COMPULSORY BAIL - BAILABLE OFFENCE UNDER THE CUSTOMS ACT

BAIL - BAILABLE OFFENCE UNDER THE				shielded from the hazards of being exposed to
CUSTOMS ACT				the mis-adventures of a person alleged to have
Sheetal Mafatlal, socialite and a Mumbai based				committed a crime; and on the other, the
business tycoon was arrested by the Mumbai				fundamental cannon of criminal jurisprudence, viz.,
customs upon arrival at Mumbai international				the presumption of innocence of an accused till he
airport for allegedly carrying undisclosed jewellery				is found guilty. Liberty exists in proportion to
and diamonds worth between Rs 51 lakh to one				wholesome restrain, the more restraint on others
crore. She was remanded to judicial custody by a				to keep off from us, the more liberty we have
local court but subsequently enlarged on bail by				(A. K. Gopalan v. State of Madras AIR 1950 SC
the Mumbai High Court on surety of Rs 5 lakhs.				1000).
She was also directed to mark attendance twice				The law of bail, like any other branch of law, has
a week along with paying customs duty of Rs 18				its own philosophy, and occupies an important
lakhs. Actual value of offending goods was				place in the administration of justice and the
ascertained at Rs 58 Lakhs.				concept of bail emerges from the conflict
Above news was making headlines in the				between the police power to restrict liberty of a
electronic and print media in the second week of				man who is alleged to have committed a crime,
June 2009. Some people were sympathetic to the				and presumption of innocence in favour of the
socialite because they felt that treatment melted				alleged criminal. An accused is not detained in
by the customs authorities was very harsh and				custody with the object of punishing him on the
she could have been let off by collecting customs				assumption of his guilt.
duty and appropriate fine/penalty. On the hand,				Chapter XXXIII consists of Sections 436 to 450.
some people thought that big and powerful people				Sections 436 and 437 provide for the granting of
like her should be treated with iron hand to curtail				bail to accused persons before trial and conviction.
the all pervasive tendency to disrespect the law				For the purposes of bail, offences are classified
of land.				into two categories, that is, (i) bailable, (ii)
Was the treatment too harsh? May be. Was the				non-bailable. Section 436 provides for granting bail
arrest legal? Yes. Whether she was entitled for				in bailable cases and Section 437 in non bailable
the bail? Yes. Whether any norm was violated on				cases. A person accused of a bailable offence is
arrest? Yes.				entitled to be released on bail pending his trial. In
In terms of Section 135 of the Customs Act,				case of such offences, a police officer has no
1962, offences for evasion of customs duty or				discretion to refuse bail if the accused is prepared
circumventing the prohibitions on import or export				to furnish surety. The Magistrate gets jurisdiction
pertaining to the following goods are punishable				to grant bail during the course of investigation
with maximum imprisonment of seven years:				when the accused is produced before him. In
(A) Market value of offending goods				bailable offence there is no question of discretion
exceeds Rupees One crore; or				for granting bail. The only choice for the Court is
(B) Evasion or attempted evasion of				as between taking a simple recognizance of the
duty exceeds Rupees Thirty lakh; or				principal offender or demanding security with
(C) Offending goods are prohibited goods				surety. Persons contemplated by this Section
as notified by the Central Government; or				cannot be taken in custody unless they are unable
(D) Cases of fraudulent drawback or				or unwilling to offer bail or to execute personal
other export incentives exceeding Rupees Thirty				bonds. The Court has no discretion, when granting
lakh.				bail under this section, even to impose any
In other words, offences for evasion of customs				condition except the demanding of security with
duty or circumventing the prohibitions on import				sureties.
