KUNHIKOYAMMU HAJI Vs. SUPDT SPECIAL CUSTOMS P UNIT

JUDGEMENT

(1.) The two petitioners are sureties for the accused in O.R. 14/90 on the file of the Additional Chief Judicial Magistrate, (Economic Offences), Ernakulam. The accused was arrested by the Superintendent of Central Excise, Special Customs Preventive Unit, Malappuram on 16-7-1990 under S.104 of the Customs Act alleging that he committed offences punishable under S.135 of the Customs Act. The accused was produced before the Court below with a prayer for remand to judicial custody. The accused moved for bail. Bail was granted on 4-8-90 and the petitioners herein offered themselves as sureties and they were directed to deposit Rs.25,000/- each in addition to the bond executed by them. On 25-8-90 the State Government issued a preventive detention order against the accused under S.3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. On the basis of this preventive detention order the accused was taken into custody from 10-9-1990. On coming to know of this the petitioners filed an application under S.444 of the Criminal Procedure Code for discharging them from the bond executed and for release of the cash deposit.

(2.) The court below rejected that application and refused to cancel the bond executed by the petitioners. The court below was of the opinion that if the sureties are discharged on the ground that the accused is under detention, it will create difficulty for the court for apprehending him after his release from COFEPOSA custody. Therefore the court below directed that the bond executed by the petitioners shall remain in suspended animation so long as the accused is under detention and that their discharge will be considered on production of the accused after his release from custody. This order is challenged by the petitioners.

(3.) Sureties execute bond under S.441 of the Code. The discharge of the sureties is dealt with under S.444 of the Code. S.444 reads as follows: