# Mohd. Tufail v. U.O.I. & Anr

- **Citation:** (2023) 4 ILRA 28
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-23
- **Case number:** Crl. Misc. First Bail Application No. 57731 of 2022
- **Bench:** Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-tufail-v-u-o-i-anr-50104
- **Pages:** 10

## Headnote

Criminal Law - Criminal Procedure Code,
Section - 439 - Custom Act, 1962 -
Sections 2(33), 11, 104, 104(6), 104(7),
108, 111, 125, 135(1)(A) & 135(1)(B) -
Narcotic
Drugs
and
Psychotropic
Substances Act,1985 - Section - 67 - Bail
Application - intelligence input about smuggling
of Foreign Origin Gold by the accused applicants
- recovering of total 2548.5 gm gold from the
possession of applicants - Whether value of
individually recovered gold should be considered
or value of combined recovered gold should be
considered - Held, According to prosecution gold
was recovered from possession of applicants
which was liable for confiscation Section 111 of
Customs Act and as per Section 125 Customs
Act authority concerned may levy fine in lieu of
confiscation and therefore, it appears from
provisions of Section 11 of Customs Act gold is
not prohibited goods but it is restricted goods
and as per Section 125 Customs Act in lieu of
confiscation fine may be levied - As import of
4 All. Mohd. Tufail Vs. U.O.I. & Anr.
29
gold is not prohibited but restricted subject to
prescribed payment of duty, thus alleged
recovered gold is not prohibited goods Section
2(33) Customs Act, but, it is restricted goods in
view of judgment of three Judges Bench of Apex
Court in case of 'Atul Automation' - Alleged
offence committed by the applicants is Bailable
one, hence, they are entitled to be released on
bail - Bail Application allowed - directions
accordingly. (Para - 39, 40)

Appeal Dismissed. (E-11)

List of Cases cited:

## Text

28 INDIAN LAW REPORTS ALLAHABAD SERIES
satisfaction of the court concerned with the
following conditions:

(i) That the applicant
shall
cooperate in the expeditious disposal of the
trial and shall regularly attend the court
unless inevitable.

(ii) That the applicant shall not
directly or indirectly make any inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the court
or to any police officer or tamper with the
evidence.

(iii) That after his release, the
applicant shall not involve in any criminal
activity.

(iv) The identity, status and
residential proof of sureties will be verified
by court concerned before the release of the
applicant.

24. In case of breach of any of the
conditions
mentioned
above,
court
concerned will be at liberty to cancel the
bail of the applicant.

25. Copy of this order shall be
communicated to the Senior Superintendent
of
Police,
Meerut
by
the
learned
Government
Advocate
for
onward
transmission to the authorities concerned.

26. The Registrar (Compliance) of this
Court is directed to send a copy of this
order to the Director General of Police,
U.P. Lucknow and Legal Remembrancer,
U.P. Lucknow for compliance.

27. Although this bail application has
been disposed of, but the same shall be
listed before this Court on 14.7.2023 for
limited purpose of compliance of the order
in respect of issuance of necessary
guidelines as discussed above by the
authorities concerned.
----------
(2023) 4 ILRA 28
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.03.2023

BEFORE

THE HON'BLE SAMEER JAIN, J.

Crl. Misc. First Bail Application No. 57731 of
2022
Connected With
Crl. Misc. Bail Application No. 60061 of 2022

Mohd. Tufail ...Applicant
Versus
U.O.I. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Anil Kumar Srivastava

Counsel for the Opposite Parties:
A.S.G.I., Sri Krishna Agarawal, Sri Vinay
Kumar Singh

