The gold smuggled by the petitioners on previous occasions could be clubbed with the gold smuggled on the current occasion for the purpose of determining the market price of the total gold imported and the amount of customs duty evaded or attempted to be evaded, and the offence committed by the petitioners was a non-bailable offence under Section 135 of the Customs Act, 1962.

1. - Although, the aforesaid two applications for grant of bail have arisen from different cases registered under the provisions of the Customs Act, 1962 (hereinafter to be referred as “the Act”) and they were heard separately, but as both these applications involves a common question of law, therefore, they are being disposed of by this common order. Copy of the order may be placed in each of the files.

2. S.B. Criminal Misc. Bail Application No. 11193/2014 has been filed by the accused-petitioner-Shri Syed Mohammad Zama under Section 439 Cr.P.C. in respect of Customs Case No. DRI/DZU/JRU/19ENG-l (INT-3) 2014 Customs (Preventive), Jaipur for offences under Sections 132 and 135 (1) (i) (A) and (B) of the Act. The bail application filed by accused-petitioner has been dismissed by the Additional Sessions Judge No. 10, Jaipur Metropolitan vide order dated 24-9-2014, whereas the S.B. Criminal Misc. Bail Application No. 13466/14 has been jointly filed by accused-petitioners Shri Najibullah & Qais under Section 439 Cr.P.C. in respect of Case No. (VIII) (10) AP/23/2014 Customs (Preventive), Jaipur for the same offences and their application for grant of bail has been dismissed by the Additional Sessions Judge No. 10, Jaipur Metropolitan vide order dated 16-10-2014. The common question of law which has arisen in these bail applications is whether the offences under Section 135 of the Act for which the petitioners have been prosecuted is bailable or non-bailable and the equally important question which has been raised in these applications is whether the goods imported by the petitioners on previous occasion without declaration of the same and without paying customs duty upon them can be clubbed with the present goods which have been imported by them without declaration and without paying customs duty upon them.

3. Before considering the arguments submitted by the learned counsel for the parties and the relevant legal provisions, it would be useful to mention the relevant facts in brief in respect of each of the aforesaid bail applications:-S.B. Criminal Misc. Bail Application No. 11193/2014

4. The prosecution case in brief is that on 13-9-2014 a specific intelligence was received by the concerned competent authority that the petitioner arriving from Muskat to Jaipur by Flight No. WY-0273 on 13-9-2014 is carrying gold in huge quantity in his personal baggage and the said gold would be hidden on partition wall of cabin Nos. 2 & 3 in the washroom situated adjacent to the immigration hall in the International Airport at Jaipur. Acting upon the said intelligence, on 13-9-2014, the DRI Officers kept discreet surveillance on petitioner at Jaipur International Airport on his arrival from Muskat by the aforesaid flight and three gold bars each weighing 1 kg. were recovered from his possession after the petitioner placed them on the partition wall of the cabin of the washroom. On search being made one boarding pass and one Indian Customs Declaration Form filled by the petitioner were also recovered from his possession. According to the Customs authorities the current market value of the gold bars so recovered from the possession of the petitioner was assessed to be Rs. 81 lacs only. It is the further case of the prosecution that when the statement of the petitioner was recorded under Section 108 of the Act, it was admitted by him that on previous 11 occasions on different dates and at different Airports of India he smuggled gold total weight 9400 gms. in the form of gold/gold chains/gold bangles. It is also the case of the prosecution that the scrutiny of passport of the petitioner revealed that he is a frequent flier and he visited India from different places outside India during the period from 14-2-2012 to 13-9-2014 as mentioned in the complaint filed by the Customs authorities against the petitioner in the competent Court. In brief the case of the prosecution is that if the gold smuggled by the petitioner on previous occasions is club