1987 (10) TMI 67 - HC - Customs

Summary

Issues Involved:
1. Validity of bail granted by the Principal Sessions Judge.
2. Applicability of Section 439(2) and Section 482 of the Criminal Procedure Code.
3. Considerations for granting bail to a foreign national.
4. Judicial discretion and its exercise in granting bail.
5. Legal precedents and principles laid down by the Supreme Court regarding bail.

Detailed Analysis:

1. Validity of Bail Granted by the Principal Sessions Judge:
The Assistant Collector of Customs filed a petition to set aside the bail granted to the first respondent by the Principal Sessions Judge, Madras. The first respondent was found in possession of 33 gold bars, valued at Rs. 11,59,116/-, concealed in a cloth belt tied around his waist upon arrival from Singapore. The respondent admitted to possessing the gold without a valid import permit, leading to his arrest and judicial custody. Despite objections from the petitioner, the Sessions Judge granted bail on the condition of a bond for Rs. 10,000/- with two sureties, one of whom must be local, and daily reporting to the trial court. The petitioner sought to cancel this bail, arguing that the respondent, a Malaysian national with no roots in India, was likely to abscond.

2. Applicability of Section 439(2) and Section 482 of the Criminal Procedure Code:
The petition was filed under Section 482 Cr. P.C., seeking to set aside the bail order on the grounds of it being in violation of Supreme Court principles. Section 439(2) Cr. P.C. allows the High Court or Sessions Court to direct the arrest and custody of a person released on bail if supervening circumstances, such as abuse of liberty or interference with investigation, arise. However, the present application sought review based on alleged serious infirmities in the original bail order, not supervening circumstances.

3. Considerations for Granting Bail to a Foreign National:
The court emphasized that one major factor in granting bail is the possibility of the accused fleeing from justice. For foreign nationals, this risk is higher due to the difficulty in re-arresting them if they leave the country. The court noted that requiring execution of bonds with sureties is inadequate in such cases, especially in economic offenses. The respondent's lack of roots in India and the serious nature of the offense increased the likelihood of absconding, making bail inappropriate.

4. Judicial Discretion and Its Exercise in Granting Bail:
Granting bail is within the discretion of the court, but this discretion must be exercised judiciously based on established principles. The court scrutinized the Sessions Judge's order, finding that it failed to consider the nature and seriousness of the offense, the evidence against the accused, and the respondent's peculiar circumstances. The Sessions Judge's reasoning that the presumption of innocence and the need to prove guilt at trial preclude considering these factors at the bail stage was deemed erroneous.

5. Legal Precedents and Principles Laid Down by the Supreme Court Regarding Bail:
The court referred to several Supreme Court decisions, including *State v. Captain Jagjit Singh* and *Gurcharan Singh v. State (Delhi Admn.)*, which outline considerations for bail in non-bailable offenses. These include the nature of the offense, evidence, the accused's peculiar circumstances, the likelihood of absconding, and the public interest. The Supreme Court emphasized the need to ensure the accused's presence for trial and prevent tampering with evidence. The court found that the Sessions Judge's order did not align with these principles, warranting interference.

Conclusion:
The petition was allowed, and the bail order of the Principal Sessions Judge, Madras, was set aside. The court directed the petitioner to complete the investigation without delay and expedite the trial if a complaint is filed. The decision underscored the necessity of adhering to established judicial principles and the paramount importance of securing the accused's presence for trial in granting bail.