The Court laid down guidelines for grant of bail in Customs matters in order to prevent accused from absconding and sureties from getting discharged without an order of the Court under section 444 of the Code of Criminal Procedure, 1973.

Headnote:
BAIL - CUSTOMS ACT - SECTIONS 441, 442, 443, 444 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - GUIDELINES FOR GRANT OF BAIL IN CUSTOMS MATTERS - LAID DOWN.
Fact of the Case:

In a Customs matter, the accused, a Srilankan National, was granted bail on a cash deposit of Rs. 9,00,000/- with a condition to report daily to the Assistant Collector of Customs at 11 a.m. The bail order was challenged in the High Court, which reduced the bail amount to Rs. 4,00,000/- with one surety in the like amount. The surety application was accepted provisionally till 16-10-1990. The accused availed of the bail on 12-10-1990 and absconded. The surety contended that his bail bond was provisionally accepted till 16-10-1990 and that after the expiry of the said date, he cannot be held liable on the basis of the said surety bond.
Finding of the Court:

The Court observed that the bail order was cryptic and difficult to read. The surety application was accepted provisionally without following the proper procedure. The Court noted that in Customs matters, accused who were released on bail have been absconding and not traceable to face the trial. The Court also noted that sureties raise a plea that their surety bonds were provisional and for a limited period. After expiry of the said period, they are not bound by the surety bonds. The result, therefore, is that the accused are not traceable and no action can be taken against the sureties.
Issues: 1. Whether the surety bond was valid only till 16-10-1990? 2. Whether the surety could be discharged after the expiry of the said date? 3. Whether the guidelines for grant of bail in Customs matters should be laid down?
Ratio Decidendi: 1. The Court held that the acceptance of surety bonds provisionally for a limited period is illegal. The Court observed that the effect of the order dated 11-10-1990 accepting surety bonds provisionally till 16-10-1990 was interpreted to mean that the bail bonds were valid only till 16-10-1990. Taking advantage of this type of orders in Customs matters, sureties contend that their surety bond has come to an end and they are no more liable in terms of the bond. 2. The Court held that the surety could not be discharged after the expiry of the said date. The Court observed that section 444 of the Code of Criminal Procedure, 1973 is the only section which deals with discharge of sureties. The Court held that it is only in terms of this section 444 of the Code that discharge of sureties can be granted by the Court. 3. The Court laid down the following guidelines for grant of bail in Customs matters: (i) At the time of considering the bail application, the Court will have to consider the bail prayer on merits. (ii) If the Court opines that the accused be released on bail, it shall pass appropriate orders bearing in mind the offender's nationality, complicity and the likelihood of a foreign offender jumping the bail. (iii) Hand-written orders must be clear and readable. Rubber stamp orders be avoided. (iv) Surety applications must be scrutinized carefully. A professional surety be avoided. (v) On the surety application, a photograph of the surety be affixed and such photograph must be identified by the Advocate, if he is so represented, or by any other authorised person. (vi) In the matters of economic offenders, bail amounts are usually high. Consistent with the bail amount, the surety is required to offer his property by way of security. (vii) Order must expressly state that the bail bond is accepted provisionally pending verification of the property by the Customs Department and bail bond shall remain in force until a final order of accepting the surety bond is passed by the Magistrate. (viii) The Magistrate must also take care that bogus and professional sureties are not accepted. (ix) The Chief Metropolitan Magistrate to instruct the Registrar / Additional Registrar of all the Magistrates' Courts that a surety register must be maintained uptodate and alphabetically. (x) The Customs Department when asked to verify the property offered by the surety in his surety application and surety bond, such verification must be submitted to the Court as per the directions of the Court. (xi) The Court must insist that the property, movable or immovable, offered by way of surety has got a marketable title and the same is free from encumbrances. (xii) If it is brought to the notice of the Court that the Court staff is making endorsements on the surety applications without verifying the surety register, the Magistrate to take immediate action against such erring staff member without any delay. (xiii) As far as solvency certificates offered by the sureties are concerned, the Magistrate must satisfy himself about the correctness and genuineness of such solvency certificates and, if any doubt is entertained, he must call upon the issuing authority to satisfy the Court. (xiv) When the accused is released on bail on cash deposit with one or two sureties and later on if an application is made to permit him to offer sureties by modifying the order of cash deposit, the Magistrate shall give notice to the sureties and put the sureties on guard about the consequences of such modification. (xv) The Magistrate may impose a condition in the bond consistent with section 441 of the Code requiring the accused to attend at the time and place mentioned in the bond and shall continue to attend until exemption is granted by the Court. (xvi) If it is brought to the notice of the Court that either the accused or the surety has committed breach of any of the conditions mentioned in the bond, the Court will take immediate action against such erring person in accordance with law. (xvii) In case of impersonation by the surety or the accused who has been identified by the Advocate, the Court, apart from taking any action against the Advocate in accordance with law, will refer the matter to the Bar Council of Maharashtra for appropriate action. (xviii) It is desirable that the Customs Department is equipped with a computerised list of sureties so that they would be able to assist the Court. (xix) If it comes to the notice of the Court that any mischief is committed by the accused, surety or any other person who is the officer of the Court, including the Advocate, the Court will take immediate action against such erring person in accordance with law. (xx) The Customs Department shall cause a photograph of the accused and surety being affixed on the bail application and bond to avoid impersonation. (xxi) In most of the cases under the Customs Act, it is noticed that the accused and sureties offer cash deposits and/or immovable property of substantial value. It is open to the Customs Department to forward the information to the Income-tax Department and/or any other authority for information.
Final Decision: The Court disposed of Criminal Suo Motu Revision Application No. 3 of 1992 and Criminal Suo Motu Revision Application No. 2 of 1992 in terms of the above directions.

