IMPORTANT POINT
Offence u/s 135(i)(ii) of Customs Act is non-bailable one.

ORDER

Shiv Narayan Dhingra, J.—This second application for bail has been filed by the applicant under Section 439 Cr.P.C. on the ground that the offence committed by the applicant is a bailable offence in view of the latest order of Supreme Court in Avinash Bhosle v. Union of India and Anr. in Criminal Appeal No. 1138/07 arising our of SLP (Crl) No. 4421/07 wherein the Hon’ble Supreme Court granted bail on the ground that the offence under Section 135 (1) (ii) was bailable. The order of the Supreme Court reads as under:

“On the material placed on record, and the amended Section 135(1)(ii) of the Customs Act, 1962 it appears to us that apparently the offence which is alleged to have been committed is a bailable offence and thus the Magistrate has rightly granted bail to the Appellant. In view of this, the order of the High Court is set aside.”

2. It is also stated that Punjab & Haryana High Court in its order dated 6th March, 2006 in case of Kulbhushan Goyal v. Joint Commissioner of customs in Crl. Misc. No 71789-M/05 also held that offence under Section 135(1)(ii) of Customs Act, 1962 is a bailable offence. This Court in Sita Ram v. Customs 2005 (188) ELT 478 (Del.) granted bail to the applicant on the ground that the offence under Section 135 (1)(ii) was made compoundable. It is stated that applicant has already filed a compounding application dated 14th August, 2007 as a result of which the prosecution itself may be ordered to be withdrawn by the Chief Commissioner. The scheme of compounding has been formulated by the Government keeping in view the reformative penal jurisprudence. The applicant was required to arrange appropriate funds for compounding fee and for this purpose the applicant should be out of custody. Filing of compounding application shows bona fide of the applicant. It is submitted that investigation in this case has been completed and after completion of investigation, a complaint has already been filed with ACMM, New Delhi. 04 witnesses out of total 82 witnesses have already been examined and examination of remaining witnesses will be a long drawn process. Applicant was in custody for about 07 months, the maxi- mum sentence was 03 years The entire evidence was record based and there was no possibility of tampering with the record.

3. In reply to the application, it is stated that the order of the Supreme Court cited by the applicant would not apply to facts and circumstances of the present case. The order pertains to amended Section 135(1)(ii) of Customs Act, 1962 and was passed by the Hon’ble Supreme Court on the basis of material placed before it while case of applicant was under unamended provisions. It is further submitted that order of Supreme Court in Avinash Bhosale’s case was per incuriam. It was not brought to the notice of the Supreme Court. Hon’ble Supreme Court had already stayed the order of Mumbai High Court holding that the offence was bailable, in Criminal Appeal No. 189/2006. It was stated that in view of the judgment of Supreme Court in A.R. Antuley v. R.S. Nayak1 if the decision is per incuriam, the Court should ignore it. Similar observation was made by Supreme Court in West Bengal v. Tarun K. Roy.2 The Supreme Court has yet to decide the issue if the offence was bailable or not. In Criminal Appeal No. 189/2006. It is further pointed out that for the first time Mumbai High Court in case of Subhash Chaudhary v. Deepak Jyala & Ors.3 had held that offence under section 135(1)(ii) of Customs Act was bailable. The matter was agitated in Supreme Court by Union of India and the judgment of Mumbai High Court was stayed vide above Criminal Appeal. It is also submitted that this Court has already taken a different view and held that offence under Section 135(1)(ii) of Customs Act was non-bailable. View of this Court was not brought to the notice of Mumbai High Court in Subhash Choudhary’s case. This Court had held similar view in other two cases viz. Mohan Lal Thapar v. Y.P. Dabara4 & Inderjeet