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TMI Blog2008 (4) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... order of Reference by the learned Single Judge. This Reference is accordingly disposed of. - 6325 of 2007 - - - Dated:- 2-4-2008 - A.M. Kapadia and R.H. Shukla, JJ. [Order per : A.M. Kapadia, J. (Oral)]. - The captioned petition has been placed before this Court by way of Reference made by the learned Single Judge while disagreeing with the law laid down in the case of Hasmukhlal Kalidas Choksi and others v. State of Gujarat, reported in 2007 (1) GLH-12. The terms of Reference are as under : (A) While enlarging the accused on bail in a non-bailable offence, where punishment is not more than 7 years, whether the Court has power to impose condition? OR (B) Whether power to impose condition can be exercised by the Court in a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Rules of 1996 and in this manner petitioner has committed an offence punishable under 135(1)(ii) of the Customs Act. 2.2 The petitioner, after being arrested on 25-1-2006, was produced before the Additional Chief Judicial Magistrate and was remanded to judicial custody. The petitioner applied for regular bail in the Court of Additional Sessions Judge, Gandhidham, Kachchh by filing Criminal Misc. Application No. 22 of 2006. The Additional Sessions Judge, Gandhidham, Kachchh vide order dated 3-2-2006 allowed the application and ordered release of the petitioner on bail in connection with File No. DRI/GRU/INV/11/2005 on certain terms and conditions. One of the terms and conditions is condition No. 3 which reads as under : "S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent placed reliance on a Division Bench judgment of this High Court in the case of N.H. Dave, Inspector of Customs v. Mohammad Akhtar Hussain Ibrahim Iqbal Kadar Vaghar (Bhatti) reported in 1984 (15) E.L.T. 353. The Additional Sessions Judge rejected the application of the accused vide order dated 29-5-2007 holding that offence u/s 135(1)(ii) of the Customs Act cannot be said to be bailable offence and, therefore, there was no question of deleting the condition which was imposed while releasing the accused on bail. 2.4 Aggrieved by the order passed by the learned Additional Sessions Judge, Gandhidham Kachchh, the accused preferred the present petition, i.e. Criminal Misc. Application No. 6325 of 2007. The same contentions were reiterated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclusion that the offence under the Customs Act is non-bailable then there was no question of thereafter considering as to whether in a bailable offence Court has got powers to impose conditions while releasing the accused on bail. Learned Single Judge after holding that offence u/s 135(1)(ii) of the Customs Act as non-bailable, has proceeded further to consider as to whether the ratio laid down by the learned Single Judge of this High Court in the matter of Hasmukhlal Kalidas Choksi (supra) is a good proposition of law or not. Learned Single Judge observed that since he was in respectful disagreement with the law laid down by the learned Single Judge in para 12 of the judgment in Hasmukhlal Kalidas Choksi (supra) the issue deserves to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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