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2004 (9) TMI 117 - HC - Customs


Issues Involved:
1. Whether the offence under Section 135(1)(ii) of the Customs Act, 1962 is a bailable or non-bailable offence.
2. Validity of the judicial custody remand order for the writ petitioner.
3. Application for anticipatory bail by another accused.

Summary:

Issue 1: Whether the offence under Section 135(1)(ii) of the Customs Act, 1962 is a bailable or non-bailable offence.

The principal question is whether the offence under Section 135(1)(ii) of the Customs Act, 1962 is bailable or non-bailable. The petitioner argued that the offence is bailable, relying on Section 104 of the Act, which empowers Customs Officers to arrest and produce the accused before a magistrate without unnecessary delay. Section 135(1)(ii) provides for imprisonment up to three years or fine or both, which, according to the petitioner, falls under Entry 3 of Part II of the First Schedule of the Code of Criminal Procedure (CrPC), making it a bailable offence. The court noted that Section 138 of the Act mandates that such offences be tried summarily by a magistrate, reinforcing the argument that the offence is bailable. The court also referred to the Customs Manual issued by the Ministry of Finance, which categorizes such offences as bailable. The court distinguished the present case from the Gujarat High Court decision, which dealt with Section 135(1)(i) and involved more stringent parameters.

Issue 2: Validity of the judicial custody remand order for the writ petitioner.

The petitioner challenged the remand order on the ground that the offence is bailable, and thus, judicial custody was not warranted. The court accepted the petitioner's argument, stating that since the offence under Section 135(1)(ii) is bailable, the magistrate's order remanding the petitioner to judicial custody was not justified. The court emphasized that non-cognizable offences punishable with imprisonment up to three years are generally treated as bailable under the CrPC.

Issue 3: Application for anticipatory bail by another accused.

Another accused, in a related matter, sought anticipatory bail on the same grounds that the offence is bailable. The court held that since the offence under Section 135(1)(ii) is bailable, there is no need for anticipatory bail. If arrested, the accused would be entitled to bail as per Section 104(3) of the Act.

Conclusion:

The court concluded that the offence under Section 135(1)(ii) of the Customs Act, 1962 is a bailable offence. Consequently, the remand order for judicial custody was invalid, and there was no need for anticipatory bail for the other accused. The court stayed the operation of its judgment for six weeks to allow the respondents to appeal.

 

 

 

 

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