The court held that the offence under Section 135 of the Customs Act is bailable when the value of the goods is below Rs. 1 Crore and classified as restricted rather than prohibited.

JUDGMENT

Mohd. Faiz Alam Khan, J.

Heard learned counsel for the applicant as well as Shri. Manish Misra, learned counsel appearing for Union of India and perused the record.

2. The present application has been moved by the accused applicant-Mohammad Imran in D.R.I. Case No. 21/2023-24, under section 135 of the Customs Act, Police Station-Custom Airport, District Lucknow, with the prayer to enlarge him on anticipatory bail as she is apprehending arrest in the abovementioned case.

3. Learned counsel for the applicant submits that it is a case of false implication and nothing as claimed by the prosecution has been recovered from the possession of the applicant.

4. It is vehemently submitted that on 3.8.2023, the applicant had gone to Dubai to meet a person namely, Rahul @ Bengali and as the applicant had gone to search any work for him and the same was not made available to him, the aforesaid Rahul @ Bengali told him that there is no possibility of getting any work and he may go back to India and he also purchased a return ticket of the applicant on 13.8.2023 and also gave him a black colour trolley suitcase informing him that it contains some old articles and the same would be given to a person namely, Sonu who is a resident of Barabanki, who will contact the accused/applicant at Lucknow Airport.

5. It is further submitted that the applicant had taken the bag given to him by the aforesaid Rahul @ Bengali as there was no money available with the applicant in Dubai and the aforesaid Rahul @ Bengali has also threatened him.

6. It is next submitted that in the seizure memo prepared by the Department, the market value of the seized gold bars has been mentioned as Rs. 98,73,600/-. However, the said gold bars were not in the conscious possession of the applicant and even if the case of the prosecution is believed as it is, he was only a carrier. He is in jail in this case since 14.8.2023 as the complaint has already been filed, there is no apprehension that after being released on bail, the applicant may misuse the liberty of bail granted to him.

7. It is further submitted that as the value of the gold bars allegedly seized from the possession of the applicant is below Rs. 1 Crore, thus the same is not covered under an clause of sub Section 6 of section 104 of the Customs Act and keeping in view sub Section 7 of section 104 of the Customs Act, the alleged offence committed by the applicant is bailable and punishable up to 3 years imprisonment.

8. It is also submitted that the applicant is the sole bread earner of his family and in case of his prolonged confinement, his family would come on street and he is not having any criminal history.

9. Shri. Manish Misra, learned counsel appearing for the Union of India vehemently opposes the prayer for bail of the applicant on the ground that the applicant has been found in conscious possession of 14 gold biscuits weighing about 1632 grams and he has admitted in his statement recorded under section 108 of the Customs Act that the said gold bars were given to him by some other person and it was also in his knowledge that the transportation of these gold bars within the domain of India is illegal and therefore, having regard to the fact that a large amount of gold has been imported to India illegally which may affect the economy of the country, a serious offence has been committed by the applicant and thus, he is not entitled to be released on bail, more so when the offences have been committed pertaining to import of prohibited goods which is punishable with seven years of imprisonment.

10. In support of his contentions, Shri. Manish Mishra, learned counsel for the Union of India has relied on the judgements of the High Court of Delhi passed in Nidhi Kapoor v. Principal Commissioner and Additional Secretary to the Government of India & Ors., decided on 21 August, 2023 in W.P. (C) No. 8902/2021 as well as by the coordinate Benches of this Court passed in the cases of Murli Asandas Chandiramani v. St