ANOB T.R. Vs. UNION OF INDIA

JUDGEMENT

(1.) The applicant apprehends arrest in a case allegedly registered by the Customs Preventive and Narcotics Unit, Palakkad as O.R.No.10/2020 and approaches this Court for anticipatory bail under Section 438 of the Cr.P.C.

(2.) The prosecution case, in brief, is that during the routine vehicle checking at Meenakshipuram Check Post, the Excise officials intercepted a tourist permit car in which accused 1 and 2 were allegedly travelling. They had with them gold weighing 3645.800 grams worth Rs.1,74,33,122/- in the form of cut pieces, coins and ornaments and a sum of Rs.6 lakhs in cash was also recovered. The gold and cash were handed over to the Customs Department for investigation under the premise that it was smuggled gold and that the accused were in possession of gold in violation of Section 135 of the Customs Act. The accused 1 and 2, who were apprehended, in their statement to the Customs officials, stated that they are working for the applicant, who is the owner of M/s A.V.Gold, Thrissur. It is on the basis that the applicant has been implicated as 3rd accused and proceeded against him. The applicant has been served with a notice under Section 108 of the Customs Act and is expected to appear before the Customs Department for further investigation. The applicant also states that he had in fact appeared before the Customs Department at Palakkad, but he was not questioned stating that the present application for anticipatory bail is pending and they would proceed only after the application is disposed of. The applicant further states that he is innocent and the allegations are all untrue and he is manufacturing ornaments in Thrissur and for the purpose of manufacturing of gold ornaments, he collected gold in raw forms from various dealers in Coimbatore and that his employees were collecting gold to be handed over to the applicant in Thrissur and after making of gold ornaments it is given back to different places of jewellery in Coimbatore. The applicant has produced various documents in support of his contention regarding handing over of the gold and to indicate that prima facie it is not smuggled gold as alleged by the Customs Department.

(3.) On production of accused 1 and 2 before the Chief Judicial Magistrate (Economic Offences), Ernakulam, it was found that no offence punishable under Section 135 of the Customs Act is attracted because the gold which was seized from them apparently does not fall under the definition of smuggling under Sections 2(39) of the Customs Act, and therefore, it does not appear to be gold which is liable for confiscation under Section 111 or 113 of the Customs Act . The tax invoices and bills are produced for prima facie indicate that the dealing in gold which is legally possessed by different persons and handed over to the applicant for the purpose of making gold ornaments to be handed over to the above mentioned different persons. It is on the basis of that the jurisdictional court granted bail to accused 1 and 2 vide Annexure 22 order. The applicant is willing to cooperate with the investigation and appeared before the Customs Department under Section 108 of the Customs Act. But it is also pointed out that he is a sick man undergoing treatment in Amrutha Hospital for various ailments and comorbidities and in case he is confined to prison, there is every possibility of his contracting the contagious disease COVID-19 and succumbing to it. He has produced Annexures 19 to 21 in support of his contention that he is suffering from a co-morbid situation pertaining to his liver transplantation in the year 2011.