JUDGMENT 1. - Although, the aforesaid two applications for grant of bail have arisen from different cases registered under the provisions of the Customs Act, 1962 (hereinafter to be referred as “the Act”) and they were heard separately, but as both these applications involves a common question of law, therefore, they are being disposed of by this common order. Copy of the order may be placed in each of the files. 2. S.B. Criminal Misc. Bail Application No. 11193/2014 has been filed by the accused-petitioner-Shri Syed Mohammad Zama under Section 439 Cr.P.C. in respect of Customs Case No. DRI/DZU/JRU/19ENG-l (INT-3) 2014 Customs (Preventive), Jaipur for offences under Sections 132 and 135 (1) (i) (A) and (B) of the Act. The bail application filed by accused-petitioner has been dismissed by the Additional Sessions Judge No. 10, Jaipur Metropolitan vide order dated 24-9-2014, whereas the S.B. Criminal Misc. Bail Application No. 13466/14 has been jointly filed by accused-petitioners Shri Najibullah & Qais under Section 439 Cr.P.C. in respect of Case No. (VIII) (10) AP/23/2014 Customs (Preventive), Jaipur for the same offences and their application for grant of bail has been dismissed by the Additional Sessions Judge No. 10, Jaipur Metropolitan vide order dated 16-10-2014. The common question of law which has arisen in these bail applications is whether the offences under Section 135 of the Act for which the petitioners have been prosecuted is bailable or non-bailable and the equally important question which has been raised in these applications is whether the goods imported by the petitioners on previous occasion without declaration of the same and without paying customs duty upon them can be clubbed with the present goods which have been imported by them without declaration and without paying customs duty upon them. 3. Before considering the arguments submitted by the learned counsel for the parties and the relevant legal provisions, it would be useful to mention the relevant facts in brief in respect of each of the aforesaid bail applications:-S.B. Criminal Misc. Bail Application No. 11193/2014 4. The prosecution case in brief is that on 13-9-2014 a specific intelligence was received by the concerned competent authority that the petitioner arriving from Muskat to Jaipur by Flight No. WY-0273 on 13-9-2014 is carrying gold in huge quantity in his personal baggage and the said gold would be hidden on partition wall of cabin Nos. The prosecution case in brief is that on 13-9-2014 a specific intelligence was received by the concerned competent authority that the petitioner arriving from Muskat to Jaipur by Flight No. WY-0273 on 13-9-2014 is carrying gold in huge quantity in his personal baggage and the said gold would be hidden on partition wall of cabin Nos. 2 & 3 in the washroom situated adjacent to the immigration hall in the International Airport at Jaipur. Acting upon the said intelligence, on 13-9-2014, the DRI Officers kept discreet surveillance on petitioner at Jaipur International Airport on his arrival from Muskat by the aforesaid flight and three gold bars each weighing 1 kg. were recovered from his possession after the petitioner placed them on the partition wall of the cabin of the washroom. On search being made one boarding pass and one Indian Customs Declaration Form filled by the petitioner were also recovered from his possession. According to the Customs authorities the current market value of the gold bars so recovered from the possession of the petitioner was assessed to be Rs. 81 lacs only. It is the further case of the prosecution that when the statement of the petitioner was recorded under Section 108 of the Act, it was admitted by him that on previous 11 occasions on different dates and at different Airports of India he smuggled gold total weight 9400 gms. in the form of gold/gold chains/gold bangles. It is also the case of the prosecution that the scrutiny of passport of the petitioner revealed that he is a frequent flier and he visited India from different places outside India during the period from 14-2-2012 to 13-9-2014 as mentioned in the complaint filed by the Customs authorities against the petitioner in the competent Court. In brief the case of the prosecution is that if the gold smuggled by the petitioner on previous occasions is clubbed with the gold brought by him without declaration and without making payment of the customs duty on 13-9-2014 at the Jaipur International Airport, the value of the same far exceeds one crore rupees and customs duty evaded or attempted to be evaded by the petitioner far exceeds 50 lacs rupees.S.B. Criminal Misc. Bail Application No. 13466/2014 5. Bail Application No. 13466/2014 5. The case of the prosecution in brief is that the petitioners, who are Afgan Nationals, arrived at Jaipur International Airport on 26-7-2014 from Abu Dhabi by Ethihad Airlines Flight No. EY-208 and while they were passing through exit gate after submitting a nil declaration, on their physical inspection the competent officers of the Customs Department recovered 9 gold bars from each of the petitioner weighing 1050 gms and thus in total 2100 gms gold was recovered from the joint possession of the petitioners and the market value of the gold so recovered was assessed to be Rs. 58,80,000/-. It is further the case of the prosecution that when statement of each of the petitioner was recorded under Section 108 of the Act, it was admitted by them that on previous occasions also they brought gold without declaration and without making payment of customs duty upon it and the market value of total quantity of the gold so imported by them comes to be Rs. 5,08,68,664/- involving customs duty amounting to Rs. 1,83,38,153/-. It is also the case of the prosecution that a number of documents such as invoices, receipts, declarations recovered from the possession of the petitioners also reveal that they previously visited India on 9 different occasions. In brief in respect of the present petitioners also the case of the prosecution is that the total value of the gold brought by them without declaration and without paying the customs duty exceeds more than Rs. 1 crore and customs duty evaded or attempted to be evaded by them is more than Rs. 50 lacs. 6. It was