1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 663 OF 2009 R. Bharathi Dasan ..... Applicant. V/s The Union of India & Ors. ..... Respondents. Mr. S.N. Kantawalla i/b Ravi Hirani & Yogesh Rohira for the applicant. Mr. D.N. Salvi for Union of India. Mr. S.R. Shinde, APP for the State. CORAM : V.M. KANADE, J. DATE : 12th March, 2009 1. Heard the learned Counsel appearing on behalf of the applicant and the learned Counsel appearing on behalf of Respondents – Union of India. 2. This is an application for bail. Applicant was arrested by Officers of Respondent No.2 on 29/1/2009 at Mumbai Air Port when the applicant was about to travel abroad. In the arrest memo and remand application, it is alleged that the applicant was attempting to smuggle out of India 15.611 kgs of white coloured crystalline powder purported to be Ketamine Hydrochloric valued at Rs 4,68,330/- (LMV) and Rs 15,61,100/- (IMV). It is therefore alleged that the applicant has committed an offence punishable under section 135 of the Customs Act, 1962. 2 3. The learned Counsel appearing on behalf of the applicant submitted that the offence in question would not fall under section 135(1) and that it would fall under the provisions of section 135(1)(ii). It is submitted that the learned Single Judge of this Court has held that the offence punishable under section 135(1)(ii) is a bailable offence. Counsel for the applicant invited my attention to the judgment of the learned Single Judge of this Court (Coram: A.M. Khanwilkar, J.) reported in 2005(1) 179 Excise Law Times, page 532. It is, therefore, submitted that the applicant is entitled to be released on bail. Secondly, it is submitted that even if it is presumed that the offence would fall under section 135(1)(i)(C), since no such notification has been issued by the Central Government under section 135(1) (i)(C), the offence would, therefore, still be a bailable offence as it is filed under section 135(1)(ii). In support of the said submission, Counsel for the applicant invited my attention to the order dated 23/1/2009 passed by this Court in Criminal Application No.334 of 2009. It is submitted that, in the said case, this Court has observed that since no notification was issued under section 135(i)(c), it could not be said that the offence is non-bailable offence. 4. Mr. Salvi, learned Counsel appearing on behalf of the Union of India, on the other hand, invited my attention to the affidavit- in-reply filed by the Assistant Commissioner wherein it has been stated that vide Notification No.67(RE)-2007) 3 2004-2009 dated 27.12.07 issued under Section 5 read with Section 8(2) of the Foreign Trade (Development & Regulation) Act, 1992, 'No objection certificate' from the Central Bureau of Narcotics is required for export of Ketamine Hydrochloride in view of the abuse of the drug. The learned Counsel invited my attention to the judgment of the Apex Court in the case of Commissioner of Customs Kolkata Vs. Grand Prime Ltd., reported in 2003 (155) E.L.T. 417 (S.C.) in which it has been held that prohibition referred to in that section apply to every type of prohibition. 5. In my view, submission made by the learned Counsel appearing on behalf of the applicant cannot be accepted. Sub-clause (C) of section 135(1)(i) reads as under :- “ (C) such categories of prohibited goods as Central Government may, by notification in the Official Gazette, specify; Under the said sub-clause (C), therefore, the Central Government may, by notification, in the Official Gazette specify such categories of goods which are prohibited by the Government. The word “prohibited goods” has been defined under the Act. Sub-clause (33) of section 2 defines prohibited goods as under:- “ (33) “prohibited goods” means any goods 4 the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported, have been complied with;” 6. The submission of the learned Counsel for the applicant that the prohibition referred to in sub-clause (C) of the said section would mean prohibition of goods prohibited under the Customs Act cannot be accepted. The learned Counsel for the applicant invited my attention to the provisions of section 11 of the said Act which lays down prohibitions on importation and exportation of goods. It is submitted that the said drug Ketamine Hydrochloride has not been prohibited for exportation under section 11. The learned Counsel for the applicant also invited my attention to the Notification issued by the Central Government under section 135 in which fake currency notes were expressly prohibited from export. It is, therefore, submitted that since no notification had been issued in respect of the