Allahabad High Court
Mahendra Soni vs State Of U.P. And Another on 22 October, 2019
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 75 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33313 of 2019 Applicant :- Mahendra Soni Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Atul Pandey,Krishna Agarawal Counsel for Opposite Party :- G.A.,Krishna Agarawal Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. I.K. Chaturvedi, learned Senior Advocate assisted by Mr. Atul Pandey, learned counsel for the applicant, Mr. Krishna Agarwal, learned counsel for the opposite party no.2 and Mr. Prashant Kumar, learned A.G.A. for the State as well as perused the material on record.
The present bail application has been filed by the applicant-Mahendra Soni with a prayer to enlarge him on bail in Case Crime No. Nill of 2019, under Section 135 of the Customs Act, 1962, Police Station-D.R.I., District-Varanasi, during the pendency of the trial.
As per the prosecution case, it is alleged that on the information received on 14th February, 2019 that two persons, namely, Mahendra Soni (applicant herein) and Sanjay Kumar Agarwal, who were travelling in R.M.S. General Coach of Howrah-Mumbai Mail from Kolkata, were carrying foreign origin gold in huge quantity, which had been smuggled in India from Bangladesh, the officers of the Directorate of Revenue Intelligence (for short "D.R.I.) reached the Deendayal Upadhyay Railway Station and intercepted the accused persons including the applicant. From joint possession of both the accused persons, five gold bars are alleged to have been recovered. Out of five gold bars, three are alleged to have been recovered from the possession of the co-accused Sanjay Kumar Agrawal, whereas two gold bars are alleged to have been recovered from the possession of the applicant. The total weight of alleged recovered five gold bars were 4,996.05 grams, which were of the value of Rs. 1, 67,36, 767/-. The alleged recovered five gold bars were seized under section 110 of the Customs Act, 1962 (hereinafter referred to as the "Act, 1962"), as it were brought to India in violation of Sections 7 (C), 11 and 46 of the Act, 1962 read with Rule 3 (2) (3) of the Foreign Trade (Regulation) Rules, 1993 (hereinafter referred to as the "Rules, 1993"). As such it is liable to be confiscated under Section 111 of the Act, 1962. Thereafter panchnama proceeding was drawn in the presence of two independent witnesses.
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:---.............
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(6) Notwithstanding anything contained in the Code of criminal Procedure 1973 (2 of 1974), an offence punishable under Section 135 relating to----
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(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."
It is next submitted that the applicant has not been able to show or produce any document from which it is established that the importation of alleged gold bars in India was legal.
Dealing with the complicity of applicant-accused and in light of the material on record, the learned A.G.A. as well as learned counsel for the opposite party no.2 vehemently submit that no case for bail is made out and the bail application of the present applicant is liable to be rejected.
Having considered the submissions made by the learned counsel for the applicant and the learned counsel for the opposite parties and upon perusal of the evidence brought on record as well as the complicity of the applicant, I do not find any good reason to exercise my discretion in favour of the accused applicant. Thus, the bail application stands rejected at this stage.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.
(Manju Rani Chauhan, J.) Order Date :- 22.10.2019 Sushil/-