Allowed

Mohammad Jahas v. Union Of India and 4 Others

Allahabad HC16 Nov 2022BAIL/45321/2022

Case brief

AI extract

What is this about?

In a bail application regarding customs duty evasion, the Court found the applicant merely an employee amidst secured duty liability via importer bond, lack of prior criminal history, and no issued duty notice, viewing these as sufficient grounds for bail.

What did the court decide?

Released on bail by furnishing a personal bond and two sureties, subject to standard conditions of not tampering with evidence or witnesses.

Mohammad Jahas Vs Union Of India and 4 Others — Customs and Excise | Allahabad HC (2022)

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Court No. - 79

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45321 of 2022 Applicant :- Mohammad Jahas Opposite Party :- Union Of India And 4 Others Counsel for Applicant :- Saurabh Srivastava,Sr. Advocate Counsel for Opposite Party :- A.S.G.I.,G.A.

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Hon'ble Subhash Vidyarthi,J.

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Heard Sri Anup Trivedi, Senior Advocate assisted by Sri Saurabh Srivastava, the learned counsel for the applicant, Sri Jitendra Kumar, the learned counsel representing the opposite parties no.1 to 4 and perused the record.

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The instant application has been filed seeking release of the applicant on bail in Case Crime No.49 of 2022, under Sections 135(1)(a) and 135(1) (b) r/w Section 135 (1) (i) and 135 (1) (ii) of Customs Act, 1962.

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Briefly stated, the facts of the case, as they appear from the material available before the Court at this stage, are that the applicant is the Manager of M/s. Saaz General Tradings, which firm had imported 72,000 kg. betel nut splits from Indonesia through port of Mumbai and had filed a warehouse entry on 04.04.2022 for clearance and warehousing of the goods at M/s. Transworld Dadri Pvt. Ltd., Dadri, Gautam Budh Nagar. On 24.05.2022, the firm made a request to the Deputy Commissioner of Customs, Mumbai to transfer the goods to Customs Bonded (Public) Warehouse in District Raigarh under Section 29 of the Customs Act, 1962, which request was allowed and the goods were transported on 10.06.2022. As an employee of the importer firm, the applicant attended the clearance and transfer of goods from M/s Transworld Terminal Dadri Pvt. Ltd., Dadri, Gautam Budh Nagar.

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It is alleged that after transfer, the goods did not reach Customs Bonded (Public) Warehouse and the same were clandestinely removed from the Bonded Warehouse to Domestic Tariff Area. On 27.06.2022, M/s Transworld

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Terminal was sent a letter informing that the consignment was not received at the destined place and an investigation was initiated and the statement of the transporter was recorded under Section 68 of the Customs Act, in which it has been stated that initially the goods were to be delivered to Anand Power, Delhi which was later diverted to Alipur, Delhi. The statement of the drivers and some other persons were recorded and thereafter, a search was conducted and the consignment was recovered on 29.06.2022 from the premises at Alipur in Delhi.

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The applicant was summoned during investigation and he was arrested on 03.08.2020. On 30.09.2022, the department has filed a complaint before the learned Special Judge / C.J.M., Meerut stating that the Bill of Entry (BOE) dated 04.04.2022 for warehousing purpose was filed by M/s. Saaz General Tradings in respect of the consignment in question. On 24.05.2022, M/s. Saaz General Tradings made a request for issuance of customs ID for self clearance of goods in the name of the applicant for rewarehousing of goods at Customs Bonded (Public) Warehouse at Raigarh. The goods were allowed for movement without payment of customs duty on the basis of the bond executed by the importer under Section 59 91) (b) of the Customs Act and after necessary approval, out of charge (OOC) was accorded on 10.06.2022 for the specific purpose. On 27.06.2022, an information was received that the consignment has not been received at the destined place i.e. Customs Bonded (Public) Warehouse, Raigarh.

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It has been averred in the affidavit filed in support of the bail application that the applicant is an innocent person, he has been falsely implicated in the case, he is having no previous criminal history and he is in jail since 03.08.2022. It has also been stated in the affidavit that there is no possibility of the applicant tampering with any evidence and in such circumstances, the applicant is entitled for bail. It is also stated in the affidavit that the applicant will not misuse the liberty of bail and he will fully cooperate in the investigation.

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7 . The complaint seeks prosecution of the applicant and his punishment under Sections 135(1)(a) and 135(1)(b) of the Customs Act, which provide as follows:

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

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(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

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(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.

