# Mohd. Farook (In Jail) v. Union of India

- **Citation:** (2020) 9 ILRA 151
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-08
- **Case number:** Criminal Misc. Bail Application No. 16668 of 2020
- **Bench:** Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-farook-in-jail-v-union-of-india-45923
- **Pages:** 6

## Headnote

Civil Law - The Customs Act, 1962- Section
108-Statement
of
the
accused
-
Is
admissible in evidence- The statement
recorded under Section 108 of the Act is
admissible as evidence.

In view of the law settled by the Supreme
Court, the statement of the accused u/s 108 of
the Customs act is admissible in evidence.

Civil Law - The Customs Act, 1962 -
Section 135 - Is a non-bailable offence.

Sections 104 (6) (c) and 104 (6) (d) of the Act,
1962 of the Act provide that the offence u/s 135
of the Act shall be non-bailable, as also held by
the High Court in the case of Mahendra Soni Vs.
State of U.P. passed in Criminal Misc. Bail
Application No.33313 of 2019.

Bail Application rejected. (Para 6, 8) (E-3)

Case law relied upon/ Discussed: -

## Text

9 All. Mohd. Farook Vs. Union of India
151
(2020)09ILR A151
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.09.2020

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Misc. Bail Application No. 16668 of 2020

Mohd. Farook ...Applicant(In Jail)
Versus
Union of India ...Opposite Party

Counsel for the Applicant:
Sri
Dileep
Kumar
Srivastava,
Sri
Mohammad Waseem

Counsel for the Opposite Party:
Sri Krishna Agarawal

Civil Law - The Customs Act, 1962- Section
108-Statement
of
the
accused
-
Is
admissible in evidence- The statement
recorded under Section 108 of the Act is
admissible as evidence.

In view of the law settled by the Supreme
Court, the statement of the accused u/s 108 of
the Customs act is admissible in evidence.

Civil Law - The Customs Act, 1962 -
Section 135 - Is a non-bailable offence.

Sections 104 (6) (c) and 104 (6) (d) of the Act,
1962 of the Act provide that the offence u/s 135
of the Act shall be non-bailable, as also held by
the High Court in the case of Mahendra Soni Vs.
State of U.P. passed in Criminal Misc. Bail
Application No.33313 of 2019.

Bail Application rejected. (Para 6, 8) (E-3)

Case law relied upon/ Discussed: -

1. Om Prakash Bhatia Vs Commissioner of
Customs, Delhi AIR 200 SC 581

2. Mahendra Soni Vs St. of U.P., Crl Misc. Bail
Appl. No.33313 of 2019
(Delivered by Hon'ble Gautam Chowdhary, J.)

1. This application has been filed
seeking the release of the applicant on bail
in Case Crime No. Nil of 2020, u/s 135 of
Customs Act, 1962, Police Station- D.R.I.
Varanasi
(Directorate
of
Revenue
Intelligence), District- Varanasi.

2. Heard learned counsel for the
applicant and learned A.G.A. Perused the
record.

3. Submission of counsel for the
applicant
is
that
the
applicant
was
travelling from Guwahati to Kanpur and he
was arrested from Pandit Deendayal
Upadhyay Railway Station (Mughalsarai).
Submission is that there is no evidence on
record that the alleged gold biscuits
(3652.270
gms.
amounting
Rs.1,42,07,330/) were smuggled by the
applicant as the real owner of the said
article is one D.K. Khan and the applicant
was only carrying the said biscuits from
Guwahati to Kanpur. Further submission is
that the statement of the applicant allegedly
recorded by the officials of Customs
Department under section 108 of the
Customs Act, 1962 is not volunteer
statement of the applicant and the same was
obtained by coercion.

4. Shri Krishna Agarawal, learned
counsel for the opposite party has opposed
the prayer for bail and has submitted that as
the applicant could not show any relevant
paper regarding the article (gold) obtained
from the possession of the applicant of such
quantity, it is deemed proper that the said
material was being smuggled. Learned
counsel in this regard has also placed
reliance upon several judgments of Hon'ble
Supreme Court which are held as under:-
152 INDIAN LAW REPORTS ALLAHABAD SERIES

K.I.
PAVUNNY
V. ASSTT.
COLLECTOR
(HQ),
CENTRAL
EXCISE COLLECTORATE in which it
has been held as under :-

"8. In Ramesh Chandra Mehta v.
State of W.B. [(1969) 2 SCR 461 : AIR 1970
SC 940] a Constitution Bench of this Court
held at p. 466 that the Customs Officers are
entrusted with the powers specifically
relating to the collection of customs duties
and prevention of smuggling and for that
purpose they are invested with the power to
search any person on reasonable suspicion,
to summon, X-ray the body of the person
for detecting secreted goods, to arrest a
person
against
whom
a
reasonable
suspicion exists that he has been guilty of
an offence under the Act, to obtain a search
warrant from a Magistrate, to search any
place within the local limits of the
jurisdiction of such Magistrate, to collect
information by summoning persons to give
evidence and produce documents and to
adjudge confiscation. He may exercise
these powers for preventing smuggling of
goods dutiable or prohibited and for
adjudging confiscation of those goods. For
collecting evidence the Customs Officer is
entitled to serve summons to produce a
document or other thing or to give evidence
and the person so summoned is bound to
attend either in person or by an authorised
agent, as such officer may direct, is bound
to state the truth upon any subject
respecting which he is examined or makes a
statement and to produce such documents
and other things as may be required. The
power to arrest, the power to detain, the
power to search or obtain a search warrant
and the power to collect evidence are
vested in the Customs Officer for enforcing
compliance with the provisions of the Sea
Customs
Act.
He
is
empowered
to
investigate into the infringement of the
provisions of the Act primarily for the
purpose of adjudicating forfeiture and
penalty. He has no power to investigate
into an offence triable by a Magistrate, nor
has he the power to submit a report under
Section 173 of the Code of Criminal
Procedure (for short "the Code"). He can
only make a complaint in writing before a
competent magistrate. The above law was
laid down under the Sea Customs Act, the
predecessor of the Act. The ratio therein
equally applies to the powers exercised by
the Customs Officer under the Act. The Act
enlarges his powers. The Customs Officer
is not a police officer nor is he empowered
to file charge-sheet under Section 173 of
the Code though he conducts enquiry akin
to an investigation under some of the
provisions of the Code. His acts are in the
nature of civil proceedings for collecting
evidence
to
take
further
action
to
adjudicate the infringement of the Act and
for
imposition
of
penalty
prescribed
thereunder which would be self-evident
from sub-section (4) of Section 108."

5. Further in the year 2009 Hon'ble
Apex Court has well considered the
abovenoted facts and in the judgment of
Union of India Vs. Padam Narain
Agarwal Etc. AIR 2009 SC 254 has
observed as follows :-

"Sections 107-09 confer power on
Custom Officers to examine persons, to
summon them to give evidence and to
produce documents.

55. Section 108 which is a
material provision, reads thus;

Power to summon persons to give
evidence and produce documents.--(1) Any
gazetted officer of customs duly empowered
by the Central Government in this behalf,
shall have power to summon any person
whose attendance he considers necessary
either to give evidence or to produce a
9 All. Mohd. Farook Vs. Union of India
153
document or any other thing in any inquiry
which such officer is making under this Act.

(2) A
summons
to produce
documents or other things may be for the
production of certain specified documents
or things or for the production of all
documents
or
things
of
a
certain
description in the possession or under
control of the person summoned.

(3) All persons so summoned
shall be bound to attend either in person or
by an authorized agent as such officer may
direct; and all persons so summoned shall
be bound to state the truth upon any
subject,
respecting
which
they
are
examined or make statements and produce
such documents and other things as may be
required;

Provided
that
the
exemption
under Section 132 of the Code of Civil
Procedure, 1908 (5 of 1908), shall be
applicable to any requisition for attendance
under this section.

(4)
Every
such
inquiry
as
aforesaid shall be deemed to be a judicial
proceeding within the meaning of section
193 and section 228 of the Indian Penal
Code (45 of 1860)

56.
This
section
does
not
contemplate magisterial intervention. The
power is exercised by a Gazetted Officer of
the Department. It obliges the person
summoned to state truth upon any subject
respecting which he is examined. He is not
absolved from speaking truth on the ground
that such statement is admissible in
evidence and could be used against him.
The provision thus enables the officer to
elicit truth from the person examined. The
underlying object of Section 108 is to
ensure that the officer questioning the
person gets all the truth concerning the
incident.

57. As held by Constitution Bench
of this Court in Ramesh Chandra Mehta v.
State of West Bengal, (1969) 2 SCR 461, a
person called upon to make a statement
before the Custom Authorities cannot be
said to be an accused of an offence. It is,
therefore, clear that if a person is called
upon to make a statement under Section
108 of the Act and summon is issued for the
said purpose, he is bound to comply with
such direction. This view has been
reiterated in several cases thereafter.

58. In Assistant Collector of
Central Excise, Rajamundry v. Duncan
Agro Industries Ltd., (2000) 7 SCC 53, this
Court stated;

"Section 108 of the Customs Act
does not contemplate any magisterial
intervention. The power under the said
section is intended to be exercised by a
gazetted
officer
of
the
Customs
Department. Sub-section (3) enjoins on the
person summoned by the officer to state the
truth upon any subject respecting which he
is examined. He is not excused from
speaking the truth on the premise that such
statement could be used against him. The
said requirement is included in the
provision for the purpose of enabling the
gazetted officer to elicit the truth from the
person
interrogated.
There
is
no
involvement of the magistrate at that stage.
The entire idea behind the provision is that
the gazetted officer questioning the person
must gather all the truth concerning the
episode. If the statement so extracted is
untrue its utility for the officer gets lost".

