Allahabad High Court
Rakesh Kumar vs Union Of India on 29 January, 2020
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45126 of 2019 Applicant :- Rakesh Kumar Opposite Party :- Union of India Counsel for Applicant :- Dhirendra Kumar Srivastava,Arun Kumar Shukla Counsel for Opposite Party :- B.K.Singh Raghuvanshi,Gaurav Mahajan Hon'ble Siddharth,J.
Rejoinder affidavit filed is taken on record.
Heard learned counsel for the applicant and SriGaurav Mahajan, learned counsel for the CustomsDepartment.
The present bail application has been filed by the applicant,Rakesh Kumar, in Case Crime No. Nil of 2019, under Section 135 of Customs Act, Police Station- Custom Varanasi, District- Varanasi, with the prayer to enlarge him on bail.
Counsel fortheapplicant has submitted as per Section 104(6)(7) Customs Act offence alleged against the applicant is bailable.
SECTION 104. Power to arrest. ?(1) If an officer of customs empowered in this behalf by general or special order of the [Principal Commissioner of Customs or Commissioner of Customs] has reason to believe that any person in India or within the Indian customs waters has committed an offence punishable under section 132 or section 133 or section 135 or section 135A or section 136, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.] (2) Every person arrested under sub-section (1) shall, without unnecessary delay, be taken to a magistrate.
(3) Where an officer of customs has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police-station has and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898).
(4)?Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any offence relating to ?
(a)prohibited goods; or
(b)evasion or attempted evasion of duty exceeding fifty lakh rupees, shall be cognizable.
(5)?Save as otherwise provided in sub-section (4), all other offences under the Act shall be non-cognizable.
(6) Notwithstanding anything contained in the Code of?Criminal Procedure, 1973, (2 of 1974) an offence punishable under section 135 relating to ?
(a)evasion or attempted evasion of duty exceeding fifty lakh rupees; or
(b)prohibited goods notified under section 11 which are also notified under sub-clause (C) of clause (i) of sub-section (1) of section 135; or
(c)import or export of any goods which have not been declared in accordance with the provisions of this Act and the market price of which exceeds one crore rupees; or
(d)fraudulently availing of or attempt to avail of drawback or any exemption from duty provided under this Act, if the amount of drawback or exemption from duty exceeds fifty lakh rupees, shall be non-bailable.
(7)?Save as otherwise provided in sub-section (6), all other offences under this Act shall be bailable.
The gold recovered from theapplicant is worth Rs. 32,69,016/-. Therefore inview of the provision aforesaid Section 104(6)(c) Customs Act the value of the goods recoveredfrom the applicant does notexceedsRs. 1 crore. Theapplicant is in jail since 31.03.2019 and has no criminal history to his credit.
Learned counsel forthe opposite party has opposed the prayer for grant of bail to the applicants on the ground that it is the consistent view ofthis court that in such cases bail should not be granted and only trial should be expedited. He has placed one order ofthis court rejecting bail application of the accused. Aperusal ofthe order shows that it has been passedwithout taking any note of Section 104 Customs Act.
Considering the facts and circumstances of the case as also the submissions noticed above, without commenting upon merits of the case, I am of the opinion that the applicants are entitled to be released on bail.
Let the applicant-Rakesh Kumar, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against him in accordance with law under Section 174-A of the Indian Penal Code.
(v) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
The applicant will surrender his passport and will not leave the country without the permission of the trial court.
Order Date :- 29.1.2020 Rohit