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The accused-revisionist being aggrieved by the first condition imposed by the learned Sessions Judge has filed the present revision.

The opposite party has filed objection/counter affidavit sworn by Anil Kumar Pandey, Intelligence Officer, DRI, Zonal Unit, Lucknow opposing the revision.

The submission of the learned counsel for the accused-revisionist is that the court while releasing the accused on bail may in view of the facts of the case and the nature of the offences impose certain conditions as provided under Sections 437 (3) and 438 (2) of the Code as the case may but if the court finds that the accused deserves to be released on bail then it cannot impose any such onerous condition which cannot be complied with by the accused. Such condition will amount to denial of bail. In this case, the learned Sessions Judge after going through the facts and circumstances of the case found that it was a fit case for bail. He, therefore, allowed the bail application filed by the accused-revisionist and directed him to file personal bond of Rs. Five lacs with two sureties each in the like amount to the satisfaction of Magistrate concerned. This was a heavy amount which itself was sufficient to ensure the attendance of the accused-revisionist before the court whenever he is called upon by the court to appear before it. In this case, the learned Sessions Judge has imposed first condition that the accused-revisionist will deposit an amount of Rs. Four Crore as difference of Custom Duty. This condition could not be imposed by the learned Sessions Judge. If the learned Sessions Judge found that it was a fit case for bail, he could not impose such condition which could not be complied with by the accused-revisionist. The first condition imposed by the learned Sessions Judge amounts to denial of bail which is contrary to the order allowing the bail application of the accused-revisionist. Learned counsel for the accused-revisionist submits that the imported articles are under seizure of DRI , Lucknow for confiscation. The estimated value of the imported articles as per seizure memo is Rs. 29,70,10,750.00. The custom duty can be realized by the DRI Officer confiscating the seized articles. More ever the offences alleged to have been committed by the accused are compoundable. The accused revisionist is not the real exporter of seized articles; rather those articles were exported by Gaj Raj Singh Baid and Rajesh Kumar Gupta. In view of the facts of the case the first condition imposed by the learned Sessions Judge is illegal and is liable to be quashed. The learned counsel in support of his arguments has placed reliance on cases Moti Ram and others Vs. State of Madhya Pradesh; AIR 1978 Supreme Court 1594, Keshab Narayan Banerjee and another Vs. The State of Bihar; AIR 1985 Supreme Court 1666, Olga Kozireva Vs. Department of Customs; (2002) 10 Supreme Court Cases 373, Munish Bhasin & Ors. Vs. State (Govt. of NCT of Delhi) & Anr; 2009 (2) JIC 92 (SC) decided by the Hon'ble Apex Court and Kaleem alias Kaleem Pasha Vs. State by Central Police Station, Bangalore; 2003 CRI L.J. 353 decided by the Karnataka High Court and Vipin Mehra and another Vs. State; 2004 CRI L.J. NOC 41 (DELHI) and M.R. Narayanan Vs. State; 2003 CRI L.J. 1472 decided by the Delhi High Court and Abdul Gaffar Vs. State of U.P. and others; [1999 (2) JIC 80 (All)], decided by the Allahabad High Court.

2.Accused Nos. 1-5 shall deposit a sum of Rs. 10,000/- each within one month from the day of release.
3.Accused Nos. 1-5 shall mark their attendance before Central Police Station, for 3 months or till laying of the charge-sheet which ever is earlier, every Sunday in between 10-12 a.m.
4.Accused Nos. 1-5 shall not leave the jurisdiction of Bangalore City or Bangalore Rural until charge sheet is filed.
5.Accused Nos. 1-5 shall not threaten/temper the complainant or complainant witnesses.

The accused challenged the condition No. 2 imposed by the learned Magistrate before the High Court on the ground that such condition could not be imposed, as such it was illegal and it amounted to miscarriage of justice. The High Court keeping in view the law laid down by Hon'ble Apex Court in Moti Ram Vs. State of Madhya Pradesh (supra) held that the condition No.2 imposed by the court will amount denial of bail and such condition could not be imposed. The High Court, therefore, held that the condition No.2 imposed by the learned Magistrate while releasing the accused on bail was illegal and was liable to be quashed.

In view of the law laid down by Hon'ble Apex Court, it is clear that the court while releasing the accused on bail can impose any condition but that condition cannot be so harsh, onerous, excessive or unjust which will amount to frustrate the very purpose of granting bail.

In the case of Abdul Gaffar Vs. State of U.P. and others (supra), the accused was ordered to be released on bail by the learned Sessions Judge on execution of personal bond of Rs. 30,000/- with two sureties each in the like amount to the satisfaction of the Magistrate concerned. He was further directed to furnish bank guarantee of Rs. 30,000/-. The accused was unable to furnish bank guarantee of Rs. 30,000/-. He approached before this Court. It was held by this Court that the court can impose the conditions while allowing the bail application. Those conditions are enumerated in Section 437 (3) of the Code. No conditions other than those enumerated under Section 437 (3) and 438 (2) of the Code can be imposed by the court while releasing the accused on bail.

In this case, the learned Sessions Judge while allowing the bail application of the accused, has imposed the first condition as follows:-

"The accused-applicant Makhan Kant Sharma shall deposit Rs. 4,00,00,000/- (Rs. Four Crore) as difference of Custom Duty alleged by the prosecution."

The accused is facing criminal prosecution under Sections 108, 132, 135 (1) (a) (1) (A) (B) of the Customs Act for evading custom duty on the goods. The goods imported in the name of his firm 'M/s Maa Shakti Industries' is under seizure of DRI. The custom duty which is payable on undeclared imported goods cannot be realized imposing any condition while releasing the accused on bail as the same can be realized by a separate proceeding under the Customs Act. The condition No.1 imposed by the learned Sessions Judge appears to be harsh which amounts to denial of bail, therefore, the learned Sessions Judge, Lucknow could not impose condition No.1 while allowing the bail application of the accused, which is liable to be quashed and the revision deserves to be allowed.