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TMI Blog2012 (11) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... al incriminating material was collected from the residence of the respondent. Thereafter, several witnesses were examined by the department and their statements recorded under Section 108 of the Customs Act (hereinafter referred to as the "Act"). The involvement of the respondent was said to be mentioned in the statements so recorded by the department. The respondent was also summoned several times under Section 108 of the Act, however, he failed to comply with the summons. Thereafter, on 06.09.2010, the wife of the respondent filed a bail application qua the respondent in the Court of learned ACMM. The learned ACMM vide order dated 07.09.2010, granted interim bail to the respondent. The aforesaid order was challenged in this Court on the ground of maintainability of the bail application, which was disposed off vide order dated 10.09.2010 with the direction to raise all such pleas before the learned ACMM. Thereafter, after hearing the arguments from both parties the learned ACMM granted bail to the respondent vide order dated 10.09.2010. The department has challenged this order of the learned ACMM on the ground of maintainability of the bail application. Hence, the present petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was challenged before this Court, however this Court refused to take any action and directed the department to raise such pleas before the learned ACMM. It was contended that the respondent, being a suspect, in the alleged offence, appeared and surrendered before the competent Court, and the learned ACMM, within its jurisdiction, on merits, granted regular bail to the respondent. Reliance is placed on Niranjan Singh & Anr v. Prabhakar Rajaram Kharote & Anr, 1980 SCC (Crl) 508 and Pawan Kumar Pandey v. State of U.P 1997 CriLJ 2686. 5. In rebuttal, the learned counsel for the department submitted that such exercise of jurisdiction by the Magistrate will not be applicable to the Customs Act and these are offences which are non-cognizable and non-bailable. It was submitted that the Show Cause notice relied upon by the respondent was w.r.t civil adjudication. It was further contended that the respondent is not covered within the provisions of Section 437 CrPC or Section 439 (2) CrPC, as he was not an accused/suspect. He relied upon Veera Ibrahim v. State of Maharashtra, (1976) 2 SCC 302 and Poolpandi v. Superintendent, Central Excise 1992 (60) E.L.T. 24 (S.C.). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There is another class or type of persons who may be enlarged on bail under Section 437 CrPC, that is, a person who is accused of or suspected of commission of a non-bailable offence and appears voluntarily before the Court. Such accused may be enlarged on bail by the order of the Court or the Court may straightway send the accused to jail if it does not grant bail. As such, whenever an accused appears voluntarily before the Court and surrenders to the Court, he remains throughout in the custody of the Court until he is enlarged on bail. The meaning of the term "custody" is "physical control" or at least physical presence of the accused in Court coupled with submission to the jurisdiction and order of the Court, as explained by the Hon'ble Supreme Court in, Niranjan Singh (Supra). The Hon'ble Supreme Court held that, "7. When is a person in custody, within the meaning of Section 439 Cr.P.C. When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r his personal appearance in Court is a condition precedent; he may apply without personally appearing before the Court; (iii) the applicant need not surrender to the physical control of the Court nor need he submit to the custody of the Court. Therefore, regular bail under Section 437 CrPC and anticipatory bail under Section 438 CrPC, operate in different spheres however the relief provided is similar. 14. The contention of the department that as there was no formal complaint or allegation being leveled against the respondent, the learned ACMM did not possess the necessary jurisdiction to entertain the bail application of the respondent, is untenable and highly misplaced. It is an admitted fact that the residence of the respondent was searched by the custom authorities and several incriminating documents were seized. It is further admitted that the statement of other witnesses under Section 108 of the Act, evidence the alleged involvement of the respondent in the offence. The learned ACMM after appreciating the evidence available on record, decided the case on merits and granted bail to the respondent. It is an accepted proposition of law, that a person summoned by the Custom aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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