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TMI Blog1987 (12) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... emptorily fixed for hearing on 19th November, 1987. 2. Both the .sides were heard for a considerable time on facts as well as on law. 3. The facts of the case are as under :- On 4th March, 1987, Officers of the Air Intelligence Unit at Sahar Airport accosted respondent No. 2, Mrs. Aurora Mydlarz, and two others by name Alfanso Maturgo and Mrs. Maria Maturgo on their arrival from Hongkong by British Airways flight No. BA-020 after they cleared themselves from walk through channel by making nil declaration. Respondent No. 2 was carrying a male child in her arms. On being asked by the Officers, all the three persons denied having any contraband. Not being satisfied, the Officers called two panchas and took Alfanso Maturgo to a room for his personal search. On removal of his upper garments, he was found to be wearing a specially made cloth jacket. Detailed examination of the jacket resulted into recovery of 160 gold bars having foreign markings, each weighing ten tolas, collectively weighing 18,658.5 grams and valued at Rs. 48,97,856.20. Similarly, with the help of two lady panchas and a lady Customs Officer, personal search of respondent No. 2 and Mrs. Maria Maturgo was take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, currency and some other documents were seized. Statements of both respondents 1 and 2 as well as of Mr. Mrs. Maturgo were recorded. It is alleged that in the said statements, all of them admitted the" recovery of gold, etc. Respondent No. 2 and said Maria Maturgo are also alleged to have admitted having brought gold in the past and delivered to respondent No. 1. Respondent No. 1 is alleged to have admitted having arrived from Hongkong on 3rd March, 1987 with 210 bars of gold of which 125 were disposed of locally and the balance of 85 bars were seized by the officers from his room in the hotel. In his statement he has further admitted having engaged respondent No. 2 and two others for carrying gold and that he went to Hotel Leela Penta for receiving the same. He gave some information about his previous visits and he is also alleged to have stated that he had brought gold valued at 10 crores on about 21 occasions since July, 1986. 5. The petitioner contended that as the two respondents and two other persons viz., Mr. Mrs. Maturgo, were foreigners and were in custody, even without waiting for the completion of the investigation, a complaint was filed against respondents 1 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of them was in the hospital and their whereabouts were not known. Warrants for their arrest were issued, but they were returned unexecuted. Ultimately, the learned Magistrate forfeited the bail bonds of Mr. Mrs. Maturgo. As Mr. Mrs. Maturgo were absconding, their case was separated and the matter proceeded against respondents 1 and 2 only. 8. In these circumstances, respondents 1 and 2 again moved Criminal Application No. 448 of 1987 for bail. The application for bail was opposed by the Customs Department on the ground that the same was not maintainable in view of the fact that the Sessions Court had rejected identical application and liberty was granted to the respondents if the trial was prolonged by the prosecution. Secondly, it was contended that this is not a case for grant of bail. The other two accused, viz., Mr. Mrs. Maturgo, who were released on bail, had absconded. 9. The learned Judge heard the parties. The learned Judge also considered several authorities which were cited before him, and ultimately, granted the application and ordered both the respondents to be released on bail in the sum of Rs. 1,50,000/- each with one surety each in the like amount. The resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witnesses being tempered with, the larger interests of the public or the State, and similar other considerations which arise when a Court is asked for bail in a non-bailable offence. In the case of Niranjan Singh v. Prabhakar (AIR 1980 S.C 785), the Supreme Court has observed :- Detailed examination of the evidence and elaborate documentation of the merits should be avoided while passing orders on bail applications. No party should have the impression that his case has been prejudiced. To be satisfied about a prima facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself. In Bhagirathsinh Judeja v. State of Gujarat (AIR 1984 S.C. 372), the Supreme Court has observed :- Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. And the trend today is towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1679 of 1987 (Y.R. Mahey v. Shashikant Chadha Anrs.). The learned Judge has laid down the principles as follows :- (i) The first consideration which the Trial Magistrate granting bail should take into consideration is the nature and seriousness of the offence. I may state here that Shri Desai presented me with an elaborate dissertation on the issue that an offence under the Narcotics Act was of a more serious nature than an offence under the Official Secrets Act, 1923. I refuse to be drawn into any such controversy as I consider it to be inane and infructuous. Suffice it to say that offences under both the Acts are of an extremely grave and serious nature. Cases under the Narcotics Act and the offences thereunder affect the health - mental as well as physical - of the populace of large, particularly the younger members and a Society might find on its hands a young generation of doped morons. Offences under the Official Secrets Act may affect the very security and stability of a nation. I may mention here that there is a third kind of offence which is equally grave and serious in nature and that is an offence which has come to be described as an economic offence", that is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il. I am not inclined to accept this submission. The learned Additional Sessions Judge passed the order on 7th November, 1987. But after hearing both the sides, he directed that the order should be made operative from Monday, the 9th November, 1987, at 1 p.m. Before the order became operative and the respondents were, in fact, released on bail, on 9th November, 1987, this Court was moved and stay, pending admission, had been granted by this Court. And ultimately, after hearing both the sides on 10th November, 1987, this petition was admitted and interim stay of the order granting bail was granted. As such, this cannot be termed as an application for cancellation of bail. But this is a petition challenging the order of grant of bail on the ground that it is improper and unjust. 