DDT had asked two questions on Thursday:

1. What is a non-bailable offence? And is an offence under Customs/excise non-bailable?

2. Who can grant bail for an offence under these statutes?

DDT is overwhelmed with the enormous response from the highly enlightened clan of TIOL netizens. Some answered the questions and some asked a few more questions, many referred to several judgements. But nobody had a clear sure answer, because there really is none.

To start with, a general understanding:- there is nothing like a non-bailable offence that is an offence for which a bail cannot be given. High Courts and Sessions Courts have rather unfettered power to grant bail. So non-bailable would mean an offence for which the arresting officer cannot give bail. Then who should grant bail? Obviously a court. Then can every court grant bail? Not exactly, it is only the court which is competent to try the case that is competent to give bail too. More of it a little later.

DDT would like to give here the answers sent in by an enlightened lawyer, Padmini Sundaram from Bangalore.

1. What is a non bailable offence? And, is an offence under Customs/excise non bailable?

Section 2(a) of the Cr PC defines both bailable and non-bailable offence which reads as under;

“ 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-bailable offence “ means any other offence”

Table II of the First schedule to the code of Criminal procedures 1973 is shown below for ready reference.

II- Classification of Offences Against Other laws

Looking at the above definition and table II of the First schedule the Code of Criminal Procedure 1973 we are able to differentiate between cognizable offence which is non-bailable and non-cognizable offence which is bailable. 

1) The offence under Section 9(1)(i) of Central Excise and section 135(1)(i) of Customs Act is punishable with imprisonment for a term which may extend to seven years and with fine and would fall under Entry 1 and Entry 2 of Table II of First Schedule above and once it falls in any one of these entries, it becomes cognizable and non-bailable.

2) The Offence under Section 9(1)(ii) of Central Excise and section 135 (1)(ii) is punishable with imprisonment for a term which may extend to three years or with fine or with both. Now here, it should normally fall under Entry 3 of Table II of First Schedule above which is a non-cognizable offence and bailable.

But in a recently reported case law in 2005-TIOL-207-HC-DEL-CUS in the matter of Inderjeet Nagpal vs. DRI, the Delhi High Court declined the prayer for anticipatory bail and dismissed the petition. In Para 11 of the order, the Delhi HC has interpreted that “the offence punishable under Section 135 (1)(ii) providing for punishment extending to three years clearly indicates that the same is punishable with imprisonment for a period upto 3 years and cannot fall under third entry of Table II

Now the BIG QUESTION is whether the term “extend to three years” can in any way mean “upto 3 years”. In fact Entry 2 of Table II above says “If punishable with imprisonment for 3 years and upwards but not more than 7 years” where 3 years is very clear but whereas “extend to 3 years and “upto 3 years” can mean less than 3 years also as in Entry 3 of Table II and in that case it can be non-cognizable and bailable offence. The HC Judgement seems to be quite harsh in as much as Section 135(1)(i) of Customs Act is punishable with imprisonment extending to 3 years or with fine or with both and which definitely does not mean 3 years and upwards i.e Entry 2 of Table II and make it a cognizable and non- bailable offence.

The answer to your question no.2 in table II of the First Schedule to the Cr.PC, 1973 –classification of offences against other laws in column 4..

Another friend wrote in,

In non-bailable offences, the accused is not entitled to bail as a matter of right..In a non-bailable offence, normally it is only the court which is empowered to grant bail to the accused. Any arrested person shall be produced before the nearest Magistrate within 24 hours of the arrest.

I think that offences punishable under section 135 is non bailable. Magistrate of the first class can grant bail.

Brings us to the question as to whether offences punishable with imprisonment for a period less than 3 years or only fine will come under the category of non bailable ? Cases such as refusing to allow X-ray; obstruction an officer on duty etc will come under the said category – Such cases, I presume will be bailable offences – Then does any Magistrate has the right to grant bail ?

Sorry for asking questions but it is better to set right my basics and what better opportunity to get away with it than this one.

Well that explains it. In plain terms, most of the offences under Customs and excise are non bailable and some of the minor offences are bailable. As per judicial decisions even offences for which the punishment may extend up to three years are non bailable.

Now who can grant the bail? Bail can be granted only by a court competent to try the offence. So even though an arrested person is produced before a magistrate, the magistrate cannot really grant bail as in many states there are "Special Courts for Economic Offences" and these courts have exclusive jurisdiction to try cases under Customs and Central Excise. So in these cases even the Sessions Court cannot grant bail.

In Superintendent of Central excise v ELUKALA KRISHNAMACHARI AND OTHERS - 1987 (32) E.L.T. 324 (A.P.), the Andhra Pradesh High Court quashed the bail granted by the sessions Judge. The interesting details of the case are like this:-

Krishnamachary was arrested on 6-12-1985 and produced before the and Addl. Judge, Ist Class Magistrate, Nellore on 7-12-1985, with a remand report that he is guilty of offence under Section 135 of the Customs Act and was liable to be punished for the offence. The Addl. Judge, 1st Class Magistrate, Nellore, remanded Krishnamachary to judicial custody on 7-12-1985. Krishnamachary filed a bail application before the Magistrate on 9-12-1985. That petition was dismissed on the ground that the Magistrate has no jurisdiction to grant bail, while holding that the Special Judge dealing with Economic Offences Cases, Hyderabad, alone has jurisdiction to entertain the application. On 11-12-1985, the Magistrate passed the orders, directing the transfer of the .case to the court of the Special Judge for Economic Offences at Hyderabad as he has exclusive jurisdiction to try the offence and directed the Jail Superintendent to cause the production of the accused on 23-12-1985 before the Special Judge for Economic Offences at Hyderabad. The records were received by the Special Judge for Economic Offences on 16-12-1985. Meanwhile, Krishnamachary filed Crl. M.P. No. 670/85 before the Sessions Judge, Nellore, for grant of bail. In spite of the objection raised by the Public Prosecutor about the jurisdiction of the court to grant bail, the Sessions Judge granted the bail. Against this bail, the Superintendent moved the High Court.

And the High Court emphatically held, "The District and Sessions Judge, Nellore, should not have entertained the application for bail, when it was brought to his notice that the Addl. Judicial 1st Class Magistrate, Nellore dismissed the applications with an observation that the Special Judge for Economic Offences alone has got jurisdiction to the cases. It is clear that the jurisdiction of the Sessions Divisions in the State of Andhra Pradesh has been excluded and that the Special Judge for Economic Offences alone is competent to consider the application for grant of bail."

To conclude, most of the offences under Customs and Central Excise are non bailable and only a competent court, namely the special court in many states can grant bail.

Now DDT's question for the day. Who can arrest for an offence under Service Tax and who can grant bail? Please send in your answers.

DDT is grateful to the netizens for the prompt and high quality answers. Kindly excuse us for not being able to individually thank all the netizens.

Greek and Latin - DDT's new feature.

Prima facie - (PRY-mah-FAY-shee) - "at first sight," - evidence that is sufficient, if not rebutted, to prove a particular fact. In a criminal prosecution, the State has the burden of presenting prima facie evidence of each element of the crime charged. In a murder case, this would mean evidence that the defendant's act caused the victim's death, and evidence that the defendant acted with malice. If the prosecution fails to introduce such evidence, then its case would fail on grounds of "failure to make out a prima facie case,". The Tribunals grant stay if prima facie, the appellant has a strong case.

"For the skeptic there remains only one consolation: if there should be such a thing as superhuman law it is administered with subhuman inefficiency." -- Eric Ambler

Until Tomorrow with more DDT

Have a nice day.

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