or export pertaining to following goods are				�
punishable with maximum imprisonment of three				[Emphasis supplied]
years:				It is often argued that investigation requires time
(A) Market value of goods is lower than				to collect evidence and therefore investigating
Rupees One crore; and				authorites are required to take arrested person
(B) Evasion or attempted evasion of				accused of bailable offence on judicial remand. In
duty is lower than Rupees Thirty lakh; and				the case of Pravinkumar Chandrakant Vyas vs
(C) Goods are not notified by the Central				State Of Gujarat [2001], the Hon’ble Gujarat
Government; and				High Court quashed a circular issued by the
(D) Fraudulent claim of drawback or				Commissioner of Police, Rajkot directing his
other export incentives is lower than Rupees				subordinate to obtain remand from the Magistrate
Thirty lakh.				for investigation even in the cases of bailable
In the case of Avinash Bhosale, a builder from				offence. The Hon’ble Court observed that:
Pune arrested by the DRI on the alleged				“As has been noted by us above, even in
smuggling of wrist watches spectacle frames,				bailable offence, requirement of the investigating
perfumes and other expensive consumer items				agency for bringing to book the alleged offender
worth more than Rupees forty one lakh, the				and others connected with it, cannot be
Apex Court in Criminal Appeal No.1138/07 held				disregarded. Effective investigation is necessary in
that:				general interest of society. In our view, therefore,
“On the basis of material placed on record,				it is open to the investigating agency to utilise
and the amended Section 135(1)(ii) of the				minimum possible time to interrogate the accused
Customs Act, it appears to us that apparently the				and to take his identification marks, finger prints,
offence which is alleged to have been committed				photographs, etc., which would help the police not
is a bailable offence and thus the Magistrate has				only to bring the arrested person to book, but
rightly granted bail to the appellant”.				also furnish clue or linkage of the offence with
Against this order, the Government filed a				other offenders and offences. If such a need is
Review petition (Criminal) No.130/08, which was				found necessary by the investigating officer even
dismissed by the Supreme Court on 7 May 2008.				in bailable offence, the officer can resort to the
Hence, offence falling under Section 135(1)(ii) of				provisions contained in Sections 4 and 5 of the
the Customs Act is a bailable offence and the				Identification of Prisoners' Act, 1920 and for the
issue is res-judicata [236 ELT (2009) A76]. Sheetal				limited purpose mentioned therein, he has to
Mafatlal was arrested on the alleged non-disclosure				approach the Magistrate. In all other cases, it is
of goods valuing between Rs 51 lakh to one crore				the bounden duty of the officer arresting a citizen
and attempted evasion of duty of Rs 18 Lakhs.				for bailable offence to admit him to bail as and
As it appears that the market value of offending				when he is prepared to offer bail to the police
goods was lower than Rs One crore and				officer or in event of his production before the
attempted evasion of duty was lower than				Magistrate, to the Magistrate. Any other
Rupees Thirty lakh, the offence was considered				interpretation of the provisions of the Code would
as bailable one and she was enlarged on bail. The				violate the aforesaid discussed provisions of the
real question is if she was accused of a bailable				Code and the fundamental right of the citizen
offence, was not she entitled to be enlarged on				under Article 22 of the Constitution.”
bail by the custom officer or by the lower				It is also often argued that at the time of arrest,
court?				it is not known whether offence is in the nature
Section 104 of the Customs Act which vest the				of a bailable offence or non-bailable offence and
customs authorities with the power to arrest is				only after the investigation, charges can be
as follows:				determined. In the case of Trinayan Saikia vs
Section 104. Power to arrest - (1) If an officer of				State Of Haryana [2009], the Hon’ble Punjab
customs empowered in this behalf by general or				& Haryana High Court has held that:
special order of the Commissioner of Customs				“………As per the prosecution case, the
has reason to believe that any person in India or				offences which are at present attributed to the
within the Indian customs waters has committed				petitioner are bailable offences. According to the
an offence punishable under section 132 or section				prosecution it is yet to be ascertained as to
133 or section 135 or section 135A or section 136,				whether the offence under Section 304 IPC is
he may arrest such person and shall, as soon as				made out. ……….. it is to be considered by the
may be, inform him of the grounds for such				Court concerned at the time of consideration of
arrest.				framing of charge. At this stage, it would be too
(2) Every person arrested under sub-section (1)				pre-mature to hold that the offence under
shall, without unnecessary delay, be taken to a				Section 304 IPC is made out. ……. In case the
magistrate.				prosecution at some later stage does add the
(3) Where an officer of customs has arrested				offence under Section 304 IPC holding that the
any person under sub-section (1), he shall, for the				same to be made out, the necessary
purpose of releasing such person on bail or				consequences that entail would follow.