Criminal Law - Criminal Procedure Code,
Section - 439 - Custom Act, 1962 -
Sections 2(33), 11, 104, 104(6), 104(7),
108, 111, 125, 135(1)(A) & 135(1)(B) -
Narcotic
Drugs
and
Psychotropic
Substances Act,1985 - Section - 67 - Bail
Application - intelligence input about smuggling
of Foreign Origin Gold by the accused applicants
- recovering of total 2548.5 gm gold from the
possession of applicants - Whether value of
individually recovered gold should be considered
or value of combined recovered gold should be
considered - Held, According to prosecution gold
was recovered from possession of applicants
which was liable for confiscation Section 111 of
Customs Act and as per Section 125 Customs
Act authority concerned may levy fine in lieu of
confiscation and therefore, it appears from
provisions of Section 11 of Customs Act gold is
not prohibited goods but it is restricted goods
and as per Section 125 Customs Act in lieu of
confiscation fine may be levied - As import of
4 All. Mohd. Tufail Vs. U.O.I. & Anr.
29
gold is not prohibited but restricted subject to
prescribed payment of duty, thus alleged
recovered gold is not prohibited goods Section
2(33) Customs Act, but, it is restricted goods in
view of judgment of three Judges Bench of Apex
Court in case of 'Atul Automation' - Alleged
offence committed by the applicants is Bailable
one, hence, they are entitled to be released on
bail - Bail Application allowed - directions
accordingly. (Para - 39, 40)

Appeal Dismissed. (E-11)

List of Cases cited:

1. Air Customs Vs Begaim Akynova, Writ Petition
(Criminal ) No.1974 of 2021, decided on
3.1.2022

2. Toofan Singh Vs St. of T.N., 2021 (4) SCC 1

3. Satender Kumar Antil Vs Central Breau of
Investigation & anr., (2021) 10 SCC 773

4. Om Prakash Bhatia Vs Commissioner of
Customs, Delhi, AIR 2000 SC 581

5. Sheikh Mohd. Omer v Commissioner of
Customs, Calcutta & ors., 1970 (2) SCC 728

6. Commissioner of Customs Vs Atul Automation
Pvt. Ltd., (2019) 3 SCC 539

(Delivered by Hon'ble Sameer Jain, J.)

1.
Since
both
the
instant
bail
applications have arisen out of Case No.2
of 2022, under Sections 135(1)(A) and
135(1) (B) of Customs Act, 1962 ( in short
the
Act
)
through
Directorate
of
Intelligence,
therefore,
both
the
bail
applications are being decided by common
order.

2. Heard Sri N.I.Jafri, learned Senior
Advocate assisted by Sri Ali Jamal Khan
and Sri Anil Kumar Srivastava, learned
counsels for the applicants, Sri Krishna
Agarwal, learned counsel for DRI-opposite
party no.2, Sri Vinay Kumar Singh, learned
counsel for the Union of India and Sri
Tanay Kumar, learned AGA, for the State.

3 The instant applications have been
moved on behalf of the applicants with the
prayer to release them on bail in Case
Crime No.02 of 2022, under Sections
135(1)(A) and 135(1)(B) of Customs Act,
1962, through Directorate of Intelligence,
during pendency of the trial.

BRIEF FACTS:

4. According to the prosecution, on
6.11.2022
an
intelligence
input
was
received by DRI that some persons, who
were travelling in Train No.22422 in
Coach-B-5 at Seat No.2, 3,54 and 56 are
smuggling the foreign origin gold and they
boarded in the Train from Jodhpur,
Rajasthan and are going to deliver
smuggled foreign origin gold in Rampur,
Uttar Pradesh. Thereafter on 6.11.2022
Team of DRI Officers arrived at Rewari
Junction Railway Station and when train
arrived at the Junction at about 8.20 PM
then Officers found that on the above
mentioned seats applicants and two others
were sitting and from the possession of
applicant Mohammad Alam 549.5gm. gold
in form for rods and from the possession of
applicant Mohammad Tufail 526gm. gold
in paste form were recovered. It is further
alleged that from the possession of rest of
accused
persons,
namely,
Ishrat
Ali
947.5gm gold and from the possession of
Mohammad Naeem 525.5gm gold were
recovered. Thus, as per DRI total 2548.5gm
gold were recovered from the possession of
applicants and two others. Thereafter, the
extracted weight of alleged gold recovered
from
the
possession
of
applicant
Mohammad Tufail was ascertained and
weight of extracted gold was ascertained as
30 INDIAN LAW REPORTS ALLAHABAD SERIES
448.50gm. As the gold recovered from the
possession of applicant Mohammad Alam
was already in solid form , therefore, it was
not made part of extraction process.

