2021 (7) TMI 1148 - HC - Customs

Grant of default bail - Smuggling - contraband gold bars - discharge of burden of proof u/s 123 of the Customs Act, 1962 - offence punishable under Section 135(1)(b)(i)(A) and Section 135(1)(b)(i)(C) of the Customs Act, 1962 - HELD THAT - The petitioners in the instant case have been granted default bail as per the proviso (a) (ii) of Section 167(2), CrPC as the investigating authority could not submit the final complaint within the prescribed period of 60 (sixty) days considering the fact that the offences under Section 135(1)(b)(i)(A) and Section 135(1)(b)(i)(C) of the Customs Act, 1962 are punishable with rigorous imprisonment which may extend upto a period of 7 (seven) years and fine. As the provisions of Chapter XXXIII (Provisions as to Bail and Bonds) are applicable also in respect of the default bail granted as per the proviso (a)(ii) and (a)(ii) to Section 167(2), CrPC, the Court is empowered to impose the conditions (a), (b) and (c) as per sub-section (3) of Section 437, CrPC and it may also impose such other conditions as it considers necessary in the interests of justice. Section 439(1)(a) of the Code has also empowered the Court to impose any condition which is considered necessary for the purpose. Though no exception can be taken in respect of the order of the learned jurisdiction Court for release of the petitioners on default bail on furnishing bail of ₹ 1,00,000/- each in today s context and in view of the purported involvement of the petitioners in an offence involving smuggling of gold bars of huge quantity of substantial value but considering the fact that they have failed to furnish the bail bonds for the said sum since 08.06.2021 till date, this Court in the interests of justice and taking into consideration the right to personal liberty of a person, as ingrained in Article 21 of the Constitution of India, has found it to be a fit case to exercise the discretion available under sub-section (2) of Section 440 of the Code to reduce the amount of bail bond from ₹ 1,00,000/- each to ₹ 50,000/- each. The two petitioners i.e. the two accused shall be released on bail on furnishing a bail bond of ₹ 50,000/- each with 2 (two) sureties each of the like amount - Petition disposed off.

Summary

Issues Involved:
1. Legality of the conditions imposed for bail.
2. Applicability of Section 436, CrPC.
3. Discretion under Section 440, CrPC regarding the amount of bail bond.

Detailed Analysis:

Legality of the Conditions Imposed for Bail:
The petitioners sought modification of the order dated 08.06.2021, which granted them default bail under proviso (a)(ii) to Section 167(2), CrPC, but imposed conditions including a bail bond of ?1,00,000 each. The petitioners argued that the bail bond amount was onerous due to their financial condition and the prevailing COVID-19 pandemic. The Court considered the submissions and the decision in Moti Ram vs. State of Madhya Pradesh, emphasizing the need for bail conditions to be reasonable and not excessive.

Applicability of Section 436, CrPC:
The petitioners' counsel referred to the Explanation to sub-section (1) of Section 436, CrPC, which pertains to bail for persons accused of bailable offenses. However, the Court found this provision inapplicable as the petitioners were arrested for a non-bailable offense under the Customs Act, 1962. The Court clarified that the substantive part of Section 436(1) CrPC is not relevant to the petitioners' case.

Discretion under Section 440, CrPC regarding the Amount of Bail Bond:
Section 440 of the CrPC empowers the Court to fix the amount of bail bond with due regard to the circumstances and to ensure it is not excessive. The Court noted that the petitioners were granted default bail under Section 167(2), CrPC, as the investigation was not completed within the prescribed 60 days. The Court emphasized that while the amount of bail should reflect the seriousness of the offense, it should also consider the accused's financial capacity and not be excessively burdensome.

The Court referred to the Supreme Court's observation in Parvez Noordin Lokhand Walla vs. State of Maharashtra, highlighting the need for bail conditions to facilitate justice without impeding the investigation or overawing witnesses. Given the petitioners' inability to furnish the bail bond since 08.06.2021, the Court exercised its discretion under Section 440(2), CrPC, to reduce the bail bond amount from ?1,00,000 each to ?50,000 each, while retaining other conditions imposed by the Additional Sessions Judge.

Conclusion:
The revision petition was disposed of with the direction to reduce the bail bond amount to ?50,000 each, considering the petitioners' financial condition and the right to personal liberty under Article 21 of the Constitution of India. The other conditions set forth in the original bail order remained unchanged.