2009 (3) TMI 208 - HC - Customs

Application for bail - Whether applicant has committed an offence punishable under section 135 of the Customs Act, 1962? Held that - The applicant was arrested on 29-1-2009 and he is in jail for more than 40 days. The prohibited goods have been tendered and seized by the Customs Authorities. Continued detention of the applicant, therefore, in my view, is not necessary since the applicant is permanent resident of India and he could be released on bail subject to certain conditions being imposed on him. Applicant, therefore, be released on bail in R.A. No. 10/2009 in the sum of ₹ 25,000/- with one or two sureties in the like amount. One of the sureties shall be a local surety. Applicant shall report to the Customs Authorities once in three months and shall report to Customs Authorities in Chennai once in a month.Application is accordingly allowed in the aforesaid terms.

Summary

Issues:
1. Interpretation of provisions under section 135 of the Customs Act, 1962 regarding bail eligibility.
2. Determining whether the offense falls under section 135(1)(i)(C) or section 135(1)(ii).
3. Compliance with conditions for export of prohibited goods.
4. Impact of court judgments on bail eligibility and legal proceedings.

Issue 1: The judgment involves the interpretation of provisions under section 135 of the Customs Act, 1962 regarding bail eligibility. The applicant was arrested for attempting to smuggle Ketamine Hydrochloride out of India, leading to an offense under section 135 of the Act. The applicant sought bail, arguing that the offense should fall under section 135(1)(ii), which is a bailable offense. The Counsel for the applicant relied on a judgment by a Single Judge of the Court to support the bail application.

Issue 2: The Court analyzed whether the offense committed falls under section 135(1)(i)(C) or section 135(1)(ii) of the Customs Act. The applicant argued that since no notification was issued by the Central Government under section 135(1)(i)(C), the offense should be considered bailable under section 135(1)(ii). However, the Court disagreed, emphasizing that the definition of "prohibited goods" includes goods subject to any prohibition under the Act or any other law, and non-compliance with export conditions renders goods prohibited.

Issue 3: The judgment addressed the compliance requirements for the export of prohibited goods, specifically Ketamine Hydrochloride in this case. The Court highlighted that an express condition imposed by the Central Government mandated obtaining prior permission from Narcotics Authorities for the export of Ketamine Hydrochloride. Since the applicant failed to comply with this condition, the goods were considered prohibited for export, falling under section 135(1)(i)(C) of the Act.

Issue 4: The impact of previous court judgments on bail eligibility and legal proceedings was also discussed. The Court noted that a previous judgment by a Single Judge, which supported the applicant's bail plea, did not consider the definition of "prohibited goods" under the Customs Act. Additionally, the Court highlighted that the observation in the previous order regarding bail eligibility was incorrect due to the oversight of the definition of prohibited goods.

In conclusion, the Court granted bail to the applicant based on the duration of detention and the applicant's status as a permanent resident of India. Bail was set at Rs. 25,000 with specific reporting conditions to the Customs Authorities. The judgment clarified the interpretation of provisions under section 135 of the Customs Act, emphasizing the importance of compliance with export conditions for prohibited goods and the impact of previous court decisions on legal proceedings.