5. According to the DRI, the market
value of the total gold recovered from the
possession of the applicants and two others
was Rs. One Crore Thirteen Lacs Twenty
Four Thousand Six Hundred and Eight and
market value of the gold recovered from
the possession of applicant Mohammad
Alam and applicant Mohammad Tufail was
Rs.27,98,054/-
and
Rs.22,83,762/-
respectively. It is further alleged that the
statements of applicants and other coaccused persons were recorded by the
Custom
Officers
under
Section
108
Customs Act and they confessed their guilt
and stated that the alleged recovered gold
was smuggled gold of foreign origin and
they purchased it from Dubai.

6. All the accused persons including
applicants also stated that they are known
to each other and they collectively indulged
in smuggling of gold of foreign origin.

7. After panchnama applicants were
arrested on 9.11.2022 and investigation was
commenced and after investigation on
5.1.2023 DRI filed criminal complaint
against applicants and two others in the
court of Special Chief Judicial Magistrate
(Economic Offences) Meerut.

SUBMISSIONS ON BEHALF OF
THE APPLICANTS :

8. Learned counsels for the applicants
submit, entire allegation made against the
applicants are totally false and baseless and
applicants never indulged in smuggling of
alleged gold of foreign origin. They further
submitted that applicants and two others
were forcibly apprehended by Officers of
DRI from the Train on 6.11.2022 and
thereafter by cooking up false story and
planted recovery of gold they have been
implicated in the present matter. He further
submits,
applicant
were
arrested
on
9.11.2022, i.e., after about three days from
the date of alleged seizure of gold.

9. Learned counsels for the applicants
further submitted that as individually the
alleged gold recovered from the possession of
applicants is having value of less then Rs.
One Crore, therefore, in view of Sections 104
and 135 of Customs Act, the offences alleged
to have been committed are bailable. They
further submitted, value of combined gold
recovered from the possession of all accused
persons including applicants can not be
considered.

10. They placed reliance on the
judgment of Delhi High Court in the case of
Air Customs Vs. Begaim Akynova decided
on 3.1.2022 in Writ Petition (Criminal )
No.1974 of 2021.

11. Learned counsel for both the
applicants further argued that from the train
applicants and two others were taken to DRI
Office, NOIDA and thereafter search was
made and after three days they were made
accused in the present matter after showing
their formal arrest in the present case
therefore, the procedure adopted by the DRI
Officers is totally illegal and cannot be
approved under the law as at the time when
applicants were apprehended then neither
search was taken at spot nor they were
immediately arrested and thus applicants
were under illegal custody of DRI for almost
three days, i.e., from 6.11.2022 to 9.11.2022.

12.
Learned
counsels
for
the
applicants further submit that statements
4 All. Mohd. Tufail Vs. U.O.I. & Anr.
31
recorded under Section 108 Customs Act
are not admissible in view of the law laid
down by the Apex Court in the case of
Toofan Singh Vs. State of Tamilnadu,
2021 (4) SCC1.

SUBMISSIONS ON BEHALF OF
THE OPPOSITE PARTIES.:

13. Learned counsel for the DRI as
well as learned AGA and learned counsel
appearing on behalf of Union of India
submitted
that
from
the
combined
possession of applicants and two others
gold of foreign origin valuing more than
Rs. One Crore was recovered and,
therefore, considering the provisions of
Sections 104 and 135 Customs Act alleged
offences are non-bailable and although
maximum punishment provided is seven
years but as the present offence is
economic offence under Special Act,
therefore, even in view of the law laid
down by the Apex Court in the case of
Satender Kumar Antil Vs. Central Breau
of Investigation and another, reported in
(2021) 10 SCC 773 the bail applications of
applicants should be considered on merit.

14. Learned counsel for the DRI
further submits that on the specific
intelligence
input
applicants
were
apprehended from the train while they were
travelling from Jodhpur, Rajasthan to
Rampur Uttar Pradesh and from their
possession smuggled gold of foreign origin
was
recovered
and
although
from
individual possession of both the applicants
gold valuing less than Rs.One Crore was
recovered but total value of the gold
recovered from the possession of applicants
and two other co-accused persons was
more than Rs. One Crore, therefore,
considering the provisions of Customs Act
applicants
committed
non-bailable
offences.

15. Learned counsel for the DRI
further
submits
that
statements
of
accused recorded under Sections 108
Customs Act is admissible and the Apex
Court in the case of Toofan Singh
(supra) also held that Custom Officers
are not Police Officers and, therefore,
statements recorded under Section 108
Customs Act cannot be equated with the
statements recorded under Section 67
NDPS Act as officers acted under NDPS
Act are Police Officers therefore, in
view of law laid down in Toofan Singh
(supra)
statements
of
applicants
recorded under Sections 108 Customs
Act are admissible.

