2004 (9) TMI 117 - HC - Customs

Court Rules Offense Under Customs Act Bailable; Judicial Custody Order Invalid, Bail to Be Granted Upon Arrest.

The court determined that the offence under Section 135(1)(ii) of the Customs Act, 1962 is bailable. Consequently, the remand order placing the petitioner ... Non-cognizable offence - bailable offence - summary trial - power to arrest under Section 104 of the Customs Act - officer's power to release on bail under Section 104(3) of the Customs Act - classification under Part II of the First Schedule of the Code - contemporaneous administrative exposition (Customs Manual) as interpretative aidNon-cognizable offence - bailable offence - classification under Part II of the First Schedule of the Code - summary trial - contemporaneous administrative exposition (Customs Manual) as interpretative aid - Classification of the offence under Section 135(1)(ii) of the Customs Act as non-cognizable and bailable - HELD THAT: - The Court held that an offence under Section 135(1)(ii) is non-cognizable by virtue of the non-obstante clause in Section 104(4) of the Customs Act and is required to be tried summarily by a Magistrate under Section 138. Applying the scheme of the Code, non-cognizable offences punishable with imprisonment which may extend to three years, or fine, or both, are treated as bailable (analogous statutory provisions in the IPC listed in Part I of the First Schedule). The Customs Manual, a contemporaneous administrative exposition, also treats offences under Section 135(1)(ii) as non-cognizable and bailable, reinforcing this construction. The Court rejected the contention that the phrase 'imprisonment which may extend to three years' must be read to attract the higher entry of the First Schedule and make the offence non-bailable, holding the reasoning and legislative context distinguish the present provision from decisions relied upon by the Respondent. [Paras 12, 15]Offence under Section 135(1)(ii) of the Customs Act is non-cognizable and bailable.Power to arrest under Section 104 of the Customs Act - officer's power to release on bail under Section 104(3) of the Customs Act - bailable offence - Consequences of classification for custody, remand and anticipatory bail - HELD THAT: - Because the offence is non-cognizable and bailable, a Customs officer who arrests under Section 104 must, in accordance with Section 104(3), exercise the same powers as an officer-in-charge under the Code to release the arrested person on bail. Consequently, judicial remand to custody in respect of that offence was not permissible; and grant of anticipatory bail in respect of the bailable offence was unnecessary. The Court ordered release consequences accordingly while reserving opinion on other merits or on any other offences that might be disclosed by further inquiry. [Paras 15, 16]Magistrate's judicial remand in respect of the bailable offence was not permissible; the Customs officer is obliged to release the accused on bail under Section 104(3); anticipatory bail for that offence is not called for.Final Conclusion: Writ petition and accompanying application allowed on the basis that the offence under Section 135(1)(ii) of the Customs Act is non-cognizable and bailable; the order remanding the petitioner to judicial custody could not stand and the Customs officer, if arresting, must release the petitioner on bail under Section 104(3). Operation of the judgment stayed for six weeks to enable the respondent to appeal if so advised. Issues Involved:1. Whether the offence under Section 135(1)(ii) of the Customs Act, 1962 is a bailable or non-bailable offence.2. Validity of the judicial custody remand order for the writ petitioner.3. Application for anticipatory bail by another accused.Summary:Issue 1: Whether the offence under Section 135(1)(ii) of the Customs Act, 1962 is a bailable or non-bailable offence.The principal question is whether the offence under Section 135(1)(ii) of the Customs Act, 1962 is bailable or non-bailable. The petitioner argued that the offence is bailable, relying on Section 104 of the Act, which empowers Customs Officers to arrest and produce the accused before a magistrate without unnecessary delay. Section 135(1)(ii) provides for imprisonment up to three years or fine or both, which, according to the petitioner, falls under Entry 3 of Part II of the First Schedule of the Code of Criminal Procedure (CrPC), making it a bailable offence. The court noted that Section 138 of the Act mandates that such offences be tried summarily by a magistrate, reinforcing the argument that the offence is bailable. The court also referred to the Customs Manual issued by the Ministry of Finance, which categorizes such offences as bailable. The court distinguished the present case from the Gujarat High Court decision, which dealt with Section 135(1)(i) and involved more stringent parameters.Issue 2: Validity of the judicial custody remand order for the writ petitioner.The petitioner challenged the remand order on the ground that the offence is bailable, and thus, judicial custody was not warranted. The court accepted the petitioner's argument, stating that since the offence under Section 135(1)(ii) is bailable, the magistrate's order remanding the petitioner to judicial custody was not justified. The court emphasized that non-cognizable offences punishable with imprisonment up to three years are generally treated as bailable under the CrPC.Issue 3: Application for anticipatory bail by another accused.Another accused, in a related matter, sought anticipatory bail on the same grounds that the offence is bailable. The court held that since the offence under Section 135(1)(ii) is bailable, there is no need for anticipatory bail. If arrested, the accused would be entitled to bail as per Section 104(3) of the Act.Conclusion:The court concluded that the offence under Section 135(1)(ii) of the Customs Act, 1962 is a bailable offence. Consequently, the remand order for judicial custody was invalid, and there was no need for anticipatory bail for the other accused. The court stayed the operation of its judgment for six weeks to allow the respondents to appeal.