ORDER
S.C. Dharmadhikari, J.
1. This is an application for bail in an offence allegedly committed by the applicant under Section 135 of the Customs Act, 1962. The applicant was arrested on 24-11-2006 by the 2nd Respondent under Section 104 of Customs Act. The allegation is that the applicant is concerned with the fraudulent import of the goods i.e. Fabrics against Advance Licence under DEEC Scheme issued in the name of M/s. Suvidh Overseas Mumbai, which has also been fraudulently obtained and diverted the same in the local market. In other words, there is a violation of provisions of Customs Act, 1962 and Import policy.
2. Applicant was produced before the learned Addl. Chief Metropolitan Magistrate (ACMM for short) on 24-11-2006 and his remand was sought, inter alia, on allegation that he procured IEC from other arrested persons and imported large number of Fabrics at Tuticorin Port which were cleared duty free against actual user condition. Applicant's application for bail was rejected on 25-11-2006. Applicant was remanded to judicial custody till 4th December, 2006.
3. A second bail application was also filed on 27-11-2006 but it is withdrawn.
4. The submission of the learned Counsel appearing for the applicant is that the learned ACMM failed to appreciate that offence under Section 135(1)(ii) of the Customs Act, 1962 is available offence. Therefore, there is no warrant for declining to grant bail in an offence which is bailable. Reliance was placed before the learned Metropolitan Magistrate so also before me on a judgment of this Court (A.M. Khanwilkar, J.) reported in : 2005(179)ELT532(Bom) . The learned Counsel further submits that the respondents being aggrieved and dissatisfied with the judgment of the learned Single Judge of this Court have preferred a Special Leave Petition wherein the Hon'ble Supreme Court after proceeding to grant Leave to Appeal and staying the order was pleased to also direct that the respondents before the Supreme Court should not be arrested.
5. He submits that at the same time a learned Single Judge of Punjab and Haryana High Court following the judgment of this Court held that the offence is a bailable one. From the judgment of the learned single judge of Punjab and Haryana High Court a Special Leave Petition was preferred by the Respondents and the Hon'ble Supreme Court has proceeded to dismiss the same by its Order dated 31st October, 2006. In such circumstances and when nothing was pointed out to deny bail, it was not proper on the part of the learned ACMM to reject the bail application.
6. Mr. Lambay appearing for the respondents firstly invited my attention to the bail application which was preferred by the applicant in the trial court and contended that a solemn statement was made therein that entire duty/liability would be cleared. However, despite being aware of the alleged duty/liability the same is not paid. That apart, according to Shri Lambay, it is contended by the Revenue all throughout that offences under Customs Act and more particularly Section 135(1)(ii) thereof cannot be held to be bailable. He submits that the scheme of act is such that it would not be proper to hold that the offence alleged is bailable. He submits that there are several aspects of the matter, which have not been considered by either this Court or Punjab and Haryana High Court and merely because the Supreme Court declines Special Leave to Appeal, it does not mean that it has approved the reasoning of the learned single judge of this Court or upheld the judgment otherwise. He submits that there are several issues which need to be gone into and his endeavour is to point out to me that the view taken by the learned Single Judge requires reconsideration. He also submits that the investigations are in progress. The applicant is not the only person involved in the act. There are others who have yet to be apprehended and arrested. The offence has severe economic repercussions and the tax liability is yet to be ascertained. If at this stage the applicant. If at this stage the applicant is enlarged on bail it is quite likely that he will tamper with the prosecution witnesses and shall not render any assistance in the interrogation and investigation, so also adversely influence the same. In such circumstances, even if the offence is held to be bailable this Court should not exercise its discretion. More so when the matter is still pending in the Supreme Court.
7. I have taken note of the rival contentions. The learned Counsel appearing for the applicant has handed over two Demand Drafts to the 2nd Respondent, who is present in the court. The Demand Drafts are to the tune of Rs. 49 lakhs. It is true that at this stage payment under of the alleged duty liability will not be sufficient enough to enlarge the applicant on bail. However, the Hon'ble Supreme Court has cautioned all throughout that a co-ordinate bench cannot ignore a decision which is binding upon it. Merely because some arguable point is raised it is not possible to ignore a binding precedent. Judicial discipline and propriety demands that another learned Single Judge of this Court should follow the prior view unless it is shown that the same is per incuriam. That aspect has not been highlighted. Even otherwise, the matter being pending before the Supreme Court, it would not be proper to brush aside the judgment of the learned Single Judge. More so, when it is followed by Punjab and Haryana High Court and a Special Leave Petition from its decision is summarily dismissed. I would therefore proceed to decide the matter on the touch stone of the law laid down by the learned Single Judge of this Court (Shri Khanwilkar, J.) Therefore, the offence being bailable the learned Addl. Chief Metropolitan Magistrate was in clear error in denying relief to the applicant. The counsel appearing for the applicant has not opposed imposition of such conditions as are permissible in law to ensure smooth progress of investigation. The apprehension expressed by the respondents in their reply to the bail application/remand application can be taken care of by imposing stringent conditions. Hence, the following order would subserve the ends of justice.
Order:
(i) The applicant arrested in connection with R.A. No. 110/2006 pending in 3rd Court, Esplanade Mumbai shall be enlarged on bail for sum of Rs. 1,50,000/- with one or two local sureties in the like amount;
(ii) The applicant shall report to Respondent No. 2 - Intelligence Officer, Directorate of Revenue Intelligence, Mumbai twice a week till the complaint is filed and thereafter as per the directions of the trial court.
(iii) The applicant shall deposit his passport forthwith with Respondent No. 2 - Intelligence Officer, Directorate of Revenue Intelligence, Mumbai. Deposit of passport is condition precedent for release of applicant on bait-(iv) The applicant shall not leave India without prior permission of the trial court.
(v) The applicant shall furnish his address to the Investigating Officer where he proposes to reside after bail and during pendency of the trial. The applicant shall not change his residence without prior intimation of the Investigation Agency.
(vi) The bail is granted subject to condition that the applicant shall not, directly or indirectly, make any inducement or threat to any prosecution witnesses and shall not in any matter tamper with prosecution evidence;
(vii) The applicant shall cooperate with the Trial Court for expeditious disposal of the trial. Any attempt by the applicant to delay the trial may be a ground for cancellation of bail;
(viii) Any observation/s made in this order shall not be construed as any finding or any expression of opinion on the merits of the case at the time of trial.
(ix) Application is disposed of in above terms.
(x) All concerned to act on a copy of this order duly authenticated.
8. At this stage the learned Counsel for the applicant prays for release of the applicant on cash bail for a period of one week. This request is opposed by Shri Lambay. Considering that the applicant has been detained from 24th November, 2006 and the offence is held to be bailable, in the peculiar facts of this case the applicant shall be released on furnishing cash bail for period of five days.