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Judgment
Rule. Mr. Sunil Patel, Addl. Standing Counsel, waives service of rule for Resp. No. 1 and Mr. K. C. Shah, learned A. P. P., waives service of
rule for Resp. No. 2.
This is an application u/s 439(1) of the Criminal Procedure Code, 1973 (''Code'' for short) by the petitioner, who is arrested in an offence,
being registered as Customs F. No. VIII/10-20/AP/95. On being produced before Addl. Chief Metropolitan Magistrate, Ahmedabad, he was
remanded to judicial custody. There also, an application was filed to release him on bail, being Criminal Misc. Application No. 21/95, and the
same came to be rejected on 18-12-1995. Thereafter, the petitioner filed Criminal Misc. Application No. 3374/95 before learned Additional City
Sessions Judge, Court No. 12, Ahmedabad, who also rejected the said application by his judgment and order dated 11-1-1996. Petitioner has
now moved this court for releasing him on bail.
The petitioner is arrested on the allegation that on his landing at International Airport at Ahmedabad on 6-12-1995 by Indian Airlines Flight No.
IC664, his baggages were checked, which contained one mixer, one handbag and one rice cooker and he presented the same for customs
clearance. According to the petitioner, he did not possess any prohibited goods, but ultimately on suspicion when the rice cooker was broken, six
gold bars totalling 699.7 grams, valuing Rs. 3,54,000/- was found and seized under a panchnama. In view of this act of smuggling, the petitioner
came to be arrested and is in judicial custody.
Petitioner has prayed for his release on bail on number of grounds. However, in my opinion, following grounds are very relevant to be
considered. The facts are eloquent. Initially, petitioner had disclosed that he has no articles or goods which are prohibited under the Customs Act
and he allowed his articles, namely, bags and luggages, to go through screening channel where rice cooker showed something having contained and
raised suspicion, the basis on which the same was broken open and the gold was found. Therefore, in my opinion, so far as the facts are
concerned, there is a prima facie case against the accused.
Question of law, which is raised by learned Advocate for the petitioner is, that the offence alleged is an offence u/s 135 of the Customs Act.
Reading Section 104, power of arrest, with Section 135, the offence u/s 135 is either a bailable offence and/or even if non-bailable, should be
dealt with as if it is a bailable one, as powers exercised by customs officers even in such offences are the powers contemplated u/s 436 of the
Code. He, therefore, contended that if the offence is bailable one, then there is no reason to refuse bail to the petitioner or there is no reason to
refuse bail to the petitioner if the offence is to be treated like a bailable one, though it be a non-bailable one. Mr. Ahuja contended that in the
judgment in the case of Chandulal Maganlal Patel v. State of Gujarat in Misc. Cri. Appln. No. 1202 of 1979 decided on 10-12-1979 by R. C.
Mankad, J., as he then was, it is held that the offence u/s 135 is available offence. Mr. Ahuja, therefore, contended that once the offence is bailable
one, then the Court should not ordinarily refuse bail inasmuch as it is the right of the accused to be released on bail if he is-prepared to furnish bail.
Mr. Ahuja further contended that in view of the provisions of sub-section (2) of Section 4 of the Code, all offence under any other law shall be
investigated, enquired into, tried and otherwise dealt with according to the same provision, but subject to any enactment for the time being in force
regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offence. Mr. Ahuja further contended that
second schedule to the Code to decide whether the offence is bailable or not or cognizable or non-cognizable, is not applicable in the case u/s 135
of the Customs Act. He contended that when the special Act, Customs Act, 1962, specifically provides for the same, general Act is not
applicable. General Act is applicable only in cases where the special Acts do not provide for such contingency. Mr. Ahuja further contended that
in view of provisions of Section 104(3) and (4), it is clear that the special Act, Customs Act, has provided that the offence u/s 135 is non-
cognizable and a bailable one. He, therefore, contended that second schedule to the Code is not attracted to the offences under the Customs Act.
