2023 (4) TMI 1035 - HC - Customs

High Court grants bail under Section 439 of Cr.P.C., emphasizes foreign origin proof for Customs Act conviction.

Ashok Kumar Choudhary S/O Mahadevram Choudhary Versus Directorate Of Revenue Intelligence Indore, The Superintendent Of Customs Indore Customs Commissionerate

The High Court of Madhya Pradesh granted bail to the applicant under Section 439 of Cr.P.C. The court considered the nature of the offences, lack of ... Seeking grant of bail - Smuggling - 8 gold bars - burden to prove foreign origin Gold Bar - HELD THAT:- The applicant is first-time offender of the Offence which is triable by the Magistrate and the maximum sentence is up to 7 years. The offence is compoundable also. He is in jail since 03.09.2022. The trial has not begun so far. Only on the basis of marks in the gold bars, the expert gave an opinion that they are foreign-origin gold bars. However, it is a matter of evidence. No further custodial interrogation is required as a complaint has been filed. This application is allowed and the applicant is directed to be released on bail upon his furnishing a personal bond in the sum of Rs.5,00,000/- (Rupees Five Lakhs Only) with one solvent surety in the like amount to the satisfaction of the trial Court for his regular appearance before the trial Court during the trial with a condition that he shall remain present before the Court concerned during the trial and shall also abide by the conditions imposed. Issues: Bail application under Section 439 of Cr.P.C. for offences under Customs Act and IPC.Analysis:1. Nature of Offences and Custodial Interrogation: The applicant filed a bail application under Section 439 of Cr.P.C. for offences under the Customs Act and IPC. The applicant was in custody in connection with a case registered for offences under Sections 135 of the Customs Act, 1962, and Sections 120-B, 201 of the Indian Penal Code, 1860. The prosecution alleged that the applicant and co-accused were found transporting a large quantity of custom gold, and gold bars were recovered from their possession. The applicant argued that no further custodial interrogation was necessary as the investigation was complete, and the complaint had been filed. The burden was on the prosecution to prove that the gold was of foreign origin to convict the applicant under the Customs Act.2. Legal Provisions and Precedents: The applicant's counsel contended that the offence under the Customs Act was triable by way of summary trial and was compoundable as the applicant was a first-time offender. The respondent's counsel opposed the bail application, citing the value of the gold found in possession of the applicant and co-accused, the absence of customs duty payment documents, and the presumption of culpable mental state under the Customs Act. The respondent's counsel relied on legal precedents, including judgments from the Supreme Court and the High Court, emphasizing the seriousness of economic offences and the need for a different approach to bail in such cases.3. Judicial Decision and Bail Conditions: The court considered the applicant as a first-time offender facing a maximum sentence of up to 7 years, with the offence being compoundable and triable by a Magistrate. Noting that the trial had not commenced and that the expert opinion on the origin of the gold bars was subject to evidence, the court granted bail to the applicant. The court directed the applicant to furnish a personal bond and a surety, with conditions for regular appearance before the trial court and compliance with Section 437(3) of Cr.P.C. The bail order stipulated automatic cancellation in case of the applicant's involvement in any other criminal activity.In conclusion, the High Court of Madhya Pradesh granted bail to the applicant under Section 439 of Cr.P.C. considering the nature of the offences, the lack of necessity for further custodial interrogation, and the legal provisions applicable to the case. The court emphasized the need for the prosecution to establish the foreign origin of the gold bars for conviction under the Customs Act and imposed stringent bail conditions to ensure the applicant's compliance during the trial proceedings.