drug Ketamine Hydrochloride under section 135(1)(i)(C), it does not fall under the category of goods prohibited for export and, at the most, penalty could be levied. It is, therefore, submitted that the said offence would fall under section 135 (1)(ii). This submission cannot be accepted. From the definition of the word “prohibited goods”, it is abundantly 5 clear that “prohibited goods” means any goods which is subject to any prohibition under this Act or any other law for the time being in force. Secondly, from the said definition it is clear that such goods in respect of which the conditions subject to which goods are permitted to be imported or exported have been complied with, do not fall within the definition of the word “prohibited goods” as a natural corollary, therefore, where conditions have been imposed for export or import of such goods and if such conditions are not complied with then, in that event, those goods would also fall within the category of “prohibited goods”. In the instant case, under the Notification issued by the Government referred to hereinabove and referred to in the reply of the respondent, an express condition has been imposed on the export of Ketamine Hydrochloride, and prior permission and approval of the Narcotics Authorities has to be obtained before import or export of the said goods. It is an admitted position that the said condition has not been complied with and, therefore, the said goods would squarely fall within the definition of the word “prohibited goods' as defined under clause (33) of section 2 of the Customs Act. Further, Notification has been issued by the Central Government prohibiting such goods from export or import subject to compliance of conditions mentioned in the said Notification and, therefore, the said offence would squarely fall under section 135(1)(i)(C). The submission of the learned Counsel for the applicant that the word “prohibited goods” referred to prohibitions imposed under the Act, 6 therefore, cannot be accepted. On the same ground the submission that since no notification has been issued under section 135(1)(i)(C), the said goods would not amount to prohibited goods also cannot be accepted. 7. Reliance was placed by the learned Counsel appearing on behalf of the applicant on the judgment of the learned Single Judge of this Court (Coram: V.M. Kanade, J.) passed in Criminal Application No.334 of 2009. In the said order, this Court has held that since Notification under section 135(1)(i) (C) had not been issued, Trial Court had erred in coming to the conclusion that the offence is non-bailable offence. In the said case, Counsel for the respondents did not bring to my notice the Notification which was issued by the Central Government prohibiting import or export of food grains and, therefore, the said observation has been made. It is apparent that in view of provisions of section 2(33) of the Customs Act, the said observation was made without taking into consideration the said definition and, therefore the said observation is incorrect. The said observation in the said order will not be of any assistance to the applicant herein. 8. So far as submission of the Counsel for the applicant that offence punishable under section 135(1)(ii) is bailable offence in view of the judgment of the learned Single Judge of this Court delivered by A.M. Khanwilkar, J., is concerned, the Counsel for Union of India has rightly pointed out that the said observation of the learned Single Judge has been 7 stayed by the Apex Court in the Special Leave Petition. The submission of the learned Counsel appearing on behalf of the applicant that the said offence is a bailable offence also cannot be accepted since the observation of the learned Single Judge has now been stayed expressly by the Apex Court. 9. However, so far as merits of the case are concerned, the applicant was arrested on 29/1/2009 and he is in jail for more more than 40 days. The prohibited goods have been tendered and seized by the Customs Authorities. Continued detention of the applicant, therefore, in my view, is not necessary since the applicant is permanent resident of India and he could be released on bail subject to certain conditions being imposed on him. 10. Applicant, therefore, be released on bail in R.A. No.10/2009 in the sum of Rs 25,000/- with one or two sureties in the like amount. One of the sureties shall be a local surety. Applicant shall report to the Customs Authorities once in three months and shall report to Customs Authorities in Chennai once in a month. 11. Application is accordingly allowed in the aforesaid terms and disposed of. (V.M. KANADE, J.)