To substantiate his arguments, he has relied on number of authorities, which I will discuss at an appropriate stage. Section 104 provides for the
power to arrest, which reads as under :-
Power of arrest - (1) If an officer of customs empowered in this behalf by general or special order of the Collector of Customs has reason to
believe that any person in India or within the Indian customs waters has been guilty of an offence punishable u/s 135, he may arrest such person
and shall, as soon as may be, inform him of the grounds for such arrest.
(2) Every person arrested under sub-section (1) shall, without unnecessary delay, be taken to a Magistrate.
(3) Where an officer of customs has arrested any person under sub-section (1), he shall, for purpose of releasing such person on bail or otherwise,
have the same powers and be subject to the same provisions as the officer in-charge of a police station has and is subject to under the Code of
Criminal Procedure, 1898 (5 of 1898).
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence under this Act, shall not be cognizable.
Section 104 of the Customs Act refers to Section 135 of the Customs Act, relevant portion of which reads as under :-
Evasion of duty or prohibitions - (1) Without prejudice to any action that may to taken under this Act, if any person -
(a) is in relation to any goods in any way knowingly concerned 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 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 liable to confiscation u/s 111, he 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 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
XXXX XXXX XXXX XXXX
Admittedly, find of gold is in contravention of Sections 111, 123 and some other Sections of the Customs Act. The value of the goods exceeds Rs.
1 lac and, therefore, punishment provided for under clause (i) of sub-section (1) of Section 135 is maximum seven years and the proviso has also
prescribed for the minimum of three years. Thus, offence alleged to have been committed by the petitioner is punishable u/s 135 with minimum
three years and maximum seven years.
Mr. Ahuja has contended that sub-section (4) of Section 104 has made the offence under this Act (Customs Act) to be a non-cognizable one
and sub-section (3) of Section 104 provides that where an officer of customs has arrested any person under sub-section (1), he shall, for the
purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer in-charge of a
Police Station has and is subject to under the Code of Criminal Procedure. In view of the provisions of sub-section (3) of Section 104, Mr. Ahuja
contended that the customs officers are given the same powers for the purpose of releasing such persons on bail or otherwise as the officer in-
charge of a Police Station has. In the whole of the Code of 1973, power to release on bail by officer in-charge of a Police Station has been
provided in Section 436 only. In no other provisions of Code of 1973, the powers of officer in charge of a Police Station are prescribed. Mr.
Ahuja, therefore, contended that such powers of in-charge of Police Station are provided in Section 436 of the Code of 1973 and the same is for
the purpose of bailable offences. When the Customs officer is put with similar powers under sub-section (3) of Section 104 to release the accused
persons of such offences on bail, the offences should be read as bailable offences and not as non-bailable one. He, therefore, contended that in
view of Section 104(3), offences u/s 135 are bailable ones and that is why customs officers are provided with power to release them on bail in the
manner like Police officers in-charge of a Police Station. He, therefore, contended that second schedule of the Code of 1973 is not applicable at
all in the instant case. He further contended that the second schedule, assuming for the sake of argument that the same is applicable, column 3
regarding offences of second category, should be read as bailable as column No. 2 is required to be read as non-cognizable in view of provisions
of Section 104(4) of the Customs Act.
