SUBHASH CHOUDHARY Vs. DEEPAK JYALA

JUDGEMENT

(1.) THE above numbered Writ Petition takes exception to the order passed by the Additional chief Metropolitan Magistrate, 3rd Court, esplanade, Mumbai dated 8th July 2004 below Remand application No. 71 of 2004, remanding Mr. Subhash choudhari, Writ Petitioner to judicial custody till july 22, 2004. The principal ground on which the remand order is questioned on behalf of the writ petitioner is that the offence for which he has been arrested is one under Section 135 (1) (ii) of the Customs Act, 1962 (hereinafter referred to as the 'act'), which is a bailable offence; for which reason, the Magistrate could not have ordered judicial remand of the writ petitioner. In the accompanying Criminal Application No. 3618 of 2004, another named accused in the commission of the same offence Bhri Satish Choudhary has prayed for release on anticipatory bail on the same argument that the said offence is a bailable offence.

(2.) BRIEFLY stated, the Respondent is investigating against four export firms namely; m/s. Shree Shubham Exports (Pvt.) Ltd. , M/s. Emkay exports, M/s. Tex Age and M/s. Master Forms (Pvt.)Ltd. , which are admittedly controlled by said Shri subhash Choudhary, regarding alleged overvalued exports of "readymade garments" since about a year prior to commencement of inquiries. It is not necessary to burden this Judgment with the background in which the said investigation has commenced. Suffice it to observe that it is not in dispute that the alleged offence for which the applicants in both the matters are stated to be involved, is, inter alia, punishable under Section 135 (1) (ii) of the Act. The Customs Officers have, therefore, exercised power to arrest the writ petitioner under Section 104 of the Act.

(3.) THE principal question is: whether the offence referable to Section 135 (1) (ii) of the Act for which the Applicants are being proceeded with, by the Customs Officers in exercise of powers under section 104 of the Customs Act, can be said to be a bailable offence or a non-bailable offence? according to the Petitioner-Applicant, having regard to the Scheme of the Customs Act read with the provisions of the Code of Criminal Procedure (hereinafter referred to as the 'code'), the offence under Section 135 (1) (ii) of the Act is a bailable offence. This submission is canvassed relying on the provisions of Section 104 of the act, which reads thus :