Common-intention smuggling and bail: jointly carried gold can be attributed to each carrier for the non-bailable threshold
For bail under section 104(6) of the Customs Act, the court held that where multiple persons act in concert with common intention to smuggle gold, the aggregate value of the goods may be attributed to each person for assessing whether the statutory non-bailable threshold is crossed. Applying that purposive construction, the offence was treated as non-bailable because the jointly carried gold exceeded the prescribed market-value limit. On the facts, bail was granted to the second petitioner, a woman in custody since May 2023 and mother of four young children, while the first petitioner was refused bail due to non-cooperation with the investigation.
Issues: (i) Whether, for the purpose of section 104(6) of the Customs Act, 1962, the value of gold separately carried by husband and wife acting in concert could be treated cumulatively so as to make the offence non-bailable; (ii) whether the first petitioner was entitled to bail and the second petitioner was entitled to bail on the facts and circumstances of the case.
Issue (i): Whether, for the purpose of section 104(6) of the Customs Act, 1962, the value of gold separately carried by husband and wife acting in concert could be treated cumulatively so as to make the offence non-bailable.
Analysis: Section 104(6) makes an offence under section 135 non-bailable where imported goods not declared in accordance with the Act have a market price exceeding one crore rupees. The Court held that where multiple persons act together with common intention to smuggle goods, the word "person" in section 135 must receive a contextual and purposive construction. The combined value of the articles carried by them can therefore be treated as the value carried by each person for determining whether the statutory threshold is crossed. The Court also relied on the definition of "person" in section 3(42) of the General Clauses Act, 1897, and on the legislative purpose behind the 2013 amendment.
Conclusion: The offence was held to be non-bailable because the petitioners, acting in concert, were treated as carrying gold individually worth more than one crore rupees.
Issue (ii): Whether the first petitioner was entitled to bail and the second petitioner was entitled to bail on the facts and circumstances of the case.
Analysis: The second petitioner had been in custody since 18.05.2023, was a woman, and was the mother of four young children, with no further detention considered necessary for effective investigation. The first petitioner, however, was found to be non-cooperative with the investigation and was treated as the person who allegedly induced the second petitioner to act as a carrier, making continued custody necessary at that stage.
Conclusion: Bail was granted to the second petitioner and refused to the first petitioner.
Final Conclusion: The bail request was allowed only in part, with release ordered for the second petitioner alone on conditions while the first petitioner remained in custody.
Ratio Decidendi: For determining bail under section 104(6) of the Customs Act, 1962, the aggregate value of goods jointly carried by persons acting with common intention to smuggle them can be attributed to each of them, and where that value exceeds the statutory threshold, the offence is non-bailable.
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