submitted by the learned counsel for the petitioners that it is an admitted fact that the market value of the gold recovered and seized from the possession of the each of the petitioners is less than Rs. 1 crore within the meaning of Section 135 of the Act and the customs duty which was attempted to be evaded also does not exceed Rs. 1 crore within the meaning of Section 135 of the Act and the customs duty which was attempted to be evaded also does not exceed Rs. 50 lac and, therefore, the offence committed by each of them is bailable as provided under sub-section (7) of Section 104 of the Act and, therefore, each of the petitioner is entitled to be released on bail as of right as provided under Section 436 of Cr.P.C. It was further submitted that there is no provision in the Act or any other law permitting the customs authorities/prosecution to club gold or any other dutiable goods, if any, imported by each of the petitioner on any previous occasion with the present consignment of the gold to assess the total value of the gold for the purpose of Section 104 and 135 of the Act or to assess the evasion or attempted evasion of the customs duty payable upon it. It was submitted that if any person imports into India any dutiable goods without declaration or without paying customs duty upon it, it is an independent offence for which he can be prosecuted but such person cannot be prosecuted for the previous evasion of customs duty along with the present offence. It was contended that the prosecution without any authority of law has clubbed the previous alleged import of gold by each of the petitioner with the present import of the gold with a sole purpose of to make the offence committed to be non bailable. In support of their submissions, learned counsel for the petitioners relied upon some case law. 7. On the other hand the learned Special Public Prosecutor appearing for the Customs Department controverting the submissions made on behalf of the petitioners submitted that there is no bar in the Act or any other law to club the previous import of gold or any other dutiable goods without declaration and without paying customs duty by the same person with the present import of the gold if by any means it comes to the knowledge of the competent authority and, therefore, each of the petitioner can be prosecuted not only for the present offence, but also for the previous offences committed by him by filing a common complaint. It was further submitted that the object for which the Act has been enacted by the legislature permits the concerned authorities to club all the consignments of the dutiable goods imported by a person without declaration and/or without paying the customs duty for the purpose of assessing the market value of the same and also for the purpose of calculation of the customs duty which has been evaded or attempted to have been evaded. It was contended that if the present consignment of the gold recovered from the possession of each of petitioners is clubbed with the previous consignments of gold imported by each of them, the market value of the same far exceeds one crore rupees and the amount of the customs duty evaded or attempted to be evaded also exceeds Rs. 50 lacs and, therefore, the offence committed by each of the petitioner is a non-bailable offence within the meaning of sub-section (6) of Section 104 and Section 135 of the Act and the petitioners are not entitled to be released on bail as of right without taking into consideration the merit and demerit of the case. In support of their submissions, learned Special Public Prosecutors for the Customs Department also relied upon some case law. 8. I have considered the submissions made on behalf of the respective parties and the material made available on record as well as the relevant legal provisions and the case law relied upon on behalf of the parties. 9. First of all it is to be considered whether the offence for which each of the petitioner has been accused in the present cases is bailable and each of them is entitled to be released on bail as of right without considering the merit of the case. 10. Sub-section (1) of Section 4 of the Code of Criminal Procedure provides that all offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained, whereas sub-section (2) provides that all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 11. 11. Thus, it is clear that unless some special procedure is provided under any other law for regulating the manner or place of investigating, inquiring into, trial, or otherwise dealing with the offences punishable under the other law, the offences punishable under such other law are also to be investigated, inquired into, tried or otherwise dealt with according to the provisions provided under the Code. 12. Section 5 of the Code provides that nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 13. It is well settled that where any special enactment provides special procedure only for some matters, such procedure will govern these matters and in regard to other matters on which special enactment is silent, the provisions of the Code will be applied. The existence of a special law does not exclude the operation of the code unless the special law expressly or impliedly provides in that behalf in which case, the special law will apply otherwise the Code will apply. Thus, it is to be seen whether there is any provision in the Act which expressly or impliedly provides that the offences or any of them punishable under the Act are/is bailable. 14. Clause (a) of Section 2 of the Code provides which offence is bailable and which is non-bailable offence. According to this provision “bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and “non bailable offence” means any other offence. Thus, it is clear that unless an offence is expressly or impliedly made bailable by any other law for the time in force, the question whether an offence is bailable or not is to be determined as provided in the First Schedule of the Code. 15. It is not disputed that the Act deals with the law relating to levy of duties of customs. 16. According to Clause (14) of Section 2 of the Act “dutiable goods” means any goods which are chargeable to duty and on which duty has not been paid. 15. It is not disputed that the Act deals with the law relating to levy of duties of customs. 