Hon'ble AGARWAL, J.—Each of the accused-petitioners has filed a separate application for grant of bail under Section 439 Cr.P.C. in respect of the same case registered under the provisions of the Customs Act, 1962 (hereinafter to be referred as the Act) for offences under Section 132 and 135 and as these applications involve a common question of law and, therefore, with the consent of learned counsel for the parties they were heard together and are being disposed of by this common order. Copy of the order may be placed in each of the files. 2. Brief relevant facts for the disposal of these applications are that the gold total weight 350.100 gms. valued at Rs. 9,50,530/- was recovered and seized from the possession of the accused-petitioner-Shri Abdul Ali Jaleel on 2.1.2015 at Jaipur International Airport when he arrived from Muskat by Flight No.WY0271 of Oman Air and he declared a 'nil' declaration card to the Officer on duty. During his interrogation and statement recorded under Section 108 of the Act, the accused-petitioner stated and admitted that he is involved in the smuggling of gold from a territory outside India and he has smuggled gold each and every time when he visited India. He further admitted that his second wife accused-petitioner-Smt.Shilpa Uttam Chand @ Faiza was apprehended by the customs authorities at Mumbai Airport with gold bangles weighing 1184 gms. valued at Rs. 29,03,263 on 1.6.2014. He further stated that accused-petitioner-Smt.Shilpa Uttam Chand @ Faiza and Smt.Amal Mubarak Salim also came with him by the same flight. Search being made gold weighing 1167.000 gms. valued at Rs.31,68,405/- was recovered and seized from the possession of co-accused-Smt.Shilpa Uttam Chand @ Faiza and gold weighing 1167.000 gms valued at Rs.31,68,405 was recovered and seized from the possession of co-accused-Smt.Amal Mubarak Salim on 2.1.2015. All the gold bars allegedly recovered from the possession of the accused-petitioners were ingraved with the same markings. It is to be noted that gold bars so recovered from the possession of each of the accused-petitioners were concealed in the footwear which each of them was wearing at the time of the recovery. On interrogation and during her statement recorded under Section 108 of the Act, accused-petitioner-Smt.Shilpa Uttam Chand also admitted that she was caught on 1.6.2014 at Mumbai Airport by Customs Officers with gold bangles weighing 1184 gms. valued at Rs.29,03,263/-. On interrogation and during her statement recorded under Section 108 of the Act, accused-petitioner-Smt.Shilpa Uttam Chand also admitted that she was caught on 1.6.2014 at Mumbai Airport by Customs Officers with gold bangles weighing 1184 gms. valued at Rs.29,03,263/-. Accused-petitioner-Smt.Amal Mubark Salim also admitted that she was apprehended at Mumbai Airport by the customs authorities on 26.5.2014 with 1200 gms. gold bangles. It is the case of respondent-department that at the Mumbai Airport the aforesaid gold was imported by the accused-petitioners without declaration and making payment of customs duty. Each of the accused-petitioners also admitted that all of them have jointly smuggled the gold which has been seized by the customs authorities on 2.1.2015 at Jaipur International Airport. Thus, total gold weighing 2684.100 gms.valued at Rs.72,87,311/- was recovered from the joint possession of the accused-petitioners on 2.1.2015 at Jaipur International Airport. Statement of each of the accused-petitioners recorded under Section 108 of the Act further revealed that accused-petitioners jointly and in connivance to each other on previous several occasions smuggled gold into India without declaration and payment of customs duty to the tune of 11362.980 gms. valued at Rs.3,12,48,195/-. It is the case of the respondent that the total weight of gold so far jointly imported by the accused-petitioners without payment of customs duty is 14047.080 gms, valued at Rs.3,85,35,526/-. It is also the case of the respondent that examination of documents including invoices of purchase of gold recovered from the possession of the accused-petitioner-Shri Abdul Ali Jaleel and passport of each of the accused-petitioners revealed that accused-petitioner-Shri Abdul Ali Jaleel alongwith the other accused-petitioners is indulged in smuggling of gold into India and all of them were operating as an organised racket. It is also the case of the respondent that as the market price of the gold jointly smuggled by the accused-petitioners on different occasions including the consignment of gold recovered from their possession on 2.1.2015 is more than Rupees One crore and the value of the customs duty evaded or attempted to be evaded by them is more than Rupees Fifty Lacs, the offence committed by each of the accused-petitioners is non-bailable within the meaning of sub-section (6) of Section 104 of the Act. 3. 