PADMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is a third bail application. The first was dismissed by me under order dated 13.5.1992 and yet another bail application, the second one No. 2163/92 was dismissed by the Vacation Judge (V.K. Singhal J.) under its detailed order on 6.7.1992 running in 4 1/2 typed pages. The learned Vacation Judge under his order has dismissed the second bail application on merits and observed that the statements of the witnesses should be recorded as quickly as possible. It is given out by the learned counsel for the petitioner that two witnesses have been examined at pre-charge stage and charge has already been framed and there are as many as ten witnesses listed in the calendar of witnesses and trial is likely to take time. Learned counsel further contended that the seizure was by the police authorities and it was the police authorities who passed the smuggled goods silver and gold of the value of more than one crore to the Custom Authorities and, therefore, the provisions of Sec. 123 of the Customs Act 1962 cannot be availed. In support of his contention, learned counsel has referred to the case of Gian Chand & Ors. v. State of Punjab, 1983 ELT 1365.The decision is actually of 13th November 1961, but has been reported in 1983. Be that as it may, in the aforesaid case the Apex Court has taken a view that if the goods have been seized by the police and delivered to the customs authorities under Section 180 of the Sea Customs Act, 1878, it is not seizure by the customs within the meaning of Section 178 A of the Sea Customs Act, 1878, it is equivalent to Sec. 123 of the Customs Act. Therefore, the provision of Sec. 178 A of the Sea Customs Act 1878 cannot be availed. The learned counsel contended that if that is the legal position the case can only be governed u/s, 135(2) of the Customs Act and even if convicted, the accused cannot be punished for more than three years and, therefore, for the offence which carries a maximum punishment of three....Sic. *

(2.) This bail application was earlier placed before V.K. Singhal J as he had disposed of the second bail application under detailed order as aforesaid sitting at vacation Judge and the learned Judge said that it should be placed before me. It would have been proper for the learned Judge to dispose of the bail application because he had applied his mind and under a detailed order had disposed of the earlier bail application. Be that as it may, he has placed this bail application before me and we cannot send the file from one court to another. Assuming as learned counsel says may be the ultimate position, the question is as to whether in the case of present nature where 190 gold biscuits valuing about Rs. 1 crore 64 lacs and Silver 22 Kg. 161 gm. and 6 mg. valuing about 14,84,280/- allegedly recovered on 18.4.1989 from a Jeep No. GJ-2-A-1258 and one of the accused petitioner was sitting in the front seat and the other petitioner Padmaram was found at the driver seat. It is the case where this court should release the accused on bail more so as said earlier charge has been framed and if efforts are made trial can be concluded within a period of three months to which learned counsel for Customs Department has assured to this court that all the witnesses will be made available if the court gives short dates and takes the case day to day.

(3.) As said earlier, it is non-bailable case and in such a case no accused can claim release on bail by way of right and it is exercise of discretion of the court whether bail should or should not be granted. In the facts and circumstances of the case when the charge has been framed and as said earlier if efforts are made, the trial can conclude within a short duration and in respect of which I intend to give direction to the trial court.