1987 Supreme(Bom) 412

IN THE HIGH COURT OF BOMBAY
V.P. Tipnis, J.
B.S. Rawat, Asstt. Collector of Customs.... Applicant.
Versus
Andre Christopher Mydlarz others .... Respondents.
Criminal Revision Application No. 399 of 1987, decided on 9-12-87.
Advocates appeared :
A.R. Gupte, for petitioner.
R.S. Bhonsale with N.T. Ajwani, for respondent No. 1
A.A. Agarwal with Miss. K.V. Gupta, for respondent No. 2.
B.K. Raje, Public Prosecutor, for respondent No. 2.

Headnote:Section 437-Economic offences-Foreigners accused for-Attempting to smuggle gold into India-Bail granted but accused absconded-Liable to be set aside when probability of absconding very high-Petition challenging order for grant of bail-Not to be one for cancellation of bail.

       This is not a stage where detailed examination of the material and the aspect of their admissibility for ultimate value can be assessed. This is the stage where prima facie view of all the general circumstances has to be taken with a view to ascertain whether the accused would be readily available for trial. The nature of the evidence and the probability of conviction would be relevant at this stage only for the limited purpose of ascertaining whether that would be one of the factors inducing the accused to free from justice and abscond.

       Section 437-Grant of bail to woman-Conditions for-If under the age of sixteen years, sick or infirm-Discretionary-Not mandatory.

       If the circumstances in which the gold was attempted to be smuggled into India are taken into consideration, it is clear that respondents I arid 2 had full knowledge of what they were doing. The offence alleged is of smuggling which can be described as an economic offence. The nature of offence against the accused is also such that their involvement albeit prima facie is evident. The further consideration is whether the accused would be readily available for trial. In this behalf, the Intelligence Officer, Bombay Customs, has filed an affidavit in this Court in which he has stated that from the records of the Customs Department, it is found that during the period from 1-11-1987, in all 97 foreign nationals were arrested by the Department for Offences under the Narcotic Drugs and Psychotropic Substances Act, 1985. Out of them, 85 foreigners obtained bail. All of them availed of the bail and 84 of them have since absconded. The remaining 12 foreigners who are still in custody are available for investigation and prosecution. During the said period, the Customs Department arrested in all 162 foreigners under the Customs Act, 1962 for smuggling of gold and other goods. All the foreigners who availed of the bail orders have absconded and only those who could not avail of the bail orders or who have been detained under the COFEPOSA are available for investigation and trial.

       In the facts of the present case, it is evident that smuggling of large scale is involved. The further aspect of the instant case is that two co-accused, who obtained bail on the ground of sickness of one have since absconded. On the material placed before me, Court is satisfied that, in the facts and circumstances of this case, the probability of the respondents absconding is very High. Now, if economic offences like smuggling which endanger the economy of the country in a substantial way are to be curbed, then apart from the higher punishments which are prescribed by law, the first essential thing is that the accused should be brought to book, and for that purpose, they must be available for trial. It is in this context that the aspect of the probability of the accused fleeing from justice assumes importance. Now, as far as the order of the Additional Sessions Judge is concerned, he has said that the question which merits consideration is whether the applicants are likely to jump bail in the vent they are released on bail.

       Section 437 (6)-Time for release on bail-If bail not concluded within sixty days-To be counted from time the accused is charge-sheeted.

       Counsel appearing for respondent No.2, made a plea that respondent No.2, being a woman, is entitled to be released on bail, under the provisions of the first proviso to Section 437 (1), Cr. P. C. Undoubtedly, the said proviso indicates that the Court may direct that the person even if answers the description of sub-clause (i) or sub-clause (ii) of sub-section (1) of Section 437 if under the age of sixteen years or is a woman or is sick or infirm, be released on bail. Despite this provision, all other considerations have to be weighed and if on these considerations the Court finds that the person should not be released on bail, then, Court is not think that it is obligatory on the Court to release the person only on the count that she is a woman.

       The time spent in recording the per-charge evidence which is usually recorded in complaint cases before the charge is framed will not be counted for purposes of Section 437 (6), the Division Bench added, Court is in respectful agreement with the aforesaid decision and, therefore, it is not possible to accept this submission that the respondent No.2 is entitled to be released on that count.