( 1 ) RULE. Learned advocate Mr. B. B. Naik and Mr. V. M. Pancholi, learned Additional Public Prosecutor waives service of rule on behalf of the respective respondents in Criminal Misc. Application No. 7367 of 2003. Learned Standing Counsel for Central Government Mr. Asim Pandya and Mr. P. R. Abichandani, learned Additional Public Prosecutor waives service of rule on behalf of the respective respondents in Criminal Revision Application No. 455 of 2003.

( 2 ) THESE two matters, in substance, arise out of, and challenge an order passed by the the Chief Judicial Magistrate, Surat on September 10, 2003 in a bail application preferred by Pradipkumar Bharatlal Poddar in Anti Evasion File No. V/15-20/dgcei/vapi/2001/part II.

( 3 ) THE facts of the case in brief are that the said Pradipkumar Bharatlal Poddar is a Director of Suvidha Polyster Pvt. Ltd. , [hereinafter referred to as the said Company] which is a 100% Export Oriented Unit [hereinafter referred to as the E. O. U], enjoying special facilities in the form of exemption from excise duty under the Excise Act. The said Company being a 100% E. O. U. , is expected to export its entire manufacture to avail of the exemption facilities. It is alleged that the Company has, without exporting 97 consignments to Nepal, falsely claimed the benefits. The returns and submissions made in this regard to the department are fake and false. The department learnt about the duty evasion on making certain inquiries, particularly after verification from certain authorities at Nepal. It is alleged that the party to which the export is alleged to have been made, viz. Jugal Exports, is also probably non-existent as the Company is not able to give any details thereof. The said Mr. Pradipkumar Bharatlal Poddar, therefore, came to be arrested on September 4, 2003. He preferred the said application before the learned Chief Judicial Magistrate, Surat on the same day. The said application, after hearing the other side, came to be disposed of on 10th September 2003 by the learned Chief Judicial Magistrate, Surat, whereby bail was granted to Pradipkumar Bharatlal Poddar upon certain conditions. One of the conditions was that he shall pay 25% of the alleged duty evasion out of which, Rs. 23 lakhs would be deposited in the department under protest forthwith, and on production of receipt of such deposit before the Court, and on further deposit of Rs. 1 lakh in cash with the Court as cash security, besides furnishing solvent surety to the tune of Rs. 50,000/-, and executing a personal bond of the like amount, Pradipkumar Bharatlal Poddar was ordered to be enlarged on bail. The remaining amount out of 25% of the alleged duty evasion was ordered to be paid within 3 months from the date of release. Certain other conditions are also imposed while granting bail.

( 4 ) BEING aggrieved by the said conditions in the order, Pradipkumar Bharatlal Poddar has preferred Criminal Revision Application No. 455 of 2003, under section 397 read with section 401 of the Code of Criminal Procedure, challenging the imposition of conditions of pre-deposit of Rs. 23 lakhs, deposit of the remaining amount of 25% alleged duty evasion within 3 months from the date of release, and deposit of Rs. 1 lakh as cash security. Hereinafter, he shall be referred to as the Revisioner.

( 5 ) THE Department has preferred Criminal Misc. Application No. 7367 of 2003 under section 439 (2) read with section 482 of the Code of Criminal Procedure, seeking cancellation of bail.

( 6 ) CONSIDERING the peculiar nature of the matters and considering the fact that both the Applications arise out the same order, by consensus, both the matters are heard together finally and are disposed of accordingly by this common judgment and order.

( 7 ) LEARNED Standing Counsel Mr. Pandya appearing for the Central Excise Intelligence Department submitted that here is a case where the learned Chief Judicial Magistrate has erred in exercising judicial discretion in gr