TMI Blog2007 (2) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... r. However, the Custom authorities came to a conclusion that the international price was US $ 3.1 per meter and not US $ 2.25 per metre. Accordingly, he was required to pay duty at the enhanced rate of the goods. He actually made the payment of enhanced duty and thereafter, the goods were released. However, now the Customs authorities have re-opened the matter and they are likely to arrest the applicant. According to the applicant, the offence of evasion of duty under Section 135(1)(ii) is bailable but the Customs authorities treat the said offence as non-bailable, in spite of declaration by this Court in several cases that the offence is bailable and therefore, he apprehends arrest and seeks anticipatory bail in the matter. According to hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt legal provisions before coming to a conclusion as to whether the offence is bailable or non-bailable. If the offence is non-bailable, the application under Section 458 of the Cr. P.C. for anticipatory bail is tenable and if the offence is found to be bailable, such application is not tenable. 4. Section 135 of the Customs Act reads as follows : "Evasion of duty or prohibition (i) Without prejudice to any action that may be taken under this Act, if any person - (a) is in relation to any goods in any way knowingly concerned in misdeclaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded in the judgment of the court such imprisonment shall not be for less than one year. (3) For the purposes of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than one year, namely- (i) the fact that the accused has been convicted for the first time for a reference under this Act; (ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods which are the subject matter of such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence; (iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gold, and manufactures thereof, watches, and any other class of goods which the Central Government may by notification in the Official Gazette, specify. From this, it appears that in the case of certain goods which are allegedly smuggled, burden of proof will be on the person from whom it is seized or the owner to establish that goods are not smuggled. As may be clear by sub-section (2). Section 123 is applicable only to the gold and manufactures thereof, watches and any other class of goods with the Central Government may by notification in the Official Gazette, specify. Admittedly, P.U. Coated leather is not the material which is notified under Section 123(2) by the Central Government. Therefore, Section 123 of the Customs Act will not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with imprisonment for the term which may extend to 3 years or with fine or with both. It means that the offence may be punished with fine only also. Thus, it is clear that though the maximum sentence of imprisonment which may be awarded may be 3 years but at the same time, the offence may be punishable with less than 3 years or with fine only also. This very question was under consideration of the learned Single Judge (Coram : A.M. Khanwilkar, J.) in Subhash Chaudhary, 2005 (179) E.L.T. 532 (Bombay). After having noted dawn rival submission, the learned Single Judge observed as follows in Paragraph 12 : 12. After considering the rival submissions, I have no hesitation in accepting the submission canvassed, on behalf of the Petitioner-Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he non-cognizable offence where punishment provided is imprisonment which may extend to three years, or fine, or both, as is the case in the present enactment: and in Part I of the First Schedule to the Code, 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 than have been made bailable. In that sense, the Scheme of the Code is indicative of the Legislative intention that non-cognizable offences punishable with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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