TMI Blog2012 (11) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... K Garg, Mr Antara S Priya, Adv. For Respondent: Mr Kamlesh Anand, Adv proxy JUDGEMENT Per: M L Mehta: 1. The Directorate of Revenue Intelligence (hereinafter referred to as the "department"), by way of the present petition, has challenged the order dated 10.09.2010, passed by the learned ACMM granting bail to the respondent in the matter titled, "Vinod Kumar Mulani v. Directorate of Revenue Intelligence" on the ground that the learned ACMM exceeded his jurisdiction in granting bail to the respondent. 2. The brief facts necessitating the disposal of the present petition are that, on the basis of an intelligence input about the operation of a syndicate involved in the fraudulent availment of duty drawback by exporting inferior quality garments in the name of bogus front firms, searches were conducted at various places including the residence of the respondent. Several 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 437 CrPC. 4. Per Contra, the learned counsel for the respondent submitted that the respondent had written a letter to the department in response to the summons dated 29.09.2010, communicating his inability to arrange the necessary documents and sought time to arrange the same. It was submitted that subsequently he appeared before the concerned officer. Drawing my attention to Section 437 CrPC, it was contended that the, the language of Section 437 CrPC reads as, "When any person accused of, or suspected of, the commission of any non-bailable offence", he shall be eligible to seek regular bail from the competent Court. It was submitted that the show cause notice issued by the department to the respondent itself evidences that the respondent was a suspect in the alleged offence. It was further submitted that, the order dated 07.09.2010 granting interim bail to the respondent, 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 AC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le offence, namely, (1) when the accused has been arrested or detained without warrant by an officer-in-charge of a police station, (2) when the accused appears, or, (3) he is brought before a Court, other than the High Court or Court of Session, he may be enlarged on bail by "the Court". 10. Therefore, the conditions precedent to entertain an application for bail are whether the person is an accused or suspected of the commission of any offence. If the learned Magistrate finds that he is accused of an offence or is suspected of commission of a non-bailable offence, the second condition comes into play, namely, whether he is under arrest or detention without warrant by an officer-in-charge of the police station. Apart from this an accused may be brought before the Court by any police officer or authority competent to arrest an accused or any person legally competent to arrest him. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered himself to the court's jurisdiction and submitted to its orders by physical presence, both are said to be "in custody", within the meaning of Section 439 CrPC. Therefore, a person surrendering to the jurisdiction of the competent Court could be equated to being arrested by a Customs officer. Therefore, the Magistrate acquires jurisdiction once the accused or the suspect, has submitted himself to the jurisdiction of the Court. 12. In the instant case, the learned counsel for the petitioner contended that the exercise of such power by the learned ACMM collides with the exclusive power of the High Court or the Court of Session conferred on them under Section 438 CrPC. 13. The ambit and scope of Section 438 are quite distinct and separate. The distinctive features are that in Section 438 - (i) the applicant need not be an accused person, (ii) he need not be brought before a court nor 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 anti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned ACMM in his order granting bail to the petitioner, has recorded the involvement of certain custom officers in the offence, and has stated that there are allegations of illegal detention, against those custom officials, pertaining to the same case. Therefore, the apprehension of the respondent to be kept in illegal custody, is justified. The right of the respondent, to surrender himself to the competent Court, squarely falls within the ambit and scope of Section 437 CrPC, and cannot be held to be arbitrary or illegal. The provisions of a Special Act, in this case the Customs Act, cannot override the provisions of the CrPC, unless expressly provided so in the special Act. 16. The cases relied upon by the petitioner's counsel namely Veera Ibrahim (Supra) and Poolpandi (Supra), have no application in the present case as they discuss the constitutional right of an accused under Article 20(3) and are clearly distinguishable on facts. 17. Further, the learned ACMM in its order granting bail to the respondent, has directed the respondent to join the investigation, as and when required by the custom authorities. Therefore, the grant of bail to the respondent shall not hamper t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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