2008 (4) TMI 323

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....ourt has power to impose condition? OR (B) Whether power to impose condition can be exercised by the Court in a case of non-bailable offence only when punishment is more than 7 years? 2. Brief facts giving rise to the Reference are as under : 2.1 Petitioner is a Director of a Company named M/s. Jhoola Refineries Limited., situated at Varanasi. On 25-1-2006 the Directorate of Revenue Intelligence, Gandhidham-Kachchh arrested him in connection with evasion of customs duty to the tune of Rs. 1.71 Crore. The allegations in nutshell are to the effect that the Petitioner is involved in import of Crude Palm Oil, Industrial Grade/Non Edible Grade at concessional rate of duty under Notification No. 21/2002-Cus. dated 1st March, 2002 read with Not....

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....05 on certain terms and conditions. One of the terms and conditions is condition No. 3 which reads as under : "Still completion of the trial, the accused shall, not leave the limits of India. If the accused is holding passport then he shall surrender the passport to the trial Court within 8 days and if he is not holding any passport then he should declare it by way of an affidavit." 2.3 The petitioner thereafter preferred an application being Criminal Misc. Application No. 121 of 2007 before the Additional Sessions Judge, Gandhidham Kachchh and prayed for deletion of the condition No. 3 which was imposed while releasing the accused on bail. The principal contention of the accused was to the effect that Section 135(1)(ii) of the Customs Ac....

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....d the present petition, i.e. Criminal Misc. Application No. 6325 of 2007. The same contentions were reiterated and the same case law was relied upon before the learned Single Judge of this Court. The learned Single Judge vide order dated 19-11-2007 came to the conclusion that it was difficult to accept the contention of the accused that the offence u/s 135(1) (ii) is a bailable offence. Learned Single Judge took the view that the Division Bench's decision of this High Court hold the field and the judgment of the learned Single Judge of Bombay High Court will not be helpful to the accused despite the fact that the learned Single Judge of Bombay High Court while holding that Section 135(1)(ii) of Customs Act is bailable has discussed the Divi....

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....earned Single Judge in para 12 of the judgment in Hasmukhlal Kalidas Choksi (supra) the issue deserves to be referred to the Larger Bench for its consideration and opinion. Learned Single Judge directed the office to place the matter before the Hon'ble the Chief Justice for appropriate orders and the Hon'ble Chief Justice has accordingly placed the matter before this Court. 5. It is submitted by Mr. J.B. Pardiwala, learned advocate of the Petitioner that so far as a reference on the two issues is concerned, would be purely of academic nature so far as the petitioner is concerned. The answer to the two questions which have been framed by the learned Single Judge, one way or the other, is not going to help the petitioner in any manner becaus....