Prashant Kumar, Asstt. Collector Vs. Mancharlal Bhagatram Bhatia - Court Judgment

SooperKanoon Citationsooperkanoon.com/333992
SubjectCustoms
CourtMumbai High Court
Decided OnJul-30-1987
Case NumberCrl. Revision Application No. 247 of 1987
JudgeAshok Agarwal, J.
Reported in1988(37)ELT3(Bom); 1987MhLJ1026
ActsCustoms Act, 1962 - Sections 108 and 135
AppellantPrashant Kumar, Asstt. Collector
RespondentMancharlal Bhagatram Bhatia
Excerpt:
customs - bail - sections 108 and 135 of customs act, 1962 - petition filed against order of grant of bail to respondents in prosecution under section 135 - petitioner contended that no reason for grant of bail to respondents were recorded by magistrate and order granting bail without recording reasons cannot be sustained - respondents being prosecuted for committing smuggling of goods valued at over 23 lakhs - in such circumstances it is unjustified to grant bail to respondents - order of bail set aside. - - it should be borne in mind that the common good of the society should be properly balanced against the individual liberty. 10,000/- with one surety each in the like amount and the bail amount of the respondents nos.ashok agarwal, j.1. the petitioner who is the assistant collector of customs and central excise, being aggrieved by the order of grant of bail dated the 1st july 1987 passed by the learned judicial magistrate, first class, bhiwandi, in a prosecution under section 135 of the customs act, has presented the present revision application.2. on the 28th june 1987 a truck bearing no. mtv 2168 was intercepted near the petrol pump on agra road near bhiwandi s.t. bus stand and 91 packages of 100% polyester texturised yarn of korean origin came to be seized. on investigation it was revealed that the respondent no. 1 is a transport agent engaged in smuggling of the aforesaid polyester texturised yarn from nepal to siliguri and thereafter to bhiwandi via calcutta. respondents nos. 2 and 3 are partners of archana transport company having their office outside the octroi naka of bhiwandi. they owned two trucks which were engaged in transporting the said smuggled yarn from outside the octroi naka to various destinations in bhiwandi and other places. they also owned a godown from where more goods of the aforesaid description were seized. respondents nos. 4 and 5 are drivers engaged by the respondents nos. 2 and 3 for transporting the said goods on their behalf. respondent no. 6 is an owner of a godown as also a manufacture of cloth and he uses the said yarn for manufacturing his own goods. he also distributes the said goods to third parties. on his godown being searched goods of the aforesaid description were seized.3. between the 28th and 30th june 1987 the statements of the aforesaid respondents came to be recorded under section 108 of the customs act. they were arrested on the 30th of june 1987 and were produced before the learned judicial magistrate, first class, bhiwandi, on the 1st of july 1987 on which day an application was filed on behalf of the petitioner praying for judicial custody remand till the 14th july 1987. on that day without there being even a written application on behalf of the respondents nos. 1 to 6 for bail, the learned magistrate was pursuaded to pass the impugned order of bail. the said order of bail to say the least is a criptic order not supported by any reasons whereby the learned magistrate was prompted to grant that bail despite the remand application of the petitioner being placed before him for grant of judicial custody remand for a period of two weeks. it must be said that the magistrates as also the sessions judges while either granting or refusing bail must support their order by cogent reasons and that is all the more so required as their orders are frequently subjected to scrutiny of this court. the reasons when given either for granting or refusing bail go a long way in assisting this court to arrive at a finding as to whether the impugned orders are justified or otherwise. the reasons given would atleast indicate what were the factors that had weighed while either granting or refusing bail. furthermore as per section 437(4) of the criminal procedure code a court releasing a person on bail under sub-section (1) or sub-section (2) of that section shall record its reasons in writing. it is therefore, a statutory obligation cast upon the court to record reasons in writing. hence the impugned order granting bail without recording any reasons cannot be sustained.4. it must be emphasized that once an order of bail is passed under section 437(1), the same cannot be reviewed or revised or set aside by the same authority. that bail can only be cancelled under sec. 437(5) but such a power can be exercised only in extraordinary circumstances. the powers under sec. 437(5), sec. 439(2) are necessarily to be sparingly used and under extra-ordinary circumstances as laid down by the supreme court in the case of the state v. sanjay gandhi, reported in : 1978crilj952 .5. in the present case i find that the trial magistrate was wholly unjustified in granting the impugned order of bail. the goods sized in the present case are valued at over rs. 23 lakhs and this is only one incident in a chain of the illegal activities carried on in the matter of smuggling. if the respondents had been produced before the learned magistrate on the 1st of july 1987 after the arrest on the 30th june 1987 to say the least the impugned order of bail smacks of non-application of mind and has the tendency to scuttle the investigation and to repeat the said order is not supported by any reasons whatsoever. the said order of bail, therefore, deserves to be set aside.6. shri merchant appearing on behalf of the respondent no. 1 and shri kotwal appearing on behalf of the respondents nos. 2 to 6, have, however, strenuously contended that the petitioner in the grab of filing the present revision application for setting aside the impugned order of bail is in fact applying for cancellation of bail. if one has regard to the factors which would be germane to an application for cancellation of bail, this is not a fit case for cancelling bail as none of the said factors can be said to be present is the instant case. they further contended that an order of grant of bail is an interlocutory order and the present revision application seeking to challenge the said interlocutory order is not maintainable in view of the provisions of section 397(2) of the code of criminal procedure.7. i am afraid i have not