2008 (9) TMI 373 - HC - Customs

Deposit the passport with the Customs Department - bail - whether a Court under the said Code of 1973 while granting bail in a bailable offence can impose a condition of surrender of passport and further condition that the accused shall not travel abroad without permission of the Court? Held that - The Magistrate cannot impose a condition while granting bail in a bailable offence of not leaving India without the permission of the Court. Whenever the Petitioner is enlarged on bail, he is bound to attend the concerned Court on the date fixed or whenever he is called upon to do so. This obligation is created by the bail bond. The application is allowed by setting aside the direction in order dated 15th April 2006 of depositing the passport as well as the consequential direction that the Petitioner shall not leave India without prior permission of the Court. It is however clarified that the Petitioner is bound by the other conditions incorporated in the bail bonds.The passport of the Applicant shall be returned to him within a period of six weeks from today.

Summary

Issues Involved:
1. Whether a Court under the Code of Criminal Procedure, 1973, while granting bail in a bailable offence, can impose a condition of surrender of passport and a condition that the accused shall not travel abroad without permission of the Court.

Issue-wise Detailed Analysis:

1. Imposition of Conditions on Bail in Bailable Offences:
The Petitioner challenged the order by the Additional Chief Metropolitan Magistrate directing the surrender of his passport and prohibiting him from leaving India without the Court's permission. The Petitioner was arrested under Section 104 of the Customs Act, 1962, for an alleged offence under Section 135(1)(ii) of the same Act. The Petitioner argued that the offence was bailable and cited various precedents to support that a Court cannot impose conditions such as the surrender of a passport while granting bail in a bailable offence.

The Court acknowledged that the offence was indeed bailable. The main question was whether the Magistrate could impose conditions like surrendering the passport and restricting travel abroad. The Court referred to Section 436 of the Code of Criminal Procedure, 1973, which provides the right to bail for bailable offences. The Court emphasized that under Section 436(1), the accused has an absolute right to bail if willing to offer bail. The Court also noted that Section 436 does not grant the Court the power to impose conditions while granting bail in bailable offences.

The Court examined precedents, including the Apex Court's rulings in *State of Gujarat v. Lalsingh Kishansingh* and *T. Barai v. Henry Ah Hoe*, which reinforced the principle that bail in bailable offences is a matter of right and cannot be subjected to conditions like surrendering the passport.

2. Analysis of Relevant Legal Provisions:
The Court analyzed Sections 437 and 439 of the Code, which deal with bail in non-bailable offences, and noted that these sections allow imposing conditions for bail. However, these provisions do not apply to bailable offences. The Court also referred to Section 441, which outlines the bond requirements for bail and does not mention imposing additional conditions like passport surrender.

3. Precedents and Judicial Interpretation:
The Court referred to the decision in *Talab Haji Hussain* where the Apex Court upheld the absolute right to bail in bailable offences. The Court also considered the decision in *Hazari Lal Gupta v. Rameshwar Prasad*, which did not support imposing conditions for bailable offences. The Court concluded that imposing conditions like passport surrender would defeat the accused's absolute right to bail under Section 436(1).

4. Conclusion and Order:
The Court held that the Magistrate had no jurisdiction to impose conditions such as surrendering the passport or restricting travel abroad while granting bail in a bailable offence. The Court set aside the directions in the order dated 15th April 2006 related to the passport and travel restrictions. The Petitioner was bound by other conditions in the bail bond, and the passport was to be returned within six weeks.

Summary:
The High Court ruled that while granting bail in a bailable offence, the Court cannot impose conditions such as surrendering the passport or restricting travel abroad. Such conditions would violate the accused's absolute right to bail under Section 436(1) of the Code of Criminal Procedure, 1973. The Court set aside the Magistrate's order imposing these conditions and directed the return of the Petitioner's passport.