The Allahabad High Court has granted conditional bail to Kannauj-based perfume trader Peeyush Kumar Jain who is in jail for smuggling gold worth crores of rupees.
A Single Bench of Justice Siddharth passed this order while hearing a Criminal Misc Bail Application filed by Peeyush Kumar Jain.
The bail application has been filed on behalf of Jain with a prayer to release him on bail in Complaint Case under Section 135 of the Customs Act Police Station DRI Lucknow, Zonal Unit, during pendency of trial.
The facts against the applicant are that during search, the officers of Director General GST Intelligence (DGGI) Ahmedabad, /Zonal Unit Ahmedabad at the premises of M/s Odochem Industries , Jain Street, Kannuaj , UP, also residence of the applicant, 32 foreign original gold bars, weighing approximately 23 Kg, were recovered on 27.12.2021. The brand of foreign marking was found on some gold bars. The applicant could not produce any document for possessing foreign original gold bars. The government valuer certified gold bars to be of 24 carats gold. The officers of DGGI have seized approximately Rs 196.57 crore under Section 67 of CGST Act,2017 from the applicant and it is alleged that it is an amount whereon GST payment has been evaded.
After investigation was completed, a complaint under Section 135 of the Customs Act, 1962 was filed before the Special Chief Judicial Magistrate, Economic Offences, Kanpur Nagar.
The counsel for the applicant submitted that in the remand application filed before the Directorate Revenue Intelligence reliance on the statements of applicant recorded under Section 108 of the Customs Act have been made. The DRI has no evidence to prove that the applicant was involved in smuggling of the gold of foreign origin. Only because of marking of foreign origin on the gold ceased, it is not established that it was smuggled gold. It may have been imported in the country through proper procedure and then sold further.
The applicant stated that he had purchased gold locally and the statement recorded by DRI officers was under duress and coercion and cannot be read against the applicant at this stage. The panch witnesses were brought by DGGI officers and were not local witnesses. The applicant is willing to deposit customs duty, as may be applicable regarding seized currency amount under protest and without waiving his right to contest the alleged liability. The investigation has already been completed against the applicant and hence keeping him in jail will be of no avail. The applicant has no passport and will comply with conditions as may be imposed by the court.
The counsel for the opposite party, Dhanjay Awasthi, has opposed the bail application and relying on his counter affidavit, submitted that illegal gold of foreign marking and cash has been recovered from the applicant. The sanctioning authority has directed the prosecution of the applicant.
The Court found that in the case of Kishan Ratan Lal(supra) the Bombay High Court has held in the absence of any corroboration by any independent and reliable witness the statement recorded under Section 108 of the Customs Act cannot be read against the accused and has acquitted the accused.
The Court noted,
In the case of Noor Aga (supra), relied upon by the counsel for the applicant, Apex Court has held that more serious the offence stricter is degree of proof in relation to the shifting of burden of proof under Section 54 of Narcotic Drugs and Psychotropic Substances Act, 1985.
It has further held that confession made under Section 108 of Customs Act should be in consonance with Article 20(3) of the Constitution and it cannot be used in any manner under Section 138-B of the Custom Act.
In the case of Gopi Chandra Sony and another (supra) this court held that unless there was any corroborative evidence the statement under Section 108 of the Customs Act cannot be read against the maker of the statement. The possession of the gold, even if it was smuggled, would not be under purview of the Customs Act unless it was established by reliable evidence that gold was smuggled and brought by the applicant or by his agent. Finally in the case of Sevvantilal Karsondas (supra), the Apex Court held that confession made before a Customs officer as a result of coercion cannot be the basis of conviction under Section 135(1) (a) (b) of the Customs Act.
In the judgement in the case of Zaki Ishrathi (Supra) relied upon by the counsel for the opposite party, the court found that since the accused did not record his retraction of admission before the Revenue Authorities on production before the Magistrate when he was produced before him therefore it could at best be treated as representation/complaint to the Collector Central Excise.
After hearing rival contentions, the Court further found that the prosecution is relying upon the statement of applicant recorded under Section 108 of Customs Act which as per the judgement in the case of Kishan Ratan Singh (supra) Gopi Chand Soni (supra)and Sevantilal Karsondas Modi (supra) cannot be a sole basis of conviction in absence of corroborative evidence.
At the stage of consideration of bail application of the accused, the Court also found that a complaint against the applicant has already been filed, show cause notice for confiscation of gold and imposing penalty has already been issued against the applicant. In order to attract Section 123 of Customs Act, 1962, it is essential that goods must be smuggled. It means goods of foreign origin and imported from abroad. There must be something proving their importation from abroad. Only an account of being unaccounted for cannot be inferred to be smuggled, they may be stolen too.
The Applicant claims that he has no passport and will not leave the country his whole family and business is at Kannuaj and Kanpur. There is no possibility of tampering with witnesses. He has no criminal history and therefore as per the judgement of the Apex Court in Sanjay Chandra vs C.B.I, 2012 Volume (1) SCC,40 bail cannot be refused to the applicant only because of being involved in economic offence and it would not be in the interest of justice. The applicant has been in jail since 27.12.2021 and has no criminal history.
“Keeping in view the nature of the offence, argument advanced on behalf of the parties, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs State of U.P and another reported in (2018)3 SCC 22 and recent judgement dated 11.7.2022 of the Apex Court in the case of Satendra Kumar Antil Vs. CBI, passed in SLP (CRL.) No. 5191 of 2021 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail,” the Court observed while allowing the bail application.
The Court ordered that,
Let the applicant be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties are verified.
1.The applicant will surrender his passport, if any, and not leave the country without permission of the trial court concerned.
2. He will furnish a bank guarantee of Rs. 1 crore in favour of the opposite party which shall be forfeited in favour of the opposite party in case of violation of any of conditions imposed in this order.
3. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
4. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
5. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
6. That the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and when the witnesses are present in court.
In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicant.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail granted to the applicant.