TaxTMI 
TaxTMI 
2020 (9) TMI 396
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....ts from Guwahati to Kanpur. Further submission is that the statement of the applicant allegedly recorded by the officials of Customs Department under section 108 of the Customs Act, 1962 is not volunteer statement of the applicant and the same was obtained by coercion. Shri Krishna Agarawal, learned counsel for the opposite party has opposed the prayer for bail and has submitted that as the applicant could not show any relevant paper regarding the article (gold) obtained from the possession of the applicant of such quantity, it is deemed proper that the said material was being smuggled. Learned counsel in this regard has also placed reliance upon several judgments of Hon'ble Supreme Court which are held as under:- K.I. PAVUNNY V. ASSTT. COLLECTOR (HQ), CENTRAL EXCISE COLLECTORATE in which it has been held as under :- "8. In Ramesh Chandra Mehta v. State of W.B. [(1969) 2 SCR 461 : AIR 1970 SC 940] a Constitution Bench of this Court held at p. 466 that the Customs Officers are entrusted with the powers specifically relating to the collection of customs duties and prevention of smuggling and for that purpose they are invested with the power to search any person on reasonable ....
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....f Union of India Vs. Padam Narain Agarwal Etc. AIR 2009 SC 254 has observed as follows :- "Sections 107-09 confer power on Custom Officers to examine persons, to summon them to give evidence and to produce documents. 55. Section 108 which is a material provision, reads thus; Power to summon persons to give evidence and produce documents.--(1) Any gazetted officer of customs duly empowered by the Central Government in this behalf, shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry 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 control of the person summoned. (3) All persons so summoned shall be bound to attend either in person or by an authorized 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 thin....
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....". (emphasis supplied) 59. It is thus clear that statements recorded under Section 108 of the Act are distinct and different from statements recorded by Police Officers during the course of investigation under the Code." After perusal of the aforesaid judgment, it is very clear that the statement recorded under Section 108 of the Act is admissible as evidence, hence, the arguments advanced by the applicant is not sustainable. Lastly, learned counsel for the applicant has also tried to place reliance upon the judgment of Hon'ble Apex Court in Om Prakash Bhatia Vs. Commissioner of Customs, Delhi AIR 200 SC 581 and submitted that it is a bailable offence. In the counter of argument advanced by learned counsel for the applicant, Shri Krishna Agarawal, learned counsel for opposite party has brought the attention of the Court towards the judgment of Mahendra Soni Vs. State of U.P. and submitted that the case of Om Prakash Bhatia Vs. Commissioner of Customs, Delhi AIR 200 SC 581 is being well discussed and considered by the preceding Bench of this Court in case of Mahendra Soni Vs. State of U.P. passed in Criminal Misc. Bail Application No.33313 of 2019. He further submits that....
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....ted that the contention of the learned counsel for the applicant that the applicant is not the owner of the alleged gold bars as nothing has been recovered from his possession is also liable to be rejected on the ground that on the information received, when the officers of D.R.I. intercepted the applicant and the co-accused Sanjay Kumar Agrawal, upon enquiry whether they were carrying any contraband/gold bars etc., they accepted that they were carrying foreign origin gold bards with them concealed in waist belt worn by the applicant and in the trousers' pocket and shoes worn by the co-accused Sanjay Kumar Agrawal. Learned counsel for the opposite party no.2 as well as learned A.G.A. for the State have next submitted that both the accused persons, namely, the applicant and the co-accused Sanjay Kumar Agarwal were travelling together, therefore, recovery is to be seen in that manner and five gold bars of 4,996.05 grams, which were of the value of Rs. 1, 67,36, 767/- has been done from the applicant as well as from the co-accused Sanjay Kumar Agrawal. It is further submitted that the same were seized under Section 110 of the Act, 1962 under the reasonable plea that they have bro....