Page 153 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] CHAMAN KUMAR SHAH v. UNION OF INDIA 831

and the applicant was handed over by the G.R.P. Police of Pandit Deendayal
Upadhyaya Railway Junction to the officers of Customs Preventive Division, Va-
ranasi on 9-12-2019. The applicant made a voluntary statement on 10-12-2019 that
on 6-12-2019, after reaching Bangkok, he made a WhatsApp call to one Mohd.
Jaiki who then introduced him to a shop owner in Bangkok over WhatsApp who
gave him four pieces of cylindrical gold bars without making any payment as
Jaiki Alam had already made the payment. Thereafter, the applicant handed over
the four pieces of gold bars to Sanjay Kumar Kushwaha who was already present
in Bangkok and thereafter they reached India on 9-10-2019. Then they boarded a
train after taking with them the four pieces of gold bars concealed in a bag.
Thereafter, they were caught at the Pandit Deendayal Upadhyaya Station. The
applicant was, therefore, charged under Section 135 of the Customs Act, 1962.
5. It is the contention of the Learned Counsel for the applicant that the
chargesheet in the case has already been filed and admittedly the value of the
gold recovered from the possession of the applicant is below Rs. 1,00,00,000/-
and the entire proceedings do not reflect that the case is covered under any
clause of sub-section (6) of Section 104 of the Customs Act. It is, therefore, con-
tended that in view of the provisions of sub-section (7) of Section 104 of the Cus-
toms Act, on a bare reading of the recovery memo, it is clear that it is a bailable
offence and under the circumstances the applicant is entitled to bail. Learned
Counsel relied upon a judgment dated 6-1-2020 of this Court passed on similar
facts in Criminal Misc. Bail Application No. 48198 of 2019 by means of which the
applicant therein was enlarged on bail.
6. Learned Counsel for the Customs & Central Excise, on the other
hand, relied upon an order dated 28-11-2019 passed in Criminal Misc. Bail Ap-
plication No. 42111 of 2019 (Vineet Agrawal v. Union of India) to contend that in a
similarly situated matter, this Court was pleased to reject the bail application. He
strongly opposed the bail application. He has, however, not disputed the fact
that this case is covered under the provisions of Section 104(7) of the Customs
Act.
7. A perusal of the order passed in Criminal Misc. Bail Application No.
42111 of 2019, that has been relied upon by the Learned Counsel for the Union of
India, however, does not reveal whether the provisions of Section 104 of the Cus-
toms Act were brought to the notice of the Court or that it was argued before the
Court. A perusal of the counter affidavit, on the other hand, reveals that the
complaint in the present case has been filed on 7-2-2020 before the Court of the
Special C.J.M., Varanasi, that is before the completion of 60 days from the date of
arrest. It has further been stated therein that the applicant-accused has stated in
his voluntary statement dated 10-12-2019 recorded under Section 108 of the Cus-
toms Act, 1962, that he had purchased the four pieces of the gold in Bangkok on
the saying and direction of the aforesaid Mohd. Jaiki Alam.
8. Section 104 of the Customs Act is as follows :
“Section 104. Power to arrest. - (1) If an officer of customs empowered in
this behalf by general or special order of the Principal Commissioner of
Customs or Commissioner of Customs has reason to believe that any per-
son in India or within the Indian customs waters has committed an offence
punishable under Section 132 or Section 133 or Section 135 or Section 135A
EXCISE LAW TIMES  15th June 2020  153