been able to persuade myself to accede to the aforesaid contentions raised by shri merchant and shri kotwal. if an order of bail has been unjustifiably passed, to lay down that the same cannot be challenged in the superior court would amount to a travesty of justice. the argument that by allowing the revision application, the superior court would in terms be cancelling the order of bail cannot even for a moment be accepted, as that would be an argument open in every case wherein an unjustified order of bail is cancelled by the superior court. it is one thing to say that after an order of bail has been passed certain intervening circumstances had taken place which may require an application for cancellation of bail to be filed, but that is entirely different from the grievance made in this petition viz., that the order of bail was passed unjustifiably at its very inception. in my judgment, therefore, the impugned order of bail has the effect of scuttling the investigation at its very inception and the same will have to be set aside.8. in regard to the contention that the impugned order of bail is an interlocutory order, shri patwardhan, appearing on behalf of the petitioner, has justifiably relied upon a decision of this court in the case of miss r. shakuntala v. roshanlal agarwal and others reported in 1985 cri. l.j 68, wherein it has been held that an order granting bail in the circumstances as in the present case cannot be said to be an interlocutory order and a revision application from such order is maintainable. in view of the aforesaid decision, the submission of shri merchant and shri kotwal that the present revision application is not maintainable, cannot be accepted and must be rejected.9. in view of the legal position discussed hereinabove, the order granting bail under sec. 437(1) cri.p.c. or under sec. 439(1) cri.p.c is a final order. if such an order is passed by a magistrate the same can be challenged in the sessions court or high court in their revisional powers and there cannot be any bar in entertaining a revision application under sec. 397(2) cri.p.c.10. if an order for bail is passed by the sessions court under sec. 439(1) cri.p.c. the same can be challenged in revision in the high court. even in this case there cannot be any bar under sec. 397(2) cri.p.c.11. in the passing it must be observed that customs officers do not have their lock-ups and consequently are in no position to seek the accused's remand into customs custody. they are, therefore, left only to seek remand to judicial custody. that, however, does not mean that the custody of the accused is not necessary to facilitate the progress of the investigation. whenever, the custom officers require the custody of the accused, they approach the magistrate for handing over the accused in their custody from judicial custody for facilitating the progress of investigation. the remand of the accused to judicial custody may become necessary to prevent the abscontion of the accused at the initial stages of the investigation and to prevent him from tampering with the evidence and thereby hampering the progress of the investigation. these aspects assume importance in cases of large scale conspiracy involving number of persons and contraband of high value which may be the subject matter of investigation.12. economic offences are increasing all the time. the smugglers disrupt the economy of the nation and erode the valuable foreign exchange. it is necessary to facilitate the investigation into economic offences and the remand courts should not ignore this aspect while considering the question of the liberty of a suspect. it should be borne in mind that the common good of the society should be properly balanced against the individual liberty.13. shri merchant as also shri kotwal, however, pleaded that much water has flown between the passing of the impugned order of bail dated the 1st of july 1987 and the hearing of the present petition. the respondent no. 1 in pursuance of the directions passed by the trial magistrate has attended the petitioner between 11 a.m. and 12 noon for a period of seven days and no appreciable progress has been made in the investigation during that period. they submitted that rather than the respondents nos. 1 to 6 be remanded to judicial custody, it would be in the interest of justice if they are directed to report to the petitioner for a considerable period so as to enable the petitioner to proceed with the investigation. in my judgment, the role attributable to the respondents nos. 2 to 6 can be distinguished from the role attributable to the respondent no. 1. the respondents nos. 2 to 6 are alleged to be transporting and dealing with the goods in or nearabout bhiwandi, whereas the respondent no. 1 is alleged to be the transporting agent of these goods from siliguri to bhiwandi. therefore, it would be in the interest of justice to direct the respondent no. 1 to be taken in judicial custody for a period of seven days whereafter he may be produced before the learned trial magistrate and it would then be open to the petitioner to make an application for a further remand to judicial custody as also for the respondent no. 1 to apply for a bail and the learned magistrate would thereafter proceed to decide the rival claims on their own merit and decide the matter of either grant or refusal of bail after giving due reasons for the same. as far as respondents nos. 2 to 6 are concerned, instead of they being directed to be taken in custody, i direct that they shall report to the petitioner every day between 10 a.m. and 6 p.m. for a period of one month, commencing from the 3rd of august 1987. at the end of the said period they shall appear before the trial magistrate and the trial magistrate will thereafter decide whether to continue the said attendance or relax the same. as the order of bail granted to the respondents nos. 2 to 6 is of an unduly inadequate amount of rs. 2000/- having regard to the nature of the offence, this is a fit case where the said bail amount deserves to be substantially enhanced. the bail amount of the respondents nos. 4 and 5 who are drivers is enhanced to rs. 10,000/- with one surety each in the like amount and the bail amount of the respondents nos. 2, 3 and 6 is enhanced to rs. 50,000/- each with one or two sureties to make up the said amount. the respondents nos. 2 to 6 are granted two weeks' time from today to furnish the aforesaid enhanced amounts of bail. rule made absolute in the above terms.
Judgment:

