Crl.MCs 1619/2019, 2158/2019 and 2175/2019: Joseph Santosh Kottarathil Alexander; Mohammed Rakheeb; Rajesh Kumar Bhargavan v. The Superintendent of Customs (AIU), Cochin International Airport, Nedumbassery; The Assistant Commissioner of Customs; Union of India

**“C.R.”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941** ## **Crl.MC.No. 1619 of 2019** **IN AIR CUSTOMS F.NO.S.14/19/2019-AIU CUS., NEDUMBASSERY, ERNAKULAM** ## **PETITIONER/ACCUSED:** **JOSEPH SANTHOSH KOTTARATHIL ALEXANDER, AGED 43 YEARS, S/O. KOTTARATHIL JOSEPH ALEXANDER, KOTTARATHIL HOUSE, NO.15/1606, NAZARETH, COCHIN-2. BY ADVS.SRI.S.K.PREMJITH MENON SRI.BINU V V VEETTIL VALAPPIL** ## **RESPONDENTS/COMPLAINANT:** |**1**|**THE SUPERINTENDENT OF CUSTOMS (AIU),**| |---|---| ||**COCHIN INTERNATIONAL AIRPORT,**| ||**NEDUMBASSERY, KOCHI-683111,**| |**2**|**THE ASSISTANT COMMISSIONER OF CUSTOMS,**| ||**OFFICE OF THE ADDITIONAL COMMISSIONER OF CUSTOMS,**| ||**COCHIN INTERNATIONAL AIRPORT, NEDUMBASSERY,**| ||**COCHIN-683111.**| |**3**|**UNION OF INDIA,**| ||**REPRESENTED BY STANDING COUNSEL TO CENTRAL GOVERNMENT,**| ||**HIGH COURT OF KERALA, ERNAKULAM-682031.**| ||**SHRI.P.VIJAYAKUMAR, ASG OF INDIA**| ||**SRI.SASTHAMANGALAM AJITHKUMAR, PP FOR CUSTOMS,**| ||**COCHIN COMMISSIONERATE**| **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.04.2019, ALONG WITH CRL.MC:2158 & 2175 OF 2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MCs.1619, 2158 & 2175 of 2019 **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941 Crl.MC.No. 2158 of 2019** **IN AIR CUSTOMS F.NO.S.14/54/2019-AIU CUS., O.S.NO.120/2019, NEDUMBASSERY, ERNAKULAM** ## **PETITIONER/ACCUSED:** **MOHAMMED RAKHEEB, AGED 27 YEARS, S/O. VALIYAKATH KASSIM, VALIYAKATH HOUSE, ORUMANAYUR POST, THRISSUR DISTRICT. BY ADVS.SRI.S.K.PREMJITH MENON SRI.BINU V V VEETTIL VALAPPIL** ## **RESPONDENTS/COMPLAINANT:** |**1**|**THE SUPERINTENDENT OF CUSTOMS (AIU),**| |---|---| ||**COCHIN INTERNATIONAL AIRPORT, NEDUMBASSERY,**| ||**KOCHIN-683 111.**| |**2**|**THE ASSISTANT COMMISSIONER OF CUSTOMS,**| ||**OFFICE OF THE ADDITIONAL COMMISSIONER OF CUSTOMS,**| ||**COCHIN INTERNATIONAL AIRPORT, NEDUMBASSERY,**| ||**COCHIN - 683 111.**| |**3**|**THE JOINT COMMISSIONER OF CUSTOMS,**| ||**OFFICE OF THE JOINT COMMISSIONER,**| ||**WILLINGDON ISLAND, COCHIN-682 003.**| |**4**|**UNION OF INDIA,**| ||**REPRESENTED BY STANDING COUNSEL TO CENTRAL GOVERNMENT,**| ||**HIGH COURT OF KERALA, ERNAKULAM-682 031.**| ||**BY ADV. SRI.RAJAGOPALAN.A., CGC**| ||**BY SRI.P.VIJAYAKUMAR., CGC**| ||**SRI.SASTHAMANGALAM.S.AJITHKUMAR PP FOR**| ||**CUSTOMS, COCHIN COMMISSIONERATE**| **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.04.2019 ALONG WITH CRL.MC:1619/2019 & CONTD. CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MCs.1619, 2158 & 2175 of 2019 **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941** **Crl.MC.No. 2175 of 2019** **IN AIR CUSTOMS F.NO.S.14/56/2019-AIU CUS., O.S.NO.122/2019, NEDUMBASSERY, ERNAKULAM** ## **PETITIONER/ACCUSED:** **RAJESH KUMAR BHARGAVAN, AGED 38 YEARS, S/O BHARGAVAN, REKHA BHAVANAM, KIDANGAYAM, PADANILAM POST, ALAPPUZHA DISTRICT** **BY ADVS.SRI.S.K.PREMJITH MENON SRI.BINU V.V.** ## **RESPONDENTS/COMPLAINANT:** **1 THE SUPERINTENDENT OF CUSTOMS (AIU), COCHIN INTERNATIONAL AIRPORT, NEDUMBASSERY, KOCHIN-683 111.** **2 THE ASSISTANT COMMISSIONER OF CUSTOMS, OFFICE OF THE ADDITIONAL COMMISSIONER OF CUSTOMS, COCHIN INTERNATIONAL AIRPORT, NEDUMBASSERY, COCHIN-683 111. 3 THE JOINT COMMISSIONER OF CUSTOMS, OFFICE OF THE JOINT COMMISSIONER, WILLINGDON ISLAND, COCHIN-682 003. 