3. The foremost common question of law which has been raised in these bail applications is whether the offence under Section 135 of the Act for which the petitioners have been prosecuted is bailable or non-bailable and equally important question which has been raised is whether the gold allegedly imported by the petitioners on previous occasions without declaration and without paying customs duty upon it can be clubbed with the present consignment of the gold which has been imported by them without declaration and without paying customs duty upon it. A further question of law involved in these applications is whether the import of gold by each of the accused-petitioners in the form of present consignment and alleged import of the same on previous occasions is to be treated as a separate and individual act of each of the accused-petitioners or it is to be treated to be a joint import of the gold together by the accused-petitioners to ascertain the market price of the gold so imported and for the purpose of calculation of value of the customs duty evaded or attempted to be evaded by them. 4. It was jointly submitted by the learned counsel for the petitioners that it is an admitted fact that the market price of the gold separately recovered and seized from the possession of each of the petitioners is less than Rupees One crore within the meaning of Section 135 of the Act and the customs duty which was attempted to be evaded does not exeed Rs.50 lacs and, therefore, the offence committed by each of them is bailable as provided under sub-section (7) of Section 104 of the Act and each of the petitioners is entitled to be released on bail as of right as provided under Section 436 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 petitioners on any previous occasion with the present consignment of the gold to assess the market price of the same 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 including gold without declaration or without paying customs duty upon it, it is an independent and separate offence for which he can be prosecuted, but such person can not be prosecuted for previous evasion of customs duty alongwith the present offence. Inviting attention towards definition of "Import" and "Smuggling", it was submitted that each import or smuggling of goods into India without payment of customs duty constitutes a separate and distinct offence and has to be treated and dealt with independently and individually. It was contended that the prosecution without any authority of law has clubbed the previous alleged import of gold by each of the petitioners with the present import of the gold with a sole purpose of to make the offence so committed to be a non-bailable. It was further submitted by the learned counsel for the petitioners that although this Court vide order dated 5.1.2015 passed in S.B.Criminal Misc.Bail Application No.11193/2014 and S.B.Criminal Misc.Bail Application No.13466/2014 has held that the words "any goods" include not only the goods which have been seized and confiscated by the competent authority, but those goods also which escaped from seizure and confiscation and that 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, but the aforesaid view taken by this Hon'ble Court is not in accordance with the provisions of the Act and any other law and it requires to be re-considered. It was also submitted that it has wrongly been held by this Court that the value of the goods previously imported by a person is to be added to the value of the goods imported by him on the present occasion for the purpose of calculating the market price of the total goods imported as well as for the purpose of determining the amount of customs duty which have been evaded or attempted to be evaded. It was also contended that if any person imports in India gold or any other dutiable goods without payment of customs duty, it is an independent and separate offence committed by him under the provisions of the Act and he is to be prosecuted for the offence individually and if more than one person commits offence under the provisions of the Act, it cannot be said that they have jointly committed an offence under the Act and the value of the gold or other goods cannot be calculated on the basis of total gold or other dutiable goods imported by them. According to learned counsel for the petitioners the expression "Any person" used in Section 135 of the Act means a single person and not more than one person. It was also submitted that no documentary evidence except statement of each of the accused-petitioners recorded under Section 108 of the Act is available on record in support of the fact that the gold recovered and seized on 2.1.2015 at Jaipur International Airport was jointly and in connivance with each other was imported by the petitioners and similarly no other evidence has been collected to show that each of the accused-petitioners either individually or together with each other imported gold on some previous occasions without payment of customs duty. Apart from that, the alleged statement of each of the petitioners is not admissible in evidence as it is clear that it was recorded when each of them was under the custody of the customs officials. It is an admitted fact that after the petitioners were taken into custody for interrogation, they were not allowed to undertake free movements and they were continuously under detention of the customs officials and, therefore, such statement is of no evidentiary value even at this stage of the proceedings. It was brought to the knowledge of the Court that in seizure-memo, the time and date of its preparation has been clearly mentioned and similarly in the arrest-memo of each of the accused-petitioners date and time has been mentioned, but so far as statement under Section 108 of the Act is concerned, although date of its recording is mentioned, but time is conspicuously absent which is a clear indication of the fact that the statement was recorded when each of the accused-petitioners was under arrest. This fact gets further support from the fact that arrest memo of each of the petitioners bears the same time i.e. 10 AM. It was also contended that there is no evidence available on record to show that all the petitioners came to India at Jaipur International Airport on 2.1.2015 by the same flight and, therefore, theory