16. According to Clause (14) of Section 2 of the Act “dutiable goods” means any goods which are chargeable to duty and on which duty has not been paid. According to Clause (15) of Section 2 of the Act, “duty” means a duty of customs leviable under the Act, whereas according to Clause (22), “goods” includes apart from other things, any other kind of movable property also. It is not in dispute that gold is also such a goods on which customs duty is liable to be paid when it is imported into India from a place outside India. The word “smuggling” has been defined under Clause (39) of Section 2 of the Act and according to this provision, “smuggling” in relation to any goods means any act or omission which will render such goods liable to confiscation under Section 111 or Section 113 of the Act. 17. Section 12 of the Act provides that duties of customs shall be levied at such rates as may be specified under the Customs Tarrif Act or any other law for the time being in force on goods imported into India. It is not in dispute that customs duty is also leviable on gold or gold items. 18. For the purpose of determination of question of law raised in the present applications Sections 100, 101, 102, 104, 107, 108, 110 and 111 of the Act are also relevant which may be quoted in entirety as below:-Section 100. Power to search suspected persons entering or leaving India, etc. - (1) If the proper officer has reason to believe that any person to whom this section applies has secreted about his person, any goods liable to confiscation or any documents relating thereto, he may search that person. Power to search suspected persons entering or leaving India, etc. - (1) If the proper officer has reason to believe that any person to whom this section applies has secreted about his person, any goods liable to confiscation or any documents relating thereto, he may search that person. (2) This section applies to the following persons, namely:- (a) any person who has landed from or is about to board, or is on board any vessel within the Indian customs waters; (b) any person who has landed from or is about to board, or is on board a foreign-going aircraft; (c) any person who has got out of, or is about to get into, or is in, a vehicle, which has arrived from, or is to proceed to any place outside India; (d) any person not included in clauses (a), (b) or (c) who has entered or is about to leave India; (e) any person in a customs area. Section 101. Power to search suspected persons in certain other cases. - (1) Without prejudice to the provisions of section 100, if an officer of customs empowered in this behalf by general or special order of the Commissioner of Customs, has reason to believe that any person has secreted about his person any goods of the description specified in sub-section (2) which are liable to confiscation, or documents relating thereto, he may search that person. (2) The goods referred to in sub-section (1) are the following:- (a) gold; (b) diamonds; (c) manufactures of gold or diamonds; (d) watches; (e) any other class of goods which the Central Government may, be notification in the Official Gazette, specify. Section 102. Persons to be searched may require to be taken before gazetted officer of customs or magistrate. - (1) When any officer of customs is about to search any person under the provisions of section 100 or section 101, the officer of customs shall, if such person so requires, take him without unnecessary delay to the nearest gazetted officer of customs or magistrate. (2) If such requisition is made, the officer of customs may detain the person making it until he can bring him before the gazetted officer of customs or the magistrate. (2) If such requisition is made, the officer of customs may detain the person making it until he can bring him before the gazetted officer of customs or the magistrate. (3) The gazetted officer of customs or the magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) Before making a search under the provisions of section 100; or section 101, the officer of customs shall call upon two or more persons to attend and witness the search and may issue an order in writing to them or any of them so to do; and the search shall be made in the presence of such persons and a list of all things seized in the course of such search shall be prepared by such officer or other person and signed by such witnesses. (5) No female shall be searched by any one excepting a female. Section 104. Power to arrest. - (1) If an officer of customs empowered in this behalf by general or special order of the 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, 1898 (5 of 1898), an offence under this Act shall not be cognisable. (5) Save as otherwise provided in sub-section (4), all other offences under the Act shall be non-cognisable. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), an offence under this Act shall not be cognisable. (5) Save as otherwise provided in sub-section (4), all other offences under the Act shall be non-cognisable. (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 sub-section (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, shall be non-bailable. Section 107. Power to examine persons. - Any officer of customs empowered in this behalf by general or special order of the Commissioner of Customs may, during the course of any enquiry in connection with the smuggling of any goods, - (a) require any person to produce or deliver any document or thing relevant to the enquiry; (b) examine any person acquainted with the facts and circumstances of the case. Section 108. Power to summon persons to give evidence and produce documents. - (1) Any Gazetted Officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a 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 the control of the person summoned. (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 the control of the person summoned. (3) All persons so summoned shall be bound to attend either in person or by an authorised 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, 1860. Section 110. Seizure of goods, documents and things. - (1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods: Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer. (1A) The