2004 (9) TMI 117 - HC - Customs

Application for anticipatory bail by another accused - Whether the offence referable to Section 135(1)(ii) of the Act for which the Applicants are being proceeded with, by the Customs Officers in exercise of powers u/s 104 of the Customs Act, can be said to be a bailable offence or a non-bailable offence? - HELD THAT - We shall now specifically advert to the non-cognizable offences where punishment provided is imprisonment which may extend to three years, or fine, or both, as is the case in the present enactment and in Part I of the First Schedule to the Code, those offences have been made bailable. These offences are under Sections 181, 193 (IInd Part), 201 (IInd Part), 205, 214 (IInd Part), 225A, 312 (1st Part), 404, 418, 484, 485, 487 and 488 of the Indian Penal Code. In other words, all these offences under the Indian Penal Code, the punishment provided is imprisonment, which may extend to three years, or with fine, or with both, even then have been made bailable. In that sense, the Scheme of the Code is indicative of the Legislative intention that non-cognizable offences punishable with imprisonment which may extend to three years, have bean treated on par with offences where imprisonment is for less than three years , so as to make them bailable. Applying the same analogy to the case on hand, Section 135(1)(ii) of the Act, which provides for punishment similar to several provisions in the Indian Penal Code, as referred to above, I have no hesitation in holding that the subject offence is bailable; and more so, when the offence in question is required to be tried summarily by the Magistrate by virtue of Section 138 of the Act. Thus, I have no hesitation in. accepting the arguments of the Petitioner-Applicant that the offence u/s 135(1)(ii) of the Act is bailable. This view is also reinforced from the Customs Manual issued by the Ministry of Finance dated September 1, 2001 (1st Edition), which is a contemporaneous exposition by the administrative authorities and a relevant guide to the interpretation of the expressions used in the Statute. Para 26 or the said Manual plainly concedes that the offence u/s 135(1)(ii) of the Act is non-cognizable and bailable offence. In the light of the instructions issued by the Finance Ministry, it was not open to the Respondents to argue to the contrary. In any case, for the reasons already recorded hereinbefore, the Application preferred by the Applicants herein should succeed. In other words, as the offence u/s 135(1)(ii) is a non-cognizable and bailable offence, the question of Magistrate remanding the Applicant to judicial custody does not arise. At the same time, as the offence is bailable offence, there is no question of granting anticipatory bail with regard to that offence. Even if the Applicant was to be arrested by the Officer of the Customs in exercise of power u/s 104 of the Act, as the offence is one u/s 135(1)(ii) of the Act and therefore, bailable, the Officer would be obliged to release the Applicant on bail by virtue of Section 104(3) of the Act. Accordingly, the Petition as well as the Application are disposed of on the above basis.

Summary

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.