of smuggling of gold jointly by them has no legs to stand. No evidence is also available on record to show that each of the petitioners was in conscious possession of the gold allegedly recovered. No evidence has also been collected with regard to the dealing of the gold previously imported by the petitioners i.e. whether it was sold in the market or used otherwise and in absence of such evidence, it cannot be said gold was smuggled by the petitioners or by any of them on previous occasions also. 5. In support of their submissions, learned counsel for the petitioners relied upon the cases of Ashak Hussain Allah Detha alias Siddique & Anr. vs. Assistant Collector of Customs, Bomaby reported in 1990 Crl.L.J.2201 (Bombay High Court), Assistant Collector of Customs vs. Pratap Rao Sait & anr. reported in 1972 Crl.L.J.1135 (Kerala High Court) and order dated 22.4.2014 passed by the Co-ordinate Bench of this High Court in S.B.Criminal Misc.Bail Application No.1643/2014 (Arif Khan vs. Union of India). 6. On the other hand, 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 or jointly by more than one person with the present import of the gold or other goods, if by any means it comes to the knowledge of the competent authority and, therefore, each of the petitioners can be prosecuted not only for the present offence, but also for the previous offences committed by him by filing common complaint. It was further submitted that if it is found that more than one person jointly and in connivance to each other have imported gold or any other dutiable goods without paying customs duty, then it must be held that all of them have jointly committed the offence under the provisions of the Act and for the purpose of calculating the market price of the goods so imported and value of the customs duty evaded or attempted to be evaded the total value of the goods imported by them must be taken into consideration. It was also submitted that if it is found that more than one person not only on the present occasion, but on previous occasions also have jointly imported gold or any other dutiable goods without payment of customs duty then for the purpose of aforesaid calculation total market price of the goods or total value of the duty evaded is to be taken into consideration. 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 be evaded. Similarly, the object of the Act further allows the authorities to club all the consignments of the dutiable goods imported jointly by more than one person if it is found that it has been done by them in connivance with each other. It was contended that if the present consignment of the gold recovered and seized from the possession of each of the petitioners is clubbed together and if it is further clubbed with the previous consignments of gold imported jointly by 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 petitioners is a non-bailable offence within the meaning of sub-section (6) of Section 104 and 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. It was also submitted that it is well settled legal position that the statement of a person including that of an accused recorded under Section 108 of the Act is a material and admissible piece of evidence which can legally be used for the purpose of proving commission of an offence under the provisions of the Act more particularly if it is not retracted by the accused at the earliest occasion. In the present case, such statement of each of the accused-petitioners was recorded by the competent officer as soon as he was detained for interrogation and, therefore, it can legally be used against them more particularly in view of the fact that till date none of the petitioners has retracted from it. It was also contended that from the possession of accused-petitioner-Shri Abdul Ali Jaleel some documents including purchase invoices have been recovered and on examination of the same and passport of each of the petitioners clearly shows that each of the petitioners is a frequent visitor to India at different Airports for a very short stay which fact corroborates the department's case that the petitioners have jointly smuggled gold in connivance to each other not only on the present occasion i.e. on 2.1.2015 at Jaipur International Airport, but also on several previous occasions more particularly in the year 2014 at different Airports of India. It was further submitted that the statement recorded under Section 108 of the Act cannot be questioned on the ground that although it bears the date on which it was recorded, but it does not bear the time and, therefore, it must be held that it was recorded when the petitioners were under arrest. It was also contended that there is difference between "arrest" and "custody" of a person. Merely because a person has been taken into custody by a competent authority or detained for interrogation, it cannot be said that such person was arrested formally. It was also contended that there is difference between "arrest" and "custody" of a person. Merely because a person has been taken into custody by a competent authority or detained for interrogation, it cannot be said that such person was arrested formally. It was also submitted that this Court after considering all aspects of the matter vide order dated 5.1.2015 passed in the aforesaid previous bail applications has rightly held that an offence previously committed by a person is a continuous offence and for the purpose of calculating market price of the goods or value of the customs duty evaded or attempted to be evaded the consignments imported on previous occasions can be clubbed with the present consignment and, therefore, there is no reason to take a different view now. 7. 