Allahabad High Court
Mohd. Tufial vs Union Of India And Another on 23 March, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Case :- CRIMINAL MISC. BAIL APPLICATION No. - 57731 of 2022 Applicant :- Mohd. Tufial Opposite Party :- Union Of India And Another Counsel for Applicant :- Anil Kumar Srivastava Counsel for Opposite Party :- A.S.G.I.,Krishna Agarawal,Vinay Kumar Singh CONNECTED WITH Case :- CRIMINAL MISC. BAIL APPLICATION No. - 60061 of 2022 Applicant :- Mohammad Alam Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ambreen Masroor,Sadrul Islam Jafri,Sr. Advocate Counsel for Opposite Party :- G.A.,Krishna Agarawal Hon'ble Sameer Jain,J.
1. Since both the instant bail applications have arisen out of Case No.2 of 2022, under Sections 135(1)(A) and 135(1) (B) of Customs Act, 1962 ( in short the Act ) through Directorate of Intelligence, therefore, both the bail applications are being decided by common order.
2. Heard Sri N.I.Jafri, learned Senior Advocate assisted by Sri Ali Jamal Khan and Sri Anil Kumar Srivastava, learned counsels for the applicants, Sri Krishna Agarwal, learned counsel for DRI-opposite party no.2, Sri Vinay Kumar Singh, learned counsel for the Union of India and Sri Tanay Kumar, learned AGA, for the State.
3 The instant applications have been moved on behalf of the applicants with the prayer to release them on bail in Case Crime No.02 of 2022, under Sections 135(1)(A) and 135(1)(B) of Customs Act, 1962, through Directorate of Intelligence, during pendency of the trial.
BRIEF FACTS:
4. According to the prosecution, on 6.11.2022 an intelligence input was received by DRI that some persons, who were travelling in Train No.22422 in Coach-B-5 at Seat No.2, 3,54 and 56 are smuggling the foreign origin gold and they boarded in the Train from Jodhpur, Rajasthan and are going to deliver smuggled foreign origin gold in Rampur, Uttar Pradesh. Thereafter on 6.11.2022 Team of DRI Officers arrived at Rewari Junction Railway Station and when train arrived at the Junction at about 8.20 PM then Officers found that on the above mentioned seats applicants and two others were sitting and from the possession of applicant Mohammad Alam 549.5gm. gold in form for rods and from the possession of applicant Mohammad Tufail 526gm. gold in paste form were recovered. It is further alleged that from the possession of rest of accused persons, namely, Ishrat Ali 947.5gm gold and from the possession of Mohammad Naeem 525.5gm gold were recovered. Thus, as per DRI total 2548.5gm gold were recovered from the possession of applicants and two others. Thereafter, the extracted weight of alleged gold recovered from the possession of applicant Mohammad Tufail was ascertained and weight of extracted gold was ascertained as 448.50gm. As the gold recovered from the possession of applicant Mohammad Alam was already in solid form , therefore, it was not made part of extraction process.
5. According to the DRI, the market value of the total gold recovered from the possession of the applicants and two others was Rs. One Crore Thirteen Lacs Twenty Four Thousand Six Hundred and Eight and market value of the gold recovered from the possession of applicant Mohammad Alam and applicant Mohammad Tufail was Rs.27,98,054/- and Rs.22,83,762/- respectively. It is further alleged that the statements of applicants and other co-accused persons were recorded by the Custom Officers under Section 108 Customs Act and they confessed their guilt and stated that the alleged recovered gold was smuggled gold of foreign origin and they purchased it from Dubai.
6. All the accused persons including applicants also stated that they are known to each other and they collectively indulged in smuggling of gold of foreign origin.
7. After panchnama applicants were arrested on 9.11.2022 and investigation was commenced and after investigation on 5.1.2023 DRI filed criminal complaint against applicants and two others in the court of Special Chief Judicial Magistrate (Economic Offences) Meerut.
SUBMISSIONS ON BEHALF OF THE APPLICANTS :
8. Learned counsels for the applicants submit, entire allegation made against the applicants are totally false and baseless and applicants never indulged in smuggling of alleged gold of foreign origin. They further submitted that applicants and two others were forcibly apprehended by Officers of DRI from the Train on 6.11.2022 and thereafter by cooking up false story and planted recovery of gold they have been implicated in the present matter. He further submits, applicant were arrested on 9.11.2022, i.e., after about three days from the date of alleged seizure of gold.
9. Learned counsels for the applicants further submitted that as individually the alleged gold recovered from the possession of applicants is having value of less then Rs. One Crore, therefore, in view of Sections 104 and 135 of Customs Act, the offences alleged to have been committed are bailable. They further submitted, value of combined gold recovered from the possession of all accused persons including applicants can not be considered.
