TMI Blog2004 (9) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2.Briefly stated, the Respondent is investigating against four export firms namely; M/s. Shree Shubham Exports (Pvt.) Ltd., M/s. Emkay Exports, M/s. Tex Age and M/s. Master Forms (Pvt.) Ltd., which are admittedly controlled by said Shri Subhash Choudhary, regarding alleged over-valued exports of "readymade garments" since about a year prior to commencement of inquiries. It is not necessary to burden this Judgment with the background in which the said investigation has commenced. Suffice it to observe that it is not in dispute that the alleged offence for which the applicants in both the matters are stated to be involved, is, inter alia, punishable under Section 135(1)(ii) of the Act. The Customs Officers have, therefore, exercised power to arrest writ Petitioner under Section 104 of the Act. 3.The principal question is : whether the offence referable to Section 135(1)(ii) of the Act for which the Applicants are being proceeded with, by the Customs Officers in exercise of powers under Section 104 of the Customs Act, can be said to be a bailable offence or a non-bailable offence? According to the Petitioner-Applicant, having regard to the Scheme of the Customs Act read with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods, or (b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liab1e to confiscation under section 111 or section 113, as the case may be, or, (c) attempts to export any goods which he knows or has reason to believe are liable to confiscation under section 113, shall be punishable, - (i) in the case of an offence relating to any of the goods to which section 123 applies and the market price whereof exceeds one lakh of rupees, with imprisonment for a term which may extend to seven years and with fine : Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than three years; (ii) in any other case with imprisonment for a term which may extend to three years or with fine, or with both. If any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the said Table (Part-II) contained in the 1st Schedule to the Code, which reads thus : Offence Cognizable or non-cognizable Bailable or non-bailable By what Court triable If punishable with death, imprisonment for life, imprisonment for more than 7 years. Cognizable Non-bailable Court of Session. If punishable with imprisonment for 3 years and upwards but not more than 7 years. Ditto. Ditto. Magistrate of the first class. If punishable with imprisonment for less than 3 years or with fine only. Non-cognizable Bailable Any Magistrate (emphasis supplied) 6.The expression "bailable offence" has been defined in the Code in Section 2(a) which reads thus : "Definitions.2. - In this Code, unless the context otherwise requires, - (a) "bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non-bailable offence" means any other offence. ............." 7.It is also relevant to note that Section 138 of the Act expressly provides that offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, the Division Bench has overruled the decision of the Single Judge which had taken the view that an offence under Section 135 of the Customs Act is a bailable offence, but from the discussion in the same paragraph, it is more then clear that the Division Bench was considering case which was referable to Section 135(1)(i) read with Section 123 of the Act. For, it has observed that the first and the second entries in Part II of 1st Schedule of the Code are relevant for the purpose of that case. First and second entries of Part II of 1st Schedule refer to offence punishable with imprisonment of three years and upwards. However, in the present case, we are concerned with punishment which may extend to three years, or with fine, or with both, which according to the Petitioner-Applicant, is referable to Entry No. 3 in Part II of the 1st Schedule. Before I proceed to examine the matter further, it will be appropriate to reproduce the relevant portion of this discussion which weighed with the Division Bench of the Gujarat High Court while opining that offence under Section 135 of the Customs Act is non-bailable. The same reads thus : "The first and the second entries are relevant for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided that the term of imprisonment may extend to three years, that means the punishment to be imposed may be up to three years and if it is so, entry 3 in Part II of First Schedule of the Code will have no application. In that case, contends learned Counsel, Entry 2 in Part II of Schedule I of the Code will have to be invoked. If it is so, contends learned Counsel for the Respondents, the offence will have to be held as non-bailable offence, as has been held by the-Gujarat High Court. To buttress the submission that the punishment may extend to three years would mean that the punishment to be imposed will be up to three years, reliance is placed by the learned Counsel on the exposition of the Apex Court in the case of Intelligence Officer, Narcotics C. Bureau v. Sambhu Sonkar Anr. reported in (2001) 2 SCC 562. In the said decision, while construing provisions of Section 137 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which provides for imprisonment for a term which shall not be less than ten years but for rigorous imprisonment for a term which may extend to five years, the Apex Court has held that it would mean that the offence is punishable for a term of impri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de, those offences have been made bailable. These offences are under Sections 181, 193 (IInd Part), 201 (IInd Part), 205, 214 (IInd Part), 225A, 312 (1st Part), 404, 418, 484, 485, 487 and 488 of the Indian Penal Code. In other words, all these offences under the Indian Penal Code, the punishment provided is imprisonment, which may extend to three years, or with fine, or with both, even then have been made bailable. In that sense, the Scheme of the Code is indicative of the Legislative intention that non-cognizable offences punishable with imprisonment which may extend to three years, have bean treated on par with offences where imprisonment is for "less than three years", so as to make them bailable. Applying the same analogy to the case on hand, Section 135(1)(ii) of the Act, which provides for punishment similar to several provisions in the Indian Penal Code, as referred to above, I have no hesitation in holding that the subject offence is bailable; and more so, when the offence in question is required to be tried summarily by the Magistrate by virtue of Section 138 of the Act. 13.As has been noted earlier, the decision of the Gujarat High Court, no doubt, makes a general obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tructions issued by the Finance Ministry, it was not open to the Respondents to argue to the contrary. In any case, for the reasons already recorded hereinbefore, the Application preferred by the Applicants herein should succeed. In other words, as the offence under Section 135(1)(ii) is a non-cognizable and bailable offence, the question of Magistrate remanding the Applicant to judicial custody does not arise. At the same time, as the offence is bailable offence, there is no question of granting anticipatory bail with regard to that offence. Even if the Applicant was to be arrested by the Officer of the Customs in exercise of power under Section 104 of the Act, as the offence is one under Section 135(1)(ii) of the Act and therefore, bailable, the Officer would be obliged to release the Applicant on bail by virtue of Section 104(3) of the Act. 16.Accordingly, the Petition as well as the Application are disposed of on the above basis. 17.It is, however, once again made clear that disposal of these Applications is no expression of opinion on the merits of the case, pending enquiry against the Petitioner-Applicant with the Customs Authorities or to be instituted on the basis of fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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