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. 8. First of all it is to be seen whether the statement recorded under Section 108 of the Act of each of the petitioners is a material piece of evidence and is admissible in evidence in the facts and circumstances of the case atleast for the purpose of disposal of these bail applications. It is not the case of the petitioners that they have retracted from their statements. Section 108 of the Act is as below: 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. 9. In the case of Naresh J.Sukhawani vs. Union of India reported in 1996 (83) E.L.T.258 (SC), Hon'ble Supreme Court held that the statement made before the Customs Officials is not a statement under Section 161 Cr.P.C. Therefore, it is a material piece of evidence collected by the Customs Officials under Section 108 of the Act. That material incriminates the accused inculpating him in the contravention of the provisions of the Act and it can be used as substantive evidence and it can be used even against the co-accused if the maker inculpates himself as well as the co-accused in the offence. 10. In the case of K.I.Pavunny vs. Assistant Collector reported in (1997) 3 SCC 721 , a judgment rendered by three Judge Bench of the Apex Court it was held that the confessional statement made before a custom officer, is admissible, as he is not a police officer, within the meaning of Section 25 of the Evidence Act, though he is invested with many of the powers, which an officer-in-charge of a Police Station exercise, while investigating an offence. It was also held that though a customs officer, is a person in authority, within the meaning of Section 24 of the Evidence Act, by reason of a statutory compulsion of recording the statement of the accused, pursuant to his appearance either after issuance of the summons or after his surrender, such statement cannot be characterised to have been obtained by threat, inducement or promise and the self same statement, is admissible in evidence on the complaint laid by the customs officers. It was further held that a person suspected by a customs officer of having committed an offence under the Act at that stage is not an accused and he becomes an accused only when summons are issued by a competent Court pursuant to a complaint lodged by the competent customs officer and hence his statement recorded during an inquiry under Section 108 or during confiscation proceedings is not that of an accused within the meaning of Section 24 of the Evidence Act. 11. In the case of Union of India vs. Padam Narain Aggarwal reported in (2008) 13 SCC 305 , it was held by the Hon'ble Supreme Court that Section 108 of the Customs Act does not contemplate magistrarial intervention. The statements recorded under Section 108 of the Act are distinct and different from the statements recorded by the police officers during the course of investigation under Cr.P.C. A person called upon to make a statement before the customs authorities cannot be said to be an accused of an offence. It is, therefore, clear that if a person is called upon to make a statement under Section 108 of the Act and summons is issued for the said purpose, he is bound to comply with such direction. It was also held that the underlying object of Section 108 is to ensure that the officer questioning the person gets all the truth concerning the incident. The power is exercised by a gazetted officer of the Department. It obliges the person summoned to state truth upon any subject respecting which he is examined. He is not absolved from speaking truth on the ground that such statement is admissible in evidence and could be used against him. The provision thus enables the officer to elicit truth from the person examined. 12. It obliges the person summoned to state truth upon any subject respecting which he is examined. He is not absolved from speaking truth on the ground that such statement is admissible in evidence and could be used against him. The provision thus enables the officer to elicit truth from the person examined. 12. In the case of Labh Singh vs. Union of India reported in 2002 Cr.L.J. 28 (Raj.) = RLW 2002(1) Raj. 586, Single Bench of this High Court held that the terms "custody" and "arrest" are not synonymous terms. It is true that in every arrest there is a custody, but not vise versa. A custody may amount to an arrest in certain cases, but not on all cases. A person who is taken by the customs officers either for the purpose of enquiry or interrogation or investigation cannot be held to have come into custody and he cannot be deemed to have been arrested from the moment he was taken into custody. 13. Similar view was also expressed by the Full Bench of the Hon'ble Madras High Court in the case of Roshan Beevi vs. Joint Secretary to the Government of Tamilnadu reported in 1984 Cr.L.J. 134 (Madras). 14. In view of the well settled legal position, it is held that the statement recorded under Section 108 of the each of the accused-petitioners in the present case is a material piece of evidence and it is admissible in evidence atleast for the purpose of disposal of these bail applications more particularly in view of the fact that it is not even the case of petitioners themselves that they have retracted from these statements or they were forced, induced or threatened by the customs officials to make such statements. 