10. They placed reliance on the judgment of Delhi High Court in the case of Air Customs Vs. Begaim Akynova decided on 3.1.2022 in Writ Petition (Criminal ) No.1974 of 2021.
11. Learned counsel for both the applicants further argued that from the train applicants and two others were taken to DRI Office, NOIDA and thereafter search was made and after three days they were made accused in the present matter after showing their formal arrest in the present case therefore, the procedure adopted by the DRI Officers is totally illegal and cannot be approved under the law as at the time when applicants were apprehended then neither search was taken at spot nor they were immediately arrested and thus applicants were under illegal custody of DRI for almost three days, i.e., from 6.11.2022 to 9.11.2022.
12. Learned counsels for the applicants further submit that statements recorded under Section 108 Customs Act are not admissible in view of the law laid down by the Apex Court in the case of Toofan Singh Vs. State of Tamilnadu, 2021 (4) SCC1.
SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES.:
13. Learned counsel for the DRI as well as learned AGA and learned counsel appearing on behalf of Union of India submitted that from the combined possession of applicants and two others gold of foreign origin valuing more than Rs. One Crore was recovered and, therefore, considering the provisions of Sections 104 and 135 Customs Act alleged offences are non-bailable and although maximum punishment provided is seven years but as the present offence is economic offence under Special Act, therefore, even in view of the law laid down by the Apex Court in the case of Satender Kumar Antil Vs. Central Breau of Investigation and another, reported in (2021) 10 SCC 773 the bail applications of applicants should be considered on merit.
14. Learned counsel for the DRI further submits that on the specific intelligence input applicants were apprehended from the train while they were travelling from Jodhpur, Rajasthan to Rampur Uttar Pradesh and from their possession smuggled gold of foreign origin was recovered and although from individual possession of both the applicants gold valuing less than Rs.One Crore was recovered but total value of the gold recovered from the possession of applicants and two other co-accused persons was more than Rs. One Crore, therefore, considering the provisions of Customs Act applicants committed non-bailable offences.
15. Learned counsel for the DRI further submits that statements of accused recorded under Sections 108 Customs Act is admissible and the Apex Court in the case of Toofan Singh (supra) also held that Custom Officers are not Police Officers and, therefore, statements recorded under Section 108 Customs Act cannot be equated with the statements recorded under Section 67 NDPS Act as officers acted under NDPS Act are Police Officers therefore, in view of law laid down in Toofan Singh (supra) statements of applicants recorded under Sections 108 Customs Act are admissible.
16. He next submits that from the statementS of applicants it appears that they collectively smuggled the recovered gold and they were known to each other and, therefore, considering the fact that they as a team indulged in smuggling of gold of foreign origin, the entire recovery made from all the accused persons including applicants should be considered for the purpose of Section 135 Customs Act and as value of entire recovered gold is more than Rs.One Crore, therefore, applicants and others committed non-bailable offences.
17. He further submits that as all the accused persons including applicants were well aware that all of them were carrying gold, therefore, they are all having conscious possession over entire recovered gold and it cannot be said that they acted individually and as they committed alleged offence as a team therefore, total value of recovered gold should be considered.
18. Learned counsel for the DRI further submits that the recovered gold is prohibited goods as its import or export is subject to certain prescribed condition, therefore, as per Section 104 Customs Act, the offence committed by applicants is non-bailable and according to Section 135 Customs Act maximum punishment for such offence is 7 years.
19. He placed reliance on the judgment of the Apex Court in the case of Om Prakash Bhatia Vs. Commissioner of Customs, Delhi, AIR 2000 SC 581.
20. He further submits that applicant Mohammad Aalam was earlier also involved in act of smuggling with regard to foreign currency of US Dollar and Euros in the year 2020. He further submits that applicant Mohammad Tufail was also booked in three cases of smuggling and out of three cases, two cases were of the the years 2019 and 2022 and both cases related to smuggling of gold and another case was of the year 2021 which related to cigarettes valuing about Rs.3,18,000/-and, therefore, considering the antecedents of applicants, severity of punishment and manner of commission of instant crime, applicants are not entitled to be released on bail.
CONCLUSION:
21. I have given my anxious consideration to the rival submissions and perused the record of the case.
22. From perusal of the complaint and panchnama of the case it appears that from the possession of the applicants and two others total gold of the value of Rs.1,13,24,608/- was recovered and from the possession of the applicant Mohammad Aalam gold valuing Rs. 27,98,054/- and from the possession of applicant Mohammad Tufail gold valuing Rs. 22,83,762/- was recovered respectively , therefore, from the individual possession of both the applicants gold less than Rs. One Crore was recovered.