(emphasis supplied)

59. It is thus clear that statements
recorded under Section 108 of the Act are
distinct and different from statements
recorded by Police Officers during the
course of investigation under the Code."

6. After perusal of the aforesaid
judgment, it is very clear that the statement
154 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded under Section 108 of the Act is
admissible
as
evidence,
hence,
the
arguments advanced by the applicant is not
sustainable.

7. Lastly, learned counsel for the
applicant has also tried to place reliance
upon the judgment of Hon'ble Apex Court
in Om Prakash Bhatia Vs. Commissioner of
Customs, Delhi AIR 200 SC 581 and
submitted that it is a bailable offence.

8. In the counter of argument
advanced by learned counsel for the
applicant, Shri Krishna Agarawal, learned
counsel for opposite party has brought the
attention of the Court towards the judgment
of Mahendra Soni Vs. State of U.P. and
submitted that the case of Om Prakash
Bhatia Vs. Commissioner of Customs,
Delhi AIR 200 SC 581 is being well
discussed and considered by the preceding
Bench of this Court in case of Mahendra
Soni Vs. State of U.P. passed in Criminal
Misc. Bail Application No.33313 of 2019.
He further submits that it has been held in
the aforesaid judgment that it is a nonbailable offence. The relevant paragraphs
of the judgment are being quoted here :-

"It has been argued by the
learned counsel for the applicant that the
applicant is innocent. The applicant has not
committed any crime but due to ulterior
motive, he has been challaned in the
present case falsely. The applicant has not
claimed ownership of the alleged gold bars
and he has been falsely implicated as
nothing was recovered from his possession.
Two gold bars are alleged to have been
recovered from the possession of the
applicant and the same were valued at Rs.
66,94, 640/-, therefore, as per the relevant
provision, the alleged office is bailable
offence as the same is below Rs. 1 crore. In
support of his plea, learned counsel for the
applicant has placed reliance upon the
judgment of the Apex Court in the case of
Om Prakash & Another Vs. Union of
India & Another reported in (2012) 3 SCC
(Cri) 1249, wherein after considering the
relevant provisions of the Act, 1962, the
Apex Court has held that the offence
committed is said to be bailable offence
under the Act, 1962. The applicant has no
criminal history. It is next contended that
there is no possibility of the applicant of
fleeing away from the judicial process or
tampering with the witnesses and in case,
the applicant is enlarged on bail, the
applicant shall not misuse the liberty of
bail. The applicant is in jail since 14th
February, 2019.

Per contra, learned counsel for
the opposite party no.1 and the learned
A.G.A. for the State have opposed the bail
prayer of the applicant by contending that
the innocence of the applicant cannot be
adjudged at pre trial stage, therefore, he
does not deserves any indulgence. They
have submitted that the contention of the
learned counsel for the applicant that the
applicant has not committed any crime has
only been stated to be rejected on the
ground that the applicant was apprehended
with huge quantity of the smuggled foreign
origin gold along with the co-accused
Sanjay Kumar Agrwal. Both the accused
could not show any valid papers of the
impugned gold bards and categorically
admitted in their statement tendered under
Section 108 of the Act, that the same were
smuggled
from
neighbouring
country
Bangladesh and the specific marks have
intentionally been erased so as to avoid
identification. They have further submitted
that the contention of the learned counsel
for the applicant that the applicant is not
the owner of the alleged gold bars as
nothing has been recovered from his
9 All. Mohd. Farook Vs. Union of India
155
possession is also liable to be rejected on
the ground that on the information
received, when the officers of D.R.I.
intercepted the applicant and the coaccused Sanjay Kumar Agrawal, upon
enquiry whether they were carrying any
contraband/gold bars etc., they accepted
that they were carrying foreign origin gold
bards with them concealed in waist belt
worn by the applicant and in the trousers'
pocket and shoes worn by the co-accused
Sanjay Kumar Agrawal.

Learned counsel for the opposite
party no.2 as well as learned A.G.A. for the
State have next submitted that both the
accused persons, namely, the applicant and
the co-accused Sanjay Kumar Agarwal
were travelling together, therefore, recovery
is to be seen in that manner and five gold
bars of 4,996.05 grams, which were of the
value of Rs. 1, 67,36, 767/- has been done
from the applicant as well as from the coaccused Sanjay Kumar Agrawal. It is
further submitted that the same were seized
under Section 110 of the Act, 1962 under
the reasonable plea that they have brought
the
alleged
gold
bars
India
from
Bangladesh in violation of provisions of
Sections 7 (1) (C), 11 and 46 of the Act,
1962 read with Rule 3 (2) & (3) of the
Foreign
Trade
(Development
and
Regulation) Act, 1962 and Rules 11 and 12
of the Rules, 1993. They have next
submitted that the recovered gold bars were
liable to be confiscated under Section 111
of
the
Act,
1962.
The
panchnama
proceedings were also drawn in the
presence of two independent witnesses. It is
further submitted that the judgment relied
upon by the learned counsel for the
applicant in the case of Om Prakash &
Another (Supra) has no application as the
recovered gold bars as prohibited goods, as
defined under Section 2 (33) of the Act,
1962.

