1985 (7) TMI 115 - HC - Customs

Summary

Issues:
1. Legality of ordering the accused to be taken into jail custody under the Customs Act.
2. Interpretation of provisions under the Customs Act in relation to bail and custody orders.
3. Comparison of decisions from different High Courts on the issue of custody under the Customs Act.

Analysis:
1. The petitioner was alleged to have committed offenses under Section 135 of the Customs Act by smuggling stainless steel through under-invoicing. The Customs Authorities suspected his involvement in smuggling activities from 1981-1983. The petitioner was produced before the learned C.M.M., Calcutta, who remanded him to jail custody and allowed interrogation in jail. The petitioner challenged this order, relying on a Delhi High Court decision that a magistrate had no power to order jail custody under the Customs Act. The High Court granted interim bail to the petitioner, subject to certain conditions.

2. The Customs Authorities argued the gravity of the offenses and contended that the Delhi High Court decision cited by the petitioner was not directly applicable as it pertained to a different act. They referred to decisions from the Kerala and Gujarat High Courts, highlighting the applicability of Section 104 of the Customs Act in granting or refusing bail and ordering custody. The High Court analyzed these decisions and concluded that a magistrate, when authorized to grant bail, also has the right to refuse bail and order custody based on the circumstances of the case. The court found the order for jail custody not illegal and directed the petitioner to surrender and apply for bail before the C.M.M., considering his time on interim bail.

3. The High Court considered various decisions from different High Courts, including the dissenting opinion on the Delhi High Court decision regarding custody under the Customs Act. The court emphasized that the provisions of Section 104 of the Customs Act allow a magistrate to order custody when necessary, and the mode of custody would depend on the facts of the case. The court directed the petitioner to surrender and apply for bail before the C.M.M., allowing the Customs Authorities to make submissions. The case was disposed of with the understanding that the accused had been on interim bail for an extended period without any allegations of evidence tampering.