TMI Blog2014 (1) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... alties covered by the Customs Act would apply with all force - it is a clear case having enough ground to suspect complicity of petitioner in the offence alleged, and this is not a fit case where petitioner can be extended the discretionary relief of pre-arrest bail. Conduct of petitioner also disentitle him to seek the discretionary relief as it is noticed that he had moved applications twice before the Sessions court. After the first application moved by him was dismissed, he moved another application before the same court. Strangely enough that was entertained and later disposed on merits by the learned Sessions Judge without taking note that the relief under Section 438 of the Code is purely discretionary and in the absence of an exceptional case showing that miscarriage of justice would follow if second application is not entertained, no party is entitled to move successive applications for such discretionary relief before the same court - Appellant not entitled to relief - Decided against appellant. - Bail Application No. 4770 of 2013 - - - Dated:- 25-7-2013 - S.S. Satheesachandran, J. Shri Kiran Javali, Bechu Kurian Thomas, Paul Jacob (P), Enoch David Simon Joel, Smt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me annexures also has been filed by the Senior Intelligence Officer, DRI, Cochin, opposing the application. Petitioner is liable for prosecution under Section 135 and also for penal action under Section 112 of the Customs Act, 1962, in the facts and circumstances presented in the case is the thrust of the objections mainly contending that clearance of any duty free goods from the Special Economic Zone unauthorisedly to the domestic market will be considered as an import from an outside territory, and in such a case penal provisions of the Customs Act will apply with full force. 4. Learned counsel for petitioner adverting to the amendment made in Section 104 of the Customs Act contended that till the amendment came into force on 10-5-2013 the offence under Section 135 of the Act was only bailable. Where the DRI has set up a case that three transactions were much earlier before the commencement of the amendment and that the value of gold seized (900 gms), allegedly, from third accused on 10-5-2013 is taken, then, the case would not fall under Section 104(6)(c) of the Act is the submission of counsel. In that case, the offence, if any, made out on the allegations raised would still ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, 2005. When imported duty free stock in that Zone is diverted to the domestic market it is a clear case where such goods are liable for chargeable to duties of customs and further it is a clear case of smuggling, submits counsel. Evasion of customs duty over a period of time, some of which had taken place before the amendment of Section 104 of the Customs Act came into force, would no way enable petitioner to contend that in respect of such transactions criminal proceedings launched against him should be governed by the provisions before amendment. It is only after apprehending of third accused with possession of 900 gms of gold and disclosure made by him previous transactions and evasion of duty came to light, and the continuous transactions carried out by the accused over the period of time have been rightly reckoned together to proceed against them as per the law in force and a clear case of non-bailable offence as under Section 104(6)(c) has been made out on the materials gathered by DRI, is the submission of counsel to contend that petitioner is not entitled to the discretionary relief of pre-arrest bail. In the given facts of the case, and, statutory power vested with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een inflicted under the law in force when the offence was committed. In the first part of Article 20(1) falls conviction, and second part relates to the punishment which may be inflicted on such conviction. So the second part will have application only if the first part is satisfied. In Shiv Bahadur Singh Rao v. State of Vindhya Pradesh [AIR 1953 SC 394], the Apex Court has held that Article 20(1) prohibits conviction and sentence under ex post facto legislation, and not a trial under a procedure different from what was obtained at the time of commission of offence. The accused proceeded has no fundamental right to any particular procedural law or to be tried by a particular court. So much so, the offence which was earlier non-cognizable was later made cognizable, or bailable earlier changed to non-bailable by way of an amendment does not confer any right on the accused to contend that by such amendment any right under substantive law is infringed. No question of violation of any constitutional mandatory prescription arise when an offence is made non-bailable from earlier bailable by amendment of the provision. Petitioner cannot contend that each transaction alleged of in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and circumstances presented and looking into the objections raised by the DRI also, which I am not adverting to in detail to avoid any prejudice being caused to petitioner, it is a clear case having enough ground to suspect complicity of petitioner in the offence alleged, and this is not a fit case where petitioner can be extended the discretionary relief of pre-arrest bail. Conduct of petitioner also disentitle him to seek the discretionary relief as it is noticed that he had moved applications twice before the Sessions court. After the first application moved by him was dismissed, he moved another application before the same court. Strangely enough that was entertained and later disposed on merits by the learned Sessions Judge without taking note that the relief under Section 438 of the Code is purely discretionary and in the absence of an exceptional case showing that miscarriage of justice would follow if second application is not entertained, no party is entitled to move successive applications for such discretionary relief before the same court. After having been worsted twice before the Sessions Court, petitioner has approached this Court seeking the discretionary relief, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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