2012 (11) TMI 448 - HC - Customs

Grant of Bail fraudulent availment of duty drawback by exporting inferior quality garments in the name of bogus firms ACMM granted interim Bail Held that - ACMM in his order granting bail to the petitioner, has recorded the involvement of certain custom officers in the offence, and has stated that there are allegations of illegal detention, against those custom officials, pertaining to the same case - apprehension of the respondent to be kept in illegal custody, is justified - right of the respondent, to surrender himself to the competent Court, squarely falls within the ambit and scope of Section 437 CrPC, and cannot be held to be arbitrary or illegal - The provisions of a Special Act, in this case the Customs Act, cannot override the provisions of the CrPC, unless expressly provided so in the special Act - grant of bail to the respondent shall not hamper the investigation or prejudice the investigation

Issues Involved:
1. Jurisdiction of the learned ACMM in granting bail under Section 437 CrPC.
2. Applicability of Section 437 CrPC to offences under the Customs Act.
3. Nature of the respondent's status as an accused or suspect.
4. Validity of the respondent's bail application and subsequent grant of bail.

Issue-wise Detailed Analysis:

1. Jurisdiction of the learned ACMM in granting bail under Section 437 CrPC:
The department challenged the order of the learned ACMM granting bail to the respondent, arguing that the learned ACMM exceeded his jurisdiction. The department contended that no formal accusation or complaint had been registered against the respondent, and the matter was still under investigation. Therefore, the learned ACMM had no jurisdiction to entertain the bail application under Section 437 CrPC. The court analyzed Section 437 CrPC, which allows a Magistrate to grant bail to persons accused or suspected of committing a non-bailable offence. The court concluded that the learned ACMM had the jurisdiction to entertain the bail application since the respondent appeared voluntarily and surrendered to the court's jurisdiction, thereby being in "custody" within the meaning of Section 439 CrPC.

2. Applicability of Section 437 CrPC to offences under the Customs Act:
The department argued that the offences under the Customs Act are non-bailable and non-cognizable, and the exercise of jurisdiction by the Magistrate would not be applicable. The court referred to Section 104 of the Customs Act, which empowers a customs officer to arrest a person suspected of committing an offence under the Act and produce them before a Magistrate. The court held that the provisions of the Customs Act do not override the CrPC unless expressly provided. Therefore, the respondent's right to seek bail under Section 437 CrPC was valid.

3. Nature of the respondent's status as an accused or suspect:
The respondent argued that he was a suspect in the alleged offence, as evidenced by the show cause notice issued by the department. The court noted that the respondent's residence was searched, and several incriminating documents were seized. Statements of other witnesses under Section 108 of the Customs Act indicated the respondent's involvement in the offence. The court held that a person summoned by the customs authorities under Section 108 of the Act could be a potential suspect or accused. The court cited the case of Balkrishna Chhaganlal Soni v. State of West Bengal, where the Supreme Court held that "any person" under Section 107 of the Customs Act includes a suspect and potential accused.

4. Validity of the respondent's bail application and subsequent grant of bail:
The department contended that the respondent's bail application was not maintainable as there was no formal complaint against him. The court held that the respondent's surrender to the court's jurisdiction and the learned ACMM's decision to grant bail were within the ambit of Section 437 CrPC. The court found that the learned ACMM had appreciated the evidence on record and granted bail on merits. The court also noted that the learned ACMM directed the respondent to join the investigation as required by the customs authorities, ensuring that the investigation would not be hampered.

Conclusion:
The court dismissed the petition, finding no infirmity in the order of the learned ACMM. The learned ACMM had the jurisdiction to grant bail under Section 437 CrPC, and the respondent's bail application was valid. The court emphasized that the provisions of the Customs Act do not override the CrPC unless expressly provided. The respondent's status as a suspect justified his right to seek bail, and the grant of bail would not prejudice the ongoing investigation.

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