TaxTMI 
TaxTMI 
2024 (1) TMI 903
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....nt had gone to Dubai to meet a person namely, Rahul @ Bengali and as the applicant had gone to search any work for him and the same was not made available to him, the aforesaid Rahul @ Bengali told him that there is no possibility of getting any work and he may go back to India and he also purchased a return ticket of the applicant on 13.8.2023 and also gave him a black colour trolley suitcase informing him that it contains some old articles and the same would be given to a person namely, Sonu who is a resident of Barabanki, who will contact the accused/applicant at Lucknow Airport. 5. It is further submitted that the applicant had taken the bag given to him by the aforesaid Rahul @ Bengali as there was no money available with the applicant in Dubai and the aforesaid Rahul @ Bengali has also threatened him. 6. It is next submitted that in the seizure memo prepared by the Department, the market value of the seized gold bars has been mentioned as Rs. 98,73,600/-. However, the said gold bars were not in the conscious possession of the applicant and even if the case of the prosecution is believed as it is, he was only a carrier. He is in jail in this case since 14.8.2023 as the c....
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....d, it is reflected that on 13.8.2023 at about 4.30 pm, the applicant arrived from Dubai through Flight No. IX 194 and having noticed some unusual luggage in his trolley bag, the same was checked and 14 gold biscuits/bars were found concealed in two artefacts and on weighing, the weight of the same was around 1632 grams. The statement of the applicant was also recorded under Section 108 of the Customs Act wherein he admitted to have gone to Dubai and also that these gold bars were given to him by the aforesaid Rahul @ Bengali and as there was no option for him, he consented for this illegal work and was eventually apprehended. The value of the gold bars allegedly seized from the possession of the applicant has been assessed as Rs. 98,73,600/- by an approved jeweller. The contention of learned counsel for the applicant appears to be that the alleged offence is bailable. In this regard, the attention of this Court has been drawn towards the definition of prohibited goods defined under Section 2(33) of the Customs Act. 12. Though learned counsel for Union of India has relied on Nidhi Kapoor, Murli Asandas Chandiramani and Mohd. Farook (supra), however, a coordinate Bench of this Cou....
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....tilisation of the instrument exceeds fifty lakh rupeees, 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 adequate reasons to the contrary to be recorded in the judgment of the court such imprisonment shall not be for less than one year. (3) For the purposes of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than one year, namely:-- (i) the fact that the accused has b....
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....kh rupees; or (c) fraudulently availing of or attempting to avail drawback or any exemption from duty provided under this Act, where the amount of drawback or exemption from duty exceeds fifty lakh rupees; or (d) fraudulently obtaining an instrument for the purpose s of th is Act or the Foreign Trade (Development and Regulation ) Act, 1992(22 of 1992), and such instrument is utilised under this Act, where duty relatable to such utilisation of instrument exceeds, fifty lakh rupees, shall be cognizable. (5) Save as otherwise provided in sub-section (4), all other offences under the Act shall be non-cognizable. (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 which 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 r....
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.... of Section 135 Customs Act it appears that it refers to an individual. 31. Delhi High Court also in the case of Air Customs Vs. Begaim Akynova (supra) observed that punishment which is to be imposed on the accused should correspond to the gold that has solely been recovered from his possession and each person should be made answerable for the recovery of gold found in his possession. 32. Therefore, in my view, for the purpose of Section 135 Customs Act value of individually recovered gold should be considered and not the value of combined recovered gold. 33. The next question in the case at hand is whether alleged recovered gold was prohibited goods as if it was prohibited goods then by virtue of Section 104 (6) and 135 Customs Act, the alleged offence committed by the applicants would be non-bailable and maximum punishment provided for such offence is seven years. 34. Prohibited goods has been defined under Section 2 (33) Customs Act which reads as under: 2 (33) ?"prohibited goods" means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include....
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....om the provisions of Section 11 of Customs Act gold is not prohibited goods but it is restricted goods and as per Section 125 Customs Act in lieu of confiscation fine may be levied. Therefore, as import of gold is not prohibited but restricted subject to prescribed payment of duty, thus alleged recovered gold is not prohibited goods under Section 2(33) Customs Act but it is restricted goods in view of the judgment of three Judges Bench of the Apex Court in the case of Atul Automation (supra). 40. Therefore, from the discussions made above, it appears that applicants committed offence under the provisions of Customs Act for which maximum punishment is three ye/ars and as their case does not fall under Section 104 (6) Customs Act, therefore, by virtue of Section 104(7) Customs Act the alleged offence committed by applicants is bailable one, therefore, they are entitled to be released on bail." 13. Having gone through the aforesaid judgements passed by the coordinate Bench of this Court, I find that the judgement of the coordinate Bench in Mohd. Tufail, Mohammad Alam (supra) appears to be more reasoned wherein it is held that the import of gold into the territory of India ....