16. He next submits that from the
statementS of applicants it appears that
they collectively smuggled the recovered
gold and they were known to each other
and, therefore, considering the fact that
they as a team indulged in smuggling of
gold of foreign origin, the entire recovery
made from all the accused persons
including applicants should be considered
for the purpose of Section 135 Customs Act
and as value of entire recovered gold is
more
than
Rs.One
Crore,
therefore,
applicants and others committed nonbailable offences.

17. He further submits that as all the
accused persons including applicants were
well aware that all of them were carrying
gold, therefore, they are all having
conscious possession over entire recovered
gold and it cannot be said that they acted
individually and as they committed alleged
offence as a team therefore, total value of
recovered gold should be considered.
32 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Learned counsel for the DRI
further submits that the recovered gold is
prohibited goods as its import or export is
subject to certain prescribed condition,
therefore, as per Section 104 Customs Act,
the offence committed by applicants is nonbailable and according to Section 135
Customs Act maximum punishment for
such offence is 7 years.

19.
He placed
reliance
on
the
judgment of the Apex Court in the case of
Om Prakash Bhatia Vs. Commissioner of
Customs, Delhi, AIR 2000 SC 581.

20. He further submits that applicant
Mohammad Aalam
was
earlier
also
involved in act of smuggling with regard to
foreign currency of US Dollar and Euros in
the year 2020. He further submits that
applicant Mohammad Tufail was also
booked in three cases of smuggling and out
of three cases, two cases were of the the
years 2019 and 2022 and both cases related
to smuggling of gold and another case was
of the year 2021 which related to cigarettes
valuing about Rs.3,18,000/-and, therefore,
considering the antecedents of applicants,
severity of punishment and manner of
commission of instant crime, applicants are
not entitled to be released on bail.

CONCLUSION:

21.
I
have
given
my
anxious
consideration to the rival submissions and
perused the record of the case.

22. From perusal of the complaint and
panchnama of the case it appears that from
the possession of the applicants and two
others
total
gold
of
the
value
of
Rs.1,13,24,608/- was recovered and from
the possession of the applicant Mohammad
Aalam gold valuing Rs. 27,98,054/- and
from
the
possession
of
applicant
Mohammad Tufail
gold
valuing
Rs.
22,83,762/- was recovered respectively ,
therefore, from the individual possession of
both the applicants gold less than Rs. One
Crore was recovered.

23. Applicants have been challaned
under the provisions of Section 135
Customs Act which runs as follows:

"135.
Evasion
of
duty
or
prohibitions.--(1) Without prejudice to any
action that may be taken under this Act, if
any person--

(a) is in relation to any goods in
any
way
knowingly
concerned
in
misdeclaration
of
value
or
in
any
fraudulent evasion or attempt at evasion of
any duty chargeable thereon or of any
prohibition for the time being imposed
under this Act or any other law for the time
being in force with respect to such goods;
or

(emphasis supplied)

(b) acquires possession of or is in
any way concerned in carrying, removing,
depositing,
harbouring,
keeping,
concealing, selling or purchasing or in any
other manner dealing with any goods
which he knows or has reason to believe
are liable to confiscation under Section 111
or Section 113, as the case may be; or

(c) attempts to export any goods
which he knows or has reason to believe
are liable to confiscation under Section
113; or

(d) fraudulently avails of or
attempts to avail of drawback or any
exemption from duty provided under this
Act in connection with export of goods or

(e) obtains an instrument from
any authority by fraud, collusion, wilful
mis-statement or suppression of facts and
4 All. Mohd. Tufail Vs. U.O.I. & Anr.
33
such instrument has been utilised by such
person or any other person,

he shall be punishable,--

(i) in the case of an offence
relating to,--

(A) any goods the market price of
which exceeds one crore of rupees; or

(B) the evasion or attempted
evasion of duty exceeding fifty lakh of
rupees; or

(C) such categories of prohibited
goods as the Central Government may, by
notification in the Official Gazette, specify;
or

