 gms. and of the value of Rs.3,89,60,220. The occupants of the vehicle had disclosed that the recovered bars M.Cr.C.No.29331/2021 M.Cr.C.No.29664/2021 2 belong to Vaibhav Jain, resident of Sagar and on his instructions they had brought it from the applicant Prakash Sankhla, resident of Durg. The statements of Dheeraj Rai, Satyam Jain and Nathan Singh Thakur were recorded under section 108 of the Customs Act, 1962, wherein they had accepted their involvement. Further case of the Customs Department is that a search was conducted in the residential premises of Prakash Sankhla at Durg and during the search 75 Foreign Origin bars weighing 1500 gms. were found and these bars were valuing Rs.75,60,000/-. Along with the bars cash of Rs.64,85,100/- were also found.
Shri Anil Khare, learned senior counsel for the applicant Prakash Sankhla @ Prakash Jain submits that the recovery of 79 gold bars has been made from the three accused namely Dheeraj Rai, Satyam Saini and Nathan Singh Thakur. He submits that the applicant was not present on the spot when the bars were seized nor the vehicle belongs to the present applicant. He also submits that as per the statements of Dheeraj Rai, Nathan Singh Thakur and Satyam Saini these bars were brought for supplying it to Vaibhav Jain. He has also submitted that since the offence under section 135 of the Customs Act is punishable with sentence of 7 years or less, therefore, the applicant is entitled to the benefit of judgment of the Supreme Court in the matter of Arnesh Kumar Vs. State of Bihar, reported in (2014)8 SCC 273 and Arnab Goswami Vs. State of Maharashtra and others, reported in (2021)2 SCC 427. He has also submitted that in view of the judgment in the case of Om Prakash and another Vs. Union of India and another, reported in (2011)14 SCC 1, the offence under the Customs Act is a bailable offence. He has referred to paragraphs 64 to 68 of the judgment and has also submitted that even after the amendment of 2013 making the offence cognizable, the legal position will not change and the offence will remain a bailable offence. He also submitted that these offences under the M.Cr.C.No.29331/2021 M.Cr.C.No.29664/2021 3 Customs and Excise Act cannot be equated with the offence under the I.P.C. as their object is to recover duty. In support of his submission he has also referred to the judgment of the Supreme Court in the matter of Sayyed M. Masud Vs. Union of India and another, reported in (2012)13 SCC 746. He has also submitted that the applicant is in custody since 27.5.2021. Shri Khare has also referred to the judgment in the matter of Noor Aga Vs. State of Punjab and another, reported in (2008)16 SCC 417, para 66, 68 and 84, in respect of scope of section 108 and 138 of the Customs Act.
Shri Modh, learned counsel for the applicant in M.Cr.C.No.29664/2021 pressing the bail application at the instance of Vaibhav Jain has adopted the main arguments which are advanced by Shri Khare. He has further submitted that the GST invoice issued from Saheli Jewellers were produced before the respondent and there is material available that the bars were purchased from Saheli Jewellers. Placing reliance upon the judgment of the Patna High Court in the matter of Commissioner of Central Excise, Customs and S.T. Patna Vs. Gopal Kishan, reported in 2020 (371) E.L.T. 243 (Pat.), he has submitted that once the retail invoice is produced then the offence is not made out. He has also placed reliance upon the order of the Kerala High Court in the matter of Anob T.R. Vs. Union of India, reported in 2021 (375) E.L.T. 176 (Ker.) and has submitted that anticipatory bail was granted in similar case of seizure of the gold bars.
Shri Seth, learned counsel for the respondent opposing the prayer has submitted that the explanation which is furnished by the applicant is not acceptable and that the statements recorded under section 108 of the Customs Act stand on different footing. He has also submitted that submission of the GST invoices of Saheli Jewellers is not of any consequence and irrelevant because M.Cr.C.No.29331/2021 M.Cr.C.No.29664/2021 4 it is a case of seizure of swiss gold bars, which is a prohibited smuggled item. He has also placed reliance upon the Division Bench order of the Gujarat High Court in the matter of Sundeep Mahendrakumar Sanghavi Vs. Union of India dated 4.8.2020 in Civil application No.8669/2020 and has submitted that after the Amendment of 2013, the judgment of the Supreme Court in the case of Om Prakash is no longer relevant and the Customs officers are not the Police Officers, therefore, statement made to them are not inadmissible under section 25 of the Evidence Act and that in view of the Amendment in the year 2013, the offence is now non-bailable offence. He has also placed reliance upon the judgment of the Supreme Court in the matter of K.I.Pavunny Vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin, reported in (1997)3 SCC 721 and has submitted that in a case of similar nature, the bail was refused. He has also placed reliance upon the judgment in the matter of Union of India Vs. Padam Narain Aggarwal and others, reported in (2008)13 SCC 305.
I have heard the counsel for the parties and have minutely examined the case diary which has been produced in a sealed cover. Undisputedly, the investigation is pending and Challan has not been filed so far. Having regard to the nature of material which has come on record, I am of the opinion that the release of the applicants during the pendency of the investigation would not be proper as the prosecution is in the process of collecting further evidence against them. Hence, the M.Cr.Cs. are dismissed, however, with liberty to renew the prayer after the investigation is complete and Challan is filed.
Certified copy as per rules.
(Prakash Shrivastava) Judge HS Digitally signed by HEMANT SARAF Date: 2021.07.26 14:41:27 +05'30'