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* * *”

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A bare perusal of the aforesaid statutory provision indicates that it is attracted if a person knowingly indulges himself in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or he acquires possession etc. of goods, which are liable to confiscation under Section 111 or under Section 113 of the Customs Act, 1962. The relevant provision of Section 111 of the Customs Act is as follows:

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“111. Confiscation of improperly imported goods, etc .—The following goods brought from a place outside India shall be liable to confiscation:-

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* * *

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(j) any dutiable or prohibited goods removed or attempted to be removed from a customs area or a warehouse without the permission of the proper officer or contrary to the terms of such permission;

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Section 113 of the Act deals with “Confiscation of goods attempted to be improperly exported, etc.” and the same is not relevant in the present case.

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10. Sri Anup Trivedi, the learned Senior Advocate appearing for the applicant, has submitted that the applicant was merely an employee of the importer firm which had stored the goods in the warehouse and the firm had executed the requisite bond for payment of three times the customs duty

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payable. He has submitted that as the importer has already executed the bond referred in Section 59 (1), the liability of payment of customs duty stands secured.

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What prima facie appears from the statements made in the complaint itself is that the goods were imported by the firm in accordance with the prescribed procedure and the same were stored in a warehouse after proper documentation. A requisite bond to the tune of three times of the stamp duty required under Section 59 (1) (b) of the Actwas also submitted. The goods were taken out from the warehouse for being transported to another warehouse in accordance with the prescribed procedure in furtherance of Out of Charge (OOC) accorded on 10.06.2022.

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All the aforesaid proceedings were taken by the importer M/s Saaz Tradings, of which the applicant is an employee. The only allegation against the applicant is that after being taken out of the warehouse at Mumbai for being transported to a particular warehouse, the goods were transported to another warehouse. The payment of customs duty continues to be secured by the bond executed by the importer M/s. Saaz General Tradings.

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As per Section 61 (2) of the Customs Act, the liability to pay customs duty would arise when a notice is served upon the importer under Section 59 (1) (b) to pay the same. Till date, no such notice has been issued to the importer and, therefore, it appears that the occasion pay the duty has not arose till date.

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A supplementary affidavit has been filed in support of the bail application wherein it has been stated that the goods were taken out of the warehouse at Dadri by the importer M/s Saaz Tradings for being transported to another warehouse at Raigarh. During investigation, statement of the transporter has been recorded, who has stated that he had been instructed to divert the consignment of three containers not by the importer M/s Saaz Tradings but by Fabking Solutions Pvt. Ltd., to Delhi and he has stated that the fare was also paid by the aforesaid company through IMPS or RTGS.

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Sri Jitendra Kumar, the learned counsel for the respondent Union of India has opposed the prayer for grant of bail to the applicant. However, he could not dispute the aforesaid aspects of the matter, which are apparent from the record available at this stage.

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Having considered the aforesaid facts and circumstances of the case, what prima facie appears at this stage is that certain goods were imported by M/s Saaz Tradings and the goods were stored at a warehouse at Dadri; that the bond for a sum equal to three times to stamp duty, as provided in Section 59 (1) (b) of the Custom Act was submitted by the importer company; that the goods were taken out for being transported to another warehouse at Raigarh after requisite documentation; that the allegation is that instead of transporting the goods to Raigarh, the goods were transported to Delhi from where the same have been recovered; that the bond executed by the importer still continues to remain in force as provided under Section 59 (4) of the Customs Act; and the customs duty payable by the company stands secured by the bond executed by the importer company and till date, a notice demanding Customs duty has not been issued to the importer. Keeping in view the aforesaid facts, coupled with the facts that the applicant is merely an employee of the company and he has no criminal history and he is languishing in jail since 03.08.2022, I am of the view that the aforesaid facts are sufficient for making out a case for enlargement of the applicant on bail.

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In light of the preceding discussion and without making any observation on the merit of the case, the instant bail application is allowed . 18. Let the applicant Mohammad Jahas be released on bail in Case Crime No.49 of 2022, under Sections 135(1)(a) and 135(1) (b) r/w Section 135 (1) (i) and 135 (1) (ii) of Customs Act, 1962 on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below, subject to the following conditions:-

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(i) The applicant will not tamper with the evidence during the trial.

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(ii) The applicant will not influence any witness.

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(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

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(iv) The applicant 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 to any police officer or tamper with the evidence.

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In case of breach of any of the above condition, the prosecution shall be at liberty to move an application before this Court seeking cancellation of the bail.

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Order Date :- 16.11.2022 Ashish Pd.

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Digitally signed by ASHISH PRASAD Date: 2022.11.23 19:16:20 IST Reason: Location: High Court of Judicature at Allahabad

Mohammad Jahas v. Union Of India and 4 Others

Case brief

What is this about?

What did the court decide?

Mohammad Jahas v. Union Of India and 4 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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