otherwise, have the same powers and be subject				In view of the above judgments, following
to the same provisions as the officer-in-charge of				pictures emerges in the case of arrest of a
a police-station has and is subject to under the				person for the bailable offence:
Code of Criminal Procedure, 1898 (5 of 1898).				Ø Bail is the rule. Bail has to be
(4) Notwithstanding anything contained in the				unconditional except for execution of personal
Code of Criminal Procedure, 1898 (5 of 1898), an				bond and demanding of security with sureties.
offence under this Act shall not be cognizable.				Ø Accuse Persons cannot be taken into
Sub-section (1) of Section 104 of the Customs				custody, if he executes bond/surety
Act empowers the customs officer to arrest a				Ø Bail cannot be denied on the plea of
person and sub-section (2) requires arrested				further investigation
person to be produced before the magistrate.				Ø Bail cannot be denied on the plea that
Sub-section (3) vest customs officer with the				nature of offence i.e. bailable or non-bailable is yet
same powers and powers are subject to the				to be ascertained
same provisions as the officer-in-charge of a				Above rules for bailable offences are also
police-station has and is subject to under the				applicable under the Customs Act. Section 57 of
Code of Criminal Procedure (“CrPC”). Now,				the CrPC stipulates that an arrested person is
let us analyse relevant provisions of CrPC which				required to be produced before the magistrate
are as under:				which is similar to section 104(2) of the Customs
Section 56. Person arrested to be taken before				Act. It may be noted that power to arrest under
Magistrate or officer in charge of police station- A				section 56 of the CrPC is subject to the
police officer making an arrest without warrant				provisions as to bail, whereas power to arrest
shall, without unnecessary delay and subject to				under section 104(1) of the Customs Act is
the provisions herein contained as to bail, take or				without any provision for bail. Section 104(3) of
send the person arrested before a Magistrate				the Customs Act empowers the customs
having jurisdiction in the case, or before the				officers with the power of the officer-in-charge of
officer in charge of a police station.				a police-station which includes powers to release
Section 57. Person arrested not to be detained				the arrested person on bail. The sub-section (3)
more than twenty-four hours- No police officer				also makes such powers subject to the provisions
shall detain in custody a person arrested without				under the CrPC. It is amply clear that powers of
warrant for a longer period than under all the				arrest under the Customs Act are subject to
circumstances of the case is reasonable, and such				provisions of CrPC. Hence, if a custom officer is
period shall not, in the absence of a special order				powered to arrest a person, he is also required to
of a Magistrate under section 167, exceed twenty				enlarge the arrested person on bail if the person
four hours exclusive of the time necessary for				is accused of a bailable offence.
the journey from the place of arrest to the				In the case of D.K. Basu vs State of West Bengal
Magistrate's court.				[1996], in order to guard the fundamental right of
Section 436. In what cases bail to be taken- (1)				a citizen against illegal and unlawful, the Hon’ble
When any person other than a person accused of				Supreme Court has issued mandatory directions
a non-bailable offence is arrested or detained				to all police in the whole of India which are also
without warrant by an officer in charge of a				applicable to the custom authorities. Supreme
police station, or appears or is brought before a				Court observed thus:-
court, and is prepared at, any, time, while-in, the				"However, it is true that in case of too much of
custody of such officer or at any stage of the				emphasis on protection of fundamental rights and
proceeding before such court to give bail, such				human rights of hardened criminals, such criminals
person shall be released on bail:				may go scotfree without exposing any element
Provided that such officer or court, if he or it				or iota of criminality with the result, the crime
thinks fit, may, instead of taking bail from such				would go unpunished and in the ultimate analysis,
person, discharge him on his executing a bond				the society would suffer. The concern is genuine
without sureties for his appearance as hereinafter				and the problem is real. To deal with such a
provided:				situation, a balanced approach is needed to meet
Provided further that nothing in this section shall				the ends of justice. This is all the more so, in view
be deemed to affect the provisions of				of the expectation of the society that police must
sub-section (3) of section 116 or section 446A.				deal with the criminals in the efficient and
(2) Notwithstanding anything contained in				effective manner and bring to book those who
sub-section (1), where a person has failed to				are involved in the crime. The cure cannot,
comply with the conditions of the bail-bond as				however, be worst than the disease itself.
