2019 (1) TMI 624 - HC - Customs

Cancellation of bail - smuggling of red sanders - bailable offence - Held that - Considering the facts and circumstances of the case and since the fact remains that the Learned Magistrate under the impression that the respondent committed the offence, which is bailable one and accordingly, granted bail to him, without ordering notice to the prosecution, however, the Learned Magistrate has not perused the remand report and the remand report reveals that the respondent/accused was booked under Section 135(1)(C) of the Customs Act, which is non-bailable one, therefore, issuing notice to the petitioner is mandatory - petition allowed.

Summary

Issues:
Challenge to bail order granted without notice to prosecution and without considering the nature of the offence.

Analysis:
The prosecuting agency filed a cancellation petition challenging the bail order granted to the respondent/accused without notice to the petitioner and without considering the seriousness of the offence. The prosecution alleged that the respondent is a habitual offender involved in smuggling red sanders, a prohibited item for illegal exports. The trial court, without ordering notice to the prosecution and without hearing their side, granted bail to the respondent under Section 436 of the Cr.P.C., treating the offence as bailable. However, the petitioner had booked the respondent under a non-bailable offence under Section 135(1)(C) of the Customs Act. The prosecution argued that the trial court's decision to grant bail without perusing the remand report and considering the nature of the offence was unsustainable in law.

The defense counsel for the respondent argued that the case was initially registered under a bailable offence, Section 135A of the Customs Act. The respondent filed a bail petition under Section 436 of the Cr.P.C., believing that the offence was bailable. The defense contended that the trial court granted bail to the respondent based on this belief, without serving notice to the prosecution. However, it was acknowledged that the offence the respondent was implicated in was actually a non-bailable offence under Section 135(1)(C) of the Customs Act. The defense requested liberty for the respondent to file an appropriate petition before the trial court to address this discrepancy.

After hearing arguments from both sides and examining the available materials on record, the court found that the trial court had granted bail to the respondent under the mistaken impression that the offence was bailable. The court noted that the remand report clearly indicated that the offence was non-bailable under Section 135(1)(C) of the Customs Act. As per legal requirements, issuing notice to the prosecution was mandatory in such cases. Therefore, the court allowed the petition and set aside the bail order passed by the trial court. The petitioner police were directed to proceed further in accordance with the law.

In conclusion, the High Court allowed the Criminal Original Petition, setting aside the bail order granted by the trial court. The judgment emphasized the importance of considering the nature of the offence and issuing notice to the prosecution before granting bail, especially in cases involving non-bailable offences.