ORDER
S.N. Kapoor, J.
1. This order relates to application of bail relating to offence under Section 132 and 135 of the Customs Act. The petitioner moved pplications for bail before the ACMM as well as the Addl. District & Sessions Judge, both rejected the bail application. Thus the matter has came up before this Court for hearing.
2. According to the prosecution case on 31.3.1999, the officers of Air Customs, recovered and seized foreign currency equivalent to Indian Rs. 6,80,315/- from the possession of the petitioner. It is alleged that he was
attempting to take the amount in clandestine manner to New York by flight No. SK-968. He had not declared the same to the officers of the Customs inspite of specific query. In his statement under Section 108 of the Customs Act, the petitioner admitted recovery and seizure and incriminating facts. Investigation is said to be pending. It is said to be serious
offence and the petitioner is NRI.
3. It is submitted by the learned Senior counsel for the accused Shri Lekhi that the offence under Section 132 is confined to false declaration and it is punishable with imprisonment for a term which may extent to six months or with fine or with both. Since Section 123 is not attracted by virtue of Sub Section (2) of Section 123 to currency, the offence under Section 135 relating to be evasion of duty or prohibition is punishable with imprisonment “for a term which may extend to three year or with fine or with both”. This is not a case punishable with life imprisonment or by death sentence. The learned Sr. counsel Mr. P.N. Lekhi relies upon Babu
Singh & Anr. Vs. State of U.P. and ubmits that the petitioner has roots in society and suffers from no disqualification and is entitled to be released on bail. He has filed a photocopy of the Income Tax return indicating his tax liability amounting to Rs. 2,26,648.00. He has also filed a list of properties indicating that the petitioner has house No. C-44, South Extension Part-II, New Delhi measuring 500 sq. worth Rs. 2.5 Crores, Commercial building in Connaught Place, New Delhi measuring 20,000/- sq. Yds. at M-38/1, Middle Circle, Conought Place, New Delhi worth Rs. 10 Crores. and a Farm House in Bijwasan, Delhi, A-5 ushpanjali, Delhi measuring 1.25 Acres worth Rs. 1.5 Crores. It is contended that in view of his business, property and relations in India he is not likely to run away and no purpose is going to be served for detaining in the jail
inhuman condition.
4. Learned counsel also relies on the judgment in Renu Ghosh Vs. State (CBI) 1996 IV AD (Delhi) 783 para 5 in support of his contension that the judgment in case of State of Gujarat Vs. Mohanlal Jitamalji Porwal and Another was neither concerned with the grant of bail while making observations in relation to economic offences nor, was it concerned
with the ultimate conviction of the accused. He rightly submits that the matter for consideration before the Apex Court in the said case related to the prayer of the prosecution seeking permission to lead additional evidence to remove the formal defect.
5. Learned senior counsel also relies upon the judgment Suraj Mandal Vs. CBI (State) 1997 I AD (Delhi) 253 in support of his contention that in nonbailable case other than once where the person has been guilty of an offence punishable with death or imprisonment the Court should exercise its powers in sub-Section (3) of Section 437 of the Code of Criminal Procedure, if it necessary unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court should not decline to grant bail to the person who is not accused of an offence punishable with death or imprisonment for life. He submits that the said observation are based on Gurcharan Singh Vs. State AIR 1978 SC 179 and accordingly the petitioner is entitled to be released on bail.
6. He also relies upon Hemant Kumar Ishwari Das Sanghvi Vs. Customs 1992 JCC 134. In that case the accused was released on bail for there was no allegation that the accused was regularly managing in bringing gold into this country and that he was a foreign national and the passport has already been with the custom authority.
7. Shri Aggarwal learned counsel for the Custom Department resists the application on the ground that the offence is serious and the application is Non resident Indian and may not be available if released on bail.
8. Having heard the learned counsel for the parties, seeing his income tax returns and the details of the properties given by the petitioner it appears that he has deep roots in India and is not likely to flee away to avoid the trial after closing down his business activities in India and selling his huge and numerous properties. Offences under Sections 132 and 135 do not appear to as serious as has been sought to be made out. Nor it would be appropriate to detain the accused in jail when after conviction the Supreme Court just awarded a sentence to pay a fine of Rs. 10,000 for an offence under Section 135 in K.I. Pavunny Vs. Assistant Collector (Head
Quarter), Central Excise Collectorate, Cochin, 1997 1 Crime (210). In order to ensure that he does not leave the country without permission his passport may be detained and he may not be allowed to visit foreign country without prior approval of the learned Trial Court or of this court.
9. It may be mentioned that it is not a case of the Customs Department that the accused is likely to tamper with the evidence, the evidence being primarily that of customs officials and statement under Section 108 of the Act.
10. There cannot be any doubt that is an economic offence and he should not be dealt leniently but when it appears that sometime only fine is imposed even by the Apex Court then one feels that punitive detention may amount to not only pre-judging the issue but may amount to punish the applicant without trial. This may be against the spirit of the constitutional provision under Article 21 and may be against the spirit of the judgment of the Supreme Court in Babu Singh Vs. State of U.P. (Supra). One has to further keep in mind that it is not the case of the prosecution that the accused is involved in money laundering or otherwise habitual offender who would commit such offence as and when he gets an opportunity and therefore he should not be released.
11. Consequently, I feel that it would be appropriate to release the accused on bail on furnishing personal bond of Rs. One lakh with one surety of the like amount to the satisfaction of the learned Trial Court/ACMM/Duty Magistrate and further subject to the condition that the petitioner deposits his passport to the learned Trial Court and undertakes not to leave the country without the prior permission of the Ld. Trial Court or this Court.
12. The application is disposed of accordingly.