Arrest under Customs Act – offence being bailable, accused has a right for bail – Court cannot impose condition of surrender of passport or bar on foreign travel – Bail has to be given even if he is not able to give surety: Bombay High Court
By TIOL News Service
MUMBAI, SEPT 30, 2008 : THE Petitioner has challenged that part of the order dated 15th April 2006 passed by the Additional Chief Metropolitan Magistrate, 3rd Court, Esplanade, Mumbai, by which the Petitioner was directed to deposit the passport with the Customs Department and by which the petitioner was directed not to leave India without the permission of the Court in writing.
The question which is raised for consideration in this Petition is whether a Court while granting bail in a bailable offence can impose a condition of surrender of passport and further condition that the accused shall not travel abroad without permission of the Court.
The case of the Petitioner is that the officers of the Directorate of Revenue Intelligence arrested the Petitioner under section 104 of the Customs Act, 1962 for an alleged offence punishable under section 135(1)(ii) of the Act. He was arrested on 12th April 2006. A remand application was filed before the Magistrate on the same day. The Magistrate granted remand though it was contended that the offence was a bailable offence. The Petitioner applied for bail and by order dated 15th April 2006, the Magistrate enlarged the Petitioner on bail. The relevant part of the order passed by the
Magistrate reads thus :-
"As far as accused Sultan K. Dharani, he be released on bail on executing PR & SB of Rs.three lacs with permission to deposit cost security in lieu of SB. If he possess the passport, then he shall deposit it with the department and if not, then, shall make an affidavit to that effect, immediately, on his release. He shall not leave India without permission of the Court in writing."
The Petitioner has stated in the Petition that he has received an invitation to visit New York and therefore, he has filed the present Petition.
The petitioner submitted that the offence alleged against him was under section 135(1)(ii) of the Customs Act. He submitted that as section 123 of the said Act was not applicable to the goods involved in the case, the offence was bailable. He also placed reliance on a decision of the Single Judge of Kerala High Court in support of the contention that while granting bail in a bailable offence, the Magistrate cannot impose any condition and in particular, the condition of surrender of passport. He submitted that under section 436(1) of the Code of Criminal Procedure, 1973, there is an unfettered right vesting in the accused to be enlarged on bail when he is ready to offer bail.
The Counsel for the State did not dispute that the offence alleged against the Petitioner was a bailable offence. She submitted that the case involves a large scale conspiracy relating to the import of goods of the value of Rs.150 crores involving duty evasion of Rs.65 crores. She submitted that there is an apprehension that the if the Petitioner is permitted to travel abroad, he will not remain available for the purpose of investigation and it will be very difficult to secure his presence. She submitted that there is no prohibition provided in the Statute which prevents a Court from imposing suitable conditions.
The High Court observed, “It is not in dispute that the offence alleged against the Petitioner is a bailable offence. The question is whether the learned magistrate while enlarging the Petitioner on bail in a bailable offence, could have imposed conditions such as a condition requiring the accused to surrender his passport. The question is whether the learned Magistrate could have imposed a condition that accused will not travel abroad without prior permission of the concerned Court. “
After a thorough analysis of the Law, the High Court observed,
“It is apparent that in case of a bailable offence, the police officer or the Court, as the case may be, has to take a bond for such sum of money as the police officer or the Court, as the case may be, think sufficient. One or more sureties can also be taken. The bond to be taken in such cases is for ensuring attendance of the accused before the Court and/or before the police, as the case may be.”
The grant of bail has a result of setting a person arrested at liberty on surety being taken for his appearance on a day or place certain. The surety taken is called as ‘bail’. Under the old Code, Section 496 conferred absolute right to bail to a person accused of commission of bailable offence. The said absolute right has been recognised by sub-section (1) of section 436 of the said Code. The difference between the old section 496 and section 436 of the present Code is that sub-section (2) of section 436 did not find place in section 496. Sub-section (2) of section 436 gives power to the Court to decline bail in the event a person who has been enlarged on bail under sub-section (1) of
section 436 fails to comply with the condition of bail bond as regards time and place of attendance.
Perusal of section 436 of the Code of 1973 shows that there is no provision therein which gives power to the Court to impose any condition while enlarging an accused on bail in a case where bailable offence is alleged. In fact, the first proviso of the said section lays down that if an accused is indigent and is unable to furnish surety, the Court is under an obligation to discharge him on his executing a bond without sureties for his appearance.
The explanation to sub-section (1) of section 436 provides that when a person is unable to give bail within a week of his arrest, it shall be a sufficient ground for the Officer or a Court to presume that he is an indigent person for the purposes of this proviso. Thus, the law makes it clear that when an accused who is alleged of commission of a bailable offence is unable to furnish bail in the form of surety within a week from his arrest, he has to be discharged on his executing a bond. Thus, not only sub-section (1) but the first proviso and the explanation thereto clearly show that an unfettered right is granted to be enlarged on bail to a person other than a person accused of non-bailable offence arrested or detained without any warrant by an Officer in charge of a police station or when such a person appears or is brought before a Court. Such a person has to be enlarged on bail provided he is prepared to give bail. If such person is indigent and is unable to furnish surety, by dispensing with the requirement of furnishing bail or surety, he has to be discharged on his executing a personal bond without sureties. If such a person is unable to give bail within a period of one week from the date of his arrest, by legal fiction, the law presumes that the person is an indigent person and thus he will have to be discharged on executing a personal bond without sureties.
Thus, the position of the law is that a person who is alleged to have committed a bailable offence has an unfettered and absolute right to be enlarged on bail and the Court or the Police Officer concerned, as the case may be, has no discretion to grant or refuse bail.
Subject to first proviso to sub-section (1) of section 436 of the Code of 1973, the Court may modulate the condition of bail as regards the bail amount and the number of sureties. However, the Court cannot impose a condition which is not a term as to the bail. The condition of requiring a person accused of a bailable offence to surrender his passport to the Court is not a term as to bail. If in such a case a condition is imposed that bail is granted subject to condition of deposit of passport, such a condition will defeat the absolute right of the accused under section 436(1) of the said Code to be set at liberty. In the circumstances, while enlarging the Petitioner on bail in a bailable offence, the Magistrate has no jurisdiction to direct deposit of the passport. The Magistrate cannot impose a condition while granting bail in a bailable offence of not leaving India without the permission of the Court. Whenever the Petitioner is enlarged on bail, he is bound to attend the concerned Court on the date fixed or whenever he is called upon to do so. This obligation is created by the bail bond. If he desires to remain absent, he will have to seek an exemption from the Court. In a given case if there is an apprehension that the accused is likely to abscond, steps can also to be taken under the appropriate provisions of law. Steps can be also taken for impounding the passport.
In the circumstances, the Court passed the following order:-
(1) The application is allowed by setting aside the direction in order dated 15th April 2006 of depositing the passport as well as the consequential direction that the Petitioner shall not leave India without prior permission of the Court.
(2) It is however clarified that the Petitioner is bound by the other conditions incorporated in the bail bonds.
(3) The passport of the Applicant shall be returned to him within a period of six weeks from today.
(See 2008-TIOL-474-HC-MUM-CUS in 'Customs' + 2008-TIOL-474-HC-MUM-CUS in 'Legal Corner')
