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HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Bail Cancellation Application No. 150/2023
Union Of India, Through Directorate Of Revenue Intelligence,
Jaipur.
----Petitioner
Versus
Suraj Jalinder Suryavanshi S/o Shri Jalinder Suryavanshi, R/o 6-
A, Santosh Sagar Colony, Brahmpuri, Jaipur,
----Respondent
Connected With
S.B. Criminal Bail Cancellation Application No. 151/2023
Union Of India, Through Directorate Of Revenue Intelligence,
Jaipur.
----Petitioner
Versus
Anil Narayan Magar S/o Shri Narayan Magar, R/o Village
Taraswadi, District Sangli, Maharashtra,
----Respondent
S.B. Criminal Bail Cancellation Application No. 156/2023
Union Of India, Through Directorate Of Revenue Intelligence,
Jaipur.
----Petitioner
Versus
Shridhar Devdas Suryavanshi S/o Shri Devdas Suryavanshi, R/o
House Number 20, Mangodi Bagichi, Lakshi Nagar, Brahmpuri,
Jaipur.
----Respondent
For Petitioner(s) : Mr. Kinshuk Jain, Senior Standing
Advocate for DRI assisted by
Mr. Jai Upadhyay, Adv.
Mr. Saurabh Jain, Adv.
Mr. Himanshu Agarwal, Adv.
Mr. Banwari Lal Thakar, Adv.
For Respondent(s) : Mr. Anil Goyal, Adv.
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
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Order
Reserved on :: 02 /12/2024
Pronounced on :: 20 /12/2024
1. Union of India through Director of Revenue Intelligence,
Jaipur has preferred this bail cancellation application under
Section 439(2) of Cr.P.C. against the order dated 17.10.2023
passed by the Additional Sessions Judge No.9, Jaipur
Metropolitan-II, whereby the accused-respondents were granted
bail under Section 135(1)(a)(b) of Customs Act. It is contended
that the Court below misconstrued the circular No.13/2022 dated
16.08.2022 and enlarged the respondents on bail. Considering the
matter falling in clause 2.3(b)(c) of circular. In contrast the case
falls under Clause-b which reads as fallows:-
"Cases of outright smuggling of high value goods such as
precious metal, restricted items or prohibited items or goods
notified under Section 123 of the Customs Act, 1962 or offence
involving foreign currency where the value of offending goods is
Rs.50,00,000/-(Rupees Fifty Lakh) or more."
2. Clause-2.3 of the circular states that arrest in respect of an
offence, should be effected only in exceptional situations which
may include cases of outright smuggling of high value goods.
3. It is argued that the said gold recovered from the possession
of respondent-Anil Narayan Magar was having market value of
Rs.1,31,10,350/-, therefore, Clause 2.3(c) of the aforesaid circular
was not applicable. It is also contended that respondent-Anil
Narayan Magar did not furnish any legible documents showing his
legal possession over the gold recovered. The said gold recovered
from respondent-Anil Narayan Magar comes within the purview of
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outright smuggling and falls under the goods notified under
Section 123 of the Customs Act.
4. Clause-c of the said circular is applicable only for the
importation of trade goods involving wilful mis-declaration in
description of goods covered under Section 123 of the Customs
Act, where the market value of the offending goods is
Rs.2,00,00,000/- or more.
5. The respondents were rightly arrested by the Customs
Authority as per the Clause contained under 2.3 (b) of the circular
No.13/2022 dated 16.08.2022. It is also contended that the Court
below granted the bail to the respondents considering that they
have retracted from their statements under Section 108 of the
Customs Act. In contrast, no such retraction was on record, on the
date of the impugned order. Likewise, the factual aspects narrated
in Para-16 of the application were ignored, which expressly states
that respondents-Anil Narayan Magar, Suraj Jalinder Suryavanshi
and Shridhar Devdas Suryavanshi were complicit in smuggling the
gold worth more than Rs.1,00,30,000/-. It is fervently argued that
gold worth Rs.1,31,10,350/- was seized from the possession of
respondent-Anil Narayan Magar. It is also argued that after
recording the statement of respondent-Anil Narayan Magar, it was
revealed that he was going to supply the said gold to Suraj
Jalinder Suryavanshi. On the same day, respondent-Suraj Jalinder
Suryavanshi was found at the exact place disclosed by the
respondent-Anil Narayan Magar.
6. The record also shows that several call details were
transpired between Anil Narayan Magar and Suraj Jalinder
Suryavanshi. Thus, their complicity in the smuggling golds is
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evident. It is vociferously argued that unretracted statements
recorded before the Competent Authority under Section 108 of the
Customs Act, cannot be brushed aside as the statements
corroborated each other apparently pointing out specific roles of
the respondents-Anil Narayan Magar and Suraj Jalinder
Suryavanshi. It is also contended that respondent-Suraj Jalinder
Suryavanshi in his statement under Section 108 of the Customs
Act states that the gold was going to be handed over to
respondent-Shridhar Devdas Suryavanshi at M/s Yashvardhan
Gold Testing Shop. It is also contended that summons was issued
to Shridhar Devdas Suryavanshi and in his voluntary statement
under Section 108 of the Customs Act, he admitted that he has
been purchasing the gold from Suraj Jalinder Suryavanshi without
any bill.
7. Therefore, on the above facts, the Court below erred in
granting bail to the respondents and the bail application of the
respondents may be cancelled and they may be directed to
surrender before the concerned Court to face the trial.
8. It is contended by learned counsel for the respondents that
the Court below has rightly enlarged the respondents on bail vide
impugned order dated 17.10.2023. It is also vociferously
contended that after grant of the bail, the Union of India has yet
not filed any complaint against the respondents for prosecuting
them under Section 135(a)(b) of the Customs Act. The
respondents have not breached the conditions of bail, they are
regularly appearing. It is also contended that from the possession
of Suraj Jalinder Suryavanshi and Shridhar Devdas Suryavanshi,
no gold articles were recovered, mere presence of Suraj Jalinder
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Suryavanshi at the place indicated by the other co-accused,
cannot be considered an offence under Section 135(1)(a)(b) of the
Customs Act. The trial has yet not commenced. It is also
contended that at this stage, it cannot be said that the gold
allegedly found in the possession of Anil Narayan Magar was
smuggled outside from India. It is also contended that prosecution
prima-facia failed to establish that the alleged gold was smuggled
outside the Country to any part of India. Keeping gold without any
bill or invoice, ifso facto, is not a reason to believe that gold was
smuggled out of India to any part of the Nation. The other co-
accused has already been enlarged on default bail and after
passing of the bail order Union of India has failed to file the
complaint, further, there is no chance that the respondents will
influence the evidence as all the witnesses are departmental
witnesses. Likewise, the maximum punishment provided for
offence is 7 years. No fruitful purpose shall be served to send the
respondents to Jail. Therefore, the application for cancelling the
bail of the respondents may be dismissed.
9. Heard and perused the material available on the record.
10. This fact is not denied that complaint has yet not been filed
against the respondents for prosecuting them under Section
135(2)(a)(b) of the Customs Act.
11. It is not desirable to express anything on the merits of the
case. The respondents have not breached any conditions
incorporated in the bail order, the maximum punishment awarded
under the Customs Act 7 years. Therefore, considering the above
aspects, this Court is not inclined to entertain the application filed
by the Union of India.
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12. Accordingly, these instant bail cancellation applications are
hereby dismissed.
(PRAVEER BHATNAGAR),J
Ashwani Kr Srivastava/-1-3-S