regards the time and place of attendance, the				It appears that the customs authorities have
court may refuse to release him on bail, when on				never used powers to release an arrested person
a subsequent occasion in the same case he				on bail as provided under section 104(3) of the
appears before the court or is brought in custody				Customs Act and this piece of legislation has
and any such refusal shall be without prejudice to				become a mere decorative legislation. Customs
the powers of the court to call upon any person				consider remand of a person accused of
bound by such bond to pay the penalty thereof				smuggling as an effective preventive tool.
under section 446.				However, non-exercise of the power or refusal to
Section 436 of the CrPC provides for				release arrested person accused for a bailable
enlargement of arrested person accused of a				offence by the custom officers on bail is violation
bailable offence. In the case of Aslam Babalal				of the fundamental rights and human rights of the
Desai vs State Of Maharashtra [1992], the Apex				arrested person. The Hon’ble Supreme Court
Court held that bail is the rule in the case of				has aptly observed in D.K. Basu case (supra) that
bailable offences. Recently, necessity of bail in a				cure can not be worst than the disease itself.
civilized society was examined in detail by the				Section 155 of the Customs Act provides for the
Apex court. In the case of Vaman Narain Ghiya				protection to the custom officers from suit,
vs State of Rajasthan [2008], the Hon’ble				prosecution or other legal proceeding for anything
Supreme Court observed that:				which is done in good faith. Denial of bail by the
"Bail" remains an undefined term in the Cr. P.C.				custom officer to the arrested person accused of
Nowhere else the term has been statutorily				bailable offence cannot be said to be an act done
defined. Conceptually, it continues to be				in good faith, and therefore not entitled for the
understood as a right for assertion of freedom				protection. Officers denying the bail to eligible
against the State imposing restraints since the U.N.				persons may be prosecuted in a court of law.
Declaration of Human Rights of 1948, to which				There is an increased level of awareness in the
Indian is a signatory, the concept of bail has found				general public due to the advent of new
a place within the scope of human rights. The				communication technology like television and
dictionary meaning of the expression 'bail' denotes				internet. It is the time for the customs to learn
a security for appearance of a prisoner for his				that power comes with responsibility and failure to
release. …………				discharge responsibility may lead to prosecution
Bail may thus be regarded as a mechanism				by the public. Dice may also be cast against the
whereby the State devolutes upon the				department.
community the function of securing the presence				P.S. I am still not able to understand how a
of the prisoners, and at the same time involves				magistrate can refuse bail to a person accused of
participation of the community in administration of				a bailable offence under the Customs Act.
justice. Personal liberty is fundamental and can be				Persons accused of bailable offence cannot be
circumscribed only by some process sanctioned				taken in custody unless they are unable or
by law. Liberty of a citizen is undoubtedly				unwilling to offer bail or to execute personal
important but this is to balance with the security				bonds. The Court has no discretion, when granting
of the community. A balance is required to be				bail under this section, even to impose any
maintained between the personal liberty of the				condition except the demanding of security with
accused and the investigational right of the police.				sureties. This rule laid down by the parliament of
It must result in minimum interference with the				India has been flouted by the lower courts
personal liberty of the accused and the right of				numerous times. Public can prosecute customs
the police to investigate the case. It has to				officers for refusal to enlarge on bail but no such
dovetail two conflicting demands, namely, on one				remedy is available against the lower courts
hand, the requirements of the society for being				transgressing the law.

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COMPULSORY BAIL - BAILABLE OFFENCE UNDER THE CUSTOMS ACT