TMI Blog2020 (3) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the applicant that the offence is a bailable offence as provided in sub-section (7) of Section 104 of the Customs Act. It is no longer res integra that the right to claim bail as provided under Section 436 Cr.P.C. in a bailable offence is an absolute and indefeasible right and in such offences there is no question of discretion in granting bail as the words of Section 436 are imperative - Application allowed. - CRIMINAL MISC. BAIL APPLICATION No. - 5031 of 2020 - - - Dated:- 27-2-2020 - Hon'ble Jayant Banerji, J. For Applicant : Ayush Khanna For Opposite Party : A.S.G.I.,G.A.,Ramesh Chandra Shukla ORDER Heard Shri Ayush Khanna, learned counsel for the applicant and Shri Ramesh Chandra Shuk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant was, therefore, charged under Section 135 of the Customs Act, 1962. It is the contention of the learned counsel for the applicant that the chargesheet in the case has already been filed and admittedly the value of the gold recovered from the possession of the applicant is below ₹ 1,00,00,000/- and the entire proceedings do not reflect that the case is covered under any clause of sub-section (6) of Section 104 of the Customs Act. It is, therefore, contended that in view of the provisions of sub-section (7) of Section 104 of the Customs Act, on a bare reading of the recovery memo, it is clear that it is a bailable offence and under the circumstances the applicant is entitled to bail. Learned counsel relied upon a judgement d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. Section 104 of the Customs Act is as follows: Section 104. Power to arrest. ?(1) If an officer of customs empowered in this behalf by general or special order of the Principal Commissioner of Customs or Commissioner of Customs has reason to believe that any person in India or within the Indian customs waters has committed an offence punishable under section 132 or section 133 or section 135 or section 135A or section 136, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested under sub-section (1) shall, without unnecessary delay, be taken to a magistrate. (3) Where an officer of customs has arrested any person under sub-section (1), he shall, for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-section (4) of Section 104 mandates that any offence relating to prohibited goods or evasion or attempted evasion of duty exceeding fifty lakh rupees shall be cognizable, notwithstanding anything contained in Code of Criminal Procedure. Sub-section (5) provides that save as otherwise provided in sub-section (4) all other offences under the act shall be non-cognizable. Sub-section (6) which starts with a non-obstante clause, provides that offences 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 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proof that the gold is not smuggled lies on the person from whose possession the gold is recovered. It is pertinent to mention here that in paragraph no. 18 filed in support of the bail application, it is stated as follows: 18. That the alleged recovery from the possession is less than one crore, therefore, the offence if any is a bailable offence and the applicant is liable to be released on bail as per Section 135 of the Customs Act, 1962. Section 135 of the Customs Act, 1962 which reads as follows:- Section 135. Evasion of duty or prohibitions (1) Without prejudice to any action that may be taken under this Act, if any person - (a) ............. (b) ............. (c) ............. (d) ............. he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s duly notified by the Central Government, nor has it been stated that evasion or attempted evasion of duty exceeds fifty lakh rupees. Further, no fraud has been alleged as referred in clause (d) of sub-section (6) of Section 104. Under the circumstances, there is a merit in the contention of the learned counsel for the applicant that the offence is a bailable offence as provided in sub-section (7) of Section 104 of the Customs Act. It is no longer res integra that the right to claim bail as provided under Section 436 Cr.P.C. in a bailable offence is an absolute and indefeasible right and in such offences there is no question of discretion in granting bail as the words of Section 436 are imperative (Rasiklal v. Kishore Khanchand Wadhw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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