23. Applicants have been challaned under the provisions of Section 135 Customs Act which runs as follows:
"135. Evasion of duty or prohibitions.--(1) Without prejudice to any action that may be taken under this Act, if any person--
(a) is in relation to any goods in any way knowingly concerned in misdeclaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods; or (emphasis supplied)
(b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111 or Section 113, as the case may be; or
(c) attempts to export any goods which he knows or has reason to believe are liable to confiscation under Section 113; or
(d) fraudulently avails of or attempts to avail of drawback or any exemption from duty provided under this Act in connection with export of goods or
(e) obtains an instrument from any authority by fraud, collusion, wilful mis-statement or suppression of facts and such instrument has been utilised by such person or any other person, he shall be punishable,--
(i) in the case of an offence relating to,--
(A) any goods the market price of which exceeds one crore of rupees; or (B) the evasion or attempted evasion of duty exceeding fifty lakh of rupees; or (C) such categories of prohibited goods as the Central Government may, by notification in the Official Gazette, specify; or (D) fraudulently availing of or attempting to avail of drawback or any exemption from duty referred to in clause (d), if the amount of drawback or exemption from duty exceeds fifty lakh of rupees, (E) obtaining an instrument from any authority by fraud, collusion, wilful mis-statement or suppression of facts and such instrument has been utilised by any person, where the duty relatable to utilisation of the instrument exceeds fifty lakh rupeees, with imprisonment for a term which may extend to seven years and with fine:
Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than one year;
(ii) in any other case, with imprisonment for a term which may extend to three years, or with fine, or with both.
(2) If any person convicted of an offence under this section or under sub-section (1) of section 136 is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine:
Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court such imprisonment shall not be for less than one year.
(3) For the purposes of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than one year, namely:--
(i) the fact that the accused has been convicted for the first time for an offence under this Act;
(ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods which are the subject matter of such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence;
(iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party to the commission of the offence;
(iv) the age of the accused.
Explanation.- For the purposes of this section, the expression "instrument" shall have the same meaning as assigned to it in the Explanation 1 to Section28-AAA"
24. From the perusal of Section 135 Customs Act it appears that if any person acquires possession or the possession in any way is concerned in carrying any goods liable to be confiscated and market price of the goods exceeds Rs. One Crore then he may be punished with imprisonment for the term which may extend upto seven years along with fine.
25. Section 104 Customs Act deals with the power of arrest and it runs as follows:
"104. Power to arrest.--(1) If an officer of customs empowered in this behalf by general or special order of the Principal Commissioner of Customs or Commissioner of Customs has reason to believe that any person in India or within the Indian customs waters has committed an offence punishable under section 132 or section 133 or section 135 or section 135A or section 136, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.
(2) Every person arrested under sub-section (1) shall, without unnecessary delay, be taken to a magistrate.
(3) Where an officer of customs has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police-station has and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898).
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any offence relating to--
(a) prohibited goods; or
(b) evasion or attempted evasion of duty exceeding fifty lakh rupees; or
(c) fraudulently availing of or attempting to avail drawback or any exemption from duty provided under this Act, where the amount of drawback or exemption from duty exceeds fifty lakh rupees; or
(d) fraudulently obtaining an instrument for the purpose s of th is Act or the Foreign Trade (Development and Regulation ) Act, 1992(22 of 1992), and such instrument is utilised under this Act, where duty relatable to such utilisation of instrument exceeds, fifty lakh rupees, shall be cognizable.
(5) Save as otherwise provided in sub-section (4), all other offences under the Act shall be non-cognizable.
(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974) an offence punishable under section 135 relating to--
(a) evasion or attempted evasion of duty exceeding fifty lakh rupees; or
(b) prohibited goods notified under section 11 which are also notified under sub-clause (c) of clause (i) of sub-section (1) of section 135; or
(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 lakh rupees or,
(e) fraudulently obtaining an instrument for the purposes of this Act or the Foreign Trade (Development and Regulation) Act, 1992(22 of 1992), and such instrument is utilised under this Act, where duly relatable to such utilisation of instrument exceeds fifty lakh rupees, shall be non-bailable.
(7) Save as otherwise provided in sub-section (6), all other offences under this Act shall be bailable.
Explanation.- For the purposes of this section, the expression "instrument" shall have the same meaning as assigned to it in Explanation 1 to section 28-AAA. "
26. According to Section 104 (6) Customs Act an offence punishable under Section 135 Customs Act relating to prohibited goods notified under Section 11 of Customs Act which are also notified under sub-clause (c) of Clause (i) of sub-section (1) of Section 135 Customs Act, or 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 Rs. One Crore shall be non-bailable and as per Section 104(7) Customs Act all the other offences are bailable except provided in sub-section (6) of Section 104 Customs Act.