4 UNION OF INDIA, REPRESENTED BY STANDING COUNSEL TO CENTRAL GOVERNMENT, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY ADV. SRI.RAJAGOPALAN.A., CGC BY SRI.P.VIJAYAKUMAR., CGC** **SRI.SASTHAMANGALAM.S.AJITHKUMAR PP FOR CUSTOMS, COCHIN COMMISSIONERATE** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.04.2019, ALONG WITH CRL.MC.1619/2019 & OTHER CONTD. CASE, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MCs.1619, 2158 & 2175 of 2019 **4** ## **ORDER** Being aggrieved by the condition imposed by the Assistant Commissioner of Customs while granting bail to the petitioners herein, in bailable offences, they have approached this Court seeking intervention. 2. Essential facts for disposal of these petitions are stated below:- The petitioners herein were apprehended at the Cochin International Airport, Cochin, on various dates, for either smuggling Gold or foreign currency by concealing it in their checked in baggage with a view to evade payment of customs duty legally leviable on it. Admittedly, the market value of the currency/gold was much below Rs.50 lakhs. Their voluntary statement was recorded by the Superintendent of Customs, Air Intelligence Unit, Cochin and they were paced under arrest. The offences alleged against the petitioners are, _inter alia,_ under Sections 132, 135 (a), (b), (c) of the Customs Act, 1962. The offences alleged are noncognizable and bailable. Being bailable offences, the officer proceeded to exercise powers under Section 104 (3) of the Customs Act and grant bail to the petitioners by Annexures-A2 and A3 orders produced in all these cases. The conditions imposed are identical Crl.MCs.1619, 2158 & 2175 of 2019 **5** and the same is extracted below for easy reference. _1. Two persons to stand surety, on whose behalf the petitioner/accuse shall be released on bail._ _2. Petitioner shall report to the Superintendent of Customs, Air Intelligence Unit, Nedumbassery on 10[th] day of every month between 10 am and 2 pm until the case is finally decided._ _3. Petitioner shall report to the investigating officer as and when required._ _4. Petitioner shall not, during the period of this bail, get involved in any offence._ 3. Sri. Premjith Menon, the learned counsel appearing for the petitioners, submitted that the offences being bailable, the petitioners can, as of right, claim to be released on bail. Referring to Section 104 of the Customs Act, 1962, it is submitted that for the purpose of releasing an arrested person on bail, a customs officer is subject to the same provisions as the officer-in-charge of a police station and as provided under the Code of Criminal Procedure. It is the submission of the learned counsel that imposition of Condition Nos.2, 3 and 4 is illegal and could not have been imposed by the customs officer. 4. I have heard the Sri.Sasthamangalam S. Ajith Kumar, the learned Standing Counsel appearing for the respondents. Crl.MCs.1619, 2158 & 2175 of 2019 **6** 5. Provisions as regards bail can be broadly classed into 2 categories: (1) bailable cases and (2) non-bailable cases. In the former class, grant of bail is a matter of course. It may be given either by the Police officer in charge of a Police station having the accused in his custody or by the Court. The customs officer in exercise of powers under Section 104 is exercising the very same powers of an officer in charge of a Police station as provided under Section 436 of the Code of Criminal Procedure. 