13. If the circumstances in which the gold was attempted to be smuggled into India are taken into consideration, it is clear that respondents 1 and 2 had full knowledge of what they were doing. The offence alleged is of smuggling which can be described as an economic offence. The nature of offence against the accused is also such that their involvement albeit prima facie is evident. The further consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial. It is in this context that the aspect of the probability of the accused fledging from justice assumes importance. Now, as far as the order of the learned Additional Sessions Judge is concerned, he has said that the question which merits consideration is whether the applicants are likely to jump bail in the event they are released on bail. But, unfortunately, the learned Judge has not answered that question in his order at all. The learned Judge has given reasons firstly that the offence with which the accused are charged are not punishable with death or imprisonment for life. Secondly, two other accused, who are foreign nationals, have been released on bail. Unfortunately, the learned Judge has not taken into consideration the fact that those two co-accused after being released on bail, have absconded. The learned Judge has further observed thirdly that the child of the applicants, who was about seven months old at the time of arrest, continued to be in custody for more than seven months, and fourthly, that the child is suffering for the sins committed by others. Fifthly, there is some medical evidence that the child was given treatment in the hospital. Similarly, both the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused would be readily available for trial. The nature of the evidence and the probability of conviction would be relevant at this stage only for the limited purpose of ascertaining whether that would be one of the factors inducing the accused to flee from justice and abscond. 14. Smt. Agarwal, the learned counsel appearing for respondent No. 2, made a plea that respondent No. 2, being a woman, is entitled to be released on bail, under the provisions of the first proviso to Section 437(1), Cr.P.C. Undoubtedly, the said proviso indicates that the Court may direct that the person even if answers the description of sub-clause (i) or sub-clause (ii) of sub-section (1) of Section 437 if under the age of sixteen years or is a woman or is sick or infirm, be released on bail. Despite this provision, all other considerations have to be weighed and if on those considerations the Court finds that the person should not be released on bail, then, I do not think that it is obligatory on the Court to release the person only on the count that she is a woman. Smt. Agarwal, in this behalf, relied upon the decision of the Allahabad High Court in Shakuntala Devi v. State of U.P. (1986 Cri.L.J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that date for recording its evidence and, therefore, the period of sixty days under Section 437(6) will start from that date. The time spent in recording the pre-charge evidence which is usually recorded in complaint cases before the charge is framed will not be counted for purposes of Section 437(6), the Division Bench added. I am in respectful agreement with the aforesaid decision and, therefore, it is not possible to accept the submission of Smt. Agarwal that the respondent No. 2 is entitled to be released on that count. 16. I must also make a reference to another decision of this Court cited by Shri Bhonsale in Criminal Application No. 1316 of 1981 (Walter Peter v. State of Maharashtra Anr.) decided on 13th August, 1981. It is pertinent to note that in the said order, the learned Judge began his judgment by saying I am inclined to grant bail to the applicant mainly because accused No s 2 3 have been granted bail by the learned Chief Metropolitan Magistrate. The learned J udge further observed as follows :- With this background if these two persons could be enlarged on bail, then surely it is not proper to deny same to the applicant. No doubt, in para 5 of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before me and in view of the period of trial, I think there is change of circumstances which were available in the case before the learned Judge and which are available before me. 17. Smt. Agarwal makes a fervent plea that at least respondent No. 2 should be released on bail on the ground of the illness of the child of tender age. Indeed, I am sorry for the plight of the poor child. Even yesterday I was informed by Smt. Agarwal that the child is seriously ill and requires hospitalisation. I immediately called upon Shri Gupte, the learned counsel appearing for the Customs Department, to inquire regarding the seriousness or otherwise of the illness of the child and inform this Court. Shri Gupte made inquiries with the concerned officers and has stated that the child was brought to the Court alongwith the mother and there is nothing seriously wrong with the child or the mother. It is, indeed, very difficult to investigate the seriousness or otherwise of the illness either of the child or of the mother. But the record of the Court does show that whenever the child or the mother or the father was sick, the authorities concerned with the custody of them took them to the hospital and ga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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