1 Cri.W.P.No.1458/09 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL WRIT PETITION NO.1458 OF 2009 Shri Girish Bodra residing at 37, Diamonds Nagar, Mini Bazar, Varachha Road, Surat-6, Gujarat ...Petitioner. v. 1 The Intelligence Officer, Air Intelligence Unit, Airport, Mumbai 2 State of Maharashtra 3 Union of India Thro' Central Govt. Advocates Dedicated Legal Cell (Customs) NEw Customs House, Ballard Estate, Mumbai 400 001. ...Respondents. Mr.Uday Warunjikar, adv. For the Petitioner. Mr.D.N.Salvi, Senior Standing Counsel for the Respondent Nos.1 and 3. Smt.V.R.Bhosale, APP for the R.No.2/State. CORAM : J.H. BHATIA, J. DATED : JULY 28, 2010 ORAL JUDGMENT: 1 Rule. Rule made returnable forthwith. Heard the learned counsel for the parties. 2 Petitioner was found to have smuggled diamonds weighing 2 Cri.W.P.No.1458/09 5877 cts valued at Rs.2,79,61,710/- (Provisionally CIF valued) and also gold jewelery weighing 97 gms. valued at Rs.50,343/-. These goods were seized from him during a search on 22.4.2003 by the Intelligence Officer, Air Intelligence Unit at Chhatrapati Shivaji International Airport Bombay. He was also arrested and case under Section 135 of the Customs Act, 1962 (In short ‘Act’) was filed against him. He was granted bail on 26.5.2003 with the direction to attend the office of the Customs Department. In view of this direction, he later on, moved an application seeking leave to travel abroad. By an order dated 22.7.2003, he was allowed to go abroad and the department was directed to hand over the passport to him. He was directed to attend the Court on 22.10.2003 and to hand over the passport to the Department. Similar conditions were imposed whenever he was allowed to travel abroad in future even though the goods were seized from the petitioner in April, 2003. It is conceded that so far Customs Department has not filed any complaint against the petitioner before the Court and thus, no case is pending before the Court though the case under Section 135 of the Act has been registered against him in the year 2003 itself. 3 By this petition, the petitioner challenges the direction given by the learned Additional Chief Metropolitan Magistrate from time to 3 Cri.W.P.No.1458/09 time to hand over the passport to the Customs Department. It is contended that the offence being bailable, such conditions could not have been imposed by the Court in view of the provisions of 436 of the Cr.P.C. 4 Section 135(1) of the Act as it stood prior to the amendment by the Amendment Act 22 of 2007 (w.e.f. 11.5.2007) reads as follows: "(1) Without prejudice to any action that may be taken under this Act, if any person- (a) is in relation to any goods in any way knowingly concerned in mis-declaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods, or (b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111 or 113, as the case may be, or (c) attempts to export any goods which he knows or has reason to believe are liable to confiscation under section 113, he shall be punishable- (i) in the case of an offence relating to any of the goods to which section 123 applies and the market price whereof exceeds one lakh of rupees, with imprisonment for a term which may extend to seven years and with fine: Provided that in the absence of special and adequate reasons to the contrary to be recorded in 4 Cri.W.P.No.1458/09 the judgment of the Court, such imprisonment shall not be for less than three years; (ii) in any other case, with imprisonment for a term which may extend to three years, or with fine, or with both." In the present case, it is the contention of Customs Department that the petitioner had imported the goods into India and had evaded the duty on the same and, therefore, he is liable to be punished under Section 135(1) of the Act. On careful reading of this provision, it appears that if the offence related to any of the goods, to which Section 123 of the Act applies and the market price of such goods exceeds one lac rupees, the offence would be punishable with imprisonment for the term, which may extend to 7 years and with fine and minimum sentence shall not be for less than 3 years imprisonment. However, if the case does not fall under Section 123 of the Act or if the case falls under Section 123 of the Act but the market value of the goods does not exceed one lac, the offence shall be punishable with imprisonment for the term, which may extend to three years, or with fine, or with both. 5 Section 123 of the Act reads as follows: "123. Burden of proof in certain cases.