TMI Blog2019 (10) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... anteed under Article 21 of the Constitution of India cannot be interpreted in such a manner as is being suggested by the Respondents. We are, therefore, clear that section 104(6)(b) is not attracted in the case of exotic animals - the offence alleged against the Petitioner would fall under section 104(7) of the Customs Act and thus shall be bailable. It is trite that in a bailable offence, the arresting officer is obliged to inform the arrestee that the offence is bailable and would be further obliged to release the arrestee on bail by virtue of provisions of section 104(3) of the Customs Act, 1962 - there is no hesitation in holding that not only the petition is maintainable but also the Petitioner is entitled to be released on bail. In the light of the express statutory provision permitting the compounding of offence and rule which prescribe the procedure for dealing with the application for compounding, the authorities cannot show disinclination to entertain and determine the application for compounding the offence alleged. It is directed that the Petitioner to attend the DRI office, Mumbai Zonal Unit on every Monday between 11.00 a.m. to 2.00 p.m. till issuance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other appropriate writ, order or direction, directing the Respondent No.1 to take all necessary steps, to enable Respondent No. 3 to adjudicate and inform the amount, if any, legally due and payable by the Petitioner under the provisions of the Customs Act, 1962, as also the compounding fee that may be ascertained by him, in such time bound manner as may be directed by this Hon'ble Court, so as to enable the Petitioner to deposit such amounts to avail the statutory benefit of compounding; (d) Issue a writ of mandamus, or any other appropriate writ, order or direction, granting bail to the Petitioner in the R.A. No.161/2019 of ACMM, 8th Court, Esplanade, Mumbai. 3. Prior to his arrest, application for anticipatory bail preferred by the Petitioner was rejected by the Sessions Court and during the pendency of further anticipatory bail application proceeding before this Court, the Petitioner was arrested on 13th September 2019. He was remanded to custody on 14th September 2019. In paragraph 10 of the remand application dated 14th August 2019, following averments are made : 10. As there was reason to believe that Respondent No. 3 is guilty of offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable as non-bailable under section 104(6)(b) of the said Act because they were prohibited goods notified under section 11 of the said Act. She relying upon notification dated 9th August 1969 issued by the Central Government under section 11(1) of the Customs Act, which prohibits the import of monkeys ingto India as stated therein, submitted that notification issued under section 11 of the said Act would fulfill the requirements of section 104(6)(b) of the Act, and no further notification under section 135(1)(i)(c) is required. On such consideration, she further submitted that offenece under section 135(1)(i) would be nonbailable. She also submitted that exotic animals are not native to India. The seized animals are smuggled into India. Learned counsel for the Respondent-DRI, however, does not dispute that exotic moneys are not covered by Schedule-II of the Indian Wildlife (Protection) Act, 1973 and that no offence under that Act is alleged. She invited our attention to the allegations levelled against the Petitioner and submitted that import of exotic monkeys is prohibited under section 11 of the said Act in the light of notification referred to above. 8. Learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g conditions. 11. We have carefully perused the provisions of subsections (6) and (7) of section 104 of the Customs Act, 1962 which classify the offence under the Customs Act into bailable or non-bailable category which reads thus : 104. Power to arrest.- (1) (2) (3) . (4) . (5) . (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under section 135 relating to - (a) evasion or attempted evasion of duty exceeding fifty lakh rupees; or (b) prohibited goods notified under section 11 which are also notified under sub-clause (C) of clause (I) of sub-section (1) of section 135; or (c) import or export of any goods which have not been declared in accordance with the provisions of this Act and the market price of which exceeds one crore rupees; or (d) fraudulently availing of or attempt to avail of drawback or any exemption from duty provided under this Act, if the amount of drawback or exemption from duty exceeds fifty lakh rupees, shall be non-bailable. (7) Save as otherwise pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of exotic animals. Consequently, we hold that the offence alleged against the Petitioner would fall under section 104(7) of the Customs Act and thus shall be bailable. 15. It is trite that in a bailable offence, the arresting officer is obliged to inform the arrestee that the offence is bailable and would be further obliged to release the arrestee on bail by virtue of provisions of section 104(3) of the Customs Act, 1962. 16. We find that the Petitioner is languishing in custody in a bailable offence since 13th September 2019; the remand has been obtained without disclosing that there is no notification under section 135(1)(i)(c) of the Act specifying the exotic animals as prohibited goods and the allged offence is bailable. In a bailable offence, the question of Court / Magistrate remanding the citizen to judicial custody without offering bail does not arise. A clear case for breach of provisions of Articles 21 and 22 of the Constitution of India is, thus, made out. The aforesaid classification of the offence as bailable is based purely on the interpretation of the provisions without involving adjudication of disputed questions of fact. In our our con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Government, of such compounding amount and in such manner of compounding as may be specified by the Rules. Proviso to the said provision contains the disability clauses for entertaining the application for compounding. It is not even case of the Respondent that the instant case falls under any of the disability clauses of said proviso. In the affidavit-in-reply filed on behalf of the Respondent-compounding authority, the main objection taken is that as per the respondents, the compounding application filed by the Petitioner under the provisions of the Customs Act is premature as the payment of duty / fine / penalty has not been determined so far. The affidavit of DRI further states that admittedly the show cause notice has not been issued and thus application is not maintainable and it is premature. It is also stated that as per Rule 4(3) of the Compounding Rules, the Petitioner s application for compounding, may or may not be allowed by the compounding authority; if it is allowed, the Petitioner may get immunity from the prosecution. 20. We have perused the application form. Column 9 to 12A only require the Applicant to disclose whether show cause notice is issued, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2012] and Rajinder Arora v. Union of India [WP (Civil) No. 389 of 2010 order dated 7th December 2010]. (3) The adjudicating authority, namely, the Commissioner of Customs (Preventive) shall give show cause notice to the Petitioner, if necessary, and qunatify and and determine the amount payable as expeditiously as possible so that the same can be paid by the Petitioner. (4) The compounding authority, namely, the Chief Commissioner of Customs shall thereafter decide the Petitioner s application for compounding of the offence as expeditiously as possible and in accordance with law. (5) All concerned shall act upon an authenticated copy of this judgment. [N. J. JAMADAR, J.] [RANJIT MORE, J.] Ms. Gonsavlez, at this stage invited our attention to the order passed in the bail application filed by co-accused and submitted that the Petitioner be directed to attend the DRI office on every Monday between 11.00 a.m. to 2.00 p.m. till issuance of the show cause notice. She further submitted that the condition shall be imposed on the Petitioner that he shall not leave Mumbai without prior permission of this Court. So far as the first co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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