1. The Petitioner has invoked the power of this Court under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code of 1973") for challenging that part of the order dated 15th April 2006 passed by the learned Additional Chief Metropolitan Magistrate, 3rd Court, Esplanade, Mumbai, by which the Petitioner was directed to deposit the passport with the Customs Department and by which the petitioner was directed not to leave India without the permission of the Court in writing. The question which is raised for consideration in this Petition is whether a Court under the said Code of 1973 while granting bail in a bailable offence can impose a condition of surrender of passport and further condition that the accused shall not travel abroad without permission of the Court.

2. The case of the Petitioner is that the officers of the Directorate of Revenue Intelligence arrested the Petitioner under section 104 of the Customs Act, 1962 (hereinafter referred to as "the said Act of 1962") for an alleged offence punishable under section 135(1)(ii) of the said Act of 1962. The Petitioner was arrested on 12th April 2006. A remand application was filed before the learned Magistrate on the same day. The learned Magistrate granted remand though it was contended that the offence was a bailable offence. The Petitioner applied for bail and by order dated 15th April 2006, the learned Magistrate enlarged the Petitioner on bail. The relevant part of the order passed by the learned Magistrate reads thus :-

"As far as accused Sultan K. Dharani, he be released on bail on executing PR & SB of Rs.three lacs with permission to deposit cost security in lieu of SB. If he possess the passport, then he shall deposit it with the department and if not, then, shall make an affidavit to that effect, immediately, on his release. He shall not leave India without permission of the Court in writing."

3. Criminal Application No.1564/2006 was filed by the Petitioner in this Court seeking modification of the aforesaid condition. In this Petition, it is stated that the said Criminal Application was withdrawn by the Petitioner. It is stated in the Petition that without prejudice to his rights and contentions, the Petitioner has applied under section 137(3) of the said Act of 1962 for compounding of the offence and the said Application is still pending. The Petitioner has stated in the Petition that the Petitioner has received an invitation to visit New York and therefore, he has filed the present Petition.

4. The submission of the learned Counsel for the Petitioner is that the offence alleged against the Petitioner was under section 135(1)(ii) of the said Act of 1962. He submitted that as section 123 of the said Act was not applicable to the goods involved in the case, the offence was bailable. He placed reliance on a decision of this Court in the case of Subhash Choudhary v/s Deepak Jyala [2005 (179) E.L.T. 532 (Bom.)]. He also placed reliance on a decision of the learned Single Judge of Kerala High Court in support of the contention that while granting bail in a bailable offence, the learned Magistrate cannot impose any condition and in particular, the condition of surrender of passport. He relied upon the decision of the Apex Court in the case of State of Gujarat and Another v/s Lalsingh Kishansingh [AIR 1981 SC page 368]. He submitted that the Apex Court has held that if an accused was arrested for commission of a bailable offence, it is the legal obligation of the police to release the accused on bail in view of section 496 of the Code of Criminal Procedure, 1898 (hereinafter referred to as ‘the old Code’). He also placed reliance on a decision of the Apex Court in the case of T. Barai v/s. Henry Ah Hoe and Another [1983 (1) SCC 177]. He submitted that under section 436(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the said Code’), there is an unfettered right vesting in the accused to be enlarged o