Central Government may, having regard to the perishable or hazardous nature of any goods, depreciation in the value of the goods with the passage of time, constraints of storage space for the goods or any other relevant considerations, by notification in the Official Gazette, specify the goods or class of goods which shall, as soon as may be after its seizure under sub-section (1), be disposed of by the proper officer in such manner as the Central Government may, from time to time, determine after following the procedure hereinafter specified. (1B) Where any goods, being goods specified under sub-section (1A), have been seized by a proper officer under sub-section (1), he shall prepare an inventory of such goods containing such details relating to their description, quality, quantity, mark, numbers, country of origin and other particulars as the proper officer may consider relevant to the identity of the goods in any proceedings under this Act and shall make an application to a Magistrate for the purpose of - (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of the Magistrate, photographs of such goods, and certifying such photographs as true; or (c) allowing to draw representative samples of such goods, in the presence of the Magistrate, and certifying the correctness of any list of samples so drawn. (1C) Where an application is made under sub-section (1B), the Magistrate shall, as soon as may be, allow the application. (2) Where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a) of section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized : Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Commissioner of Customs for a period not exceeding six months. (3) The proper officer may seize any documents or things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act. (4) The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof or take extracts there from in the presence of an officer of customs. Section 111. (4) The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof or take extracts there from in the presence of an officer of customs. Section 111. Confiscation of improperly imported goods, etc.- The following goods brought from a place outside India shall be liable to confiscation:- (a) any goods imported by sea or air which are unloaded or attempted to be unloaded at any place other than a customs port or customs airport appointed under clause (a) of section 7 for the unloading of such goods; (b) any goods imported by land or inland water through any route other than a route Specified in a notification issued under clause (c) of section 7 for the import of such goods; (c) any dutiable or prohibited goods brought into any bay, gulf, creek or tidal river for the purpose of being landed at a place other than a customs port; (d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force; (e) any dutiable or prohibited goods found concealed in any manner in any conveyance; (f) any dutiable or prohibited goods required to be mentioned under the regulations in an import manifest or import report which are not so mentioned; (g) any dutiable or prohibited goods which are unloaded from a conveyance in contravention of the provisions of section 32, other than goods inadvertently unloaded but included in the record kept under sub-section (2) of section 45; (h) any dutiable or prohibited goods unloaded or attempted to be unloaded in contravention of the provisions of section 33 or section 34; (i) any dutiable or prohibited goods found concealed in any manner in any package either before or after the unloading thereof; (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; (k) any dutiable or prohibited goods imported by land in respect of which the order permitting clearance of the goods required to be produced under section 109 is not produced or which do not correspond in any material particular with the specification contained therein; (l) any dutiable or prohibited goods which are not included or are in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under section 77; (m) any goods which do not correspond in respect of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under section 77 in respect thereof, or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to sub-section (1) of section 54; (n) any dutiable or prohibited goods transitted with or without transhipment or attempted to be so transitted in contravention of the provisions of Chapter VIII; (o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer; (p) any notified goods in relation to which any provisions of Chapter IVA or of any rule made under this Act for carrying out the purposes of that Chapter have been contravened. 19. Thus, sub-section (6) of Section 104 of the Act provides that notwithstanding anything contained in the Code, an offence punishable under Section 135 of the Act relating to following acts shall be non-bailable:- (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 sub-section (i) of section 135; or (c) import or export of any goods which have not been declared in accordance with the provisions of the 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 the Act, if the amount of drawback or exemption from duty exceeds fifty lakh rupees. 20. Sub-section (7) of Section 104 of the Act provides that all other offences under the Act are bailable. Thus, it is clear that by way of enactment of sub Section (6) and (7) of Section 104 of the Act it has been specifically provided that under the provisions of the Act which offences are non-bailable and which are bailable and, therefore, it cannot be disputed that provisions of the Code are not relevant and applicable to determine whether the offence committed by each of the petitioner in the present cases is bailable or non-bailable. 