1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Friday, the Thirtieth day of September Two Thousand Eleven PRESENT The Hon`ble Ms.Justice R.MALA CRL OP(MD) No.12479 of 2011 SANTHRALINGAM KETHEESWARY ... PETITIONER/ACCUSED Vs THE SENIOR INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE, TUTICORIN, (R.R.NO.2693 OF 2011 ) ... RESPONDENT/COMPLAINANT For Petitioner : M/S. S.PALANIKUMAR Advocate For Respondent : MR. C.ARUL VADIVEL @ SEKAR Spl.P.P for customs PETITION FOR BAIL Under Sec. 439 Cr.P.C. ORDER : The Court Made the following order :- The petitioner/accused is arrayed as an accused and he was arrested and remanded to judicial custody on 30.08.2011 for the alleged offence punishable under Sections 132 and 135 of the Customs Act, 1962, in R.R.No.2693 of 2011 on the file of the respondent police and hence, seeks bail. 2. The learned counsel for the petitioner would submit that the petitioner came from Colombo and arrived at Seaport, Tuticorin on 30.08.2011 and while she was in immigration, the respondent officer intercepted her as if she brought dutiable goods, but the officers seized 1090.750 grams of gold and the value of the gold is below Rs.30 lakhs. He would further submit that though the petitioner was ready to make declaration before the officers, the officers refused to accept the same and she was not given sufficient opportunity to make proper declaration before the customs officers about the quantity and value of the goods and she was forced to write a statement as dictated by the officers. He would further submit that the petitioner is not a die-hard smuggler and she has no bad antecedent and she is the native of Trichy and she is an illiterate and she is not aware of the procedure. 3.He would further submit that the statement has been recorded from the accused and the gold was seized on 30.08.2011 and it was under the custody of the customs department. He would further submit that the passport of the petitioner was impounded and the petitioner known only Tamil and she does not know English and she was ready to make proper declaration and pay the appropriate duty. He would further submit that even though the case has been registered for the offence under Sections 132 and 135 Customs Act, 1962, the offence under Sections 135 (1)(ii) of the Customs Act is bailable and the punishment is also upto three years only. To substantiate his argument, he relied on the decisions of this Court and Apex Court and prayed for enlarging the petitioner on bail. https://hcservices.ecourts.gov.in/hcservices/ 2 4.Repudiating the same, the learned Special Public Prosecutor would submit that the goods seized by the respondent officer viz., Gold is a prohibited item and the value of the gold is worth about 29 lakhs and odd and the petitioner is a Srilankan smuggler and he concealed the goods in her rectum. He would further submit that the petitioner is not entitled to import the goods as per the notification and she is entitled only to bring gift articles worth about not more than Rs.8,000/- and the present good's value is worth about Rs.30 lakhs and she has not declared the same. He would further submit that gold is not a prohibited article, however, since the petitioner is a Srilankan national, she is not entitled to transport gold and if she is enlarged on bail, she will abscond from the jurisdiction, since he has given voluntary statement and the Visa period is over and hence, he prayed for the dismissal of the application. 5.I have considered the submissions made on either side and perused the materials available on record. 6.Admittedly, the petitioner is a Srilankan National and she is having the Passport issued by Srilanka government. It is also an admitted fact that on 30.08.2011, the petitioner has concealed 1090.750 grams gold in her rectum and the total value of the gold is Rs.29,66,840/-. She was arrested and remanded to judicial custody. At this juncture, it is the duty of this Court to consider the notification issued by the Central Government, wherein, it has been stated that fake currency is alone the prohibited item The learned counsel relied on the notification No.43 of 2008 of the Customs Department, wherein, it has been stated that the Central Government herein specified “Fake Indian Currency Notes” as the goods falling in the category of prohibited goods for the purposes of the said section. 7.At this juncture, the learned Special Public Prosecutor would rely on the notification No.31/2003 Customs Department dated 01.03.2003, wherein, it has been stated that “the Central Government, being satisfied that it is necessary in the public interest so to do, hereby excepts goods of the description specified in column (2) of the Table below and falling under Chapter 71 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India by an eligible passenger, from so much of the duty of customs leviable thereon which is specified in the said First Schedule”. In that, the description of goods in serial number 1 contain Gold bars, other than tola bars, bearing manufacturer's or refiner's engraved serial number and weight expressed in metric units and gold coins. But, in the explanation, it was