1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.291 OF 2009 Shri Harish Muljimal Gandhi .... Applicant Vs. The State of Maharashtra & Anr. .... Respondents Mr. Aabad H.H. Ponda, Advocate for Applicant Mrs. M.M. Deshmukh, APP, for State Mr. D.N. Salvi, Advocate for respondent no.2. CORAM : Smt. R.P. SondurBaldota, J. Date : 4th April, 2009 P.C. : 1. This application is filed for return of Passport of the applicant which was directed to be deposited with the respondent by way of a condition imposed at the time of granting bail by the learned Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Mumbai by his order dated 12th September 2007. The application is opposed by the respondents. 2. The applicant was arrested on 12th September 2007 for the offence punishable under Section 135 (1)(a) (ii) of Customs Act. He was produced before the Additional Chief Metropolitan Magistrate Court, Esplanade, Mumbai. An application was made to remand him to Judicial custody for 14 days as further investigation was in progress. At the same time, there was an application filed by the applicant for releasing him on bail on the ground that the offence alleged against him is a bailable offence. Both the applications 2 i.e. application for remand and the application for bail were disposed off on the same day by separate orders. The order on the application for bail states that since the offence for which the applicant was arrested is bailable, he is released on bail on furnishing P.R. bond of Rs.1,50,000/- with 1/2 sureties in like amount. The applicant was granted cash bail for four weeks to enable him to make arrangements for sureties. He was, however, directed not to leave India/country without permission of the Court. He was also directed to submit his passport to the department within 3 days from the date of his release. As regards the application for remand, the learned Chief Metropolitan Magistrate remanded the applicant to judicial custody till 26th September 2007, in case he failed to furnish bail which was separately granted to him. 3. Accordingly the applicant had deposited his passport and later when he was required to go abroad, he had filed an application for permission to go to Dubai for a period of 3 months. That application was opposed by the department. By the reasoned order dated 5th February 2008, the application was rejected by the learned Additional Chief Metropolitan Magistrate, 3rd Court Esplanade, Mumbai. The applicant then preferred Criminal Application No.570 of 2008 to challenge the order of rejection of the application for permission to leave India. This Court disposed off the application by it’s order dated 25th March 2008 granting permission to the 3 applicant to travel abroad for a period of three months. It was further directed by the order that after his return to India, he shall deposit the passport with respondent no.2. When the applicant was required to once again leave India, he filed second application which was again rejected by the order dated 20th August 2008. Then the applicant filed another application for deleting the conditions of bail contending that since the offence charged against him is a bailable offence, there could be no conditions attached to the order granting bail. This application also came to be rejected by the learned Additional Chief Metropolitan Magistrate by the order dated 15th September 2008. Then the applicant was required to file Criminal Application No.3444 of 2008 which was heard and disposed off by the order dated 12th November 2008. By that order, this Court was inclined only to permit the applicant to go abroad on condition that he deposits sum of Rs.2,00,000/- in the Court. The reason for putting this condition upon the applicant was a submission advanced before the Court by respondents that in the adjudication proceedings against the applicant, he is required to deposit a sum of Rs.10,00,000/- as penalty and the said amount was not yet deposited by the applicant. The applicant was unable to comply with the condition of deposit of Rs.2,00,000/- and hence unable to take benefit of the order. 4. At this stage of the matter, the applicant filed 4 present application seeking a prayer that the Passport be returned to him unconditionally without deposit of any amount. 