Gold Smuggling is a criminal offense and the alleged accused can be arrested by the Law Enforcement Agencies. Having said that, the alleged accused has a right to seek bail and have a criminal defense for his/her case. Though factors upon which bail will be granted depends on each case. But still, there are few grounds laid down by the Hon’ble Supreme Court and different High Courts in a catena of cases and such grounds have to be solemnly considered by the Appellate Court or the Trial Court at the time of hearing bail application. Over here an attempt is made to make aware the public at large and enlighten them about the grounds on which an alleged accused person can seek bail in a case of Gold Smuggling vis a vis also explaining the various types of bail provided in the Code of Criminal Procedure (Cr. P.C.) of 1973.
Types of Bail which the alleged Accused can opt for:
Gold smuggling is a cognizable and non-bailable offense as per Customs Act (CA), 1962 and Unlawful Activities (Prevention) Act, 1967.
- Anticipatory Bail: This kind of bail gives protection to the accused before the arrest. Section 438 of the Code of Criminal Procedure, 1973 confers special power to the Court of Session and the High Court to grant bail to the person before his arrest. But Section 43-D of the Unlawful Activities (Prevention) Act, 1967 prohibit anticipatory bail under section 438 of the Code of Criminal Procedure, 1973.
- Regular Bail: According to section 437(1)(i) of the Code of Criminal Procedure (Cr. P.C.), 1973, when an accused is arrested or detained by the police without a warrant and he is brought before the Magistrate, then such Magistrate may grant bail to the accused if prima facie there is no strong evidence against the accused.If such regular bail is refused by the Magistrate, then the accused can go before the Court of Session or the High Court invoking their special power under section 439(1) of the Code of Criminal Procedure (Cr. P.C.), 1973.
- Default Bail: This kind of bail is granted automatically to the accused after the elapse of the fixed period of filing chargesheet under section 173 of the Code of Criminal Procedure, 1973. If Chargesheet is not filed under section 173(1) of the Code of Criminal Procedure (Cr. P.C.), 1973 within 180 days of judicial custody, then the Court may under section 167(2)(i)(a) of the Code of Criminal Procedure (Cr. P.C.), 1973 grant bail to the accused only if whatever evidence is gathered does not show prima facie commission of gold smuggling.
Top Ten Grounds for obtaining Bail in a Gold Smuggling Case
- Severity of the Punishment: The Court should keep in mind the nature accusation and the severity of the punishment while hearing the bail application. If any person is accused of an offense which upon conviction will entail severe punishment like Capital Punishment or life imprisonment, then the Court in such cases will not enlarge such person on bail unless the Court prima facie finds accusations made are hollow or frivolous. The Hon’ble Supreme Court in the case of P. Chidambaram v. Directorate of Enforcement [Cri. Appeal No. 1831/ 2019] observed that although economic offenses are of grave nature, being a class apart which arises out of deep-rooted conspiracies and effect on the community as a whole but this solely will not act as a bar on granting bail because granting of bail is the rule and refusal is the exception.
- Nature of the Evidence: This is essential ground while hearing a bail plea. If Investigation Officer is unable to find any strong evidence or enough evidence to bolster the accusations against the accused and the period given under section 167(2) of the Code of Criminal Procedure, 1973 for filing chargesheet has elapsed, then the Court will enlarge the accused on bail under section 167(2)(i)(a) of the Code of Criminal Procedure (Cr. P. C.), 1973. The Hon’ble Supreme Court in the case of P. Chidambaram v. Directorate of Enforcement [AIR 2020 SC 1699] has held that the Court can call and peruse the report of investigation and material or document collected by the Investigating Officer during the investigation to satisfy his conscience that investigation is proceeding in the right direction and also for the purpose of granting bail or anticipatory bail. But at the same time, the apex Court disapproved admission of the document or any other material produced by any party while hearing bail plea and based upon such document or any other material the Court granting or refusing bail. Like in the aforementioned case, the respondent produced the sealed envelope containing a document before the Hon’ble Judge of the High Court and the Judge opened such sealed envelope and read it. Based on the content of such a sealed envelope, the Judge passed the order for bail. But later the Hon’ble Supreme Court set aside such order.
- Nature and Gravity of the Circumstances: The Court while granting bail should consider the nature and gravity of the circumstances in which the offense is committed. If nature and gravity in which the offense is committed is very sensitive and releasing the person arrested in such a condition may intensify the situation, then in such circumstances the Court may deny bail. However, the Hon’ble Supreme Court in the case of Prasad Shrikant Purohit v. State of Maharashtra [Cri. Appeal No. 1448/ 2017] has held that the accused cannot be denied of his right to bail merely because of the sentiments of the community against the accused.
