TaxTMI 
TaxTMI 
2011 (1) TMI 1569
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....ded by him. The relevant facts giving rise to the present revision as borne out for the documents available on record may be summarized as under:- The accused-revisionist Makhan Kant Sharma, son of Parmanand Sharma, present resident of R-35, Phase-I, Buddha Vihar, Rohini, Delhi, permanent address- Village and Post Office Raghunathpur, Tehsil Hapur, Police Station Pilkhua, District Ghaziabad, who is detained in Case/Seizure No. 13 of 2010, under Sections 108, 132 and 135 (1)(a) (1) (A) & (B) of the Customs Act, 1962, from Police Station DRI, Gomti Nagar, Lucknow, was proprietor of a Firm named and styled as M/s Maa Shakti Industries, Surajpur, situated in Greater Noida. Initially it was a factory of bath-rooms fittings etc. and later on, the factory was closed in the month of September, 2007. However, the accused had already applied for import and export license i.e. IEC and DGFT. Consequently, he was granted IEC No. 0507030397 in the name of his firm M/s Maa Shakti Industries, B-4/166, Yamuna Vihar, Delhi. The accused-revisionist after closer of his factory got employed in a private concern run by one Gajraj Singh Baid (coaccused) and Rejesh Kumar Gupta alias Raj Bihari. Gajraj Si....
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....red in the import documents; rather the articles were misdeclared as well as less-declared. The articles which were not declared in the import documents were liable to be confiscated under Section 111 (f), 111 (1), 111 (M) and 119 of the Customs Act, 1962. Consequently, DRI officers seized the articles which were valued about ₹ 29,70,10,750/-. The DRI Officers in presence of witnesses and other Officers of the different departments as mentioned above prepared a seizure memo (panchnama) on the spot. It was assessed by DRI Officers that the Importer had evaded the custom duty to the tune of ₹ 4 crore. The accused revisionist in compliance to the summon issued by DRI Officers, appeared before them on 12.4.2010 and his statement was recorded by the DRI Officers. He confessed that the valuable articles were imported by Gajraj Singh Baid and Rajesh Kumar Gupta alias Raj Bihari in the name of his firm "Maa Shakti Industries" which were not declared in the import documents. The accused revisionist was arrested for committing offences under Sections 108, 132, 135 (a)(a)(1)(A) &(B) of the Customs Act. He was produced before the Special Judicial Magistrate, Custom, Lucknow and wa....
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....r Crore as difference of Custom Duty. This condition could not be imposed by the learned Sessions Judge. If the learned Sessions Judge found that it was a fit case for bail, he could not impose such condition which could not be complied with by the accusedrevisionist. The first condition imposed by the learned Sessions Judge amounts to denial of bail which is contrary to the order allowing the bail application of the accused-revisionist. Learned counsel for the accused-revisionist submits that the imported articles are under seizure of DRI , Lucknow for confiscation. The estimated value of the imported articles as per seizure memo is ₹ 29,70,10,750.00. The custom duty can be realized by the DRI Officer confiscating the seized articles. More ever the offences alleged to have been committed by the accused are compoundable. The accused revisionist is not the real exporter of seized articles; rather those articles were exported by Gaj Raj Singh Baid and Rajesh Kumar Gupta. In view of the facts of the case the first condition imposed by the learned Sessions Judge is illegal and is liable to be quashed. The learned counsel in support of his arguments has placed reliance on cases Mo....
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....ter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), [the court shall impose the conditions,- (a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter, (b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and (c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police office or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary.] 438 (2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including - (i) a condition that the person shall make himself available for interrogation by a police officer as and when requir....
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....r of bail. Consequently, the Hon'ble Apex Court ordered the accused to be released on bail during pendency of appeal on filing his personal bond of ₹ 10,000/-. In the case of Keshab Narayan Banerjee and another Vs. The State of Bihar (supra), the accused moved an application for bail before the High Court which was allowed by the High Court directing the accused to furnish security of Rs. one lac in cash or in the form of fixed deposit of any nationalized bank in Bihar with two sureties residing in the State of Bihar each for a like amount. The accused was unable to deposit the amount as per order of the Court. He approached the Hon'ble Apex Court by filing SLP against the condition imposed by the High Court while allowing his bail application. The Hon'ble Apex Court granted leave and allowed the appeal setting aside the condition imposed by the High Court for furnishing the security of Rs. One lac either in cash or in form of fixed deposit of any nationalized bank. The Hon'ble court held that imposing of such condition will amount to denial of bail itself. The Hon'ble Apex Court, therefore, enlarged the accused on bail on his furnishing a personal bond o....
