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1998 Supreme(Ker) 527
Judges : K.A.MOHAMED SHAFI
J.S.Naik - Appellant
Versus
Asst.Commissioner, Air Customs And Another - Respondent
Case No : Crl.M.C. No. 5195 of 1998
Decided On : 11/13/1998
Advocates Appeared :
For the Petitioner: M/s. K. Rajagopalan & J. Jiothis Kiran, Advocates. For the Respondent: ACC SC K. V. Sabu, for Respondent No. 1, P.P. C. M. Suresh Babu, Advocates.
The accused was entitled to set off the period of COFEPOSA detention as pre-trial detention under S. 428 of the Cr.P.C., and prolonged custody exceeding the maximum term of imprisonment violated the accused's fundamental rights.
Headnote:
S. 482 of the Cr.P.C. - Quashing of Proceedings - S. 135 of the Customs Act - S. 428 of the Cr.P.C. - Pre-trial Detention - COFEPOSA Detention - Set off of Detention Period
Fact of the Case:
The accused filed an application to quash the proceedings against him under S. 482 of the Cr.P.C. He was arrested in connection with the seizure of foreign currencies and had been in custody for more than the maximum term of imprisonment under S. 135 of the Customs Act.
Finding of the Court:
The court held that the accused was entitled to set off the period of detention undergone under COFEPOSA as pre-trial detention under S. 428 of the Cr.P.C. The court also quashed the entire proceedings against the petitioner and directed his release forthwith.
Issues: The issues involved the entitlement of the accused to set off COFEPOSA detention as pre-trial detention and the quashing of proceedings due to prolonged custody exceeding the maximum term of imprisonment.
Ratio Decidendi: The court relied on previous decisions to establish the entitlement of the accused to set off COFEPOSA detention as pre-trial detention under S. 428 of the Cr.P.C. The court also considered the violation of the accused's fundamental rights due to prolonged custody and quashed the proceedings.
Final Decision: The court allowed the petition, quashed the entire proceedings, and directed the immediate release of the accused.
This application is filed by the accused in C.C. No. 34/1998 pending before the Additional Chief Judicial Magistrate's Court (Economic Offences), Ernakulam to quash the entire proceedings under S. 482 of the Cr.P.C.
2. In connection with the seizure of foreign currencies of several countries valued at Rs. 1,02,92,400/- as per the exchange rate then prevailing on 11-9-1995 from a brief case while the Air Customs Intelligence Unit, Calicut Airport conducted random checking of the registered baggages of the passengers bound for Sharjah in Flight No. IC 993 from Calicut Airport, the Customs officials registered a case in O. S. 185/1995 under S. 135 of the Customs Act, 1962 against the petitioner and two others. During the relevant period the petitioner was employed with the Indian Airlines as Headloader and working at Karipur Airport, Calicut. The petitioner was arrested on 22-9-1995 after summoning him and recording his statement under S. 108 of the Customs Act. When produced before the Addl. Chief Judicial Magistrate's Court, (Economic Offences), Ernakulam, he was remanded to custody. Though the application for grant of bail filed by the petitioner in Crl. M.P. No. 4537/95 was originally dismissed by the Addl. C.J.M., (E. O.) Ernakulam, subsequently the learned Addl. C.J.M. granted bail to the petitioner as per order in Crl. M.P. No. 6266/95 dated 22-11-1995 directing the petitioner to deposit Rs. 1 lakh in cash and to execute bond for Rs. 2 lakhs with two sureties having solvency certificates for Rs. 2 lakhs each. According to the petitioner, as he cannot meet the aforesaid onerous conditions, he filed Crl. M.P. No. 966/98 seeking to delete the onerous conditions imposed while granting bail to him. The learned Addl. C.J.M. modified the condition and granted bail to the petitioner on execution of bond for Rs. 2 lakhs with two solvent sureties having solvency certificates for the like amount. It is also contended by the petitioner that as he could not comply with that condition also he continues to be in custody even now.
3. The petitioner has further contended that while he was in judicial custody he was detained under the COFEPOSA for a period of two years from 23-1-1996 to 23-1-1998 at the instance of the 1st respondent and he was removed from the Sub-jail, Ernakulam while in custody to the Central Prison, Thiruvananthapuram to undergo detention and on expiry of the period of detention under COFEPOSA he was returned to the Sub-Jail, Ernakulam to continue in judicial custody. It is also contended by the petitioner that the 1st respondent deliberately delayed the investigation and filing of complaint against the petitioner and others in this case and at last after several representations made by the petitioner and the directions issued by the learned Addl. C.J.M., the 1st respondent filed complaint before the Court on 30-11-1997 and even after filing the belated complaint absolutely no step is taken by the respondents to try and dispose of the case in spite of the repeated requests made by the petitioner in that behalf narrating the hardship and misery caused to him due to his continued detention in prison. Therefore, he filed the above application to quash the entire proceedings against him since the offence that can be sustained against him is only punishable under S. 135 of the Customs Act which provides a maximum punishment of imprisonment of three years and he has been in custody for the purpose of this case for more than three years and as such this is an eminently fit case wherein the provisions of S. 482 of the Cr.P.C. have to be exercised and the proceedings against him should be quashed in the interests of justice.
4. The learned Addl. Central Government Standing Counsel opposed this application on behalf of the 1st respondent submitted that the allegation made against the petitioner is the only offence punishable under S. 135 of the Customs Act and the maximum sentence provided under S. 135 of the Customs
