SABINA,J. - (1.) Petitioner has filed this petition under section 439 Code of Criminal Procedure, 1973 seeking regular bail in File No. VIII (48) 227/Prev./2018 Customs Duty (Prev.), Jaipur for the offences punishable under Sections 135(1)(a), 135(1)(b) and 135(1)(c) of the Customs Act, 1962 (hereinafter referred to as the 'Act').
(2.) Learned counsel for the petitioner has submitted that the petitioner was apprehended on 17.07.2018 and was found in possession of foreign currency with Indian currency value of Rupees thirty five lacs fifty thousand and twenty six. Petitioner was also found in possession of Indian currency to the tune of Rupees thirty seven thousand six hundred and fifty. Since, the total currency carried by the petitioner was less than Rupees fifty lacs, petitioner could be punished for maximum term of three years. Hence, the offence could be said to be a bailable one. Arpit Jain, son of the petitioner, was apprehended on 13.11.2017 and was found in possession of foreign currency with Indian currency value of Rupees ninety six lacs twenty four thousand and twelve. In this regard, son of the petitioner is facing the criminal proceedings. So far as the petitioner is concerned, he is not an accused in the said case. Son of the petitioner is not an accused in the present case. However, now the amount of currency recovered from the petitioner is sought to be exaggerated by including the foreign currency recovered from the son of the petitioner on the ground that the petitioner as well as his son in their statements under Section 108 of the Act have stated that the said amount was handed over by the petitioner to his son. Petitioner is in custody since 17.07.2018. Presently petitioner is in judicial custody.
(3.) Learned counsel for Union of India has opposed the petition and has submitted that the bail petition filed by the petitioner was liable to be dismissed as the petitioner could be said to be carrying foreign currrency with Indian currency value of Rupees thirty five lacs fifty thousand and twenty six plus Rupees ninety lacs twenty four thousand and twelve in view of the statements made by the petitioner and his son under Section 108 of the Act. The amount carried by the petitioner and his son were liable to be clubbed. In support of his arguments, learned counsel has placed reliance on the decision given by the Hon'ble Supreme Court in case of Illias v. Collector of Customs, Madras, AIR 1970 SC 1065 , wherein, it was held as under:- "Learned counsel for the appellant when faced with the above difficulty has gone to the extent of suggesting that by necessary implication the power to file a charge sheet flows from some of the powers which have already been discussed under the new Act and that a customs officer is entitled to exercise even this power. It is difficult and indeed it would be contrary to all rules of interpretation to spell out any such special power from any of the provisions contained in the new Act. In this view of the matter even though under the new Act a customs officer has been invested with many powers which were to be found in the provisions of the old Act, he cannot be regarded as a police officer within the meaning of Section 25 of the Evidence Act. In two recent decisions of this Court in which the judgments were delivered only on October 18, 1968 i.e. Romesh Chandra Mehta v. State of West Bengal and Dady Adarji Fatakia v. K.K. Ganguly, Asstt Collector of Customs and Anr. , the view expressed in Barkat Ram's case with reference to the old Act has been reaffirmed on the question under consideration and it has been held that under the new Act also the position remains the same. This is what has been said in Dady Adarji Fatakia's case: "For reasons set out in the judgment in Cr. A. 27/67 (Romesh Chand Mehta v. State of West Bengal) and the judgment of this Court in Badku Joti Savant's case, we are of the view that a Customs Officer is under the Act of 1962 a police officer within the meaning of Section 25 of the Evidence Act and the statements made before him by a person who is arrested or against whom an inquiry is made are covered by section 25 of the Indian Evidence Act.";