The main legal point established in the judgment is the application of the Customs act and the Prevention of Money Laundering act in determining the legality of the petitioner's actions and the bail application.

JUDGMENT

Bibek Chaudhuri, J. - Background of the case

1. On the basis of source information that accused Sanjay agarwal was trying to divert 54.096 kg gold jewellery meant for export from NSCBI airport, Kolkata to the domestic area after completion of all export formalities. The shipping bill and documents showing customs duty were filed in the name of Shri Ganesh Jewels, Hyderabad for export of the said gold jewellery to Dubai on 4th april, 2018 on hand carry basis through Preet Kumar agarwal, son of the accused. On the date of journey to Dubai for exporting the said gold jewellery, Preet went to the office of the SDO, Customs at NSCBI airport being accompanied by a preventive officer of the Customs Department. The SDO, Customs verified the sealed consignments and handed over the same to Preet Kumar agarwal at his office itself violating the procedure of handing over the sealed boxes at the security hold or boarding area itself. after receiving the said articles, he put it to a strolley bag and handed over the strolley bag to his father, the accused herein. Then Sanjay went straight to cargo complex, broke the seals of customs affixed on the boxes and booked them with Indigo airlines domestic cargo for delivery at Hyderabad airport. He then boarded a flight to Hyderabad using a boarding pass in the name of his son Preet. This was the precise way how huge quantity of gold ornaments, meant for export, was diverted to domestic market. Thereafter, Sanjay was intercepted by the officers of DRI.

2. The petitioner, his son, wife, since claimed to be divorced and other associates of the alleged offence of alleged smuggling were implicated for committing offences under Section 135 of the Customs act, Section 12 of the Passport act and also under the penal provision of Prevention of Money Laundering act (PMLa, for short).

Petitioner's case

3. The petitioner purchased gold from authorised companies, like MMTC, STC etc submitting security deposit equivalent to the duty payable on the gold. The gold in question were legally purchased property of the petitioner and not smuggled goods as alleged by the opposite party. Only allegation against the petitioner is that he sold out gold jewelleries made of the said purchased gold in domestic market without exporting the same.

4. It is further submitted on behalf of the petitioner that in the complaint in Final Form, it was mentioned by DRI that about 500 kgs of gold were not exported by the petitioner for which duties imposed by the appropriate authorities and penalties have been paid. It is the allegation of DRI that the petitioner had smuggled gold amounting to 2700 kgs. Thereafter, the ED proceeded on the basis of finding made by the DRI and the claim that ED found conversion of gold meant for export to domestic marketing is false and concocted. Considering the fact that the petitioner has already paid duty and penalty for using the gold scheduled to be exported for domestic use, his detention under COFEPOSa was held to be illegal by the Delhi High Court. It was further held that the act of petitioner was not smuggling.

5. It is further submitted on behalf of the petitioner that when the petitioner was discharged form 'predicate offence' allegation under the PMLa is diluted. Moreover, the case under PMLa was filed on the basis of seizure of gold jewellery on 4th april, 2018. On the date of arrest, Section 45 of the PMLa was declared ultra vires by the Hon'ble Supreme Court. Therefore the amended provision of Section 45 shall not lie in this case.

6. It is further submitted on behalf of the petitioner that the Enforcement Directorate repeatedly tried to convince this Court that the petitioner illegally smuggled about 2700 kgs of gold which was supposed to be exported. The story was manufactured by the Enforcement Directorate to create a suspicion in the mind of the court about the volume of offence allegedly committed by the petitioner in association with others. On this regard, learned Counsel for the