Ashok Agarwal, J.

1. The Petitioner who is the Assistant Collector of Customs and Central Excise, being aggrieved by the Order of grant of bail dated the 1st July 1987 passed by the learned Judicial Magistrate, First Class, Bhiwandi, in a prosecution under Section 135 of the Customs Act, has presented the present Revision Application.

2. On the 28th June 1987 a truck bearing No. MTV 2168 was intercepted near the petrol pump on Agra Road near Bhiwandi S.T. bus stand and 91 packages of 100% polyester texturised yarn of Korean origin came to be seized. On investigation it was revealed that the Respondent No. 1 is a transport agent engaged in smuggling of the aforesaid polyester texturised yarn from Nepal to Siliguri and thereafter to Bhiwandi via Calcutta. Respondents Nos. 2 and 3 are partners of Archana Transport Company having their office outside the Octroi Naka of Bhiwandi. They owned two trucks which were engaged in transporting the said smuggled yarn from outside the Octroi Naka to various destinations in Bhiwandi and other places. They also owned a godown from where more goods of the aforesaid description were seized. Respondents Nos. 4 and 5 are drivers engaged by the Respondents Nos. 2 and 3 for transporting the said goods on their behalf. Respondent No. 6 is an owner of a godown as also a manufacture of cloth and he uses the said yarn for manufacturing his own goods. He also distributes the said goods to third parties. On his godown being searched goods of the aforesaid description were seized.

