Kailash Chandra Derasari Alias Kailash ... vs Directorate Of Revenue Intelligence on 14 February, 2023

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Delhi High Court - Orders

Kailash Chandra Derasari Alias Kailash ... vs Directorate Of Revenue Intelligence on 14 February, 2023

1. The present application under Section 439 of the Code of Criminal Procedure, 1973 ("Cr.P.C.") has been filed by the applicant seeking regular bail in the case titled "DRI vs. Kailash Chandra Derasari alias Kailash Chand"arising out of File No. DRI/DZU/34/ENQ-23/2022 registered at Police Station Directorate of Revenue Intelligence for the offence punishable under Section 135 of Customs Act, 1962.

Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:14.02.2023 18:44:50

2. Briefly stated, the case of prosecution is that an information was received by officers of Directorate of Revenue Intelligence (DRI), Delhi, Delhi Zonal Unit (DZU) about a syndicate that was involved in smuggling of foreign origin gold from Myanmar to Delhi-NCR via North-East region of India by train route. There was a specific input that one person namely, Kailash Chand i.e. present applicant/accused belonging to the said smuggling syndicate, is travelling from Katihar by Seemanchal Express to Delhi and would be carrying foreign origin smuggled gold by concealing the same in his baggage or in person. Based on the said information, on 09.12.2022, the officers of DRI along with two independent witnesses reached Ghaziabad Railway Station and as soon as the said train arrived, they entered into the train and identified/intercepted the present applicant. When interrogated, the applicant admitted that he was carrying gold bars/pieces which were concealed around his waist. The applicant was thereafter taken to DRI, DZU Office as the place of interception was crowded and unsafe for the purpose of detailed personal search and examination of luggage as per the mandate of Section 102 of Customs Act after serving notice. During the search, seven rectangular gold metal pieces having markings like 'FRNGZ' on six of the pieces and one yellow metal piece having marked like "HYOKA" on the edges of pieces, were found wrapped in self- adhesive tape around the waist of applicant. As per prosecution, the weight of these 07 gold bars , seized as per Section 110 of Customs Act, was 1163 grams, valuing approximately Rs. 56,55,215/-, and market value of which was around Rs. 63,27,650/- It is alleged that later, when the applicant was asked to show any challan or invoice of the seized Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:14.02.2023 18:44:50 gold bars, the applicant failed to produce the same before the investigating officers and he further admitted that he was aware that the seized gold bars/yellow metal pieces were smuggled from Myanmar to India. Thereafter, it is alleged that applicant in his statement under Section 108 of Customs Act recorded on 20.12.2022 admitted that earlier, on seven occasions, he has smuggled around 45 pieces of gold, total weighing 7450 grams having market value of approximately, Rs. 4,71,40,993/- from Guwahati to Delhi.

3. Learned counsel for accused/applicant states that the recovery of gold from the present applicant is 1163 grams valuing Rs. 63,27,650/-, which as per mandate of Section 104(7) of Customs Act, is a bailable offence since the same is less than Rs. 1 crore. It is also argued that as far as the allegations regarding previous smuggling of gold are concerned, the statement recorded under Section 108 of Customs Act was obtained forcefully and is self-incriminating in nature, and apart from it, no other evidence has been placed on record to corroborate the same with the commission of alleged offence. It is also contended that the prosecution has clubbed the previous alleged smuggling of gold by the applicant with the present case with sole intention to make the present offence non-bailable in nature. It is further stated by learned counsel for applicant that the investigation qua the present applicant is complete, and he has been in judicial custody since 20.12.2022. It is also stated that all the offences under Customs Act are compoundable in nature as per Section 137(3) of the Act.

4. Per contra, learned Senior Standing Counsel (SSC) on behalf of DRI, states that the applicant herein was a carrier of the smuggled gold.

Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:14.02.2023 18:44:50

It is stated that a syndicate comprising of present applicant and other persons including one „Mama‟ is involved in smuggling of foreign origin gold into India through lndo-Myanrnar border and investigation qua the same is underway. It is further stated by learned SSC for DRI that as per the statement made by applicant under Section 108 of Customs Act, apart from the incident of 19.12.2022, he has admitted his past involvement in the smuggling of gold as well, and taking into account his statement, total 7 number of trips had been taken by him including the present one and approximately 45 gold bars/pieces of value of approximately Rs. 4,71,40,993/-, weighing approximately 7450 grams have been smuggled by him in total. Further, since the applicant has admitted to have been involved in smuggling of gold on previous occasions and the market value of smuggled gold is around Rs. 4.7 crores, the offence herein would be non-bailable and cognizable in nature. Reliance in this regard is placed upon the decision of Hon‟ble High Court of Rajasthan in Syed Mohammed Zama v. State of Rajasthan S.B. Crl.Misc. Bail Appl. No. 11193/2014, dated 05.01.2015, appeal against which was dismissed by the Hon‟ble Apex Court in Syed Mohammed Zama v. State of Rajasthan, SLP(Crl.) No.1288/2015, dated 20.02.2015.

5. This Court has heard both the parties and has perused the material placed on record.

6. A perusal of case file shows that the present accused/applicant was apprehended on 19.12.2022 at Ghaziabad Railway Station pursuant to receipt of secret information by the respondent whereby 07 gold bars/pieces weighing 1163 grams, valuing approximately Rs.

Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:14.02.2023 18:44:50

63,27,650/-, were recovered from his possession. Thereafter, the applicant was taken into custody on 20.12.2022 and his statement under Section 108 of Customs Act was duly recorded. Learned counsel for applicant contends that since the amount of gold recovered from applicant is less than Rs. 1 crore, the offence shall be bailable in nature. However, on the other hand, it is respondent‟s case that since the applicant has admitted in his statement under Section 108 of Customs Act that he had smuggled gold on previous occasions also, total value of which exceeds Rs. 1 crore, the present offence shall be bailable in nature.

7. Considering the arguments of the learned SCC for DRI and taking note of the decision of Hon‟ble High Court of Rajasthan in Syed Mohammed Zama v. State of Rajasthan S.B. Crl.Misc. Bail Appl. No. 11193/2014, dated 05.01.2015, ratio of which stands approved by the Hon‟ble Apex Court in Syed Mohammed Zama v. State of Rajasthan, SLP(Crl.) No.1288/2015, dated 20.02.2015, the present offence shall fall under the category of non-bailable offence under Customs Act since the previous value of smuggled gold, as admitted in statement under Section 108 of Customs Act, would stand clubbed with the present recovery of gold

8. Taking the case on its merits, it is argued that the applicant acts as a carrier of smuggled gold and may be a part of larger syndicate and the matter is under investigation qua the same. It is, however, also admitted that no further recovery is to be affected from the applicant now, and he is not wanted for any further investigation. The statement of the applicant has already been recorded under Section 108 of Customs Act.

Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:14.02.2023 18:44:50

It is also not the case of the investigating agency that any other case is pending against the present applicant. The applicant is in judicial custody since 20.12.2022.

9. Considering the overall facts and circumstances of the case, this Court is inclined to grant regular bail to the applicant on his furnishing personal bond in the sum of Rs. 25,000/- with one surety of the like amount to the satisfaction of the Trial Court/Successor Court/Link M.M/Duty M.M concerned on the following terms and conditions:

i. The applicant shall surrender his passport, if any, before the Trial Court and shall not leave the country without the permission of Trial Court concerned;

ii. The applicant shall remain available on mobile numbers, shared by him with the investigating officer;

iii. In case of change of residential address/contact & phone details, the applicant shall promptly inform the same to the investigating officer as well as to the Trial Court concerned.

10. Accordingly, the present bail application stands allowed.

11. Copy of order be given dasti under the signature of Court Master.

12. The order be uploaded on the website forthwith.

SWARANA KANTA SHARMA, J FEBRUARY 14, 2023/kss Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:14.02.2023 18:44:50

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Delhi High Court - Orders