2025 (4) TMI 1606 - HC - Customs

Anticipatory bail granted under Section 135 Customs Act for gold smuggling charges lacking personal recovery evidence

The Allahabad HC granted anticipatory bail to an applicant charged under Section 135 of the Customs Act, 1962 for smuggling foreign origin gold and cash. ... Seeking grant of anticipatory bail - smuggling foreign origin gold and cash - applicability and scope of Section 135 of the Customs Act, 1962 - HELD THAT:- Relevant aspects have been dealt with in detail by Co-ordinate Bench of this Court in Ram Krishna Jaldhar Parai versus Union of India and others [2024 (10) TMI 847 - ALLAHABAD HIGH COURT] and has recorded a prima facie satisfaction with regard to Sections 135 of the Customs Act to the effect that a person can be punished for the limited offence if ingredients of the said sections are made out which prescribe a maximum sentence of upto 7 years. The order also indicates the fact that the recovery seems to be of the firm Messrs Ram Laxman and Company which is a proprietorship and duly registered with GST & NSMP. The order also adverts the income tax and GST return of the firm. Prima facie satisfaction also has been recorded that quantum of business generated by the firm can gave rise to the turn over as suggested and the said owners of the firm may have sources to justify availability of quantity of gold and jewellery recovered. Considering aforesaid aspects as well as the fact that there is no recovery made from the applicant and the complaint having already been filed against the applicants, and considering judgment rendered by Hon'ble Supreme Court in the case of Sanjay Chandra v. Central Bureau of Investigation, [2011 (11) TMI 537 - SUPREME COURT], this court finds that the applicant is entitled to grant of anticipatory bail. It is provided that in the event of arrest, the applicant- Avijit Manna shall be released on anticipatory bail in the aforesaid Case Crime number on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the arresting officer/investigating officer/S.H.O. concerned with the conditions imposed. Conclusion - The charge under section 135 of the Customs Act is yet to be established in trial and since the maximum punishment which can be made applicable is upto 7 years, the applicant is entitled to grant of anticipatory bail. The bail application allowed. 1. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered by the Court include:- Whether the applicant is entitled to anticipatory bail under the provisions of the Customs Act, 1962, specifically Section 135, in light of the allegations of smuggling foreign origin gold and cash.- The applicability and scope of Section 135 of the Customs Act to the facts of the case, particularly whether the ingredients of the offence have been prima facie established against the applicant.- The relevance and impact of prior bail orders granted to co-accused persons in similar circumstances on the present application.- The principles governing grant of anticipatory bail, including the balance between liberty of the accused and the need to ensure presence at trial, as elucidated in authoritative Supreme Court judgments.- The sufficiency of evidence and recovery material against the applicant to justify denial of anticipatory bail.2. ISSUE-WISE DETAILED ANALYSISIssue 1: Entitlement to Anticipatory Bail under Section 135 of the Customs ActThe legal framework involves Section 135 of the Customs Act, 1962, which prescribes punishment for unlawful import or export of goods, including smuggling of foreign origin gold. The maximum punishment under this section is imprisonment up to seven years.The Court examined prior decisions by a Co-ordinate Bench in related bail applications involving the prime accused and other co-accused persons. Those decisions recorded prima facie satisfaction that the ingredients of Section 135 were yet to be established conclusively and that the accused were entitled to bail considering the statutory maximum sentence and the nature of the offence.The Court noted that the firm associated with the accused was a registered proprietorship with GST and NSMP compliance, and the income tax and GST returns suggested legitimate sources to justify the quantity of gold and jewellery recovered. This indicated that the prosecution case was not free from doubt at the threshold stage.Applying these precedents and the statutory framework, the Court observed that the applicant's involvement was primarily based on statements of co-accused persons, with no direct recovery from the applicant. This weakened the prosecution's claim against him.Issue 2: Sufficiency of Evidence and Recovery Against the ApplicantThe complaint detailed recoveries of gold and cash from other accused but explicitly stated no recovery from the applicant. The applicant was implicated solely based on the statement of a co-accused, Sumit Rastogi.The Court considered the submissions that the applicant was neither the owner nor the carrier of the alleged contraband and that the inclusion of his name was tenuous. The absence of any direct recovery or independent evidence against the applicant weighed heavily in favor of granting anticipatory bail.The opposing counsel argued that the applicant's complicity could not be denied given the co-accused's statements and the nature of the offence. However, the Court found that such allegations required trial and were insufficient to deny bail at the pre-trial stage.Issue 3: Impact of Prior Bail Orders on Co-accusedThe Court took judicial notice of earlier bail orders granted to the prime accused and other co-accused persons in related cases. These orders, granted by co-ordinate Benches, reflected the Court's prima facie view that the offences under Section 135 were yet to be established conclusively and that bail was appropriate given the statutory maximum sentence and the facts.These prior bail grants provided a persuasive precedent supporting the applicant's entitlement to anticipatory bail, reinforcing the principle of parity among similarly situated accused persons.Issue 4: Principles Governing Grant of Anticipatory BailThe Court invoked authoritative Supreme Court rulings, particularly the judgment in Sanjay Chandra v. Central Bureau of Investigation, which emphasized that bail is the rule and jail an exception, and that deprivation of liberty before conviction amounts to punishment contrary to the presumption of innocence.The Court highlighted key excerpts from the judgment:'The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon.''Refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.'These principles guided the Court's discretion in balancing the applicant's right to liberty against the prosecution's case.Issue 5: Conditions Imposed in Granting Anticipatory BailThe Court granted anticipatory bail subject to specific conditions designed to protect the integrity of the trial process and ensure the applicant's presence, including:No inducement, threat, or promise to dissuade witnesses or tamper with evidence;No leaving India without prior court permission;No intimidation of prosecution witnesses;Mandatory appearance before the trial court on all dates unless exempted;Provision for cancellation of bail in case of breach of conditions;Allowance for additional reasonable restrictions as deemed fit by the trial court.The Court emphasized that these conditions strike a balance between safeguarding the applicant's liberty and upholding the interests of justice.3. SIGNIFICANT HOLDINGSThe Court held that the applicant is entitled to anticipatory bail under Section 135 of the Customs Act, 1962, on the following grounds:'The charge under section 135 of the Customs Act is yet to be established in trial and since the maximum punishment which can be made applicable is upto 7 years, the applicant is entitled to grant of anticipatory bail.'The Court reaffirmed the principle that 'bail is the rule and committal to jail an exception,' emphasizing the constitutional guarantee of personal liberty under Article 21.The Court preserved the principle that deprivation of liberty prior to conviction is punitive and should be avoided unless necessary to ensure trial appearance.The Court concluded that in the absence of any direct recovery from the applicant and considering the statements of co-accused, the applicant's liberty must be protected pending trial.The anticipatory bail was granted with conditions to prevent tampering with evidence or witness intimidation, ensuring the trial's integrity.