Page 156 - ELT_15th June 2020_VOL 372_Part 6th

834 EXCISE LAW TIMES [ Vol. 372

“20. That with respect to the content of Para 18 of the bail application, it is
pertinent to mention that the inquiry is being carried out with respect to the
other persons who are engaged in the said act of smuggling along with the
accused and despite issuance of several summons, they are not cooperating
in the inquiry. Granting bail to the accused will give the mastermind(s) be-
hind the said racket of smuggling an opportunity to escape the ongoing in-
vestigation and tamper with the evidence”.
13. Thus, the fact is not disputed that the market price of the goods
seized does not exceed one crore of rupees. Nowhere in the counter affidavit has
it been stated that the gold that was seized from the applicant belongs to the cat-
egory of prohibited goods duly notified by the Central Government, nor has it
been stated that evasion or attempted evasion of duty exceeds fifty lakh rupees.
Further, no fraud has been alleged as referred in clause (d) of sub-section (6) of
Section 104.
14. Under the circumstances, there is a merit in the contention of the
Learned Counsel for the applicant that the offence is a bailable offence as provid-
ed in sub-section (7) of Section 104 of the Customs Act.
15. It is no longer res integra that the right to claim bail as provided un-
der Section 436 Cr.P.C. in a bailable offence is an absolute and indefeasible right
and in such offences there is no question of discretion in granting bail as the
words of Section 436 are imperative [Rasiklal v. Kishore Khanchand Wadhwani, AIR
2009 SC 1341]. Though, it is the contention of the prosecution in the counter affi-
davit that the inquiry is being carried out with respect to the other persons who
are engaged in the said act of smuggling along with the accused and despite is-
suance of several summons, they are not co-operating in the inquiry and grant-
ing bail to the accused will give the mastermind(s) behind the said racket of
smuggling an opportunity to escape the ongoing investigation and tamper with
the evidence, however, the judgment of the Supreme Court in Rasiklal itself pro-
vides the circumstances for cancellation of bail of an accused. Moreover, the
judgment in Criminal Misc. Bail Application No. 48198 of 2019, that has been
relied upon by the Learned Counsel for the applicant, supports his case.
16. In view of the aforesaid, it is a fit case for bail. This bail application
is allowed. Let the applicant - Chaman Kumar Shah S/o Naresh Kumar Shah be
released on bail in case Crime No. NIL of 2019 under Section 135 of Customs Act,
P.S. G.R.P. Pandit Deendayal Upadhyaya Junction, on his furnishing a personal
bond with two sureties each of the same amount to the satisfaction of the Court
concerned.
17. Identity, status and residence proof of the applicant and sureties
shall be verified by the Court concerned before the bonds are accepted.
18. It is clarified that the observations, if any, made in this order are
strictly confined to the disposal of this bail application and must not be con-
strued to have any reflection on the ultimate merits of the case.

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EXCISE LAW TIMES  15th June 2020  156