M K AYOOB Vs. SUPDT

JUDGEMENT

(1.) -These are applications for bail under Sections 437, 482 and 167 of the Code of Criminal Procedure by nine among the accused in customs case. Similar applications filed by them before the Chief Judicial Magistrate, Tellicherry were dismissed.

(2.) The Customs Officers received information to the effect that contraband articles were likely to be landed at the Tellicherry coast on the night of 15.9.1983 and therefore they kept the sea-coast under observation. Lorry No. K.L.W. 4936 was found moving from the Tellicherry beach to the main road, driven by one of the accused and three among the accused were found in the lorry. The lorry was stopped and the - Customs Officers checked the lorry and found that the lorry contained contraband articles, such as electronic and textile goods etcT of the value of Rs. 56 lakhs: The Customs party also received information that other people were involved in this offence. Tracks of another lorry were found on the beach. On the next day i e. 16.9.1983 lorry M.Y.G. 8229 was found in the garage attached to Zubaida Manzil,T Tellicherry. It was found to contain contraband goods valued at Rs. 50 lakhs. Further information was collected. Accordingly seven among the petitione2l were arrested in September, 1985 and procure before the Chief J judicial Magistrate, Tellicherry. The Customs Officer concerned sought their detention in judicial custody. At the same time they moved the court for bail. The Magistrate held that he had no power to remand them to judicial custody and granted them conditional bail. Accordingly they were released. These orders were challenged by the Customs Department before this court in Cr1. M C. No 657 of 1983. This Court held that the Magistrate has power to order detention of the arrested persons in judicial custody, that the order granting bail was unsustainable, cancelled the bail and directed them to be taken back into custody. Accordingly these seven persons were taken back to custody. Since then they are being remanded to custody from time to time. In October 1983 two more persons (who also before this Court) were arrested and duly remanded to judicial custody, after dismissing their bail application. Fresh applications for bail were also dismissed by the Magistrate. These nine persons have now moved this Court for bail under Section and 438 read with the proviso to Section 167 of the Code of Criminal Procedure (for short, the Code).

(3.) There is no dispute that all the nine petitioners before me have been in judicial custody for over60 days. The offence alleged to have been committed by the petitioners is one under Section 135 of the Customs Act, 1962 (for short, the Act). Maximum punishment t hat could be imposed on them is imprisonment for a term of 7 years and fine. Under proviso (a) (ii) to Section 167(2) of the Code, detention of the accused in custody for a total period exceeding 60 days cannot be ordered in any case other than aT case involving an offence punishable with death imprisonment It for life or imprisonment for a term of not less than 10 years. On the expiry of the period, according to the proviso, the accused have to be deemed to have been released under the provisions of Chapter XXXIII of the Code. Therefore if Section 167 of the Code applies in the instant case, petitioners would be entitled to be released on bail since they have already been in detention for over a period of 60 days. It is on this basis that the petitioners seek bail. 3 A, Sri. M.M. Abdul Aziz, learned Standing Counsel for the Central Government who appeared for the Customs Department these petitions, does not contend that even if Section 167 of the proviso to Section 167(2) of the Code apply, petitioners are not entitled to bail. That they are so entitled to bail in the event of this Court holding that Section 167(2) of the Code is applicable is beyond controversy. The bail applications are resisted by the Customs Department with the contention that Customs offences, and persons arrested by Customs Officers under Section 104(I) of the Act are not governed by Section 167 or the proviso to Section J 67 of the Code and therefore petitioners are not entitled to the benefit of the proviso.