TaxTMI 
TaxTMI 
2015 (9) TMI 196
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.... Ali Jaleel on 2.1.2015 at Jaipur International Airport when he arrived from Muskat by Flight No.WY0271 of Oman Air and he declared a 'nil' declaration card to the Officer on duty. During his interrogation and statement recorded under Section 108 of the Act, the accused-petitioner stated and admitted that he is involved in the smuggling of gold from a territory outside India and he has smuggled gold each and every time when he visited India. He further admitted that his second wife accusedpetitioner-Smt.Shilpa Uttam Chand @ Faiza was apprehended by the customs authorities at Mumbai Airport with gold bangles weighing 1184 gms. valued at Rs. 29,03,263 on 1.6.2014. He further stated that accused-petitioner-Smt.Shilpa Uttam Chand @ Faiza and Smt.Amal Mubarak Salim also came with him by the same flight. Search being made gold weighing 1167.000 gms. valued at Rs. 31,68,405/- was recovered and seized from the possession of co-accused-Smt.Shilpa Uttam Chand @ Faiza and gold weighing 1167.000 gms valued at Rs. 31,68,405 was recovered and seized from the possession of co-accused-Smt.Amal Mubarak Salim on 2.1.2015. All the gold bars allegedly recovered from the possession of the ....
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....015 is more than Rupees One crore and the value of the customs duty evaded or attempted to be evaded by them is more than Rupees Fifty Lacs, the offence committed by each of the accused-petitioners is non-bailable within the meaning of sub-section (6) of Section 104 of the Act. The foremost common question of law which has been raised in these bail applications is whether the offence under Section 135 of the Act for which the petitioners have been prosecuted is bailable or non-bailable and equally important question which has been raised is whether the gold allegedly imported by the petitioners on previous occasions without declaration and without paying customs duty upon it can be clubbed with the present consignment of the gold which has been imported by them without declaration and without paying customs duty upon it. A further question of law involved in these applications is whether the import of gold by each of the accused-petitioners in the form of present consignment and alleged import of the same on previous occasions is to be treated as a separate and individual act of each of the accused-petitioners or it is to be treated to be a joint import of the gold together by the....
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....which have been seized and confiscated by the competent authority, but those goods also which escaped from seizure and confiscation and that an offence under Section 135 of the Act for evasion or attempted evasion of duty must be treated to be a continuous offence until customs duty is paid upon the goods which have been imported without payment of customs duty upon them, but the aforesaid view taken by this Hon'ble Court is not in accordance with the provisions of the Act and any other law and it requires to be re-considered. It was also submitted that it has wrongly been held by6 this Court that the value of the goods previously imported by a person is to be added to the value of the goods imported by him on the present occasion for the purpose of calculating the market price of the total goods imported as well as for the purpose of determining the amount of customs duty which have been evaded or attempted to be evaded. It was also contended that if any person imports in India gold or any other dutiable goods without payment of customs duty, it is an independent and separate offence committed by him under the provisions of the Act and he is to be prosecuted for the offence in....
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....gs to stand. No evidence is also available on record to show that each of the petitioners was in conscious possession of the gold allegedly recovered. No evidence has also been collected with regard to the dealing of the gold previously imported by the petitioners i.e. whether it was sold in the market or used otherwise and in absence of such evidence, it cannot be said gold was smuggled by the petitioners or by any of them on previous occasions also. In support of their submissions, learned counsel for the petitioners relied upon the cases of Ashak Hussain Allah Detha alias Siddique & anr. Vs. Assistant Collector of Customs, Bomaby reported in 1990 Crl.L.J.2201 (Bombay High Court), Assistant Collector of Customs Vs. Pratap Rao Sait & anr. reported in 1972 Crl.L.J.1135 (Kerala High Court) and order dated 22.4.2014 passed by the Co-ordinate Bench of this High Court in S.B.Criminal Misc.Bail Application No.1643/2014 (Arif Khan Vs. Union of India). On the other hand, learned Special Public Prosecutor appearing for the Customs Department controverting the submissions made on behalf of the petitioners submitted that there is no bar in the Act or any other law to club the previous....
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....offence committed by each of the petitioners is a non-bailable offence within the meaning of sub-section (6) of Section 104 and 135 of the Act and the petitioners are not entitled to be released on bail as of right without taking into consideration the merit and demerit of the case. It was also submitted that it is well settled legal position that the statement of a person including that of an accused recorded under Section 108 of the Act is a material and admissible piece of evidence which can legally be used for the purpose of proving commission of an offence under the provisions of the Act more particularly if it is not retracted by the accused at the earliest occasion. In the present case, such statement of each of the accused-petitioners was recorded by the competent officer as soon as he was detained for interrogation and, therefore, it can legally be used against them more particularly in view of the fact that till date none of the petitioners has retracted from it. It was also contended that from the possession of accused-petitioner Shri Abdul Ali Jaleel some documents including purchase invoices have been recovered and on examination of the same and passport of each o....
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....iry which such officer is making under this Act. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required : Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section. (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860. In the case of Naresh J. Sukhawani Vs. Union of India reported in 1996 (83) E.L.T.258 (SC), Hon'ble Supreme Court held that the statement made before the Customs Officials is not a statement under Section 161 Cr.P.C. Therefore, it i....
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....and summons is issued for the said purpose, he is bound to comply with such direction. It was also held that the underlying object of Section 108 is to ensure that the officer questioning the person gets all the truth concerning the incident. The power is exercised by a gazetted officer of the Department. It obliges the person summoned to state truth upon any subject respecting which he is examined. He is not absolved from speaking truth on the ground that such statement is admissible in evidence and could be used against him. The provision thus enables the officer to elicit truth from the person examined. In the case of Labh Singh Vs. Union of India reported in 2002 Cr.L.J. 28 (Raj.), Single Bench of this High Court held that the terms "custody" and "arrest" are not synonymous terms. It is true that in every arrest there is a custody, but not vise versa. A custody may amount to an arrest in certain cases, but not on all cases. A person who is taken by the customs officers either for the purpose of enquiry or interrogation or investigation cannot be held to have come into custody and he cannot be deemed to have been arrested from the moment he was taken into custody. Similar view....
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....hus, total gold weighing 2684.100 gms.valued at Rs. 72,87,311/- was recovered from the joint possession of the accusedpetitioners without declaration and without paying customs duty. (d) The gold recovered and seized from the possession of the petitioners was jointly brought by them from Muskat and each of them was having knowledge that the other is also in possession of the gold. The recovered gold was concealed by each of the petitionrs in similar manner i.e. in his/her footwear and all the gold bars which were recovered from the possession of the petitioners were having the same ingraved markings. (e) Accused-petitioner-Smt.Shilpa Uttam Chand @ Faiza was apprehended at Mumbai Airport by the customs officers on 1.6.2014 with gold bangles weighing 1184.000 gms valued at Rs. 29,03,263/-, whereas Smt.Amal Mubarak Salim was caught at the same Airport on 26.5.2014 with gold bangles weighing 1200 gms. and the same was seized and confiscted by the competent authority as they failed to declare the same and did not make payment of the requisite customs duty. (f) The petitioners jointly and in connivance to each other on several previous occasions smuggled into India without declar....
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.... 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, 1898 (5 of 1898), an offence under this Act shall not be cognizable. (5) Save as otherwise provided in sub-section (4), all other offences under the Act shall be noncognizable. (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 whih 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., shall be non-bailable. Thus, sub-section (6) of Section 104 of the Act provides that notwithstanding anything containing in th....
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.... (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, 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 ....
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.... the purpose of calculating the market price of the total gold imported as well as for the purpose of determining the amount of the customs duty which have been evaded or attempted to be evaded. Each of the petitioners should be treated to have been arrested by the competent authority of the customs department not only for the attempted evasion of duty on the present consignment of the gold, but also for the evasion of customs duty on the import of gold on previous several occasions. This Court vide order dated 5.1.2015 passed in S.B.Criminal Misc.Bail Application No.11193/2014 (Syed Mohammad Zama Vs. State of Rajasthan) and S.B.Criminal Misc.Bail Application No.13466/2014 (Najibullah & another Vs. State of Rajasthan) after considering the relevant provisions of the Act has held that : "In my opinion even if for any reason including lapse on the part of the competent authorities, the previous import of gold or gold items by each of the petitioners without declaration or without payment of customs duty could not be detected, but later on by any means including statement recorded under Section 107 or 108 of the Act, such import comes to the knowledge of the authorities concerned, t....
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....o be non-bailable. The object and purpose of the amendment is obvious. No person can be allowed to defeat the purpose for which the amendment has been made. One can misuse the provision by importing goods without declaration and making payment of customs duty having market price not more than one crore rupees or liable to customs duty not exceeding fifty lacs rupees at a time and in case of being apprehended, after getting bail as of right can repeat the act one or more time in the same manner. A pragmatic and realistic view is required to be taken in the light of the amendment recently made in the Act. The statement of object and reasons shows that the Act is regulatory, preventory and punitive in nature. A meaningful interpretation is to be given to sub-section (6) of Section 104 of the Act. The petitioners can not be allowed to contend that each transaction alleged of in a case should be dealt with separately in invoking the offence under Section 135 of the Act. They have no substantive right under law to claim for their prosecution treating each transaction separately where the offence was detected only later on. Similarly, the petitioners cannot be allowed to contend that tra....