KUTPUDDIN ALI PHOY Vs. ASSISTANT COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THE petitioner Kutpuddin Ali Bhoy, a Srilankan citizen, was arrested in connection with an offence under the provisions of the Customs Act on 2.10.19SS. It is alleged that the gold bars that were alleged to have been seized from the petitioner is of the value of Rs.22,11,000/-. As per the representation made by the prosecution, the petitioner was remanded to judicial custody on 3.10.19SS. On 12.10.1988, a detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as the Act) has been passed against the petitioner. THE petitioner challenged the detention order. During the pendency of that petition, a complaint under the Customs Act had been filed before the Sub Divisional Judicial Magistrate, Poonamallee on 25.1.1989, and the same was taken on file on 31.1.1989.

(2.) ON 24.9.1989, the order of detention passed against the petitioner under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act was set aside. According to the petitioner, he is entitled to bail on the following four grounds: a) No complaint was filed within sixty days of the order of remand namely 3.10.1988 as such under Section 167(2) of the Code of Criminal Procedure: the petitioner is entitled to be released on bail. b) Since the petitioner had undergone one year of imprisonment as remand prisoner and the period of detention is adjustable against any conviction that may be imposed against him, he may be released on bail, since there is no incentive or necessity for the petitioner to flee from justice as his passport has been impounded by the Customs Departments; c) The detention of remand prisoner for a period of one year is unfair; d) The petitioner should be given a reasonable opportunity to defend himself and to engage a competent lawyer.

(3.) AS per proviso (a) (ii) to Sec.167(2) of the Crl.P.C., the Magistrate is not authorised to detain the accused person in custody for a total period exceeding sixty days, and he shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released on bail under the provisions of Chapter XXXIII for the purpose of that Chapter.