Gold Smuggling Cumulative Value of Illegal Import by Persons With Common Intention To Determine Whether Offence Bailable: Kerala High Court
Case Title: Pulikkippoyil Sharafudheen & Anr. v. Superintendent of Customs
Bench : BECHU KURIAN THOMAS JUDGE
Date : 27.06.2023
Facts:
The petitioners, a husband and wife, were indicted under Section 135 of the Customs Act, 1952, for allegedly importing gold with a market price exceeding Rupees One Crore. They were taken into custody on 18.05.2023 and filed a bail application under Section 439 of the Code of Criminal Procedure, 1973.
According to the information received by the Air Intelligence Unit of the Air Customs, International Airport, Calicut, the petitioners were intercepted at Calicut Airport on 16-05-2023. After a thorough search, the customs officers seized 950 gms of gold from the first petitioner and 1198 gms of gold from the second petitioner. The total value of the seized gold was Rs. 1,20,90,456/- in the domestic market. The petitioners were arrested, and their bail applications were rejected by the Magistrate Court and the Sessions Court.
The petitioners argued that the offences under the Act are generally bailable, except for those specified as non-bailable. They contended that individually, the quantity of gold seized from each petitioner falls below Rupees One Crore, making the offence bailable. They also mentioned their family responsibilities, the absence of previous criminal records, and the period of detention already undergone as reasons for granting bail.
The respondent, the Customs Department, opposed the bail application. They argued that the offence becomes non-bailable if the market price of the illegally imported goods exceeds Rupees One Crore. Since the petitioners, being husband and wife, collectively imported gold worth more than Rupees One Crore, they should not be granted bail. The respondent also highlighted the petitioners’ admission of their involvement in smuggling, the recovery of incriminating documents, and the alleged lack of cooperation in the investigation.
Judgement:
The court examined the relevant provisions of the Customs Act and concluded that if goods that are misdeclared, duty evaded, or imported illegally have a market price exceeding Rupees One Crore, the offence becomes non-bailable. In this case, the gold seized collectively from the petitioners had a value exceeding Rupees One Crore, even though individually, the value of gold recovered from each petitioner was below the threshold.
The court acknowledged the respondent’s argument that smugglers are using family members as carriers to split the gold into quantities below Rupees One Crore, evading the non-bailable offence provision. Considering the intent behind the amendment to the Customs Act, which aimed to curb smuggling and the economic impact, the court emphasised that innovative attempts to bypass the law should not be overlooked.
The court also held that if more than one person acts in concert to evade customs duty, the combined value of the goods can be attributed to each person individually. The definition of “person” in the General Clauses Act includes a body of persons, such as a family, thereby supporting the interpretation that the offence can apply collectively to the petitioners.
Based on these considerations, the court denied the bail application, noting that the offences alleged against the petitioners were non-bailable due to the cumulative value of the gold seized collectively from them. The court highlighted the importance of curbing smuggling and avoiding interpretations that defeat the purpose of the law.
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WRITTEN BY- ANVITHA RAO