Judgment : The petitioner Kutpuddin Ali Bhoy, a Srilankan citizen, was arrested in connection with an offence under the provisions of the Customs Act on 2.10.19SS. It is alleged that the gold bars that were alleged to have been seized from the petitioner is of the value of Rs.22,11,000/-. As per the representation made by the prosecution, the petitioner was remanded to judicial custody on 3.10.19SS. On 12.10.1988, a detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as the Act) has been passed against the petitioner. The petitioner challenged the detention order. During the pendency of that petition, a complaint under the Customs Act had been filed before the Sub Divisional Judicial Magistrate, Poonamallee on 25.1.1989, and the same was taken on file on 31.1.1989. 2. On 24.9.1989, the order of detention passed against the petitioner under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act was set aside. According to the petitioner, he is entitled to bail on the following four grounds: a) No complaint was filed within sixty days of the order of remand namely 3.10.1988 as such under Section 167(2) of the Code of Criminal Procedure: the petitioner is entitled to be released on bail. b) Since the petitioner had undergone one year of imprisonment as remand prisoner and the period of detention is adjustable against any conviction that may be imposed against him, he may be released on bail, since there is no incentive or necessity for the petitioner to flee from justice as his passport has been impounded by the Customs Departments; c) The detention of remand prisoner for a period of one year is unfair; d) The petitioner should be given a reasonable opportunity to defend himself and to engage a competent lawyer. 3. Thebail application moved before the Additional Chief Metropolitan Magistrate, E.O.II, Egmore, Madras, in Crl.M.P.No.776 of 1989 was dismissed on 22.9.1989. The bail application filed by the petitioner before the Principal Sessions Court at Madras was also dismissed on 28.9.1989. Hence this bail application. 4. The bail application is opposed by the prosecution on two grounds. 3. Thebail application moved before the Additional Chief Metropolitan Magistrate, E.O.II, Egmore, Madras, in Crl.M.P.No.776 of 1989 was dismissed on 22.9.1989. The bail application filed by the petitioner before the Principal Sessions Court at Madras was also dismissed on 28.9.1989. Hence this bail application. 4. The bail application is opposed by the prosecution on two grounds. Firstly, since a complaint has been filed, the petitioner has lost his right to move bail under Sec.167(2) of the Crl.P.C. and secondly, since the prosecution has examined two witnesses and is not going to examine any more witness and as charges are going to be framed either on 26.10.1989 or 27.10.1989, and the case will be posted for further cross-examination in the first week of November, 1989 and time will be given to the defence after questioning the petitioner under Sec.3(b) of the Crl.P.C. and the entire case is expected to be over by 4.11.1989, and as the petitioner has not taken any steps for bail for such a long period and is moving bail with ulterior motive so as to escape to Sri Lanka, which can be reached by swimming, the bail should not be granted. 5. Thelearned Public Prosecutor placed before me an unsigned statement of remarks containing the aforesaid facts and other facts received from Mr.Raghunathan, Counsel for the Central Government, who is conducting the trial. A perusal of the remarks shows that the complaint has been filed on 25.1.1989 and there is no bar to file a complaint during the detention order under the Act. Since the order of detention has been passed against the petitioner, it would be a futile exercise on his part to move for bail during that period. No explanation is forthcoming from the prosecution for not taking up the case for trial during the period of detention, which was set aside on 24.09.1989. According to. the unsigned note, the accused has produced only on 31.5.1989, that too without knowing whether a copy of the complaint has been furnished to him or not. On 14.6.1989, 26.6.1989, 10.7.1989 and 20.7.1989, the accused was not produced and was produced only on 3.8.1989. On that date, the prosecution witnesses were absent, and the proceedings have been adjourned to 16.8.1989. On 16.8.1989, the Presiding Officer went on leave and the case was posted to 30.8.1989. On 30.8.1989, the accused was not produced and the matter was adjourned to 13.9.1989. On that date, the prosecution witnesses were absent, and the proceedings have been adjourned to 16.8.1989. On 16.8.1989, the Presiding Officer went on leave and