21. Under section 107 of the Act a special procedure has been provided empowering a competent officer of customs during the course of any inquiry in connection with the smuggling of any goods requiring any person to produce or deliver any document or thing relevant to the enquiry and also to examine any person acquainted with the facts and circumstances of the case. Similarly, a special procedure has also been provided under Section 108 of the Act empowering a gazetted officer of customs to summon any person whose attendance he considers necessary either to give evidence or to produce document or any other thing in any inquiry which such officer is making under the Act. Similarly, a special procedure has also been provided under Section 108 of the Act empowering a gazetted officer of customs to summon any person whose attendance he considers necessary either to give evidence or to produce document or any other thing in any inquiry which such officer is making under the Act. It is the case of the prosecution that each of the petitioner was examined and his statement was recorded by the empowered gazetted officer under this provision and each of the petitioner has admitted in his statement that on previous several occasions consignments of gold were brought by him into India from a place outside India without declaration and without paying customs duty upon them. 22. Section 135 of the Act is also relevant which is as below:Section 135. Evasion of duty or prohibitions. 22. Section 135 of the Act is also relevant which is as below:Section 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 (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, 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 thirty 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 thirty lakh of rupees, 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 sub-section (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 sub-sections (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. 23. A close look at the aforesaid provision for the present purpose shows that if any person in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon shall be punishable with imprisonment for a term which may extend to seven years and with fine in the case of an offence relating to any goods the market price of which exceeds one crore rupees or evasion or attempted evasion of duty exceeds fifty lakh of rupees. A close reading of the above provision makes it very clear that it takes into its sweepn “any goods” if the accused knowingly involves himself in fraudulent evasion or attempted evasion of duty chargeable on such goods. In my opinion the words “any goods” includes not only the goods which are seized and confiscated by the competent authority, but those goods also which escaped from seizure and confiscation. In my opinion the words “any goods” includes not only the goods which are seized and confiscated by the competent authority, but those goods also which escaped from seizure and confiscation. In my further opinion an offence under Section 135 of the Act for evasion or attempted evasion of duty must be treated to be a continuous offence until customs duty is paid upon the goods which have been imported without payment of customs duty upon them. In the present cases import of gold by each of the petitioner without payment of customs duty on each of the previous occasions is a continuous offence and value of the gold so imported is to be added to the value of the gold imported by him on the present occasion for the purpose of calculating the market price of the total gold imported as well as for the purpose of determining the amount of the customs duty which have been evaded or attempted to be evaded. Each of the petitioner should be treated to have been arrested by the competent authority of the customs department not only for the attempted evasion of duty on the present consignment of the gold, but also for the evasion of customs duty on the import of gold on previous several occasions. 24. In my opinion even if for any reason including lapse on the part of the competent authorities, the previous import of gold or gold items by each of the petitioner without declaration or without payment of customs duty could not be detected, but later on by any means including statement recorded under Section 107 or 108 of the Act, such import comes to the knowledge of the authorities concerned, the customs duty previously evaded can be levied from such person as provided under Section 12 of the Act. When the question of adverse effect on the economy of the nation is at stake, the relevant provisions of law must be interpreted in a way which helps to curb the menance rather which encourages it. 25. Thus, my answer to the legal question raised in the present applications is that the gold or gold items imported by each of the petitioner on previous occasions without declaration and without paying customs duty is to be clubbed with the present consignment of gold which has been imported by him without declaration and without payment of customs duty. 25. Thus, my answer to the legal question raised in the present applications is that the gold or gold items imported by each of the petitioner on previous occasions without declaration and without paying customs duty is to be clubbed with the present consignment of gold which has been imported by him without declaration and without payment of customs duty. If it is so done, prima facie it is clear that the market price of gold so imported by each of the petitioner exceeds one crore of rupees and the value of the customs duty evaded or attempted to be evaded exceeds fifty lakh of rupees and thus the offence committed by each of the petitioner is a non-bailable offence within the purview of sub-section (6) of Section 104 of the Act and petitioners are not entitled to be released on bail as of right as provided under Section 436 of the Code. 26. So far as the case law relied upon on behalf of the parties is concerned, it is of no help to them as the question of law raised in the present cases was neither under consideration nor decided in them. 27. So far as grant of bail to the petitioners on merit is concerned, looking to the gravity of the offence and likelihood of the repetetion of the same, petitioners are not entitled benefit of bail on merit also. In economic offences as in the present cases, interest of the National Economy is adeversely effected and, therefore, while considering the question of grant of bail to an accused, it should be seen whether it is desirable in national interest or not. 28. Consequently, both the applications for grant of bail under Section 439 Cr.P.C. are, hereby, dismissed.Applications dismissed. *******