Customs Offence - Should Smugglers walk off with a bail immediately after arrest?
PEOPLE were being routinely arrested and sent to jails for alleged offences under the Customs and Excise Laws. When the Supreme Court on Friday [] held that these offences were bailable and the arrested persons had to be released on bail, if they sought bail, it sent shock waves across the country – among the officers. “What?, we arrest somebody and he just walks away without even coming up to the court with us?” Super sleuths like the ones in DRI are appalled! Many of the officers are hopeful that the government will correct this lapse – and they will, soon.
However, we must remember that the Supreme Court was only explaining the law and not writing it. When the Customs Law provides for bail – you have no option but to give bail. There are several Laws, which prohibit bail:
Section 37 of the Narcotics and Psychotropic Substances Act, reads as:
37. Offences to be cognizable and non-bailable :
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -
(a) Every offence punishable under this Act shall be cognizable;
(b) No person accused of an offence under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-
(i) The Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) Where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail.
There is a similar provision in the Money Laundering Law.
Section 10A of the Essential Commodities Act reads as:
10A. Offences to be cognizable and non-bailable. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be cognizable and non-bailable.
Now Section 21 of the Central Excise Act clearly provides for granting bail by the Central Excise Officer, as does Section 104 of the Customs Act.
Even Section 175 of the Sea Customs Act of 1878 provided for such a bail.
Thus, the Law has always been for bail – jail was an aberration, which by some mistake continued for too long.
Probably, the Government will now get the Acts amended to state that Offences are to be cognizable and non-bailable.