3. Between the 28th and 30th June 1987 the statements of the aforesaid Respondents came to be recorded under Section 108 of the Customs Act. They were arrested on the 30th of June 1987 and were produced before the learned Judicial Magistrate, First Class, Bhiwandi, on the 1st of July 1987 on which day an application was filed on behalf of the Petitioner praying for judicial custody remand till the 14th July 1987. On that day without there being even a written application on behalf of the Respondents Nos. 1 to 6 for bail, the learned Magistrate was pursuaded to pass the impugned order of bail. The said order of bail to say the least is a criptic order not supported by any reasons whereby the learned Magistrate was prompted to grant that bail despite the Remand Application of the Petitioner being placed before him for grant of judicial custody remand for a period of two weeks. It must be said that the Magistrates as also the Sessions Judges while either granting or refusing bail must support their Order by cogent reasons and that is all the more so required as their Orders are frequently subjected to scrutiny of this Court. The reasons when given either for granting or refusing bail go a long way in assisting this Court to arrive at a finding as to whether the impugned Orders are justified or otherwise. The reasons given would atleast indicate what were the factors that had weighed while either granting or refusing bail. Furthermore as per Section 437(4) of the Criminal Procedure Code a Court releasing a person on bail under sub-section (1) or sub-section (2) of that Section shall record its reasons in writing. It is therefore, a statutory obligation cast upon the Court to record reasons in writing. Hence the impugned order granting bail without recording any reasons cannot be sustained.

4. It must be emphasized that once an order of bail is passed under Section 437(1), the same cannot be reviewed or revised or set aside by the same authority. That bail can only be cancelled under Sec. 437(5) but such a power can be exercised only in extraordinary circumstances. The powers under Sec. 437(5), Sec. 439(2) are necessarily to be sparingly used and under extra-ordinary circumstances as laid down by the Supreme Court in the case of The State v. Sanjay Gandhi, reported in : 1978CriLJ952 .

5. In the present case I find that the trial Magistrate was wholly unjustified in granting the impugned order of bail. The goods sized in the present case are valued at over Rs. 23 lakhs and this is only one incident in a chain of the illegal activities carried on in the matter of smuggling. If the Respondents had been produced before the learned Magistrate on the 1st of July 1987 after the arrest on the 30th June 1987 to say the least the impugned order of bail smacks of non-application of mind and has the tendency to scuttle the investigation and to repeat the said order is not supported by any reasons whatsoever. The said order of bail, therefore, deserves to be set aside.

6. Shri Merchant appearing on behalf of the Respondent No. 1 and Shri Kotwal appearing on behalf of the Respondents Nos. 2 to 6, have, however, strenuously contended that the Petitioner in the grab of filing the present Revision Application for setting aside the impugned order of bail is in fact applying for cancellation of bail. If one has regard to the factors which would be germane to an Application for cancellation of bail, this is not a fit case for cancelling bail as none of the said factors can be said to be present is the instant case. They further contended that an order of grant of bail is an interlocutory order and the present Revision Application seeking to challenge the said interlocutory order is not maintainable in view of the provisions of Section 397(2) of the Code of Criminal Procedure.

7. I am afraid I have not been able to persuade myself to accede to the aforesaid contentions raised by Shri Merchant and Shri Kotwal. If an order of bail has been unjustifiably passed, to lay down that the same cannot be challenged in the superior Court would amount to a travesty of justice. The argument that by allowing the Revision Application, the superior Court would in terms be cancelling the order of bail cannot even for a moment be accepted, as that would be an argument open in every case wherein an unjustified order of bail is cancelled by the superior Court. It is one thing to say that after an order of bail has been passed certain intervening circumstances had taken place which may require an Application for cancellation of bail to be filed, but that is entirely different from the grievance made in this Petition viz., that the order of bail was passed unjustifiably at its very inception. In my judgment, therefore, the impugned order of bail has the effect of scuttling the investigation at its very inception and the same will have to be set aside.

8. In regard to the contention that the impugned order of bail is an interlocutory order, Shri Patwardhan, appearing on behalf of the Petitioner, has justifiably relied upon a decision of this Court in the case of Miss R. Shakuntala v. Roshanlal Agarwal and others reported in 1985 Cri. L.J 68, wherein it has been held that an order granting bail in the circumstances as in the present case cannot be said to be an interlocutory order and a Revision Application from such order is maintainable. In view of the aforesaid decision, the submission of Shri Merchant and Shri Kotwal that the present Revision Application is not maintainable, cannot be accepted and must be rejected.

