The main legal point established in the judgment is the interpretation of the provisions of the Customs Act, 1962 to determine the classification of the alleged offence and the availability of compounding application before the completion of adjudication.

JUDGMENT :

Ranjit More, J.

The present writ petition is filed under Article 226 of Constitution of India by the Petitioner who is presently in judicial custody in Remand Application No.161 of 2019 of Additional Chief Metropolitan Magistrate, 8th Court, Mumbai pursuant to his arrest under section 104 of the Customs Act, 1962, on the allegations of having committed an offence punishable under section 135(1)(i) of the said Act. There is no dispute on the fact that the said offence is "compoundable".

2. While in custody, but before filing criminal prosecution in the said case, the Petitioner has preferred an application for compounding of the alleged offence before the compounding authority under section 137(3) of the Customs Act, 1962. Immediately thereafter, the Petitioner has filed the instant writ petition to safeguard his fundamental rights while interalia seeking following relief’s :

(a) Issue a writ of mandamus, or any other appropriate writ, order or direction, restraining the Respondent No.1 from filing any criminal prosecution qua the Petitioner under the provisions of Customs Act,1962 for alleged compoundable offence, in respect of which the Application for compounding as permitted under the Customs Act,1962 read with section 320 of CrPC is already filed;

(b) Issue a writ of mandamus, or any other appropriate writ, order or direction, directing the Respondent No.3 to expeditiously adjudicate and decide on merits by a speaking order, the Petitioner's application dated 18.09.2019 (at Exhibit-'B'), for 'Compounding' of alleged 'compoundable' offence/s punishable under the Customs Act,1962, by exercising powers conferred under section 5(2) read with section 122 and 137(3) of the Customs Act,1962, at this stage, i.e., before filing of any criminal prosecution qua the Petitioner.;

(c) Issue a writ of mandamus, or any other appropriate writ, order or direction, directing the Respondent No.1 to take all necessary steps, to enable Respondent No. 3 to adjudicate and inform the amount, if any, legally due and payable by the Petitioner under the provisions of the Customs Act,1962, as also the compounding fee that may be ascertained by him, in such time bound manner as may be directed by this Hon'ble Court, so as to enable the Petitioner to deposit such amounts to avail the statutory benefit of compounding;

(d) Issue a writ of mandamus, or any other appropriate writ, order or direction, granting bail to the Petitioner in the R.A. No.161/2019 of ACMM, 8th Court, Esplanade, Mumbai."

3. Prior to his arrest, application for anticipatory bail preferred by the Petitioner was rejected by the Sessions Court and during the pendency of further anticipatory bail application proceeding before this Court, the Petitioner was arrested on 13th September 2019. He was remanded to custody on 14th September 2019. In paragraph 10 of the remand application dated 14th August 2019, following averments are made :

"10. As there was reason to believe that Respondent No. 3 is guilty of offences punishable under section 135(1)(i) of the Customs Act, 1962, he was arrested on 13.09.2019 at 2030 hours. The offence committed by him is a cognizable and non-bailable offence under section 104 of the Customs Act, 1962."

4. In view of the filing of instant petition, the bail application which was pending before the Sessions Court has been withdrawn by the Petitioner as not pressed. It is pertinent to note that other accused are on bail.

5. The petition was opposed by filing separate affidavits by the compounding authority as well as the DRI praying rejection of the instant writ petition.

6. We have heard the learned counsel appearing for the respective parties at length and have carefully perused the record. Dr. Kantawala, learend counsel for the Petitioner submitted that all the allegations levelled in the remand application and the contention of the DRI in counter-affidavit show that the offence alleged under section 135(1)(i) of the Customs Act,1962 is not only compoundable but