R BHARATHI DASAN Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard the learned Counsel appearing on behalf of the appellant and the learned Counsel appearing on behalf of Respondents - Union of India.

(2.) This is an application for bail. Applicant was arrested by Officers of Respondent No. 2 on 29-1-2009 at Mumbai Air Port when the applicant was about to travel abroad. In the arrest memo and remand application, it is alleged that the applicant was attempting to smuggle out of India 15.611 kgs of white coloured crystalline powder purported to be Ketamine Hydrochloric valued at Rs. 4,68,330/- (LMV) and Rs 15,61,100/- (IMV). It is therefore alleged that the applicant has committed an offence punishable under section 135 of the Customs Act, 1962.

(3.) The learned Counsel appearing on behalf of the applicant submitted that the offence in question would not fall under section 135(1) and that it would fall under the provisions of section 135(1)(ii). It is submitted that the learned Single Judge of this Court has held that the offence punishable under section 135(1)(ii) is a bailable offence. Counsel for the applicant invited my attention to the judgment of the learned Single Judge of this Court (Coram : A.M. Khanwilkar, J.) reported in 2005 (179) E.L.T. 532. It is, therefore, submitted that the applicant is entitled to be released on bail. Secondly, it is submitted that even if it is presumed that the offence would fall under section 135(1)(i)(C), since no such notification has been issued by the Central Government under section 135(1)(i)(C), the offence would, therefore, still be a bailable offence as it is filed under section 135(1)(ii). In support of the said submission, Counsel for the applicant invited my attention to the order dated 23-1-2009 passed by this Court in Criminal Application No. 334 of 2009. It is submitted that, in the said case, this Court has observed that since no notification was issued under section 135(i)(c), it could not be said that the offence is non-bailable offence.