(D) fraudulently availing of or
attempting to avail of drawback or any
exemption from duty referred to in clause
(d), if the amount of drawback or
exemption from duty exceeds fifty lakh of
rupees,

(E) obtaining an instrument from
any authority by fraud, collusion, wilful
mis-statement or suppression of facts and
such instrument has been utilised by any
person, where the duty relatable to
utilisation of the instrument exceeds fifty
lakh rupeees, with imprisonment for a term
which may extend to seven years and with
fine:

Provided that in the absence of
special and adequate reasons to the
contrary to be recorded in the judgment of
the court, such imprisonment shall not be
for less than one year;

(ii) in any other case, with
imprisonment for a term which may extend
to three years, or with fine, or with both.

(2) If any person convicted of an
offence under this section or under subsection (1) of section 136 is again
convicted of an offence under this section,
then, he shall be punishable for the second
and for every subsequent offence with
imprisonment for a term which may extend
to seven years and with fine:

Provided that in the absence of
special and adequate reasons to the
contrary to be recorded in the judgment of
the court such imprisonment shall not be
for less than one year.

(3) For the purposes of subsections (1) and (2), the following shall not
be considered as special and adequate
reasons for awarding a sentence of
imprisonment for a term of less than one
year, namely:--

(i) the fact that the accused has
been convicted for the first time for an
offence under this Act;

(ii)
the
fact
that
in
any
proceeding under this Act, other than a
prosecution, the accused has been ordered
to pay a penalty or the goods which are the
subject matter of such proceedings have
been ordered to be confiscated or any other
action has been taken against him for the
same act which constitutes the offence;

(iii) the fact that the accused was
not the principal offender and was acting
merely as a carrier of goods or otherwise
was a secondary party to the commission of
the offence;

(iv) the age of the accused.

Explanation.- For the purposes of
this section, the expression "instrument"
shall have the same meaning as assigned to
it in the Explanation 1 to Section28-AAA"

24. From the perusal of Section 135
Customs Act it appears that if any person
acquires possession or the possession in any
way is concerned in carrying any goods liable
to be confiscated and market price of the goods
exceeds Rs. One Crore then he may be
punished with imprisonment for the term which
may extend upto seven years along with fine.
34 INDIAN LAW REPORTS ALLAHABAD SERIES

25. Section 104 Customs Act deals
with the power of arrest and it runs as
follows:

"104. Power to arrest.--(1) If an
officer of customs empowered in this behalf
by general or special order of the Principal
Commissioner
of
Customs
or
Commissioner of Customs has reason to
believe that any person in India or within
the Indian customs waters has committed
an offence punishable under section 132 or
section 133 or section 135 or section 135A
or section 136, he may arrest such person
and shall, as soon as may be, inform him of
the grounds for such arrest.

(2) Every person arrested under
sub-section (1) shall, without unnecessary
delay, be taken to a magistrate.

(3) Where an officer of customs
has arrested any person under sub-section
(1), he shall, for the purpose of releasing
such person on bail or otherwise, have the
same powers and be subject to the same
provisions as the officer-in-charge of a
police-station has and is subject to under
the Code of Criminal Procedure, 1898 (5 of
1898).

(4)
Notwithstanding
anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974), any offence
relating to--

(a) prohibited goods; or

(b) evasion or attempted evasion
of duty exceeding fifty lakh rupees; or

(c) fraudulently availing of or
attempting to avail drawback or any
exemption from duty provided under this
Act, where the amount of drawback or
exemption from duty exceeds fifty lakh
rupees; or

(d) fraudulently obtaining an
instrument for the purpose s of th is Act or
the Foreign Trade (Development and
Regulation ) Act, 1992(22 of 1992), and
such instrument is utilised under this Act,
where duty relatable to such utilisation of
instrument exceeds, fifty lakh rupees, shall
be cognizable.

(5) Save as otherwise provided in
sub-section (4), all other offences under the
Act shall be non-cognizable.

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

(a) evasion or attempted evasion
of duty exceeding fifty lakh rupees; or

(b) prohibited goods notified
under section 11 which are also notified
under sub-clause (c) of clause (i) of subsection (1) of section 135; or

(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 lakh
rupees or,

(e) fraudulently obtaining an
instrument for the purposes of this Act or
the Foreign Trade (Development and
Regulation) Act, 1992(22 of 1992), and
such instrument is utilised under this Act,
where duly relatable to such utilisation of
instrument exceeds fifty lakh rupees, shall
be non-bailable.