JUDGMENT - KURDUKAR S.P., J.:—On a discreet enquiry made by an officer of this Court, it was noticed that in some of the Customs matters, the accused who were released on bail have been absconding and not traceable to face the trial. As far as the sureties are concerned, they raise a plea that their surety bonds were provisional and for a limited period. After expiry of the said period, they are not bound by the surety bonds. The result , therefore, is that the accused are not traceable and no action can be taken against the sureties. It is in these circumstances, that we are required to consider and lay down guidelines in matters of bail in terms of sections 441, 442, 443 and 444 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”).

2. For the purpose of this judgment, we may narrate a few facts from Criminal Suo Motu Revision Application No. 3 of 1992, which arises out of R. A. No. 893/1990 renumbered as Criminal Case No. 728/CW/91 (Chief Metropolitan Magistrate Court, Esplanade, Bombay Asstt. Collector of Customs v. Ramaiah Pillai Mylvaganam.

3. One Ramaiah Pillai Mylvaganam, a Srilankan National, came to Bombay from Bahrain by flight GF 042 on its way to Singapore. On his arrival at Bombay airport, he was sitting in the transit lounge. Officers of the Air Intelligence Unit, on secret information, intercepted Shri Ramaiah and, while taking a search of his hand-baggage before Panch witnesses, the Air Intelligence Unit recovered 30 gold bars of 10 tolas each of foreign origin, totally weighing about 3,490 gms. The said gold was valued at Rs. 8,22,0301- in the international market and at Rs. 12,06,810/- in the local market. Shri Ramaiah had kept the said gold in a pouch wrapped in his old clothes inside the hand-baggage. The said gold was seized under a Panchanama dated 5-9-1990 under reasonable belief that the same was smuggled into India and hence liable for confiscation under the provisions of the Customs Act, 1962. Shri Ramiah, in his statement recorded under section 108 of the Customs Act, stated that the gold under seizure was given to him at Bahrain by one A. Rauf Mohamed for delivery in the transit lounge of the Bombay airport to a contact person known as Wellington who will come and identify himself by that name. He further stated that he had an agreement with one Sahal Hameed at Colombo for this transaction. He further stated that he was carrying the said gold for a monetary consideration of 5,000 Srilankan rupees in addition to 100 Dhirams and 100 Singapore Dollars. It is not necessary to set out about the adjudication proceeding in which the gold came to be seized and a personal penalty of Rs. 75,000/- was levied, which amount is yet to be recovered.

4. On 6-9-1990, Ramaiah was produced before the Court by the Customs Department seeking remand. Remand was granted. We were told by Shri Gupte, learned Counsel appearing on behalf of the Customs Department, that after two or three remands, the accused was granted bail on 10-9-1990. The bail order, apart from being cryptic, is even difficult to read. A major portion of the said order save and except Item No. 7 reads as under :

“C. D. only of Rs. 9 lacs with condition to report daily with the Asstt. Collector at 11 a.m.

(Note: With all difficulties, we could read the aforesaid order, but we are not very sure whether we have reproduced the aforesaid order correctly).”

Sum and substance of the order appears to be that the accused was released on bail of Rs. 9,00,000/- cash deposit with a condition to report to the Assistant Collector of Customs at 11 a.m. This order of the learned trial Magistrate was challenged in the High Court and this Court on 1-10-1990 passed the following order :—

“Heard Mr. C.R. Nirani for the petitioner and Mr. C.T. George for Respondent No. 1 perused the papers. In the circumstances the following order is passed:

Petitioner is released on bail of Rs. 4,00,000/- with one surety in the like amount on condition that he will repor

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