Sukhwinder Singh vs Assistant Collector of Customs, Amritsar

S.S. Rathor, J.

The petitioners are alleged to have been secured for interrogation purpose and later on arrested on the charge of having in their possession 200 gold biscuits with foreign markings which they got recovered from the fields. After due interrogation and investigation by the Custom Authorities, they were arrested and produced before the Ilaqa Magistrate on 28.2.1991. That court directed the petitioners to be kept in judicial lock up and since the they are confined in Central Jail, Amritsar.

The concession of bail has been declined to the petitioners. It seems that neither any prayer was made nor the arresting officer directed the release of the petitioners on bail in terms of Section 104(3) of the Customs Act, 1962. The Arresting Officer is empowered to grant bail to the arrested persons under Section 104(3) of the Customs Act, which is reproduced below :

"Where an officer of Customs has arrested any person under SubSection (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 officerincharge of a Police Station has and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898)."

Thereafter, in due course, prayer for bail came for consideration before the learned Sessions Judge, Amritsar, who vide his order dated 30.11.1991, declined the same. Feeling aggrieved against nongrant of the concession of bail, the petitioners have approached this court through this petition.

Admittedly, the petitioners are in judicial lock up since 28.8.1991. Mr. H.S. Giani, the learned counsel for the respondent, has very fairly conceded that the arresting officer was competent in law to grant bail to the present petitioners in terms of Section 104(3) of the Act, but due to gravity of offence, such order was not passed. However, formal order declining bail by the Investigating Officer has not been produced before this Court.

A perusal of the impugned order dated 30.11.1991, shows that bail was declined to the petitioners primarily on the ground that recovery of 200 gold biscuits with foreign makings was got effected by them from the fields after their arrest. Recovery of heavy contraband cannot always be the sole ground for rejection of bail and other facts and circumstances of the case have to be taken into consideration. Without stretching the matter any further on this point, it is suffice to say that no guidelines have been laid down under Section 104 of the Customs Act, 1962, for exercise of powers by the customs Authorities for releasing the arrested persons on bail. Recovery of contraband varies from case to case. No such indication is given in the Act as to in what cases, bail should be declined. Rather provisions of the Code of Criminal Procedure are made applicable for the grant of bail by the Customs Authorities. For alleged heavy recovery from the petitioners, they can be put to adequate/required suitable terms as laid down under Section 347(3) of the Code of Criminal Procedure. It is relevant to mention here that the offence in question is triable by Ist Class Magistrate.

In view of the observations made above, let the petitioners avail concession of bail during the pendency of the trial against them on their furnishing personal and two surety bail bonds in the sum of Rs. 50000/ each to the satisfaction of Chief Judicial Magistrate, Amritsar.

JUDGMENT accordingly