TaxTMI 
TaxTMI 
2014 (1) TMI 277
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....f the Customs Act, 1962. He has filed the above application seeking the discretionary relief of anticipatory bail under Section 438 of the Code of Criminal Procedure (for short the 'Code'). 2. Petitioner is the Managing Director of M/s. Rajesh Exports Limited operating business within the Cochin Special Economic Zone, Kakkanad, which has been given licence to export gold medallions manufactured from gold imported duty free. The Directorate of Revenue Intelligence, Cochin (hereinafter referred to 'DRI, Cochin') getting information that gold imported duty free by the Unit of the above Company in Kakkanad is being smuggled out by a gang headed by petitioner close surveillance was kept on such activities. On 10-5-2013, third accused emplo....
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....cumstances presented in the case is the thrust of the objections mainly contending that clearance of any duty free goods from the Special Economic Zone unauthorisedly to the domestic market will be considered as an import from an outside territory, and in such a case penal provisions of the Customs Act will apply with full force. 4. Learned counsel for petitioner adverting to the amendment made in Section 104 of the Customs Act contended that till the amendment came into force on 10-5-2013 the offence under Section 135 of the Act was only bailable. Where the DRI has set up a case that three transactions were much earlier before the commencement of the amendment and that the value of gold seized (900 gms), allegedly, from third accused....
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....mitted, invoking of Section 104(6)(c) of that Act is impermissible, and further it is violative since the petitioner cannot be proceeded under ex post facto legislation. Learned counsel has also referred to the definition of 'export' and 'import' in the Customs Act and also some provisions of the Special Economic Zones Act, 2005 to contend that to constitute an import or export the materials should have been either sent outside India or received from outside India. When that be so, according to counsel, criminal proceedings launched against petitioner by the DRI is prima facie unsustainable. Petitioner in the given facts of the case deserve to be granted pre-arrest bail is the submission of counsel, for extending such equitable relief to hi....
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....n facts of the case, and, statutory power vested with the customs officer to arrest petitioner and proceed against him in accordance with law, it may not be interfered with where the circumstances presented in the case prima facie disclose the serious offence imputed, is the further submission of counsel for dismissing the application. 6. I do not find any merit in the submission made by counsel for petitioner that previous transactions before 10-5-2013, on which date the amendment under Section 104 of the Customs Act came into force, cannot be taken into account for the purpose of determining whether the import of goods alleged exceeded the market price of one crore rupees envisaged under Section 104(6)(c) of the Customs Act. Section....
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....l fall within the realm of procedure, and not under substantive law. What is prohibited under Article 20(1) of the Constitution is against conviction of any offence and imposition of penalty which might have been inflicted under the law in force when the offence was committed. In the first part of Article 20(1) falls conviction, and second part relates to the punishment which may be inflicted on such conviction. So the second part will have application only if the first part is satisfied. In Shiv Bahadur Singh Rao v. State of Vindhya Pradesh [AIR 1953 SC 394], the Apex Court has held that Article 20(1) prohibits conviction and sentence under ex post facto legislation, and not a trial under a procedure different from what was obtained at the....
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....ure for grant of bail being procedural nature would operate retrospectively. So any argument canvassed with respect to provisions under Section 104 of the Customs Act, before and after amendment, that previously the offences were bailable and now some of them are non-bailable cannot come to the assistance of petitioner to contend that whatever offences continuously carried out by him in relation to the evasion of duty which was detected later after amendment has to be considered separately constituting only bailable offence. When all such transactions could be reckoned together for determining the quantum of value of goods where an offence over evasion of duty is detected after the amended act, there is no merit in the plea made for treatin....