K SATYANARAYANA SUBUDHI Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner has filed this application under Sections 397,401 and 482 read with section 432 (l)(b) of the Code of Criminal Procedure, 1973 (in short the CodeT), for modification of order passed by learned Session Judge, Cuttack.

(2.) A birds eye view of the factual position is necessary. Petitioner is alleged to have committed offence under Section 15(b)(i) of the Customs Act, 1962, read with section 85(1) (a) of the Gold Control Act, 1968. Allegations arc that on 19-5-1990, he was found to be in unauthorised possession of gold biscuits of foreign origin. Petitioner was arrested and produced before learned AddI. Chief Judicial Magistrate (Special), Cuttack who rejected the bail application filed by him, with the observation that investigation was still in progress, and considering nature of offence alleged, there was likelihood of the petitioner absconding if released on bail. Learned Session Judge by order dated 28-5-1290 in Criminal Misc. Case No. 363 of 1990 directed release of petitioner on bail on deposit of cash security of rupees one lakh in the court of learned AddI. Chief Judicial Magistrate (Special), Cuttack, and on executing a bond to the satisfaction of the said Magistrate to the effect that he shall appear on each and every date in the court personally and shall make himself available to the Investigating Officer as and when required during investigation. It was specified in the order that cash security was liable for forfeiture if the petitioner violates any of the conditions indicated in the order. Undisputedly, petitioner has deposited cash security, and is on bail. By an application sty led to be one under Section 439 (1)(b) of the Code, petitioner wanted modification of conditions imposed. It was his case that cash which he had deposited was borrowed from several persons, who are insisting on repayment, and therefore, he may be permitted to furnish properly security and cash security may be released.

(3.) Learned Session Judge was of the view that the view expressed by Supreme Court in Keshab Narayan Baneries and another v. The State of Bihar, was to the effect that cash security should not be insisted upon. He held that order of cash security will cause undue harassment to the petitioner, and therefore, directed him to furnish bond of Rupees Five lakhs with two sureties, to the satisfaction of learned AddI. Chief Judicial Magistrate (Special), Cuttack for release of the cash security. He also directed that bailers should be preferably of his jurisdiction, whose duty shall be to produce the petitioner on each adjourned date, failing which the entire bail amount was to be recovered from the bailors. Petitioner has filed the present application for modification of conditions, on the ground that they were stringent, and he was not capable of furnishing security of amounts as directed as condition precedent to refund of cash security.