2019 (5) TMI 1368 - HC - Customs

Conditions imposed with regard to grant of Bail - surety and appearance - smuggling of Gold/foreign currency - bailable or non-bailable offences? - HELD THAT - Provisions as regards bail can be broadly classed into 2 categories (1) bailable cases and (2) non-bailable cases. In the former class, grant of bail is a matter of course. It may be given either by the Police officer in charge of a Police station having the accused in his custody or by the Court. The customs officer in exercise of powers under Section 104 is exercising the very same powers of an officer in charge of a Police station as provided under Section 436 of the Code of Criminal Procedure. Section 436 of the Code states that the officer or the Court has no discretion in the matter except to release the accused on bail when produced before them. Even the Court has no discretion while granting bail under Section 436 of the Cr.P.C to impose any condition except the demand for security with sureties. In appropriate cases, the Court has discretion to release the accused by taking only a personal bond without insisting for surety for his appearance. In no event, can onerous conditions be imposed by either the officer or by the Court while releasing the accused in a bailable offence. The petitioners, being persons accused of only a bailable offence, have a right to be enlarged on bail without they being burdened with onerous conditions. For the very same reason, the customs officer is bereft of jurisdiction to impose a condition which is not a term as to bail. Condition Nos. 2 to 4 imposed by the Assistant Commissioner of Customs in Annexures-A2 A3 orders produced in these cases are, therefore, set aside. - petition allowed.

Summary

Issues:
1. Imposition of conditions by the Assistant Commissioner of Customs while granting bail in bailable offences.

Analysis:
The petitioners were apprehended for smuggling gold or foreign currency at the Cochin International Airport. The market value of the currency/gold was below ?50 lakhs, and they were arrested under Sections 132, 135 (a), (b), (c) of the Customs Act, 1962. The Assistant Commissioner of Customs granted bail to the petitioners under Section 104 (3) of the Customs Act, imposing conditions including standing surety, reporting to authorities, and not getting involved in any offense during the bail period. The petitioners challenged these conditions as illegal, arguing that being bailable offences, they have the right to be released on bail without such conditions.

The learned counsel for the petitioners contended that the imposition of conditions 2, 3, and 4 by the customs officer was illegal as the petitioners, being accused of bailable offences, have the right to claim bail without onerous conditions. Reference was made to Section 104 of the Customs Act, 1962, stating that for releasing an arrested person on bail, a customs officer is subject to the same provisions as an officer-in-charge of a police station under the Code of Criminal Procedure. It was argued that the conditions imposed were beyond the jurisdiction of the customs officer.

The Court analyzed the provisions related to bail in bailable cases under Section 436 of the Code of Criminal Procedure. It highlighted that the officer or the Court has no discretion to refuse bail in bailable cases and can only demand security with sureties. Precedents such as Talab Haji Hussain v. Madhukar Purushottam Mandkar were cited to emphasize that accused persons of bailable offences are entitled to be released on bail without onerous conditions. The Court held that the Assistant Commissioner of Customs had no jurisdiction to impose conditions beyond the terms of bail in bailable offences. Consequently, the conditions imposed by the Assistant Commissioner of Customs were set aside, and the petitions were allowed.