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1998 Supreme(Mad) 1542
High Court of Kerala
K.A. MOHAMED SHAFI
J. S. Naik
Versus
Asst. Commissioner, Air Customs & Another
Crl.M.C. No. 5195 of 1998
Decided On : 13-11-1998
For the Petitioner:M/s. K. Rajagopalan, J. Jiothis Kiran, Advocates.
For the Respondent:ACC SC K. V. Sabu, P.P. C. M. Suresh Babu, Advocates.
The period of detention undergone by the petitioner under COFEPOSA while he was undergoing detention as pre-trial prisoner, in this case under S. 428 of the Cr.P.C. can be set off against the sentence awarded in the case.
Headnote:
CUSTOMS ACT - SECTION 135 - COFEPOSA - PRE-TRIAL DETENTION - SET OFF - MAXIMUM SENTENCE - QUASHING OF PROCEEDINGS - The period of detention undergone by the petitioner under COFEPOSA while he was undergoing detention as pre-trial prisoner, in this case under S. 428 of the Cr.P.C. can be set off against the sentence awarded in the case.
Fact of the Case:
The petitioner was arrested on 11-9-1995 for possession of foreign currencies valued at Rs. 1,02,92,400/- as per the exchange rate then prevailing. He was charged under S. 135 of the Customs Act, 1962. 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. While in judicial custody, the petitioner was detained under COFEPOSA for a period of two years from 23-1-1996 to 23-1-1998. The complaint against the petitioner was filed on 30-11-1997, after several directions from the court, in pursuance of the several applications filed by the petitioner praying to expedite the filing of the complaint and the trial of the case.
Finding of the Court:
The court held that the period of detention undergone by the petitioner under COFEPOSA while he was undergoing detention as pre-trial prisoner, in this case under S. 428 of the Cr.P.C. can be set off against the sentence awarded in the case. The court further held that the petitioner who has been under custody from 22-9-1995 onwards and who has been in detention as an under-trial prisoner in excess of the period of imprisonment which could be awarded to him on conviction for the offence punishable under Section 135 of the Customs Act, is entitled to be released forthwith, quashing the entire prosecution proceedings initiated against him.
Issues: 1. Whether the period of detention undergone by the petitioner under COFEPOSA can be set off against the sentence awarded in the case under S. 428 of the Cr.P.C.? 2. Whether the petitioner is entitled to be enlarged on bail or the entire proceedings against him should be quashed in view of the fact that he had been in custody for a period, more than the maximum term of imprisonment that can be awarded to the petitioner under S. 135 of the Customs Act?
Ratio Decidendi: 1. The court relied on the decisions of this Court in Juanhaniff v. State of Kerala 1987 (1) KLT 437 : (1988 Cri LJ NOC 75) and Venilal Mehta v. Asst. Collector of Central Excise 1991 (2) KLT 295 to hold that the period of detention undergone by the petitioner under COFEPOSA while he was undergoing detention as pre-trial prisoner, in this case under S. 428 of the Cr.P.C. can be set off against the sentence awarded in the case. 2. The court relied on the decision of the Supreme Court in Hussainara Khatoon v. State of Bihar AIR 1979 SC 1819 : (1979 Cri LJ 1134) to hold that the detention of the accused as an under-trial prisoner for more than the period of maximum sentence awardable to him on conviction, is not only in violation of human dignity but also of his fundamental right under Article 21 of the Constitution.
Final Decision: The court allowed the petition and quashed the entire proceedings against the petitioner in C.C. 34 of 1998 pending before the Additional Chief Judicial Magistrates Court (Economic Offences), Ernakulam. The petitioner was directed to be released forthwith, if his custody is not required in any other case.
1. This application is filed by the accused in C.C. No. 34/1998 pending before the Additional Chief Judicial Magistrates 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 Magistrates 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 A
