Page 155 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] CHAMAN KUMAR SHAH v. UNION OF INDIA 833

(7) of Section 104 provides that save as otherwise provided in sub-section (6), all
other offences under this Act shall be bailable.
10. Therefore, to demonstrate that the offence of which the applicant is
accused of is cognizable, the prosecution is required to demonstrate that the
goods that are recovered are prohibited or that the evasion or attempted evasion
of duty exceeds fifty lakh rupees. Moreover, to demonstrate that the offence is
non-bailable, the prosecution has to demonstrate that the offence punishable un-
der Section 135 of the Customs Act relates to any one of the four clauses men-
tioned under sub-section (6) (as specified above).
11. A perusal of the counter affidavit filed on behalf of the Union of In-
dia reveals that the complaint has already been filed in the present case on 7-2-
2020 before the Court of Special Chief Judicial Magistrate, Varanasi. With refer-
ence to the statement made by the accused persons, it is mentioned that the re-
covered four gold pieces were smuggled from Bangkok and there was no invoice
or document pertaining to the same. It is stated that as per Section 123 of the
Customs Act, the burden of proof that the gold is not smuggled lies on the per-
son from whose possession the gold is recovered. It is pertinent to mention here
that in paragraph No. 18 filed in support of the bail application, it is stated as
follows :
”18. That the alleged recovery from the possession is less than one crore,
therefore, the offence if any is a bailable offence and the applicant is liable
to be released on bail as per Section 135 of the Customs Act, 1962. Section
135 of the Customs Act, 1962 which reads as follows :-
“Section 135. Evasion of duty or prohibitions. - (1) Without prej-
udice to any action that may be taken under this Act, if any person -
(a)
(b)
(c)
(d)
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 fifty
lakh of rupees; or
(C) Such categories of prohibited goods as the Central Gov-
ernment may, by notification in the Official Gazette,
specify; or
(D) Fraudulently availing of or attempting to avail of draw-
back or any exemption from duty referred to in clause
(d), if the amount of drawback or exemption from duty
exceeds fifty lakh of rupees,
with imprisonment for a term which may extend to seven years and
with fine :”
12. In reply to this paragraph, Paragraph No. 20 of the counter affidavit
reads as follows :
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