9. In view of the legal position discussed hereinabove, the order granting bail under Sec. 437(1) Cri.P.C. or under Sec. 439(1) Cri.P.C is a final order. If such an order is passed by a Magistrate the same can be challenged in the Sessions Court or High Court in their revisional powers and there cannot be any bar in entertaining a revision application under Sec. 397(2) Cri.P.C.

10. If an order for bail is passed by the Sessions Court under Sec. 439(1) Cri.P.C. the same can be challenged in revision in the High Court. Even in this case there cannot be any bar under Sec. 397(2) Cri.P.C.

11. In the passing it must be observed that Customs Officers do not have their lock-ups and consequently are in no position to seek the Accused's remand into Customs custody. They are, therefore, left only to seek remand to judicial custody. That, however, does not mean that the custody of the Accused is not necessary to facilitate the progress of the investigation. Whenever, the Custom Officers require the custody of the Accused, they approach the Magistrate for handing over the Accused in their custody from judicial custody for facilitating the progress of investigation. The remand of the Accused to judicial custody may become necessary to prevent the abscontion of the accused at the initial stages of the investigation and to prevent him from tampering with the evidence and thereby hampering the progress of the investigation. These aspects assume importance in cases of large scale conspiracy involving number of persons and contraband of high value which may be the subject matter of investigation.

12. Economic offences are increasing all the time. The smugglers disrupt the economy of the nation and erode the valuable foreign exchange. It is necessary to facilitate the investigation into economic offences and the remand Courts should not ignore this aspect while considering the question of the liberty of a suspect. It should be borne in mind that the common good of the society should be properly balanced against the individual liberty.

13. Shri Merchant as also Shri Kotwal, however, pleaded that much water has flown between the passing of the impugned order of bail dated the 1st of July 1987 and the hearing of the present Petition. The Respondent No. 1 in pursuance of the directions passed by the trial Magistrate has attended the Petitioner between 11 a.m. and 12 noon for a period of seven days and no appreciable progress has been made in the investigation during that period. They submitted that rather than the Respondents Nos. 1 to 6 be remanded to judicial custody, it would be in the interest of justice if they are directed to report to the Petitioner for a considerable period so as to enable the Petitioner to proceed with the investigation. In my judgment, the role attributable to the Respondents Nos. 2 to 6 can be distinguished from the role attributable to the Respondent No. 1. The Respondents Nos. 2 to 6 are alleged to be transporting and dealing with the goods in or nearabout Bhiwandi, whereas the Respondent No. 1 is alleged to be the transporting agent of these goods from Siliguri to Bhiwandi. Therefore, it would be in the interest of justice to direct the Respondent No. 1 to be taken in judicial custody for a period of seven days whereafter he may be produced before the learned trial Magistrate and it would then be open to the Petitioner to make an application for a further remand to judicial custody as also for the Respondent No. 1 to apply for a bail and the learned Magistrate would thereafter proceed to decide the rival claims on their own merit and decide the matter of either grant or refusal of bail after giving due reasons for the same. As far as Respondents Nos. 2 to 6 are concerned, instead of they being directed to be taken in custody, I direct that they shall report to the Petitioner every day between 10 a.m. and 6 p.m. for a period of one month, commencing from the 3rd of August 1987. At the end of the said period they shall appear before the trial Magistrate and the trial Magistrate will thereafter decide whether to continue the said attendance or relax the same. As the order of bail granted to the Respondents Nos. 2 to 6 is of an unduly inadequate amount of Rs. 2000/- having regard to the nature of the offence, this is a fit case where the said bail amount deserves to be substantially enhanced. The bail amount of the Respondents Nos. 4 and 5 who are drivers is enhanced to Rs. 10,000/- with one surety each in the like amount and the bail amount of the Respondents Nos. 2, 3 and 6 is enhanced to Rs. 50,000/- each with one or two sureties to make up the said amount. The Respondents Nos. 2 to 6 are granted two weeks' time from today to furnish the aforesaid enhanced amounts of bail. Rule made absolute in the above terms.