5. Mr. Ponda, learned counsel for the applicant submits that a consistent view has been taken by this Court that the offences punishable under Section 135(1)(a)(ii) of Customs Act is a bailable offence. In case of a bailable offence, grant of bail is an absolute right of accused. Therefore, there could be no condition attached to the same. He relies upon latest decision of the Apex Court in the case of Vaman Narain Ghiya vs.State of Rajasthan, reported in Criminal Appeal No.406 of 2008 decided on 12 th December 2008 (MANU/SC / 8394/2008). By the said decision, the Apex Court has held that in bailable offence, there is no question of discretion for granting bail. The only choice for the Court is as between taking a simple recognizance of the principal offender or demanding security with surety. The persons contemplated by this Section cannot be taken in custody unless they are unable or unwilling to offer bail or to execute personal bonds. The court has no discretion, when granting bail under Section 436, even to impose any condition except the demanding of security with sureties. Thus in case an offence is a bailable offence, there can be no condition for grant of bail except for asking for sureties from the applicant. In the present case, the respondent has raised issue at this stage for the first time that the offence under 5 Section 135(i)(a)(ii) of Customs Act is not a bailable offence. According to it, it is a non bailable offence. 6. This Court had in a detailed decision after discussing the same contentions in the case of Subhash Chaudhari vs. Deepak Jyala, reported in 2005 (179) E.L.T. 532 (Bom) held that the offence under Section 135(1)(ii) is a non-cognizable and bailable offence. The department has carried the matter further to the Apex Court by filing SLP (Cri.)No.5369/2004 and SLP (Cri.)No.5370/2004. By the order dated 22nd November, 2004 the Apex Court issued notice to the respondent and stayed only following part of the order “even if the Applicant was to be arrested by the Officer of the Customs in exercise of power under Section 104 of the Act, as the offence is one under Section 135(1)(ii) of the Act and therefore, bailable, the Officer would be obliged to release the Applicant on bail by virtue of Section 104(3) of the Act”. Since then till date, the special leave petitions are pending for admission. 6. Mr.Salvi, learned counsel for respondent no.2 relies upon the above order of the Apex Court and seeks to find support from another decision of our Court in R.Bharati Dasan V/s. The Union of Indian and ors., in Criminal Application No.633 of 2009 decided by Single Judge of this Court on 12th March 2009, in which learned Single Judge has taken note of the fact that the decision in Subhash Chadhari’s case is 6 stayed by the Apex Court, and treated the offence under Section 135 (1)(ii) as a non-bailable offence. 7. Mr. Ponda on the other hand points out what has been stayed by the Apex Court is only the release of the applicant on bail in exercise of powers under Section 104 of the Act as the offence is under Section 135(1)(i)(c) of the Act and therefore bailable. This order is passed by way of an interim order. The decision of this Court that the offence is a bailable offence and not non bailable offence after going through the rival contentions is yet to be tested by the Apex Court. The Special Leave Petition is not even admitted for consideration. Besides, as has been pointed out by Mr.Ponda, the decision in Subhash Chaudhari V/s.Deepak Jyala's case has been relied upon with approval in atleast three other cases by this Court. The particulars of the three cases are as follows : 1. Criminal Application No.4264 of 2006, Kuresh Taherbhai Rajkotwala vs. Union of India and others dated 1st December 2006; 2. Criminal Application No.272 of 2007, Sangit Krishna Kumar Agrawal vs. Union of India & Ors. dated 6th February 2007; and 3. Criminal Application No.696 of 2007, A.A. Siddique vs. Union of India & Ors. dated 6th March 2007. He therefore requests that the same be followed by this court also. 7 8. The last order which is relied upon by Mr. Ponda is of the Apex Court in Criminal Appeal No.1138 of 2007, Avinash Bhosale vs. Union of India & Anr. wherein the Apex Court has while granting leave ordered as follows : “Leave granted. On the material placed on record, and the amended Section 135(1))ii) of the Customs Act, 1962 it appears to us that apparently the offence which is alleged to have been committed is a bailable offence and thus the Magistrate has rightly granted bail to the appellant. In view of this, the order of the High Court is set aside.” Looking to the consistent view taken by this court on the question and also by the Apex court atleast in one case and as the challenge to the view is still to be considered by the Apex Court in another case and even otherwise, I see no reason to depart from the view. In these circumstances, then there can be no conditions attached to the bail. The applicant has already complied with the other conditions of bail of furnishing two sureties in the sum of Rs.1,50,000/-. Hence, the Criminal Application is allowed. Respondent no.1 is directed to return the Passport of the applicant unconditionally to him. (Smt.R.P. SondurBaldota, J.)