15. Perusal of material available on record, including statements of petitioners recorded under Section 108 of the Act and the entries made in their passports and invoices of purchase of gold, prima facie reveals that : (a) The petitioners are frequent fliers from outside India to India at different Airports from time to time and more particularly in the year 2014. Accused-petitioner-Smt. Shilpa Uttam Chand @ Faiza visited 15 times during the period from 24.8.2014 to 2.1.2015, whereas accused-petitioner-Smt.Amal Mubarak Salim Al Reiyami visited 13 times between 20.12.2013 to 2.1.2015. Apart from Jaipur International Airport, they arrived at Mumbai, Chennai and Hyderabad Airports also. Accused-petitioner-Smt. Shilpa Uttam Chand @ Faiza visited 15 times during the period from 24.8.2014 to 2.1.2015, whereas accused-petitioner-Smt.Amal Mubarak Salim Al Reiyami visited 13 times between 20.12.2013 to 2.1.2015. Apart from Jaipur International Airport, they arrived at Mumbai, Chennai and Hyderabad Airports also. It is also clear that their stay in India was very short period and some times only for a single day. (b) Accused-petitioner-Smt.Shilpa Uttam Chand @ Faiza is second wife of petitioner-Shri Abdul Ali Jalil and they although are Indian Nationals having Indian passports, but they almost permanently reside in Muskat with their family and own various established businesses there. Petitioner- Smt.Amal Mubarak Salim Al Reiyami is a close friend of petitioner-Smt.Shilpa Uttam Chand @ Faiza. (c) All the petitioners arrived at Jaipur International Airport on 2.1.2015 by the same Flight i.e. Flight No.WY0271 of Oman Air. Petitioner Abdul Ali Jaleel was found in possession of gold weighing 350.100 gms. valued at Rs.9,50,530/-, petitioner-Smt.Shilpa Uttam Chand @ Faiza was found in possession of gold weighing 1167.000 gms. valued at Rs.31,68,405/- and accused-petitioner-Smt.Amal Mubarak Salim was also found in possession of gold weighing 1167.000 gms. valued at Rs.31,68,405/- and thus, total gold weighing 2684.100 gms.valued at Rs.72,87,311/- was recovered from the joint possession of the accused-petitioners without declaration and without paying customs duty. (d) The gold recovered and seized from the possession of the petitioners was jointly brought by them from Muskat and each of them was having knowledge that the other is also in possession of the gold. The recovered gold was concealed by each of the petitionrs in similar manner i.e. in his/her footwear and all the gold bars which were recovered from the possession of the petitioners were having the same ingraved markings. (e) Accused-petitioner-Smt.Shilpa Uttam Chand @ Faiza was appre-hended at Mumbai Airport by the customs officers on 1.6.2014 with gold bangles weighing 1184.000 gms valued at Rs.29,03,263/-, whereas Smt.Amal Mubarak Salim was caught at the same Airport on 26.5.2014 with gold bangles weighing 1200 gms. and the same was seized and confiscted by the competent authority as they failed to declare the same and did not make payment of the requisite customs duty. and the same was seized and confiscted by the competent authority as they failed to declare the same and did not make payment of the requisite customs duty. (f) The petitioners jointly and in connivance to each other on several previous occasions smuggled into India without declaration and without payment of customs duty gold or gold items total weight 11362.980 gms valued at Rs.3,12,48,195/- and they were operating as an organized racket. The total weight of the gold so far jointly smuggled by the petitioners comes to be 14,047.80 gms. valued at Rs.3,85,35,526/- and value of the customs duty evaded or attempted to be evaded is more than Rs. 50 lacs. (g) Gold recovered from the possession of Smt.Amal Mubarak Salim was concealed in her footwear by the remaining two accused. 16. Now, it is to be considered whether offence for which each of the petitioners 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. 17. Clause (a) of Section 2 of the Criminal Procedure 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 expressely 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. 18. It is now further to be seen whether there is any provision in the Act which expressly or impliedly provides that the offences or any of them under the Act are/is is bailable offence. 19. Section 104 of the Act is relevant for this purpose which is as below: Section 104. Power to arrest. 18. It is now further to be seen whether there is any provision in the Act which expressly or impliedly provides that the offences or any of them under the Act are/is is bailable offence. 19. Section 104 of the Act is relevant for this purpose which is as below: 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 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 whih are also notified under sub-clause © 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. 20. 20. Thus, sub-section (6) of Section 104 of the Act provides that notwithstanding anything containing in the Code, offences punishable under Section 135 of the Act in the following circumstances 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 (1) 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. 21. Sub-sec. (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-sec. (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 petitioners in the present cases is bailable or non-bailable. 