2019 (10) TMI 26 - HC - Customs

Arrest of person after cancellation of Application for anticipatory bail by the sessions court - Compoundable Offences - section 137(3) of the Customs Act, 1962 - prohibited goods - smuggling of exotic animals - HELD THAT - Admittedly clauses (a), (c) and (d) of section 104(6) of the Customs Act, 1962 are not applicable. We are unable to accept the contention of learned counsel for the Respondent-DRI that even if prohibited goods are not those which are notified under sub-clause (c) of clause (i) of section 135(1) and are only notified under section 11, that would be sufficient to invoke sub-section (6) of Section 104. Such an interpretation would render the words which are also notified under sub-clause (C) of clause (i) of section 135(1) , in sub-section (6) as redundant and nugatory. Such an interpretation is contrary to all cannons of law. The provisions which relate to personal and liberty and fundamental rights guaranteed under Article 21 of the Constitution of India cannot be interpreted in such a manner as is being suggested by the Respondents. We are, therefore, clear that section 104(6)(b) is not attracted in the case of exotic animals - the offence alleged against the Petitioner would fall under section 104(7) of the Customs Act and thus shall be bailable. It is trite that in a bailable offence, the arresting officer is obliged to inform the arrestee that the offence is bailable and would be further obliged to release the arrestee on bail by virtue of provisions of section 104(3) of the Customs Act, 1962 - there is no hesitation in holding that not only the petition is maintainable but also the Petitioner is entitled to be released on bail. In the light of the express statutory provision permitting the compounding of offence and rule which prescribe the procedure for dealing with the application for compounding, the authorities cannot show disinclination to entertain and determine the application for compounding the offence alleged. It is directed that the Petitioner to attend the DRI office, Mumbai Zonal Unit on every Monday between 11.00 a.m. to 2.00 p.m. till issuance of the SCN - we are not inclined to grant the same since the Petitioner was arrested in a bailable offence in violation of the fundamental rights under Article 21 of the Constitution of India.

Issues Involved:
1. Classification of the alleged offense as bailable or non-bailable under the Customs Act, 1962.
2. The petitioner's application for compounding the offense.
3. The petitioner's right to bail and the conditions attached to it.
4. The maintainability of the writ petition and the enforcement of fundamental rights under Article 21 of the Constitution of India.

Issue-wise Detailed Analysis:

1. Classification of the Alleged Offense as Bailable or Non-Bailable:
The petitioner was arrested under Section 104 of the Customs Act, 1962, for an offense punishable under Section 135(1)(i) of the Act. The primary contention was whether the alleged offense was bailable or non-bailable. The court examined Sections 104(6) and 104(7) of the Customs Act, which classify offenses into bailable and non-bailable categories. The court noted that the alleged offense involved smuggling exotic animals, which are not native to India. However, the court found that there was no notification under Section 135(1)(i)(c) specifying exotic animals as "prohibited goods," thus making the offense bailable under Section 104(7).

2. The Petitioner's Application for Compounding the Offense:
The petitioner had filed an application for compounding the offense under Section 137(3) of the Customs Act, 1962, before the filing of any criminal prosecution. The court noted that Section 137(3) permits the filing of a compounding application at any stage, either before or after the institution of prosecution. The court found no statutory bar in filing or entertaining an application for compounding in respect of exotic animals. The court directed the adjudicating authority to issue a show cause notice and quantify the amount payable, followed by a decision on the compounding application by the Chief Commissioner of Customs.

3. The Petitioner's Right to Bail and Conditions Attached:
The court held that the alleged offense was bailable under Section 104(7) of the Customs Act, 1962. The petitioner was entitled to be released on bail, having been in custody since 13th September 2019. The court ordered the petitioner to be released on cash bail of ?50,000, to cooperate with the investigation, and to attend the DRI office every Monday between 11:00 a.m. to 2:00 p.m. until the issuance of the show cause notice. The court did not impose the condition that the petitioner should not leave Mumbai without prior permission.

4. Maintainability of the Writ Petition and Enforcement of Fundamental Rights:
The court emphasized that the writ jurisdiction is available to enforce fundamental rights, especially under Article 21 of the Constitution of India. The court found a clear breach of Articles 21 and 22, as the petitioner was detained in a bailable offense without being offered bail. The court held that the writ petition was maintainable and that the petitioner was entitled to be released on bail. The court also noted that none of the judgments cited by the respondents were applicable to the peculiar facts and circumstances of this case.

Conclusion:
The court allowed the writ petition, holding that the alleged offense was bailable and that the petitioner should be released on bail. The court directed the adjudicating and compounding authorities to expedite the adjudication and compounding processes. The petitioner was also directed to cooperate with the investigation and attend the DRI office weekly until the issuance of the show cause notice. The court emphasized the enforcement of fundamental rights under Article 21 of the Constitution of India.

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