9911796707
TMI Blog2007 (2) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of duty under Section 135(1)(ii) is bailable but the Customs authorities treat the said offence as non-bailable, in spite of declaration by this Court in several cases that the offence is bailable and therefore, he apprehends arrest and seeks anticipatory bail in the matter. According to him, there is no wilful evasion of duty. He had shown value or price of the goods as per the purchase in the international market but inspite of that he had paid the duty at the enhanced rate as assessed by the Customs authorities. According to him, in view of these circumstances, chapter should have been closed. On the other hand, according to respondent nos. 1 and 2 the applicant has evaded duty not only in one particular transaction but possibly in number of transactions during the last about 5 years and evasion of duty may be to the tune of Rs. 8 crores and it is contended that the applicant is not co-operating in the investigation. Not only this before production of his laptop, complete data about the import and their valuation, etc. was deleted by him and he also refused to disclose the name of person with whose help that data was deleted. That has created obstacles in the investigation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 one year. (3) For the purposes of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than one year, namely- (i) the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of proof will be on the person from whom it is seized or the owner to establish that goods are not smuggled. As may be clear by sub-section (2). Section 123 is applicable only to the gold and manufactures thereof, watches and any other class of goods with the Central Government may by notification in the Official Gazette, specify. Admittedly, P.U. Coated leather is not the material which is notified under Section 123(2) by the Central Government. Therefore, Section 123 of the Customs Act will not be applicable. Once it is found that Section 123 is not applicable, the offence pertaining to evasion of duty under Section 135(1) would be punishable under Section 135(1)(ii) with imprisonment, which may extend to 3 years or with fine or with both. 7. Part II of the Schedule to the Code of Criminal Procedure provides for classification of offences under Laws other than Indian Penal Code. It reads as follows : Offence Cognizable or Non-cognizable Bailable or Non-bailable By what Court Triable If punishable with death, imprisonment for life, imprisonment for more than/ years Cognizable Non-bailable Court of Session If punishable with imprisonment for 3 years and upwards but no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application to the case on hand. On analyzing the Part I of the First schedule of the code, the scheme of the Code is that, non-cognizable offences have been made bailable, except the non-cognizable offences such as under Sections 194, 195, 466, 467, 476, 477 and 493, which provide for punishment of more than three years of imprisonment. The only exception where punishment of imprisonment which may extend to three years and still has been made non-bailable, is Section 505 of the Indian Penal Code. But this is an exception. We shall now specifically advert to the non-cognizable offence 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 than have been made bailable. In that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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