6. Section 436 of the Code reads as follows:- 436—In what cases Bail may be taken 1) When any person other than a person accused of a nonbailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail: Provided that such officer or Court, if he or it thinks fit, [may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail] from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided: [Explanation.-- Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso.] Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of section 116[or section 446A]. Crl.MCs.1619, 2158 & 2175 of 2019 **7** (2) Notwithstanding anything contained in sub-section (1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446.” 7. A reading of the said provision shows that the officer or the Court has no discretion in the matter except to release the accused on bail when produced before them. Even the Court has no discretion while granting bail under Section 436 of the Cr.P.C to impose any condition except the demand for security with sureties. In appropriate cases, the Court has discretion to release the accused by taking only a personal bond without insisting for surety for his appearance. In no event, can onerous conditions be imposed by either the officer or by the Court while releasing the accused in a bailable offence. 8. In **Talab Haji Hussain V Madhukar Purushottam Mandkar** (AIR 1958 SC 376), a similar question concerning Section 496 of the old Code which is similar to Section 436 of the new Code came up for consideration before the Hon’ble Supreme Court. It was observed in paragraph 3 of the judgment as follows:- “There is no doubt that under S.496 a person accused of a bailable offence is entitled to be released Crl.MCs.1619, 2158 & 2175 of 2019 **8** on bail pending his trial. As soon as it appears that the accused person is prepared to give bail, the police officer or the court, before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on executing his bond as provided in the section instead of taking bail from him.” 9. This was reiterated by this Court in **Paulose v. State** (1978 KLT 336) and also in **Azeez v. State of Kerala** [1984 (2) Crimes 413 ( Ker.)] 10 _._ The petitioners, being persons accused of only a bailable offence, have a right to be enlarged on bail without they being burdened with onerous conditions. For the very same reason, the customs officer is bereft of jurisdiction to impose a condition which is not a term as to bail. Condition Nos. 2 to 4 imposed by the Assistant Commissioner of Customs in Annexures-A2 & A3 orders produced in these cases are, therefore, set aside. These petitions are allowed. ## **SD/-** ## **RAJA VIJAYARAGHAVAN V., JUDGE** IAP **//TRUE COPY// P.A. TO JUDGE** Crl.MCs.1619, 2158 & 2175 of 2019 **9** ## **APPENDIX OF Crl.MC 1619/2019** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE ARREST MEMO DATED 29.1.2019. ANNEXURE A2 TRUE COPY OF THE BAIL ORDER DATED 30.1.2019.** ## **RESPONDENTS' EXHIBITS:** **NIL** ## **APPENDIX OF Crl.MC 2158/2019** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE ARREST MEMO DATED 3.3.3019 ANNEXURE A2 TRUE COPY OF THE SEIZURE MEMO DATED 3.3.3019 ANNEXURE A3 TRUE COPY OF THE BAIL ORDER DATED 3.3.2019 ANNEXURE A4 APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 11.3.2019** ## **RESPONDENTS' EXHIBITS:** NIL ## **APPENDIX OF Crl.MC 2175/2019** **PETITIONER'S/S EXHIBITS: ANNEXURE A1 ARREST MEMO DATED 3.3.3019 ANNEXURE A2 SEIZURE MEMO DATED 3.3.3019 ANNEXURE A3 BAIL ORDER DATED 3.3.2019 ANNEXURE A4 APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 11.3.2019**