Point of Law: Section 135 of Customs Act, 1952 reads as evasion of duty or prohibitions.

ORDER :

Petitioners are husband and wife. They face an indictment for the offence under section 135 of the Customs Act, 1952 (for short 'the Act') alleging import of gold, the market price of which exceeds Rupees One Crore. They were taken into custody on 18.05.2023 and hence seek enlargement on bail under section 439 of the Code of Criminal Procedure, 1973 (for short, 'the Code').

2. Information was received by the Air Intelligence Unit of the Air Customs, International Airport, Calicut, that one Amjad Mihran was indulging in smuggling of gold into India using carriers, including family members. A strict vigil was therefore maintained over the passengers. Based on the intelligence input, petitioners, who were travelling from Dubai to Calicut by Spicejet Flight SG 54, were intercepted at the exit gate of the baggage hall at Calicut Airport on 16-05-2023. As mentioned earlier, they are husband and wife. Upon a thorough personal search, the Customs Officers seized 950 gms of gold in a compound form concealed in four capsules in the rectum of the first petitioner and a further 1198 gms of gold concealed in a compound form inside the panties worn by the second petitioner. The total quantity of gold seized from the petitioners was 1977.18 gms having a value of Rs.1,20,90,456/- in the domestic market. After recording petitioners' statement under section 108 of the Act, a crime was registered and Sri.Amjad Mihran was arrayed as the first accused, while petitioners were arrayed as accused 2 and 3. Petitioners were thereafter arrested. The bail applications filed before the Magistrate Court as well as the Sessions Court were rejected, and hence recourse to this Court, seeking regular bail.

3. Sri.S.Sreekumar, the learned Senior Counsel duly instructed by Sri. Martin Jose, the learned counsel for the petitioners, contended that the offences under the Act are generally bailable, except those that are specified as non-bailable. It was further submitted that the quantity of gold seized individually from petitioners 1 and 2 alone can be reckoned and so viewed; the offence alleged against them is bailable and therefore they ought to have been released by the customs authorities themselves. The learned Senior Counsel also submitted that the second petitioner is a lady and both of them have four children, of which the youngest is only four years and the presence of the parents at home is indispensable. It was also argued that there are no antecedents against them and hence considering the period of detention already undergone, petitioners ought to be released on bail.

4. An objection was filed by the respondent opposing the bail application. Sri.Sreelal N. Warriar, the learned Standing Counsel for the Customs Department contended that the offences under section 135 of the Act are non-bailable if the market price of the goods that are imported illegally is above Rupees One Crore and that the petitioners, being husband and wife, had together imported gold worth more than Rupees One Crore and therefore the offence cannot be treated as bailable. Relying upon the objections to the bail applications filed, it was pointed out that in the voluntary statement before the Superintendent of Customs, the petitioners had admitted their role in smuggling gold and that they had done it as per the direction of the first petitioner's cousin - Sri.Amjad Mihran, for a remuneration and also that the gold was handed over to them by one Sharafudeen at Dubai, an acquaintance of Sri.Amjad Mihran. The objections further averred that the consequent search conducted at the residence of Sri. Amjad Mihran revealed incriminating documents, which have also been seized and that the petitioners are not cooperating with the investigation and are not revealing the entire circumstances. It was further pointed out that petitioners are part of a smuggling gang involving high volume of gold using family passengers as carriers to evade serious offences and that considering the gravity of