Learned counsel for the opposite
party no.2 and the learned A.G.A. for the
State have referred to Section 104 (6) (c)
and 104 (6) (d) of the Act, 1962 for the
proposition of law that the alleged offence
committed by the applicant and the coaccused are not bailable offence. For ready
reference, Section 104 (6) (c) and 104 (6)
(d) of the Act, 1962 reads as follows:

"104. Power to arrest:---.............

.........

......

(6)
Notwithstanding
anything
contained
in
the
Code
of
criminal
Procedure 1973 (2 of 1974), an offence
punishable under Section 135 relating to---
-

.........

(c) import or export of any goods
which
have
not
been
declared
in
accordance with the provisions of this Act
and the market price of which exceeds one
crore rupees; or

(d) fraudulently availing of or
attempt to avail of drawback or any
exemption from duty provided under this
Act, if the amount of drawback or
exemption from duty exceeds fifty lack
rupees,

shall be non-bailable."

9. After considering all the arguments
advanced by the parties and the judgments
relied upon by the parties and further
considering to the nature of offence, its
gravity and the evidence in support of it
and the overall circumstances of this case,
this Court is of the view that the applicant
has not made out a case for bail.

10. The prayer for bail of the
applicant therefore, stands rejected.
----------
156 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)09ILR A156
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.08.2020

BEFORE

THE HON'BLE SAMIT GOPTAL, J.

Criminal Misc. Bail Application No. 18920 of 2020
with
Criminal Misc. Bail Application No. 17051 of 2020

Rishipal Singh ...Applicant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri R.P.S. Chauhan

Counsel for the Opposite Party:
G.A., Sri D.P.S. Chauhan, Sri Dharmendra
Pratap Singh Chauhan, Sri Surya Bhan
Singh, Sri Shiv Nath Singh

Criminal Law -Code of Criminal Procedure,
1973- Section 439 (1)- Bail- Accused /
applicant
already
granted
bail
while
deceased was injured- No distinction in
injuries at both stages- The applicants are
not named in the first information report-
After death of the deceased the present
case was converted into one from an
offence under Section 307 IPC to an
offence under Section 302 IPC along with
other Section. While the matter was for
offence
under
Section
307
IPC
the
applicant applied for bail before the court
below which was allowed-In so far as the
applicant is concerned, he was granted
bail by Sessions Judge in the present
matter itself and the injuries received by
the deceased at the time of grant of bail to
him were the same at the time of his
death. There was no distinction in so far
as the prosecution case and the evidence
is concerned at the time of grant of bail to
the applicant by the Sessions Judge.

The accused / applicant was already granted
bail by the court below for the offence u/s 307
of the IPC and the nature of injuries remained
the same after the case was converted u/s 302
IPC, hence in the facts of the case the applicant
has made out a case for the grant of bail.

Bail Application allowed. (Para 14) (E-3)

Case law relied upon/ Discussed: -

1. Dataram Singh Vs St. of U.P., (2018) 3 SCC 22

(Delivered by Hon'ble Samit Gopal, J.)

1. Heard Sri R.P.S. Chauhan, learned
counsel for the applicants in both the bail
applications who is present in Court, Sri
Shiv Nath Singh, learned Senior counsel
assisted by Sri Surya Bhan Singh, learned
counsel on behalf of the first informant
through video conferencing and Sri I.P.S.
Rathore, learned AGA for the State who is
also present in Court and perused the
material on record.

2. These bail application under Section
439 of Code of Criminal Procedure have been
filed by the applicants Rishipal Singh and
Abhishek Alias Fota, seeking enlargement on
bail during trial in connection with Case Crime
No. 399 of 2019, under Sections 302, 120B IPC
registered at P.S. Chhajlet, District Moradabad.

3. Vide order dated 26.08.2020 passed by
this Court, office was directed to trace out a
supplementary affidavit sent by the learned
counsel for the applicants through e-mail to the
nominated e-mail ID of the office of this Court
as the same was not on record. As per office
report dated 27.08.2020 a supplementary
affidavit has been traced out and the same is
placed on record which is bearing no. 3 of
2020. The compliance of the order dated
26.08.2020 has thus been done by the office.

4. Since both the bail applications
relate to the same case crime number and