-[(1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be- 5 Cri.W.P.No.1458/09 (a) in a case where such seizure is made from the possession of any person,- (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person; (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized.] (2) This section shall apply to gold, [and manufactures thereof,] watches, and any other class of goods which the Central Government may by notification in the Official Gazette specify." Sub-section (2) of Section 123 makes it clear that section 123 is applicable to gold and manufactures thereof, watches and any other class of goods, which the Central Government may by notification in the Official Gazette may specify. 6 The learned counsel for the petitioner pointed out that gold jewelery seized from the petitioner was valued at Rs.50,343. Though the gold jewelery falls under Section 123, the value of the same being less than Rs.1 lac, the offence of smuggling such gold jewelery by evading the duty would be punishable with imprisonment which may extend to 3 years or with fine or with both. He pointed out that as per the Notifications issued under Section 123(2), the diamonds are not notified 6 Cri.W.P.No.1458/09 goods. He has produced copy of the Notification under Section 123 as amended upto 15.1.1993. It appears that the earlier in all 13 classes of goods were notified. However, out of them, by different amendments from time to time, 7 items were omitted. The learned Senior Standing Counsel for the Customs Department makes a statement that diamonds were notified articles before the amendment in June, 1990 but since that amendment, diamonds are not notified articles under Section 123(2) of the Customs Act. As the diamonds are not notified, articles irrespective of it's value, the offence of smuggling the diamonds or attempt to evade the duty would be punishable with imprisonment for a term which may extend to three years or with fine or with both. 7 An offence punishable with sentence of imprisonment, which may extend to three years or with fine or with both, has been held to be bailable in number of cases by this Court. To begin with in Subhash Choudhari v. Deepak Jyala 2005 (179) ELT 532 (Bom), Kuresh Taherbhai Rajkotwala v. Union of India and Ors. in Criminal Application No.4264 of 2005 , in Pramod K. Shah v. Commissioner of Customs in application no.4230 of 2006, in Sangit Krishna Kumar Agarwal v. Union of India and Ors. , in Sanjay G. Sawane v. Union of India and Others in Criminal Application No. 7 Cri.W.P.No.1458/09 694 of 2007 and in several other cases, this Court has held that the offences in relation to the goods, which are not notified under Section 123(2) and in cases where the goods are so notified but the value is less than one lac, offence is bailable. 8 The learned counsel for the petitioner contended that when the offence is bailable, accused has unfettered and absolute right to be enlarged on bail without any conditions including condition of surrendering passport. He is supported by the judgment of this Court in Sultan Kamruddin Dharani v. Union of India 2008 (231) E.L.T. 217 (Bom.) and recent case in Criminal Writ Petition No.2939 of 2009 in Stefan Mueller (German Citizen) v. State of Maharashtra. In both the cases, this Court has considered the provisions of Sections 436 and 437 of the Cr.P.C. minutely and came to conclusion that when the offence is bailable, no conditions can be imposed while granting the bail. In Sultan K. Dharani (Supra), it was specifically held that condition of requiring the accused in the bailable offence to surrender his passport will defeat the absolute right of the accused to be granted bail and, therefore, it is not valid. Present case is squarely covered by the above referred two cases and, therefore, it must be held that the direction given by the learned Additional Chief Metropolitan Magistrate to the petitioner 8 Cri.W.P.No.1458/09 to surrender his passport before the Customs Department cannot be sustained. Therefore, the impugned order passed by the Additional Chief Metropolitan Magistrate from time to time is liable to be quashed. 9 For the aforesaid reasons, the writ petition is allowed, the impugned order directing the petitioner to surrender or deposit his passport before the Customs Department is quashed and set aside. Rule made absolute accordingly. (J.H. BHATIA,J.)