- (1.) Each of the accused-petitioners has filed a separate application 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 (hereinafter to be referred as the Act) for offences under Section 132 and 135 and as these applications involve a common question of law and, therefore, with the consent of learned counsel for the parties they were heard together and are being disposed of by this common order. Copy of the order may be placed in each of the files.
(2.) Brief relevant facts for the disposal of these applications 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. 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 accused-petitioner-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 arid 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 accused-petitioners were engraved with the same markings. It is to be noted that gold bars so recovered from the possession of each of the accused-petitioners were concealed in the footwear which each of them was wearing at the time of the recovery. On interrogation and during her statement recorded under Section 108 of the Act, accused-petitioner-Smt. Shilpa Uttam Chand also admitted that she was caught on 1.6.2014 at Mumbai Airport by Customs Officers with gold bangles weighing 1184 gms. valued at Rs.29,03,263/-. Accused-petitioner-Smt. Amal Mubark Salim also admitted that she was apprehended at Mumbai Airport by the customs authorities on 26.5.2014 with 1200 gms. gold bangles. It is the case of respondent-department that at the Mumbai Airport the aforesaid gold was imported by the accused-petitioners without declaration and making payment of customs duty. Each of the accused-petitioners also admitted that all of them have jointly smuggled the gold which has been seized by the customs authorities on 2.1.2015 at Jaipur International Airport. Thus, total god weighing 2684.100 gms. valued at Rs.72,87,311/- was recovered from the joint possession of the accused-petitioners on 2.1.2015 at Jaipur International Airport. Statement of each of the accused-petitioners recorded under Section 108 of the Act further revealed that accused-petition's jointly and in connivance to each other 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 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 examination of documents including invoices of purchase of gold recovered from the possession of the accused-petitioner-Shri Abdul Ali Jaleel and passport of each of the accused-petitioners revealed that accused-petitioner-Shri Abdul Ali Jaleel alongwith the other accused-petitioners is indulged in smuggling of gold into India and all of them were operating as an organised racket. 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 non-bailable within the meaning of sub-section (6) of Section 104 of the Act.
(3.) 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 accused-petitioners to ascertain the market price of the gold so imported and for the purpose of calculation of value of the customs duty evaded or attempted to be evaded by them.;