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TMI Blog2004 (9) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... de 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xports of readymade garments since about a year prior to commencement of inquiries. It is not necessary to burden this Judgment with the background in which the said investigation has commenced. Suffice it to observe that it is not in dispute that the alleged offence for which the applicants in both the matters are stated to be involved, is, inter alia, punishable under Section 135(1)(ii) of the Act. The Customs Officers have, therefore, exercised power to arrest writ Petitioner under Section 104 of the Act. 3. The principal question is : 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 under Section 104 of the Customs Act, can be said to be a bailable offence or a non-bailable offence? According to the Petitioner-Applicant, having regard to the Scheme of the Customs Act read with the provisions of the Code of Criminal Procedure (hereinafter referred to as the 'Code'), the offence under Section 135(1)(ii) of the Act is a bailable offence. This submission is canvassed relying on the provisions of Section 104 of the Act, which reads thus: 104. Power to arrest. - If a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liab1e to confiscation under section 111 or section 113, as the case may be, or, (c) attempts to export any goods which he knows or has reason to believe are liable to confiscation under section 113, shall be punishable, - (i) in the case of an offence relating to any of the goods to which section 123 applies and the market price whereof exceeds one lakh of rupees, with imprisonment for a term which may extend to seven years and with fine : Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than three years; (ii) in any other case with imprisonment for a term which may extend to three years or with fine, or with both. (2) If any person convicted of an offence under this section or under sub-section (1) of section 136 is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a terns which may extend to seven years and with fine : Provided that in the absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than 7 years. Ditto. Ditto. Magistrate of the first class. If punishable with imprisonment for less than 3 years or with fine only. Non-cognizable Bailable Any Magistrate (emphasis supplied) 6. The expression bailable offence has been defined in the Code in Section 2(a) which reads thus : Definitions.2. - In this Code, unless the context otherwise requires, - (a) bailable offence means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and non-bailable offence means any other offence. ............. 7. It is also relevant to note that Section 138 of the Act expressly provides that offences such as under Section 135(1)(ii) shall be tried summarily by a Magistrate. Accordingly, relying on the schemes of the provisions of the Act read with the Code, learned Counsel for the Petitioner-Applicant submits that the conclusion that the offence under Section 135(1)(ii) is bailable, is inescapable. Reliance is also placed on the Customs Manual issued by the Ministry of Finance which also reinforces the stand taken on behalf of the Petitioner-Applicant that such offence is bailable offence. Para 26(c) of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... punishable with imprisonment of three years and upwards. However, in the present case, we are concerned with punishment which may extend to three years, or with fine, or with both, which according to the Petitioner-Applicant, is referable to Entry No. 3 in Part II of the 1st Schedule. Before I proceed to examine the matter further, it will be appropriate to reproduce the relevant portion of this discussion which weighed with the Division Bench of the Gujarat High Court while opining that offence under Section 135 of the Customs Act is non-bailable. The same reads thus : The first and the second entries are relevant for our purposes. By virtue of the first entry in respect of offences against other laws, that is to say, laws other than Indian Penal Code, an offence punishable with imprisonment for a period exceeding seven years is classified as non-bailable. So also by virtue of entry No. 2 an offence punishable with imprisonment for a period of three years and upwards but no exceeding seven years is also classified as non-bailable (see column 2). An offence under Section 135 of the Customs Act is in any event punishable with a sentence of imprisonment exceeding three years. (When t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the punishment to be imposed will be up to three years, reliance is placed by the learned Counsel on the exposition of the Apex Court in the case of Intelligence Officer, Narcotics C. Bureau v. Sambhu Sonkar Anr. reported in (2001) 2 SCC 562. In the said decision, while construing provisions of Section 137 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which provides for imprisonment for a term which shall not be less than ten years but for rigorous imprisonment for a term which may extend to five years, the Apex Court has held that it would mean that the offence is punishable for a term of imprisonment up to five years. On the above arguments, learned Counsel for the Respondents contends that even offence punishable under Section 135(1)(ii) is a non-bailable offence. 11. At this stage, I would like to make it clear that this is the limited controversy which I intend to examine in the present Judgment and this Judgment may not be construed as expression of opinion on any other issue relating to the case already filed or yet to be filed against the Petitioner-Applicant by the Respondent Authority. 12. After considering the rival submissions, I have no hesitation in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 13. As has been noted earlier, the decision of the Gujarat High Court, no doubt, makes a general observation that offence under Section 135 is non-bailable. However, the said decision is not an authority on the proposition that offence under Section 135(1)(ii) of the Act is non-bailable offence - because the Gujarat High Court was called upon to examine the question in the context of offence under Section 135(1)(i) read with Section 123 of the Act, which position is reinforced from the observations in the Judgment from the portion extracted herein before. 14. A priori, the argument of Mr. Nalawade for Respondents that the expression imprisonment may extend to three years be const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Officer of the Customs in exercise of power under Section 104 of the Act, as the offence is one under Section 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. 16. Accordingly, the Petition as well as the Application are disposed of on the above basis. 17. It is, however, once again made clear that disposal of these Applications is no expression of opinion on the merits of the case, pending enquiry against the Petitioner-Applicant with the Customs Authorities or to be instituted on the basis of further materials available, which may include disclosure of offence under some other provisions such as Indian Penal Code. The Authorities will be free to deal with those matters in accordance with law. 18. At this stage, Counsel for the Respondents prays that the operation of this order be stayed for a period of six weeks, on an assurance that the status-quo as of today shall be maintained insofar as the present Petitioner-Applicant are concerned. 19. I find this request reasonable. Accordingly, operation of the present Judgment is stayed for a period of six weeks to enable the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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