Non-bailable offence u/s 104(6) of Customs Act, 1962 - Duty limit of Rs 50 lakhs and value limit of Rs one crore - Multiple incidents of smuggling can be clubbed - Bail rejected: High Court
By TIOL News Service
JODHPUR, SEPT 17, 2015:THE Petitioners filed separate applications for grant of bail under Section 439 Cr. P.C. in respect of the same case registered under the provisions of the Customs Act, 1962 for offences under Section 132 and 135.
Brief facts are that the gold total weight 350.100 gms. valued at Rs. 9,50,530/- was recovered and seized from the possession of the accused-petitioner shri Abdul 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.
After the interrogation, it was found that the Petitioner along with other accomplices, on previous several occasions smuggled gold into India without declaration and payment of customs duty to the tune of 11362.980 gms. valued at Rs. 3,12,48,195/-. It is the case of the respondent department that the total weight of gold so far jointly imported by the accused-petitioners without payment of customs duty is 14047.080 gms, valued at Rs. 3,85,35,526/-.
It is also the case of the respondent that as the market price of the gold jointly smuggled by the accused-petitioners on different occasions including the consignment of gold recovered from their possession on 2.1.2015 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 nonbailable within the meaning of subsection (6) of Section 104 of the Act.
The Petitioners contended that if any person imports into India any dutiable goods including gold without declaration or without paying customs duty upon it, it is an independent and separate offence for which he can be prosecuted, but such person cannot be prosecuted for previous evasion of customs duty alongwith the present offence. Inviting attention towards definition of "Import" and "Smuggling", it was submitted that each import or smuggling of goods into India without payment of customs duty constitutes a separate and distinct offence and has to be treated and dealt with independently and individually. It was contended that the prosecution without any authority of law has clubbed the previous alleged import of gold by each of the petitioners with the present import of the gold with a sole purpose of to make the offence so committed to be a nonbailable.
After hearing both sides, the High Court held:
++ The previous transactions can be taken into account for the purpose of determining whether the import of alleged goods exceeded the market price of one crore rupees envisaged under Section 104 (6) (c) of the Act as the previous transactions and the evasion of customs duty came to light only after the petitioners were apprehended with possession of smuggled gold on 2.1.2015 at Jaipur International Airport and disclosure statement under Section 108 of the Act were made by them and, therefore, the continuous transactions carried out by the petitioners over the period of time can rightly be reckoned together to proceed against them. Prior to the amendment made under the Finance Act, 2012 which came into force with effect from 10.5.2013, all offences under the Act were bailable and it was also so held by the Supreme Court in the case of Om Prakash Vs. Union of India 2011-TIOL-95-SC-CX-LB. Thereafter, amended was effected in Section 104 of the Act and offences committed in the circumstances as mentioned in subsection (6) were made to be nonbailable.
++ 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 subsection (6) of Section 104 of the Act. The petitioners cannot 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 transaction or transactions carried out by each of the petitioners is to be considered individually and separately.
(See 2015-TIOL-2161-HC-RAJ-CUS)