(7) Save as otherwise provided in
sub-section (6), all other offences under
this Act shall be bailable.

Explanation.- For the purposes
of
this
section,
the
expression
"instrument"
shall
have
the
same
meaning as assigned to it in Explanation
1 to section 28-AAA. "
4 All. Mohd. Tufail Vs. U.O.I. & Anr.
35

26. According to Section 104 (6)
Customs Act an offence punishable under
Section 135 Customs Act relating to
prohibited goods notified under Section 11
of Customs Act which are also notified
under sub-clause (c) of Clause (i) of subsection (1) of Section 135 Customs Act, or
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 Rs. One Crore shall be
non-bailable and as per Section 104(7)
Customs Act all the other offences are
bailable except provided in sub-section (6)
of Section 104 Customs Act.

27. Therefore, from the perusal of
Section 104 Customs Act it is evident that
if import or export of any goods have not
been declared as per the provisions of the
Customs Act and market price of such
recovered goods exceeds Rs.One Crore
then offence will be non-bailable and
similarly the offence committed with
regard to prohibited goods also would be
non-bailable.

28. In case at hand, from the
individual possession of both the applicants
gold valuing less than Rs. One Crore was
recovered, however, value of total gold
recovered from the possession of applicants
and two others was more than Rs. One
Crore.

29. Therefore, question arises whether
value of individually recovered gold should
be considered or value of combined
recovered gold should be considered.

30. In Section 135 Customs Act, term
"any person" has been used and, in my
view, it denotes to an individual. The term
"any person" cannot be interpreted as a
group of persons. From the plain reading of
Section 135 Customs Act it appears that it
refers to an individual.

31. Delhi High Court also in the case
of Air Customs Vs. Begaim Akynova
(supra) observed that punishment which is
to be imposed on the accused should
correspond to the gold that has solely been
recovered from his possession and each
person should be made answerable for the
recovery of gold found in his possession.

32. Therefore, in my view, for the
purpose of Section 135 Customs Act value
of individually recovered gold should be
considered and not the value of combined
recovered gold.

33. The next question in the case at
hand is whether alleged recovered gold was
prohibited goods as if it was prohibited
goods then by virtue of Section 104 (6) and
135 Customs Act, the alleged offence
committed by the applicants would be nonbailable
and
maximum
punishment
provided for such offence is seven years.

34. Prohibited goods has been defined
under Section 2 (33) Customs Act which
reads as under:

2 (33) ―"prohibited goods"
means any goods the import or export of
which is subject to any prohibition under
this Act or any other law for the time being
in force but does not include any such
goods in respect of which the conditions
subject to which the goods are permitted to
be imported or exported have been
complied with.

35. From the perusal of Section 2(33)
Customs Act it appears that every good is
prohibited if its import or export is subject
36 INDIAN LAW REPORTS ALLAHABAD SERIES
to an prohibition under the Customs Act or
any other law for the time being in force.

36. The two Judges Bench of the Apex
Court in the case of Om Prakash Bhatia
(supra ) observed that prohibition of
importation or exportation could be subject
to certain prescribed conditions to be
fulfilled before or after clearance of goods
and if conditions are not fulfilled, it may
amount to prohibited goods.

37. The Apex Court in the case of Om
Prakash Bhatia (supra) relied upon its
earlier two Judges Bench judgment in the
case of Sheikh Mohd. Omer Versus
Commissioner of Customs, Calcutta and
others, 1970 SCC (2) 728 in which it was
held that any restriction on import or export
is to an extent prohibition and any
prohibition whether it is complete or partial
is the prohibition and as held by the Apex
Court in the case of Sheikh Mohd Omer
(supra) "any prohibition" means "every
prohibition".

38. Therefore as per the judgments of
Sheikh Mohd. Omer (supra) and Om
Prakash Bhatia (supra) of the Apex Court
even if the goods are not prohibited but if
there is some restriction on its import or
export then it will be prohibited goods but
both the above noted judgments of Apex
Court were delivered by two Judges,
recently three Judges Bench of the Apex
Court in the case of Commissioner of
Customs Vs. Atul Automation Private
Limited, (2019) 3 Supreme Court Cases
539 with regard to multi function device
observed that MFDs were not prohibited
but restricted items for import and further
observed that there will exist fundamental
distinction between what is prohibited and
what is restricted. Therefore, from the case
of Atul Automation (supra) it appears that
on the basis of restriction on import a good
cannot be said to be prohibited good in
terms of Section 2 (33) Customs Act .