22-2-1996 :
Mr. H. M. Mehta, learned Senior Counsel with Mr. S. C. Patel, contended that there is a fallacy in the argument of learned Counsel Mr. Ahuja. In
view of provisions of Section 4(2) of the Code and when there is no specific provision in the Customs Art regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing with the offences under the Customs Act, the said offences are required to be dealt with in
accordance with the provisions of the Code. He also contended that simply because an offence is made non-cognizable in Section 104(4) of the
Customs Act, it can at the most be said that second schedule is required to be read accordingly as an enactment is made for the same in the
Customs Act, but by analogy of power to be exercised identically with the power of the Police Station Officer, the Customs Officer can so
exercise only in cases of bailable offences. The offences under the Customs Act required to be dealt with by the Customs Officers are also bailable
offences and second schedule of the Code should be read accordingly. He further contended that Section 104(4) is introduced with a view to
avoid the principle of double jeopardy. If provision of Section 104(4) would not be there, in that case the offence, though under the Customs Act
to be dealt with, investigated and enquired into by the Customs Officers, the inquiry and investigation to be controlled by the Customs Officers
would be complained of by the Police Officers and the control of the Customs Officers may be lost or it may happen that for the same facts
constituting offence, Police may take cognizance under the Code in view of provisions of Section 4(2) of the Code and Customs Officers may also
take cognizance and file complaint, more particularly in view of the fact that cognizance of the offences under the Customs Act as stated in Section
137 cannot be taken without the previous sanction of the Collector of Customs. A situation may arise that though Customs Officers have power of
search, seizure or arrest, they might be doing so simultaneously with the Police and the person suspect of commission of offence may have to face
double authority for the prosecution. To avoid this situation, the offence is made non-cognizable u/s 104(4) of the Customs Act so that the
complaint can only be filed by the Customs Officer. In view of this, Mr. Mehta contended that there is no substance in the contention raised by
learned Counsel Mr. Ahuja and in the facts and circumstances of the case, the application for bail is liable to be dismissed.
To appreciate these diverse contentions of the parties by their learned Counsels, it will be relevant to refer to clauses (a), (c), (l), (o) and (s) of
Section 2 of the Code. They read as under :-
2(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-bailableoffence"" means any other offence;
2(c) ""cognizable offence"" means an offence for which, and ""cognizable case"" means a case in which, a Police Officer may, in accordance with the
First Schedule or under any other law for the time being in force, arrest without warrant;
2(l) ""non-cognizable offence"" means an offence for which, and ""non-cognizable case"" means a case in which, a Police Officer has no authority to
arrest without warrant;
2(o) ""officer in-charge of a Police station"" includes, when the officer in-charge of the police station is absent from the station-house or unable from
illness or other cause to perform his duties, the police officer present in the police-house who is next in rank to such officer and above the rank of
constable or, when the State Government so directs, any other Police officer so present;
2(s) ""Police station"" means any post or place declared generally or specially by the State Government, to be a police station and includes any local
area specified by the State Government in this behalf.
Section 4(2) of the Code reads as under :-
4(2) All offences under any other law shall be investigated, inquired into, tried, or otherwise dealt with according to the same provisions, but
subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with
such offences"".
Second Schedule of the Code reads as under :-
II. Classification of offences against other laws
---------------------------------------------------------------------
Offence Cognizable or Bailable or By what court
non-cognisable non-bailabe triable
----------------------------------------------------------------------
If punishment with
death, Cognizable Non-bailable Court of Session
imprisonment for
life, or imprisonment
for more than 7 years
If punishable with Ditto Ditto Magistrate of
imprisonment for the first class
3 years and upwards
but not more than
7 years
If punishable with Non-cognizable Bailable Any Magistrate
imprisonment for less
than 3 years or with
fine only
----------------------------------------------------------------------
Section 4(2) specifically provides that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according
to the provisions of the Code.
Mr. Ahuja to substantiate his argument that this offence u/s 135 of the Customs Act is a bailable one, has relied on a judgment in the case of
Chandulal Maganlal Patel v. State of Gujarat reported at 1980 G. L. T. 74, wherein R. C. Mankad, J., as he then was, has observed as under :-
Section 104 of the Customs Act empowers the customs officer to arrest any person guilty of offence punishable u/s 135. Sub-section (2) of the
said Section provides that every person arrested under sub-section (1) shall, without unnecessary delay, be taken to a Magistrate. Sub-section (3)
provides that where an officer of customs has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail
or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a Police Station has and is subject to under
the Code of Criminal Procedure. The Police Officer has power to release an accused person on bail only in case where bailable offence is
committed. The customs officer has been given same powers as police officer to release person accused of having committed offence u/s 135 of
the Customs Act on bail. It would, therefore, appear that offence u/s 135 is a bailable offence, as defined in Section 2(1) of the Code.
