Customs Seizes Gold Bars valuing Rs.2.2cr: Madras HC grants Conditional Return of Passport of Malaysian National [Read Order]

The Madras High Court granted the return of the passport of the Malaysian National (2nd petitioner), finding innocent on certain conditions considering the seriousness of the changes but on humanitarian grounds too. The court noted that the adjudication proceedings revealed that the gold was placed in her handbag without her knowledge.

A petition was filed under Section 451 of Cr.P.C, seeking the return of Malaysian Passports of both 1st and 2nd petitioner who are facing ongoing trials under Sections 135(1)(a) and 135(1)(b) of The Customs Act, 1962. The trial court had dismissed this petition on 22.09.2023, prompting the current criminal revision case.

The incident occurred on 29.04.2022, when the respondents-Customs department received information that four Malaysian passengers, including the petitioners, arriving from Singapore to Coimbatore on Scoot Airlines, were carrying concealed gold bars.

Following surveillance, the respondents intercepted the individuals and discovered a total of 4.200 kgs of gold bars worth approximately Rs.2,25,54,000/-, leading to their arrest and the seizure of their passports and gold. The petitioners were granted bail on 09.06.2022, but the confiscation of the gold and a subsequent penalty were upheld in an appeal, although the penalties were reduced.

The petitioners sought the return of their passports, citing urgent personal reasons. The 1st petitioner claimed his 83-year-old father required immediate care in Malaysia, while the 2nd petitioner needed to attend to her son suffering from epilepsy and other family members' medical needs.

Their counsel argued that the petitioners had already complied with bail conditions, including depositing Rs.10,00,000/- each, and highlighted the absence of any prior similar offenses. They assured the court of the petitioners' commitment to return for trial, referencing the extradition treaty between India and Malaysia as a safeguard against potential absconding.

However, the Special Public Prosecutor opposed the return of the passports, emphasising the serious nature of the smuggling charges and the risk of the petitioners not returning to face trial.

The court noted that the intention of 2nd Petitioner was to visit a temple in India, and she was unaware of the gold smuggling orchestrated by the 1st petitioner and his associate, V. Girinath. The 2nd petitioner was found to be an unsuspecting traveller who trusted the 1st petitioner, who had taken three women on a tour to India for temple visits.

The adjudication proceedings revealed that the gold was placed in her handbag without her knowledge. As a foreign national, she might not have been aware of Indian laws regarding the importation of gold bars. The appellate authority, relying on a statement given under Section 108 of The Customs Act, concluded that the 2nd petitioner was ignorant of the smuggling act and the 1st petitioner’s intentions.

This statement was neither refuted nor countered by the 1st petitioner. Consequently, the evidence indicated the 2nd petitioner’s innocence, with her primary mistake being her trust in the 1st petitioner and allowing him to place the gold in her bag.

The bench of Justice M. Nirmal Kumar noted that the 2nd respondent deposited Rs. 10,00,000 as per court order and her 10-year-old son, Sheveendra, is currently receiving inpatient treatment at Loh Guan Lye Specialists Centre in Malaysia. The medical certificate and photograph of her son undergoing treatment were submitted and have not been seriously disputed.

The bench also noted that there is an Extradition Treaty between the Government of the Republic of India and the Government of Malaysia. The court acknowledged the seriousness of the charges but also considered the humanitarian grounds presented.

Ultimately, the High Court decided to grant the return of the passport to the 2nd petitioner alone, under 3 conditions:

1. The 2nd petitioner to file affidavit before the trial Court furnishing details of her address in Malaysia, contact details viz., mobile number and Email ID.
2. The 2nd petitioner to file affidavit undertaking that the trial can proceed in her absence; she will be represented by her counsel; she will not dispute her identity; she will appear before the trial Court as and when directed to do so and she will not be any reason for the delay in trial.
3. The 2nd petitioner to appear before the trial Court at the stage of framing of charges, questioning under Section 313 Cr.P.C., and on the date of judgment.

The 1st petitioner’s request was denied, and the trial court- Chief Judicial Magistrate, Coimbatore was directed to inform the immigration authorities about the permission granted to the 2nd petitioner. The impugned order dated 22.09.2023 was thus set aside for the 2nd petitioner but confirmed for the 1st petitioner.

To Read the full text of the Order CLICK HERE

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