39. In case as hand, according to the
prosecution, gold was recovered from the
possession of the applicants which was
liable for confiscation under Section 111 of
the Customs Act and as per Section 125
Customs Act the authority concerned may
levy fine in lieu of confiscation and,
therefore, it appears from the provisions of
Section 11 of Customs Act gold is not
prohibited goods but it is restricted goods
and as per Section 125 Customs Act in lieu
of confiscation fine may be levied.
Therefore, as import of gold is not
prohibited
but
restricted
subject
to
prescribed payment of duty, thus alleged
recovered gold is not prohibited goods
under Section 2(33) Customs Act but it is
restricted goods in view of the judgment of
three Judges Bench of the Apex Court in
the case of Atul Automation (supra).

40. Therefore, from the discussions
made above, it appears that applicants
committed offence under the provisions of
Customs
Act
for
which
maximum
punishment is three ye/ars and as their case
does not fall under Section 104 (6)
Customs Act, therefore, by virtue of
Section 104(7) Customs Act the alleged
offence committed by applicants is bailable
one, therefore, they are entitled to be
released on bail.

41. Accordingly, without expressing
any opinion on the merits of the case, both
the instant bail applications are allowed.

42. Let the applicants-Mohd. Tufail
and Mohammad Alam be released on bail
in the aforesaid case on furnishing a
personal bond and two sureties each in the
4 All. Kamaruddin Vs. State of U.P.
37
like amount to the satisfaction of the court
concerned with the following conditions:-

(i) The applicants shall appear
before the trial court on the dates fixed,
unless their personal presence is exempted.

(ii) The applicants shall not
directly or indirectly, make inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the Court
or any police officer or tamper with the
evidence.

(iii) The applicants shall not
indulge in any criminal and anti-social
activity.

43. In case of breach of any of the
above condition, the prosecution will be at
liberty to move an application before this
Court for cancellation of the bail of the
applicants.
----------
(2023) 4 ILRA 37
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.03.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Crl. Misc. First Bail Application No. 59154 of
2022

Kamaruddin ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Sushil Kumar, Sri Mukul Yadav

Counsel for the Opposite Party:
G.A.

(i) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 164 - Indian
Penal Code, 1860 - Sections 306, 354,
354(ka), 366, 376, 376(d), 504 & 506 -
Application for Bail - Rape - accused
person threaten the deceased - also
tortured, abetted and recorded the illicit
video clips of the incident - victim commit
suicide - Application of Bail - ground taken
that, that in the other connected matter
to
this
case
co-accused
have
been
released on Bail - court finds that,
Incarceration in Jail has no significance
and no element in society can act in a
manner by consequence of which life or
liberty of others is Jeopardised - held, it is
not universal rule that bail should be
granted to the co-accused n the ground of
parity - Parity cannot be the sole ground
of Bail - accordingly, bail application
rejected. (Para - 12, 13)

Bail Application Rejected. (E-11)

List of Cases cited:

1. Sanjay Chandra Vs C.B.I., A.I.R. 2012 (SC)
830,

2. Ash Muhammad Vs Shiv Raj Singh, (2012) 9
S.C.C. 446,

3. Bhagat Singh Vs St. of U.P., 2009 (66) A.C.C.
859 (Alld.),

4. Ravi Khandelwal Vs St. of U.P., 2009 (67)
A.C.C. 148 (Alld.)

5. Rajesh Ranjan Yadav Vs Pappu Yadav Vs
C.B.I., A.I.R. 2007 (SC) 451

6. Amar Nath Yadav Vs St. of Punjab & Haryana,
2009 (67) (A.C.C.) 534 Alld

7. Shah Narain Vs St. of U.P., 2009 (66) A.C.C.
189 Alld.

8. Ajmer Singh Vs St. of Har., 2010 (5) S.C.J. 451

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Sushil Kumar, alongwith
Sri Mukul Yadav, learned counsel for the