Hon’ble Rajeev Misra, J.—Heard Mr. Gopal Swaroop Chaturvedi, the learned Senior Counsel assisted by Mr. Alok Ranjan Mishra for the applicant and Mr. Sanjay Singh the learned counsel for the opposite party No. 2.

2. This application under Section 482 Cr.P.C. has been filed challenging the summoning order dated 27.3.2018, passed by the Special Chief Judicial Magistrate, Varanasi in Complaint Case No. 941 of 2018 (Union of India v. Mahendra Kumar Bajpai and another) under Section 135 of the Customs Act as well as the entire proceedings of the aforesaid complaint case.

3. From the record, it appears that on 30.1.2018 the Government Railway Police (G.R.P.) was conducting checking on platform Nos. 5 and 6 of Mughalsarai Railway Station. At the time the checking was going on, Train No. 2307 (Hawrah Jodhpur Express) arrived on Platform No. 6. One person namely, Mahendra Kumar Bajapai, aged about 37 years son of late Mohan Lal Bajapai alighted from the train. Seeing the large Police Force on the platform, he endeavoured to outwit the police personnel. However, the said Mahendra Kumar Bajapai was nabbed. Upon search, 13 pieces of foreign origin gold bars, a mobile phone and cash to the tune of Rs. 750/- were recovered from his body. Accordingly, the Police party prepared a memo of recovery dated 30.1.2018 (Annexure-2 to the affidavit), and handed over the matter to the Department of Customs.

4. Upon the transfer of the matter to the Department of customs, the recovered gold bars were got measured by the Department from the Government approved valuer. According to the valuation report dated 30.1.2018 (Annexure-3 to the affidavit), the net weight of the gold bar was 12993.30 gms valued at Rs. 3,98,89,431/-.

5. Having completed the aforesaid formalities, the Custom officials appear to have interrogated the said Mahendra Kumar Bajapai. During the course of investigation the said Mahendra Kumar Bajapai could not show any document regarding sale, purchase or transportation of the recovered 13 pieces of foreign origin gold bars. He, however, is alleged to have confessed that the recovered 13 pieces of foreign origin gold bars have been brought into India from Bangladesh, through off route by way of smuggling.

6. As such the statement of Mahendra Kumar Bajapai was recorded on 30.1.2018, under Section 108 of the Customs Act, 1962 which is on the record as Annexure-6 to the affidavit. A perusal of the said statement will go to show that Mahendra Kumar Bajapai in his statement has stated that he was carrying the foreign origin gold bars for and on behalf of Girish Agarwal, the applicant before this Court who is the owner of M/s Kala Jagat Jewellers, Naughada, Nayaganj (inside Bagla building) and is working for him. It was also stated that in the past he had carried gold bars of foreign origin and further described the details of the journey so undertaken as well as the modus-operendai of such activities.

7. Accordingly, the recovered 13 pieces of foreign origin gold bars were seized under Section 110 of the Customs Act, 1962. Thereafter, a panchnama dated 30/31-1-2018 (Annexure 4 to the affidavit) was prepared. Subsequently, the seizure order dated 30/31-1-2018 as provided under Section 110 of the Customs Act was passed by the concerned officer. The copy of the same is on the record as Annexure-5 to the affidavit.

8. In the light of the statement of Mahendra Kumar Bajapai, search was conducted by the Custom Officials as follow up action at the residential premises as well as the business premises of Girish Agarwal the present applicant on 31.1.2018. The said search was got witnessed by two independent witnesses and Smt. Mohini Agarwal the wife of the applicant Girish Agarwal.

9. Thereafter the statement of the wife of the applicant namely Mohini Agarwal was got recorded on 31.1.2018 which is on the record as Annexure-8 to the affidavit. A perusal of the statement of Smt. Mohini Agarwal reveals that the wife of the applicant disclosed the b