C SURENDRAN Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) THIS Criminal Petition is filed under Section 438 Cr.P.C. by petitioner in F. No. DRI/CZU/HRU/26A/ENQ -77(INT -06) of 2014.

(2.) HEARD the Learned Counsel for the Petitioner and the Learned Additional Public Prosecutor for the Respondent -State. Perused the material placed on record.

(3.) IT is important in this juncture to mention that there is an expression of the Apex Court (three judges Bench) in Om Prakash v. Union of India with Choith Nanikram Harchandani v. Union of India : AIR 2012 SC 545, referring to Central Excise Act (1 of 1994) Sections 9, 19 and 20 that the offences are bailable. They also referred the Customs Act Sections 104, 108, 132 and 135 holding with reference to Section 436 Cr.P.C. After the said expression dated 30.09.2011, there is an amendment to the Customs Act covered by the Finance Act, 2012 whereunder besides other provisions, Section 104 is also amended with non -obstante clause in sub -section (4) in saying, notwithstanding anything contained in the Code of Civil Procedure, 1973, for the offence relating to prohibited goods or evasion or attempted evasion of duty exceeding fifty lakh rupees, those are cognisable and by incorporating sub -section (5) in saying, save as otherwise provided in sub -section (4), all other offences under the Act shall be non -cognizable and by incorporating sub -section (6), it is further stated that none other obstante clause like in sub -section (4) notwithstanding anything contained in the Code of Criminal Procedure, 1973, the offences under the Act shall be bailable. This amendment making the offences bailable while distinguishing what are cognisable and what are non -cognizable was again subjected to another amendment by Finance Act 17 of 2013 w.e.f. 10.05.2013 when it received assent of the President of India by amendment Section 104 of the Customs Act whereunder sub -section (6) of Section 104 of the amended Section by Act 23 of 2012 was modified.