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 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, 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 exceeding fifty lakh of rupees. A close reading of the above provision makes it very clear that it takes into its sweep “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 petitioners 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 petitioners 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. This Court vide order dated 5.1.2015 passed in S.B.Criminal Misc.Bail Application No.11193/2014 (Syed Mohammad Zama vs. State of Rajasthan) and S.B.Criminal Misc.Bail Application No.13466/2014 (Najibullah & another vs. State of Rajasthan) after considering the relevant provisions of the Act has held that : "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 petitioners 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. 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. The legal question raised in the above applications was answered by this Court in the following words: "Thus, my answer to the legal question raised in the present applications is that the gold or gold items imported by each of the petitioners 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 petitioners 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. There is no reason now to take a different view. 27. I am of further view that previous transactions can be taken into account for the purpose of determining whether the import of alleged goods exceeded the market price of one crore rupees envisaged under Section 104 (6) (c) of the Act as the previous transactions and the evasion of customs duty came to light only after the petitioners were apprehended with possession of smuggled gold on 2.1.2015 at Jaipur International Airport and disclosure statement under Section 108 of the Act were made by them and, therefore, the continuous transactions carried out by the petitioners over the period of time can rightly be reckoned together to proceed against them. Prior to the amendment made under the Finance Act, 2012 which came into force with effect from 10.5.2013, all offences under the Act were bailable and it was also so held by the Hon'ble Supreme Court in the case of Om Prakash vs. Union of India reported in (2011) 14 SCC 1 . Prior to the amendment made under the Finance Act, 2012 which came into force with effect from 10.5.2013, all offences under the Act were bailable and it was also so held by the Hon'ble Supreme Court in the case of Om Prakash vs. Union of India reported in (2011) 14 SCC 1 . Thereafter, amended was effected in Section 104 of the Act and offences committed in the circumstances as mentioned in sub-section (6) were made to be non-bailable. The object and purpose of the amendment is obvious. No person can be allowed to defeat the purpose for which the amendment has been made. One can misuse the provision by importing goods without declaration and making payment of customs duty having market price not more than one crore rupees or liable to customs duty not exceeding fifty lacs rupees at a time and in case of being apprehended, after getting bail as of right can repeat the act one or more time in the same manner. A pragmatic and realistic view is required to be taken in the light of the amendment recently made in the Act. The statement of object and reasons shows that the Act is regulatory, preventory and punitive in nature. A meaningful interpretation is to be given to sub-section (6) of Section 104 of the Act. The petitioners can not be allowed to contend that each transaction alleged of in a case should be dealt with separately in invoking the offence under Section 135 of the Act. They have no substantive right under law to claim for their prosecution treating each transaction separately where the offence was detected only later on. 28. Similarly, the petitioners cannot be allowed to contend that transaction or transactions carried out by each of the petitioners is to be considered individually and separately. In my view the expression "Any person" used in Section 135 of the Act does not mean only one person but more than one person also if they jointly and knowingly involve themselves for fraudulent evasion or attempted evasion of customs duty chargeable of goods. If more than one person acting in concert with each other has evaded or attempts to evade customs duty, each of them should be treated as "Any Person" within the meaning of Section 135 of the Act. 29. If more than one person acting in concert with each other has evaded or attempts to evade customs duty, each of them should be treated as "Any Person" within the meaning of Section 135 of the Act. 29. So far as grant of bail to the petitioners on merit is concerned, looking to the gravity of the offence and likelihood of the repetition of the same, petitioners are not entitled to bail on merit also. In economic offences as in the present cases interest of the national economy is adversely 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. 30. Hon'ble Supreme Court in the case of State of Gujarat vs. Mohanlal Jitamalji Porwal and anr. reported in AIR 1987 SC 1321 has observed as under:- "The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Comminity. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest." 31. In the present cases it is also relevant to note that although accused-petitioners-Abdul Ali Jaleel and Smt.Shilpa Uttam Chand @ Faiza are Indian Nationals, but they almost permanently reside in Muskat with their family and own various established businesses there and it is unlikely that they will return to India to face the trial once the bail is granted to them. Similarly, Smt.Amal Mubark Salim being a foreign national may escape from India once bail is granted to her to avoid the trial against her. 32. Consequently, all the three applications for grant of bail under Section 439 Cr.P.C. are, hereby, dismissed.