specifically mentioned that "for the purposes of this notification, “eligible passenger' means a passenger of Indian origin or a passenger holding a valid passport, issued under the Passports Act, 1967 (15 of 1967), who is coming to India after a period of not less than six months of stay abroad; and short visits, if any, made by the eligible passenger during the aforesaid period of six months shall be ignored if the total duration of stay on such visits does not exceed thirty days and such passenger has not availed of the exemption under this notification or under the notification being superseded at any time of such short visits. https://hcservices.ecourts.gov.in/hcservices/ 3 8.Perusal of the above said notification would show that only the Indian Nationalities and Non Residents of Indians are only entitled to import gold into India and they are liable to pay custom duty levied under the notification No.31 of 2003-Customs dated 01.03.2003." Therefore, it is clear that the petitioner is not the eligible passenger as defined above. 9.In such circumstances, she is coming under the purview of Tourist Tourist means “A tourist arriving in India shall be allowed clearance free of duty articles in his bona fide baggage to the extent mentioned in column (2) of Appendix E, wherein, it has been mentioned that the Tourists of foreign original other than those of Nepalese origin coming from Nepal or of Bhutanese origin coming Bhutan or of Pakistani origin coming from Pakistan shall allow to take articles free of duty upto a value of Rs.8,000/- for making gifts. Admittedly, in the present case, the petitioner has concealed more than 1 kilogram of gold in her rectum. 10.It is appropriate to consider as to whether the offence under Sections 135 (1) (ii) of the Customs Act is bailable or not. Section 132 of the Customs Act states as follows: “132.False declaration, false documents, etc.- Whoever makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document in the transaction of any business relating to the customs, knowing or having reason to believe that such declaration, statement or document is false in any material particular, shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.” Section 135 of the Customs Act states as follows: “135.Evasion of duty or prohibitions.- (1) Without prejudice to any action that may be taken under this Act, if any person- (a)is in relation to any goods in any way knowingly concerned in misdeclaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods; or (b)acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling, or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111 or section 113, as the case may be; or (c) attempts to export any goods which he knows or has reason to believe are liable to confiscation under Section 113; or (d) fraudulently avails of or attempts to avail of drawback or any exemption from duty provided under this Act in https://hcservices.ecourts.gov.in/hcservices/ 4 connection with export of goods, he shall be punishable,- (i) in the case of an offence relating to, - (A) any goods the market price of which exceeds one crore of rupees; or (B)the evasion or attempted evasion of duty exceeding thirty lakh of rupees; or (C)such categories of prohibited goods as the Central Government may, by notification in the Official Gazatte, specify, or (D)fraudulently availing of or attempting to avail of drawback or any exemption from duty referred to in clause (d), if the amount of draw back or exemption from duty exceeds thirty lakh of rupees, with imprisonment for a term which may extend to seven years and with fine; Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court, such imprisonment shall not be for less than one year; (ii) in any other case, with imprisonment for a term which may extend to three years, or with fine, or with both.) [(2) If any person convicted of an offence under this section or under subsection(1) of section 136 is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine: Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court such imprisonment shall not be for less than [one year]. (3) For the purpose of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than [one year], namely:- (i) the fact that the accused has been convicted for the first time for an offence under this Act; (ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods which are the subject matter of such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence; (iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party to the commission of the offence; (iv) the age of the accused.] https://hcservices.ecourts.gov.in/hcservices/ 5 11.The learned counsel appearing for the petitioner would submit that the offence against the petitioner is only bailable and the imprisonment is three years or fine or with both and hence, the petitioner is entitled for bail. At this juncture, it is appropriate to consider the argument advanced by the learned Special Public Prosecutor that the offence committed by the petitioner would come under Section 135(1)(D) and the imprisonment for a term which may extend to seven years and with fine and hence, the offence committed by the petitioner is only non bailable and hence, he prayed for the dismissal of the application. 