No Jail - Only Bail in Customs and Excise Offence Cases
ONE more weapon in the armoury of overzealous Customs and Central Excise officers, is just gone. On several occasions, unsuspecting victims are threatened with arrest and jail by officers of the Department and extortionist officers use jail as a threat to collect money. NO MORE!
The Supreme Court, in a landmark order on Friday (which we carried on Saturday), held that offences under the Central Excise Act, 1944, besides being non-cognizable, are also bailable. The Supreme Court also held that as in the case of offences under the Central Excise Act, 1944, offences under Section 135 of the Customs Act, 1962, are bailable and if the person arrested offers bail, he shall be released on bail. Please see
This may be shocking to some Departmental officers who would feel absolutely powerless, but as the Supreme Court explained, the main object of the enactment of the said Act was the recovery of excise duties and not really to punish for infringement of its provisions.
Remember the Pune hotelier Avinash Bhosale, who was arrested by Mumbai DRI as he was walking out through the green channel on charges of smuggling. Since it was late night the DRI officials decided to keep him in a police lock-up and afford themselves a sound sleep. But given the 'stature' of the offender, it was not possible for him to spend a night in a police lock-up. So, he managed to get himself produced before a night magistrate who granted him bail. Next day the predictable happened. The DRI sleuths came under heavy attack of criticism for taking preposterous decision to hand him over to the local police. The DRI took the matter to the Bombay High Court, which quashed the bail. Avinash Bhosale appealed to the Apex Court, which held that the offence was bailable and the night magistrate was after all right.
What is a bailable offence? Apart from the definitions, which created all this confusion, there is nothing like a non bailable offence that is an offence for which a bail cannot be given at all. High Courts and Sessions Courts have rather unfettered power to grant bail. So non bailable would mean an offence for which the arresting officer cannot give bail. Then who should grant bail? Obviously, a court! Now as per the latest order of the Supreme Court, in Customs and Excise cases, the arresting officer has to give the bail.
Now, What? Certainly, the Government is not going to like this and will not keep quiet. THEY WILL CHANGE THE LAW.
TIOL had covered this issue extensively. The following links would make interesting reading.
1. CAN A CUSTOMS/CENTRAL EXCISE OFFICER ARREST WITHOUT WARRANT? DDT 295
2. WHAT HAPPENS AFTER THE ARREST? BAIL?? DDT 297
3. CUSTOMS OFFENCE IS BAILABLE - NO NEED FOR ANTICIPATORY BAIL - IF ARRESTED, THE ACCUSED SHALL BE ENTITLED TO BE RELEASED ON BAIL IMMEDIATELY : BOMBAY HC
4. MUMBAI HC SAYS CUSTOMS OFFENCE IS BAILABLE
5. BHOSALE A FREE MAN - SC DECLARES ALLEGED CUSTOMS OFFENCE AS 'APPARENTLY' BAILABLE! IS THE APEX COURT RIGHT?
6. IS AN OFFENCE UNDER CUSTOMS ACT BAILABLE? HC GRANTS BAIL ON SECOND APPLICATION
7. BAIL IS RULE; JAIL IS EXCEPTION - INVESTIGATION TO BE COMPLETE WITHIN 60 DAYS; IF NOT COMPLETED, ACCUSED HAS A RIGHT TO BE RELEASED ON BAIL - PERSONAL LIBERTY OF CITIZEN IS A FUNDAMENTAL RIGHT : DELHI HC
8. TO B(AIL) OR NOT TO B(AIL) !
9. NO CUSTODIAL INTERROGATION BY CUSTOMS OFFICERS - ANTICIPATORY BAIL GRANTED : DELHI HC
10. ARREST UNDER CUSTOMS ACT - OFFENCE BEING BAILABLE, ACCUSED HAS A RIGHT FOR BAIL - COURT CANNOT IMPOSE CONDITION OF SURRENDER OF PASSPORT OR BAR ON FOREIGN TRAVEL - BAIL HAS TO BE GIVEN EVEN IF HE IS NOT ABLE TO GIVE SURETY: BOMBAY HIGH COURT
11. CUSTOMS - SUMMONS - ANTICIPATORY BAIL - IMPOSITION OF CONDITIONS BEFORE ARREST NOT LEGAL OR VALID - POWER TO ARREST A PERSON BY A CUSTOM OFFICER IS STATUTORY IN CHARACTER AND CANNOT BE INTERFERED WITH - A PERSON SUMMONED IS BOUND TO COMPLY: SUPREME COURT