- Position & Status of the Alleged Accused Person: The position and status of the offender with reference to the victim and the witness are one of the main grounds for granting bail. If the victim and the witness are in an inferior position to the accused, then there are good chances that the accused can use his position to influence, hinder or delay the process of Justice. But if the accused is not in such a position, then he may be enlarged on bail.
- Danger of Evidences being Tampered & Witnesses being Manipulated: Where there is no danger to the evidence of any kind of tampering and the witnesses of being influenced and/or manipulated, in such a case the Court may grant bail. But if there is the danger that the accused using coercion, undue influence or threat may dissuade witnesses from being part of the trial or retract from their statements.
- Fleeing from Justice: The Court may refuse to enlarge the accused on bail on perceiving that the accused would flee from justice and evade the process of law on being. Therefore, the Court should be satisfied that the accused will not flee from justice or evade the process of law on being enlarged on bail.
- Probability of the Alleged Accused committing more Offenses: The applicant of bail application has to satisfy the Court that the accused would commit more offenses. This can be done by showing that the accused has no antecedent of any offenses.
- Protracted Nature of the Criminal Trial: When the unnecessary delay is caused in the completion of the trial or investigation or inquiry and such delay is caused due to careless attitude of prosecution or the Court or the investigation officer, then the Court may enlarge the accused on bail. In the case of Gyan Prakash v. State of Rajasthan [S. B. Cri. Misc. Bail Appl. 3661/ 1939], the Hon’ble Rajasthan High Court enlarged the accused on bail after observing the careless attitude of the trial Court and prosecution due to which unnecessary delay is caused in completion of the trial. In the present case, the Court noted that the prosecution in 25 months examined 11 witnesses out of 22 witnesses that they want to examine. Moreover, many times when a witness was present in Court for examination, still he was not examined. Section 436A of the Code of Criminal Procedure, 1973 states that where a person is imprisoned for a period extending more than one-half of the maximum period of imprisonment (except for punishment of death) specified for that offense under the law. In the case of In re: Inhuman Conditions in 1382 [WP (C) 406/ 2013] the social justice bench of the Supreme Court has specifically directed the Undertrial Review Committees to look into effective implementation of Section 436 and 436A for the release of undertrial prisoners at the earliest.
- Health, Age and Gender of the Alleged Accused Person: If the accused is suffering from serious illness or he is of extreme age or he is minor or female, the Court on any of such grounds may grant bail to the accused. Section 437(1) of the Code of Criminal Procedure, 1973 provides to grant bail as special protection in non-bailable offense to such person who is under the age of sixteen years or such a person is a woman or such a person is sick or is infirm. The Hon’ble Allahabad High Court in the case of Prateek Jain v. State Of U.P. And 2 Others [CR.P.C. No. 4002/ 2021] has held that apprehension of death due to the ongoing pandemic of Noval Coronavirus is a valid ground for anticipatory bail. The Hon’ble Supreme Court in the case of Kerala Union of Working Journalists vs. Union of India and Others [Cri. WP No. 307/ 2020] has held that the fundamental right to life unconditionally embraces even an undertrial.
- Elapse of Investigation Period: When a period of investigation given under section 167(2)(a)(i) & (ii) of the Code of Criminal Procedure, 1973 or any other law enforced at the time has elapsed and chargesheet has not been filed by the police officer or any other concerned officer, then the accused under section 167(2)(a)(ii) of the Code of Criminal Procedure, 1973 shall be released on bail unless the Court has other reasons. The Hon’ble Supreme Court in the case of Hussainara Khattoon v. State of Bihar [WP No. 57/ 1979] has held that When an undertrial who has been in detention for the period given under section 167(2)(a)(i) & (ii) of the Code of Criminal Procedure, 1973 or any other law enforced at the time is produced before the Magistrate, the Magistrate is bound to inform the accused that he is entitled to bail as provided by proviso (a) to Section 167(2) of the Code of Criminal Procedure, 1973.
Thus, all the above mentioned grounds and/or are the criminal defenses are equally available to any alleged accused person who has been charged for the offense of gold smuggling. Further, the grounds for obtaining bail shall vary from case to case and is dependent upon the facts and circumstances of each and every case. Further, the alleged accused person has to establish a concrete and strong criminal defense in order to obtain the bail and also to defend himself/herself during the criminal trial.
Authored By; Adv. Anant Sharma & Satwik Sharma