12.Section 135 of the Customs Act, deals with evasion of duty or prohibitions. The learned counsel appearing for the petitioner would clearly conceded that he is not an eligible passenger. Admittedly, the petitioner herein has not disclosed the gold. Whereas during the immigration only, the respondent officer seized the property, which was concealed in her rectum. Furthermore, the petitioner is a Srilankan national. 13.At this juncture, the learned counsel appearing for the petitioner would rely upon the Chapter 24 of CBEC's Customs manual, which deal with passenger clearance system – facilitation-cum-enforcement. In that column No.10, deal with duty free allowances and entitlements for Indian residents and foreigner residing in India. In that column No.14 deals with import of jewellery/gold/silver and in regard gold, it has been stated that “Any passenger of Indian origin (even if a foreign national) or a passenger holding a valid passport issued under the Passport Act, 1967, is allowed to import upto 10 kilogram of gold as baggage if the passenger is coming to India after a period of not less than six months of stay abroad. The duty at the rate of Rs.250 per 10 gms has to be paid by the passenger in foreign currency and the passenger can also obtain the permitted quantity of gold from the authorised banks such as SBI, Bank of Nova Scotia, etc Admittedly, even, the petitioner is a foreign national, she is not an Indian origin and hence, the argument advanced by the learned counsel appearing for the petitioner that the petitioner is not entitled to import gold and he is only liable to pay the tariff of Rs.250/- per 10 grams does not merit acceptance. 14.The learned counsel appearing for the petitioner would rely upon the decisions of the Apex Court, but, those decisions are not applicable to the facts of the present case. Perusal of the decision relied on by him in Avinash Bhosale Vs. Union of India and another reported in (2009) 1 Supreme Court Cases (Cri) 882, wherein, it has been stated that Section 135(1)(ii) of the Customs Act, 1962 is a bailable offences. But, the said decision is not applicable to the facts of the present case. Because, the petitioner is neither Indian origin nor Indian national and admittedly, she is a Srilankan national. 15.In Subash Choudhary Vs. Deepak Jyala reported in 2005(179) E.L.T. 532 (Bom.), wherein, it has been stated that Section 135(1)(ii) of Customs Act, 1962 is a bailable one. There is no quarrel over the proposition He further relied on the order of the Apex Court dated 16.03.2011 made in Crl.A.No.189 of 2006 in between Union of India and another Vs. Subash Choudhary and the order of the Punjab and Haryana High Court dated 06.06.2006 made in Criminal Miscellaneous No.71789-M of 2005 in between Kulbhushan Goyal Vs. Joint Commissioner of Customs, CFS, Focal Point, Ludhiana. In the above said citation, it was held that the offence under Sections 135(1)(ii) of the Customs Act is bailable. As already stated, https://hcservices.ecourts.gov.in/hcservices/ 6 there is no quarrel over the proposition. 16.He also relied on the another judgment of the Bombay High Court in Sangit Krishna Kumar Agrawal Vs. Union of India and others made in Crl.A.No.272 of 2007, wherein, the appellant has given declaration, but has wrongly given the measurement of the contraband and hence, the offence would come under Section 135 (1) (ii) of the Customs Act, which is a bailable one But, here, the petitioner/accused has not declared the contraband i.e. gold and she has concealed the prohibited goods/gold in her rectum and during the immigration only, the respondent officer suspected her and then only, the gold was seized from the petitioner and hence, in such circumstances, the above said citation is not applicable to the facts of the present case. He would rely on the decision of this Court in T.Elavarasan Vs. Commissioner of Customs (AIRPORT), Chennai reported in 2011 (266) E.L.T. 167 (Mad) and submit that the gold is not a prohibited item. It is true the gold is not a prohibited item. In the above said citation, this Court has held that the gold chain brought by the petitioner from Singapore seized on the ground of non-declaration on arrival and the petitioner living abroad for more than six months and entitled to import upto 10 kgs of gold and the gold is not a prohibited item. In that case, the respondents are directed to release the gold jewellery in question, provisionally to the petitioner, forthwith, on his paying the customs duty and the redemption fine. 17.He also relied on the decision of the Bombay High Court in Yakub Ibrahim Yusuf Vs. Commissioner of Customs, Mumbai, reported in 2011(263) E.L.T. 685 (Tri.