Referring to this single Judge judgment of 1980 G. L. T., the Division Bench of this court in the case of N. H. Dave v. Mohmad Akhtar - 1984
(15) E. L. T. 353 (Guj.) = 1983 G. L. H. 1 in Para 7 has observed that ""therein the learned single Judge has taken the view that an offence u/s 135
of the Customs Act is a bailable offence. It, however, appears that the provision contained in Part II of the First Schedule entitled ""Classification of
Offences against other laws was not brought to the notice of the learned single Judge"". Thereafter, it is further held that ""the view taken by the
learned single Judge in Miscellaneous Criminal Application No. 1202 of 1979 is not correct. The decision has been rendered per incuriam having
regard to the fact that the aforesaid provisions of the Code were not brought to the notice of the learned single Judge. It cannot be considered as
good law. Counsel for the arrested persons also concedes that such is the position and does not dispute it"". Thus, the Division Bench of this Court
has held in the case of N. H. Dave that offence u/s 135 of the Customs Act is not a bailable one.
This apart, the question is whether on the principle of interpretation of statutes, a part of Schedule, if not made applicable, can by a stretch of
argument be said that in view of other provisions, other part is also not applicable. Learned Counsel Mr. Ahuja contended that in view of Section
104(4), the offence u/s 135 is made non-cognizable and, therefore, that part of Second Schedule of the Code is not applicable for the offence u/s
135 of the Customs Act. He then contended that in view of Section 104(3) when the customs officer is given identical power with that of Police
station officer, who has right to exercise such power only in cases of bailable offences, the powers which the custom officer can exercise in such
offences also should be treated as bailable one and, therefore, in view of Section 104(3), Second Schedule of the Code also cannot be read
accordingly, having special provision in the special Act. There is no dispute to the proposition that if there is a provision in a special statute, general
statute does not apply so far such provisions are concerned. Second Schedule makes the offence wherein the punishment is more than three years
and less than seven years non-bailable one. By reading Section 104(3) of the Customs Act, the offence becomes a bailable one as per the
contention raised by learned Counsel Mr. Ahuja. It is no doubt an attractive one, but requires to be stated for rejection. Section 104(3) provides
that a person arrested by the officer of customs having alleged to have committed an offence u/s 135 may exercise powers of officer in-charge of a
Police station for the purpose of releasing such person on bail or otherwise. Thus, it can at the most be said that officer of customs, if, for the
reasons to be stated or in his opinion, requires to release such arrested person on bail, he has to exercise powers of the officer in-charge of the
Police station and is subject to the provisions for the same. Simply because a power is given to the custom officer in special facts and
circumstances to release the person on bail, that does not make the offence a bailable one, because the power of releasing on bail is given specially
under the provisions of Section 104(3). Simply because the powers of release on bail can be exercised by the customs officer, the offence does
not become a bailable one.
This apart, learned Counsel Mr. Ahuja contended that in the case of Directorate of Enforcement Vs. Deepak Mahajan and another, , there is a
reference to the report of the Select Committee in Para 129 which reads as under :-
The Committee are of the view that an Officer of Customs arresting a person under the clause should have the power to release the arrested
person on bail or otherwise similar to the power conferred on the officer in-charge of a Police station under the Code of Criminal Procedure, 1898
so as to obviate the necessity of detaining an arrested person till he can be taken to a Magistrate. The Committee feel that sub-clause (3) being
merely a repetition of the provisions of the Criminal Procedure Code, 1898 should be omitted.
