IMPORTANT POINT
Provision in sub section (2) and (3) of section 167 of the Code apply to persons arrested under section 104(1) of the Act and produced fore a magistrate under section 104(2) of Act. The benefit of the proviso to section 167 of the Code is available to them.

JUDGEMENT

Bhat , J. These are application for bail under section 437,482 and 167 of the Code Criminal procedure by nine among the accentual in a customs case. Similar application filed them before the chief Judicial Magistrate. The cherry were dismissed.

2. The Customs Officers received information to the effect that contraband articles were likely to be landed at the Tellicherry coast on night of 156-1983 and therefore they kept sea coast under observation. Lorry No. K 4936 was found moving from the Telliche beach to the main road drived by one of the accused and three among the accused was found in the lorry. The lorry was stopped as the Customs Officers checked the lorry and found that the lorry contained contraband articles such as electronic and textile goods etc., of the value of Rs.56 lakhs. The Customs party also received information that other people were involved in this offence. Tracks of another lorry were found on the beach. On the next day i.e. 16-9-1983 lorry M.Y.G 8229 was found in the garage attached to "Zubaicta Manzil" Telli cherry. It was found to contain contraband goods valued at Rs. 50 lakhs. Further information was collected. Accordingly seven among the petitioners were arrested in September, 1983 and produced before the Chief Judicial Magistrate, Tellicherry. The Customs Officer concerned sought their detention in judicial custody. At the same time they moved the court for bail. The Magistrate held that he' had no power to

remand them to judicial custody and granted them conditional bail. Accordingly they were released. These order were challenged by the Customs Department before this Court in Crl. M.C. No 657 of 1983. This Court held that the Magistrate has power to order detention of the arrested persons in judicial custody, that the order granting bail was unsustainable, cancelled the bail and directed them to be taken into custody. Accordingly these seven persons were taken back to custody. Since then they are being remanded to custody from time to time. In October 1983 two more persons (who are also before this Court) were arrested and duly remanded to judicial custody, after dismissing their bail applications. Fresh applications for bail were also dismissed by the Magistrate. These nine-persons have now moved this Court for bail under section 437 and 438 read with the proviso to section 167 of the Code of the Criminal Procedure (for short, the Code)

3. There is no dispute that all the nine petitioners before me have been in judicial custody for over 60 bays. The offence alleged, to have been committed by the petitioners is one under section 135 of the Customs Act, 1962 (for short, the Act). Maximum punishment that could be imposed on them is imprisonment for a term of 7 years and fine. Under provision a(ii) to section 167(2) of the Code, detention of the accused in custody for a total period exceeding 60 days cannot be ordered in any case other than a case involving an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years. On the expiry of the period, according to the proviso, the accused have to be released on bail and those so released on bail shall be deemed to have been released under the provisions of Chapt XXXIII of the Code. Therefore, if section 167 of the Code applies in the instant case, petitioner would be entitled to be released on bail since they have already been in detention for over a period of 60 days. It is on this basis that the petitioners seek bail.

3A. Shri M.M. Abdul Aziz, learned Standing Counsel for the Central Government who appeared for the Customs Department in these petitions, does not contend that even if section 167 and the proviso to section -167 (2) of the Code apply, petitioners are not entitled to bail. That they are so entitled to bail in the event of this Court holding that section 167 (2) of the Code is applicable is beyond controversy. The bail applications are resisted by the Customs Department with the