-Mumbai), wherein, the Mumbai High Court has held that the Gold was liable to confiscation on import in violation of the restriction However, it did not fall under prohibited category and could not be confiscated absolutely as it does not cause any danger or detriment to health, welfare or morals of people as whole. The eligible passenger is entitled to import gold to the tune of 10 kilograms, but they must given a declaration and paid the duty. But, here, as already stated, the petitioner herein is not an eligible passenger and hence, she is not entitled to import the gold. If at all she can take some baggages, she can take to the tune of Rs.8,000/- and not more than that. Hence, the above citation is not application to the facts of the present case. In the said case, the learned Judges have come to the conclusion that the offence under section 135 (c) of the Customs Act is non bailable. Hence, in this case, the offence committed by the petitioner will not come under Section 135 (1) (ii) of the Customs Act, if at all he would come under the category of Tourist. Even though, the value of the gold is below one crore, the duty is below Rs.30 lakhs. 18.Considering the decision relied upon by the petitioner, all the decisions are related to Indian national and they are not foreign nationals and some of the judgments are related to the questioning of confiscation order. It is true as already stated, it has been held by the Apex Court that the offence under Section 135 (1) (ii) is bailable one and there is no quarrel over the proposition. As already stated, the petitioner is not an eligible passenger and she is a foreign national, if at all she would come under the purview of Tourist. 19.At this juncture, it is appropriate to consider the decision relied on by the learned Special Public Prosecutor in Commissioner of Customs (AIR), Chennai Vs. Samynathan Murugesan reported in 2009 (247) E.L.T. 21 (Mad.), wherein, this Court has held that the Goods were prohibited as petitioner did not belong to category of persons who could bring gold at concessional rate of duty and the concealment weighted with the Commissioner https://hcservices.ecourts.gov.in/hcservices/ 7 to order absolute confiscation. 20.Considering the mode of concealment and the fact that the petitioner was not an eligible passenger, it is true the gold is not a prohibited item. As per the decision reported in Om Prakash Bhatia V. Commissioner of Customs reported in 2003(6) SCC 161, prohibition of importation or exportation could be subject to certain prescribed conditions to be fulfilled before or after clearance of goods. If the conditions are not fulfilled, it may amount to prohibited goods. Restriction also is one type of prohibition. 21.In the above said decision, it was specifically mentioned that import of gold permitted as a baggage and import of gold in any form, including ornaments but excluding ornaments studded with stones or pearls, is allowed to be imported as part of baggage by passengers of Indian origin or a passenger holding a valid passport issued under the Passport Act subject to condition that the passenger importing the gold is coming to India after a period of not less than six months of stay abroad; the quantity of gold imported shall not exceed 10 kg. Per passenger import duty on gold shall be paid in convertible foreign currency; there will be no restriction on sale of such imported gold. A person shall be deemed to be of Indian origin, if he held an Indian passport at any time, or he or either of his parents or any of his grand parents, was a citizen of India by virtue of the Constitution of India or the Citizenship Act, 1955 (57 of 1955); provided that the national of Pakistan or Bangaladesh shall be deemed to be not of Indian origin. 22.Therefore, the gold brought in could be cleared on payment of a concessional rate of duty if the petitioner is an eligible passenger and hence, the petitioner is not an eligible passenger. As per the dictum laid down by the Apex Court in Om Prakash Bhatia case, the imported gold was 'prohibited goods' since the petitioner is not an eligible passenger, who did not satisfy the conditions. 23.Considering the decision reported in Commissioner of Customs (AIR), Chennai Vs. Samynathan Murugesan reported in 2009 (247) E.L.T. 21 (Mad.), I am of the view that the petitioner is not an Indian origin and she is not an eligible passenger. Hence the offence committed by the petitioner would not come under Section 135 (1) (ii) of the Customs Act and hence, it is not a fit case to grant bail to the petitioner. Because, the prima facie offence has been made out. The petitioner is not an Indian origin and without valid Visa, she is in India and if she is enlarged on bail, she will abscond from the jurisdiction and hence, I do not find any merits in the application and the same deserves to be dismissed. 24.Accordingly, this criminal original petition is dismissed. sd/- 30/09/2011 / TRUE COPY / Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023. https://hcservices.ecourts.gov.in/hcservices/ 8 TO 1.THE OFFICER INCHARGE, SUB JAIL WOMEN PRISON, KOKKIRAKULAM,PALAYAMKOTTAI, TIRUNELVELI DISTRICT 2.THE SENIOR INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE, TUTICORIN, 3.THE SPECIAL PUBLIC PROSECUTOR FOR CUSTOMS, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. +1. CC to M/S. S.PALANIKUMAR Advocate SR.No.34542 +1. CC to Mr.C.ARUL VADIVEL @ SEKAR ,Advocate, SR.No. 34544 ORDER IN CRL OP(MD) No.12479 of 2011 Date :30/09/2011 TR :03.10.2011: 8p/6c https://hcservices.ecourts.gov.in/hcservices/