The Committee has felt that sub-clause (3) being merely a repetition of the Criminal Procedure Code, 1898 should be omitted and despite the
same, the same is not omitted and is incorporated in the Customs Act. Simply because the recommendation of the Subject Committee is not
accepted or followed by the Legislature, it does not mean that the same is required now to be given a different meaning. If Section 104(3) remains
on the statute, it does not come in conflict with the provisions of Section 436 or Section 437 of the Code. Section 436 provides that in case of
bailable offences if a person arrested is prepared to furnish bail, he should be released on bail, but the condition precedent is that the person must
be arrested of a bailable offence. By analogy, as contended by Mr. Ahuja, the offence u/s 135 does not become a bailable one and the judgment
of the single Judge of this Court is not a good law in view of the judgment of the Division Bench in the case of N. H. Dave (supra) and the said
judgment of the Division Bench stands confirmed in the case of Directorate of Enforcement (supra). The Supreme Court in the case of Director of
Enforcement has specifically held that ""we are in total agreement with the above view of M. P. Thakkar C. J."". It is not stated that part of the
judgment is approved and part is not approved. Therefore, on reading of sub-section (3) or sub-section (4) of Section 104 of the Customs Act, it
cannot be said that they exclude application of Second Schedule of the Code and the offence u/s 135 of the Customs Act becomes bailable.
Mr. Ahuja has relied on the following authorities :
A. I. R. 1975 M. P. 104
A. I. R. 1975 Calcutta 450
A. I. R. 1975 Patna 227
A. I. R. 1974 S. C. 314
He has cited these authorities for the purpose of showing that on proper interpretation of sub-section (3) of Section 104 read with Section 436 of
the Code and in view of the report of the Select Committee, it should be interpreted that not only that second schedule of the Code is not
applicable, but the offence is bailable one. It is none of the function of the court to consider argument of inconvenience or hardship. Where the
language is explicit, its consequences are for the legislature. It is the prime principle of interpretation of statutes that statutes should be saved and in
the instant case, in view of Section 4(2) of the Code and when there is no specific provision to make the offence u/s 135 of the Customs Act
bailable one as it is made by Section 104(4) the offence u/s 135 non-cognizable one, by stretch of argument to the effect that simply because the
identical powers are given to the customs officers like that of the Police Station officer who can exercise such power in case of bailable offence, the
offence under the Customs Act would not become bailable one.
Now, when the offence is a non-bailable one, consideration for the release of such an accused on bail will fall under the provisions of Sections
437 and 439 of the Code. u/s 439 of the Code, any person accused of an offence and in custody be released on bail and if the offence is of the
nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-
section.
The facts of the case, which are stated hereinabove, are so eloquent that this application does not deserve to be allowed. What is required to
be considered by the Court for grant of bail is the nature of crime, nature of charge, evidence and possible punishment, possibility of interference
with the course of justice, antecedents of the applicant, furtherance of the interest of justice, socio-geographical circumstances; prospective
misconduct and the last conditions of bail. Question of imposing conditions will only arise if the court is inclined to grant bail, but in the instant case
there is a good prima facie case against die accused; there are all the probabilities of conviction and the sentence provided for is maximum seven
years and only refusal of bail will further the interest of justice in such cases.
We may add that so far as the facts of the case are concerned, it is clear that though the permanent address of the applicant is Dhoraji, he has
given his address in the Passport as that of Bombay. He has stated that he had gone to Sharjah for the purpose of securing employment. He has
returned back to India within five days. It appears from the affidavit of Customs Officer that though the customs officers wanted to check the
cooker on suspicion, he has stated that if anything goes wrong with the cooker they shall have to pay for the same. Thus, so daringly he has stated
to the customs officers that the cooker does not contain anything. He has also stated that he was given the said cooker by his uncle for delivery to
some of his friend in India, who was to meet him at the Airport. He does not disclose the name of the friend of his uncle; nor the name of the
person to whom the cooker is to be delivered in India. Thus, the conduct of the applicant also does not deserve any sympathy.
Under these circumstances, this application deserves to be dismissed and is hereby dismissed, Rule discharged.