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....ctions 363, 392 I.P.C. They after their arrest moved bail application before the learned Magistrate which was allowed by the learned Magistrate imposing the following conditions:- 1. Accused Nos. 1-5 are released on bail on each of them furnishing personal bond of a sum of ₹ 50,000/- and two sureties each. 2. Accused Nos. 1-5 shall deposit a sum of ₹ 10,000/- each within one month from the day of release. 3. Accused Nos. 1-5 shall mark their attendance before Central Police Station, for 3 months or till laying of the charge-sheet which ever is earlier, every Sunday in between 10-12 a.m. 4. Accused Nos. 1-5 shall not leave the jurisdiction of Bangalore City or Bangalore Rural until charge sheet is filed. 5. Accused Nos. 1-5 shall not threaten/temper the complainant or complainant witnesses. The accused challenged the condition No. 2 imposed by the learned Magistrate before the High Court on the ground that such condition could not be imposed, as such it was illegal and it amounted to miscarriage of justice. The High Court keeping in view the law laid down by Hon'ble Apex Court in Moti Ram Vs. State of Madhya Pradesh (supra) held that the condition No.2 imp....
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....osit the arrears of maintenance allowance @ ₹ 12,500/- from August, 2005 to the date of order amounting to ₹ 3 lacs within six months. The accused challenged the above conditions imposed by the High Court before the Hon'ble Apex Court. The Hon'ble Apex Court held that such conditions are not contemplated under Section 438 (2) of the Code. Therefore, no such conditions could be imposed. The Hon'ble Court also held that normally the conditions that can be imposed while granting the bail to the accused are (i) to secure the presence of the accused before the investigating officer or before the Court, (ii) to prevent him from fleeing the course of justice, (iii) to prevent him from tampering with the evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or Court or (iv) restricting the movements of the accused in a particular area or locality or to maintain law and order etc. To subject an accused to any other conditions would be beyond jurisdiction of the power conferred on Court under Section 438 of the Code. The Hon'ble Apex Court further held that the court while releasin....
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.... that condition cannot be so harsh, onerous, excessive or unjust which will amount to frustrate the very purpose of granting bail. In the case of Abdul Gaffar Vs. State of U.P. and others (supra), the accused was ordered to be released on bail by the learned Sessions Judge on execution of personal bond of ₹ 30,000/- with two sureties each in the like amount to the satisfaction of the Magistrate concerned. He was further directed to furnish bank guarantee of ₹ 30,000/-. The accused was unable to furnish bank guarantee of ₹ 30,000/-. He approached before this Court. It was held by this Court that the court can impose the conditions while allowing the bail application. Those conditions are enumerated in Section 437 (3) of the Code. No conditions other than those enumerated under Section 437 (3) and 438 (2) of the Code can be imposed by the court while releasing the accused on bail. In the case of M.R. Narayanan Vs. State (supra), the Delhi High Court has held that the court while allowing bail application of the accused can impose certain conditions but those conditions should not be unreasonable or unjust. In offences under Sections 420, 406 I.P.C. the Court canno....
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....uld be at liberty to move this court for cancellation of bail." The Cooperative Bank challenged the order passed by the High Court on the ground that the scam involved huge amount of ₹ 107 crore. The amount to be deposited by the accused as per order of the High Court was too meager. The Hon'ble Court keeping in view the undertaking given by the learned counsel for the accused did not interfere in the order passed by the High Court and dismissed the appeal. In this case, whatever conditions for depositing the amount was imposed by the High Court, it was imposed on the willingness of the counsel for the accused who on the instruction received from the accused had given his willingness to deposit the amount. In the circumstances, the Hon'ble Court did not find it proper to interfere in the order passed by the High Court. After going through the law laid down by the Hon'ble Apex Court and the High Courts in the above cited cases, it is well settled that the court while granting bail to an accused can impose certain conditions enumerated under Section 437 (3) (a) to (c) of the Code but that conditions cannot be unreasonable, unjust, arbitrary and onerous. If the cou....