the case was posted to 30.8.1989. On 30.8.1989, the accused was not produced and the matter was adjourned to 13.9.1989. The trial was fixed on 21.9.1989. On 21.9.1989, P.W.1 Antoni Xavier was examined and the case was adjourned to 29.9.1989 for examination of another witness. On 29.9.1989, witnesses were absent and the case was adjourned to 4.10.1989. On 4.10.1989, P.W.2, K.S.Rajagopalan was examined and the case was adjourned to 6.10.1989 for questioning the petitioner under Sec.313(a) of the Crl.P.C. It is further seen from the unsigned note that, for the first time the accused informed the court that no copy of the complaint has been furnished to him. Hence copy was given and the petitioner desired to cross-examine P.Ws.1 and 2 even before the framing of the charge and the case was posted to 12.10.1989. On 12.10.1989, the Magistrate went on leave and the case was adjourned to 21.10.1989. On 19.10.1989 a petition has been filed by the Department to advance the hearing from 21.10.1989 to 20.10.1989 in view of the fact that ‘21st’ was declared as a holiday and also in view of the Sessionss Court’s direction for disposal of the case before 15.11.1989, after notice to the counsel for the petitioner, the hearing was to 20.10.1989. Since the Advocates went on strike, the case was adjourned to 25.10.1989. On 25.10.1989, P.W.1 was cross-examined and the case was adjourned to 26.10.1989. On 26.10.1989, P.W.2 was cross-examined. 6. The question that arises for consideration now, is whether the petitioner is entitled to bail under the proviso (a) (ii) of Sec.167(2) of the Crl.P.C., after filing a complaint? 7. As per proviso (a) (ii) to Sec.167(2) of the Crl.P.C., the Magistrate is not authorised to detain the accused person in custody for a total period exceeding sixty days, and he shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released on bail under the provisions of Chapter XXXIII for the purpose of that Chapter. 8. 8. A perusal of the aforesaid clause clearly shows that the accused is entitled to bail as a matter of right if he is detained for more than sixty days and if no complaint is filed within that period of sixty days. In support of his contention, the prosecution cited Rajnikant Jivanlal v. Intelligence Officer, (1989) 3 S.C.C. 532. This decision, far from helping the prosecution, helps the Petitioner. In that case bail under Sec.167(2)(a) has been granted earlier and later on, an application for re-arrest has been filed. The learned Magistrate dismissed the cancellation petition. Hence the prosecution moved the Delhi High Court under Sec.439 (2) read with Sec.482 of the Crl.P.C. The High Court following the decision of the Supreme Court reported in Raghubir Singh v. State of Bihar, (1986) 4 S.C.C. 461: 1986 S.C.C.(Crl.) 511: (1986) 3 S.C.R. 802 , cancelled the bail order. The question, that arose before the Delhi High Court and the Supreme Court in that case, was whether after granting bail under Sec.167(2) of the Crl.P.C., is it open to the Court to cancel it? The answer given by the High Court as well as the Supreme Court was that an order of bail granted under Sec.167(2) can be cancelled. That is not the case here. The Supreme Court, in fact, has observed as follows in that decision: "13. An order for release on bail under the proviso (a) to Sec.167(2) may appropriately be termed as an Order On De Fault. Indeed, it is a release on bail on the default of the prosecution in filing charge sheet within the prescribed period. The right to bail under Sec.167(2) proviso (a) thereto is absolute. It is a Legislative command and not court’s discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds." 9. "The Trial Court in this case has failed to pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds." 9. "The Trial Court in this case has failed to pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds. The fact that the bail application has not been moved for a long time is not a bar for the accused to move it at the time of trial. The only consideration, the court can take note of, in granting bail under those circumstances, would be whether the accused will abscond?" 10. Taking into consideration the gravity of the offence and the fact that the petitioner belongs to Sri Lanka, I think the ends of justice would be amply met if the petitioner while granting bail is directed to execute a bond for Rs.1,00,000/- (Rupees one lakh) with two sureties each having immovable properties worth about Rs.10,00,000/- and depositing the title deeds of the properties as security, to the satisfaction of the Additional Chief Metropolitan Magistrate, E.O.II, Egmore, Madras-8. The Criminal M.P. is ordered accordingly.