2008 (4) TMI 323 - HC - Customs

Whether the Court has power to impose condition while enlarging the accused on bail in a non-bailable offence, where punishment is not more than 7 years? OR Whether power to impose condition can be exercised by the Court in a case of non-bailable offence only when punishment is more than 7 years? Held that - As the petitioner has already preferred a fresh application and the same is being heard by another learned Single Judge of this Court, this issue may be left open or may be answered in any other appropriate proceedings. Therefore, it is not necessary to answer the question posed in the order of Reference by the learned Single Judge. This Reference is accordingly disposed of.

Summary

Issues:
1. Disagreement on the law laid down in a previous case regarding bail conditions in non-bailable offences.
2. Whether the offence under Section 135(1)(ii) of the Customs Act is bailable or non-bailable.

Issue 1: Disagreement on bail conditions in non-bailable offences
The case involved a reference made by a learned Single Judge regarding the imposition of conditions while enlarging an accused on bail in a non-bailable offence with a punishment not exceeding 7 years. The reference questioned whether the court had the power to impose conditions in such cases or only when the punishment exceeded 7 years. The petitioner, a Director of a company, was arrested for customs duty evasion and applied for bail. The Additional Sessions Judge imposed conditions, including surrendering the passport. The petitioner sought deletion of this condition, arguing that Section 135(1)(ii) of the Customs Act was a bailable offence. The department contended it was non-bailable, citing a Division Bench judgment. The Single Judge rejected the application, stating that the offence was non-bailable, leading to the present petition challenging the order.

Issue 2: Bailable or non-bailable nature of the offence
The petitioner argued that Section 135(1)(ii) of the Customs Act was a bailable offence, relying on a Bombay High Court decision. However, the Single Judge of the High Court concluded that the offence was non-bailable, citing a Division Bench judgment. The petitioner then filed a fresh application for suspension of the bail condition. The Court noted that the Single Judge's finding on the non-bailable nature of the offence rendered the academic discussion on bail conditions irrelevant for the petitioner. The Court deemed it unnecessary to address the legal proposition from the previous case and disposed of the reference. The matter was directed back to the Single Judge for appropriate orders based on the observations made.

This judgment clarified the nature of the offence under Section 135(1)(ii) of the Customs Act as non-bailable, resolving the disagreement on bail conditions in non-bailable offences. The Court emphasized the need to follow established precedents and directed further proceedings to the Single Judge for appropriate orders.