Case BriefsHigh Courts

Kerala High Court: Raja Vijayaraghavan V., J. was allowed a criminal petition filed by persons accused of smuggling gold and foreign currency, by concealing the same in their checked-in baggage at the Cochin International Airport, and set aside onerous conditions for their bail.

Petitioners’ voluntary statement was recorded by the Superintendent of Customs, Air Intelligence Unit, Cochin and they were placed under arrest for offence under Sections 132 and 135 of the Customs Act, 1962 which are non-cognizable and bailable offences. Being bailable offences, the customs officer, exercising his powers under Section 104 (3) of the Customs Act, granted them bail on the following conditions:

  • Two persons to stand surety, on whose behalf the petitioner/accused shall be released on bail.
  • Petitioners shall report to the Superintendent of Customs, Air Intelligence Unit, Nedumbassery on the 10th day of every month between 10 a.m. and 2 p.m. until the case was finally decided.
  • Petitioners shall report to the investigating officer as and when required.
  • Petitioners shall not, during the period of bail, get involved in any offence.

Premjith Menon, learned counsel appearing for the petitioners, submitted that the offences being bailable, petitioners could claim to be released on bail as of right. He submitted that under Section 104 of the Customs Act, for the purpose of releasing an arrested person on bail, a customs officer is subject to the same provisions as the officer-in-charge of a police station and thus except the requirement of surety, the imposition of other conditions for bail was illegal.

The Court opined that grant of bail is a matter of course in respect of bailable offences. It may be given either by the police officer in charge of a police station having the accused in his custody or by the Court. The customs officer exercising his powers under Section 104 of the Act, acts akin to officer-in-charge of a police station as provided under Section 436 of the Code of Criminal Procedure, 1973. A police officer or even the Court has no discretion in releasing the accused on bail under Section 436 CrPC, and any condition except the demand for security with sureties cannot be imposed on the accused. Reliance in this regard was placed on Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376.

In view of the above, petitioners were enlarged on bail and it was held that the customs officer was bereft of jurisdiction to impose onerous conditions for the same. The three conditions for bail except that of surety were set aside.[Joseph Santhosh Kottarathil Alexander v. Superintendent of Customs (AIU), 2019 SCC OnLine Ker 1321, decided on 09-04-2019]

Case BriefsHigh Courts

Chhattisgarh High Court: Recently, the High Court had to deal with the bail application of accused charged under S. 143(2) of the Railways Act that that the applicant was engaged in illegal sale and purchase of railway e-tickets and a raid was conducted in the shop of applicant. After notice under S. 91 CrPC to produce satisfactory documents was not complied with, the accused was arrested and all the documents and machines in his shop were seized.

The counsel for the applicant tried to convince the Court that accused was innocent and the documents and tickets seized were all original and not fake as alleged. He further went on to convince the Court by trying to make clear the intention of Legislature behind enactment of the provisions that applicant was charged under. He contended that S. 143(2) of the Railways Act constitutes a bailable offence and thus, the applicant must be granted the bail as a matter of right. He stated that it prescribes the punishment of imprisonment for a term which may extend to 3 years or with fine or with both, therefore, the entire object of the Legislature is not meant to merely impose imprisonment but in the alternative by way of fine, certain recovery can be made. He elucidated his point contending that different sections of IPC like Sections 218, 222, 293, 317 and 489-C which are enumerated in First Schedule to CrPC, and submits that though certain offences are punishable for 3 years or more and cognizable yet they are bailable and cited Munna Kumar v. State through NCT of Delhi2005 SCC OnLine Del 502 to support the same.

He highlighted before the Court the fact that the entire proceedings were carried out by the Railway Protection Force and that the cognizance cannot be taken unless a complaint is filed and the provisions of Railways Act would show that after arrest the Railway Officer has power to release the person arrested on bail.

Learned counsel for the respondent on the other hand argued that for the offence u/S. 143 of the Act, the punishment prescribed is imprisonment of a term which may extend to 3 years or with fine or with both. Therefore, it would fall in Part II of the First Schedule to Cr.P.C., which prescribed that if the offence is punishable with imprisonment of 3 years then it would be cognizable and non-bailable further referring to Om Prakash v. Union of India, (2011) 14 SCC 1. He submitted that if the punishment is not less than 3 years for an offence, then only it can be termed as bailable but if the offence is punishable with imprisonment of 3 years and upwards, then it would be non-bailable.

The Court after hearing both the parties and going through the provisions discussed in the contentions, observed that the scheme of the Code of Criminal Procedure is indicative of the legislature intention which is to be examined by putting the Railways Act at parallel by looking into eye to eye with each other. The Bench of Goutam Bhaduri, J. held that the offence in the nature of S. 143(2) wherein fine is also contemplated shows the legislative intent as the officer is also given power to grant bail and eventually, the offence under Section 143(2) of Railways Act cannot be isolated to hold that since the punishment of imprisonment as prescribed may extend to 3 years, it would be non-bailable and would fall in category II of Part II of the First Schedule to CrPC.

The Court relied on the judgment of Delhi High Court cited by the applicant observing that if we refer to S.436 of CrPC, it mandates that a person when is arrested for other than non-bailable offence and the officer is prepared to grant bail while in custody, such person shall be released on bail. Consequently, the applicant was released on bail. [Aditya Singh v. Union of India, 2017 SCC OnLine Chh 918, decided on 18.08.2017]