27. Therefore, from the perusal of Section 104 Customs Act it is evident that if import or export of any goods have not been declared as per the provisions of the Customs Act and market price of such recovered goods exceeds Rs.One Crore then offence will be non-bailable and similarly the offence committed with regard to prohibited goods also would be non-bailable.
28. In case at hand, from the individual possession of both the applicants gold valuing less than Rs. One Crore was recovered, however, value of total gold recovered from the possession of applicants and two others was more than Rs. One Crore.
29. Therefore, question arises whether value of individually recovered gold should be considered or value of combined recovered gold should be considered.
30. In Section 135 Customs Act, term "any person" has been used and, in my view, it denotes to an individual. The term "any person" cannot be interpreted as a group of persons. From the plain reading of Section 135 Customs Act it appears that it refers to an individual.
31. Delhi High Court also in the case of Air Customs Vs. Begaim Akynova (supra) observed that punishment which is to be imposed on the accused should correspond to the gold that has solely been recovered from his possession and each person should be made answerable for the recovery of gold found in his possession.
32. Therefore, in my view, for the purpose of Section 135 Customs Act value of individually recovered gold should be considered and not the value of combined recovered gold.
33. The next question in the case at hand is whether alleged recovered gold was prohibited goods as if it was prohibited goods then by virtue of Section 104 (6) and 135 Customs Act, the alleged offence committed by the applicants would be non-bailable and maximum punishment provided for such offence is seven years.
34. Prohibited goods has been defined under Section 2 (33) Customs Act which reads as under:
2 (33) ―"prohibited goods" means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with.
35. From the perusal of Section 2(33) Customs Act it appears that every good is prohibited if its import or export is subject to an prohibition under the Customs Act or any other law for the time being in force.
36. The two Judges Bench of the Apex Court in the case of Om Prakash Bhatia (supra ) observed that prohibition of importation or exportation could be subject to certain prescribed conditions to be fulfilled before or after clearance of goods and if conditions are not fulfilled, it may amount to prohibited goods.
37. The Apex Court in the case of Om Prakash Bhatia (supra) relied upon its earlier two Judges Bench judgment in the case of Sheikh Mohd. Omer Versus Commissioner of Customs, Calcutta and others, 1970 SCC (2) 728 in which it was held that any restriction on import or export is to an extent prohibition and any prohibition whether it is complete or partial is the prohibition and as held by the Apex Court in the case of Sheikh Mohd Omer (supra) "any prohibition" means "every prohibition".
38. Therefore as per the judgments of Sheikh Mohd. Omer (supra) and Om Prakash Bhatia (supra) of the Apex Court even if the goods are not prohibited but if there is some restriction on its import or export then it will be prohibited goods but both the above noted judgments of Apex Court were delivered by two Judges, recently three Judges Bench of the Apex Court in the case of Commissioner of Customs Vs. Atul Automation Private Limited, (2019) 3 Supreme Court Cases 539 with regard to multi function device observed that MFDs were not prohibited but restricted items for import and further observed that there will exist fundamental distinction between what is prohibited and what is restricted. Therefore, from the case of Atul Automation (supra) it appears that on the basis of restriction on import a good cannot be said to be prohibited good in terms of Section 2 (33) Customs Act .
39. In case as hand, according to the prosecution, gold was recovered from the possession of the applicants which was liable for confiscation under Section 111 of the Customs Act and as per Section 125 Customs Act the authority concerned may levy fine in lieu of confiscation and, therefore, it appears from the provisions of Section 11 of Customs Act gold is not prohibited goods but it is restricted goods and as per Section 125 Customs Act in lieu of confiscation fine may be levied. Therefore, as import of gold is not prohibited but restricted subject to prescribed payment of duty, thus alleged recovered gold is not prohibited goods under Section 2(33) Customs Act but it is restricted goods in view of the judgment of three Judges Bench of the Apex Court in the case of Atul Automation (supra).
40. Therefore, from the discussions made above, it appears that applicants committed offence under the provisions of Customs Act for which maximum punishment is three ye/ars and as their case does not fall under Section 104 (6) Customs Act, therefore, by virtue of Section 104(7) Customs Act the alleged offence committed by applicants is bailable one, therefore, they are entitled to be released on bail.
41. Accordingly, without expressing any opinion on the merits of the case, both the instant bail applications are allowed.
42. Let the applicants-Mohd. Tufail and Mohammad Alam be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) The applicants shall appear before the trial court on the dates fixed, unless their personal presence is exempted.
(ii) The applicants shall not directly or indirectly, make 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 any police officer or tamper with the evidence.
(iii) The applicants shall not indulge in any criminal and anti-social activity.
43. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicants.
Order Date :- 23.3.2023 SKM