P. N. SINHA, J. ( 1 ) THIS is an application under Section 439 (2) read with Section 482 of the Code of Criminal Procedure (hereinafter called the Code) filed by the petitioner for cancellation of bail granted to the opposite party by the learned chief Metropolitan Magistrate (hereinafter called the CMM), Calcutta dated 30. 9. 03 in a case under Section 104 of CUSTOMS ACT, 1962 for offence punishable under Section 132 read with Section 135 of CUSTOMS ACT, 1962. ( 2 ) LEARNED Advocate for the petitioner contended that the learned cmm, Kolkata by order dated 30. 9. 03 granted bail to the opposite party who was produced before him on 11. 9. 03 for alleged offence under Section 135 read with Section 132 of the CUSTOMS ACT, 1962. The learned Magistrate granted bail observing that Section 132 of the CUSTOMS ACT, 1962 is bailable, and alleged offence under Section 135 (1) (c) of the CUSTOMS ACT, 1962 was committed before the amending provisions of Section 135 (1) (c) of the CUSTOMS ACT, 1962 and implicating the accused under the said Section does not arise at all and, with such observation the learned Magistrate granted bail. He contended that the order passed by the learned Magistrate is totally bad in law and the learned magistrate passed the order due to misconception of law. He contended that according to Section 4 of the Foreign Trade (Development and Regulation) act, 1992 all orders made under Imports And Exports (Control) Act, 1947 and in force immediately before the commencement of the Act shall , so far as they are not inconsistent with the provisions of this Act, continue to be in force and shall be deemed to have been made under this Act. Therefore, imports and Exports Control Order was not repealed and if any Act is repealed Parliament can do it and Ministry of Commerce by notice cannot overrule any Act passed by the Parliament. ( 3 ) HE contended that it is a case of misdeclaration of weight. The o. P. is the proprietor of M/s. Lokenath Exports and he exported the goods declaring as wall coverings (article of silk) and declared the weight of the goods as 10937. 5 Kgs. The said goods was discharged at the port of Dubai. ( 3 ) HE contended that it is a case of misdeclaration of weight. The o. P. is the proprietor of M/s. Lokenath Exports and he exported the goods declaring as wall coverings (article of silk) and declared the weight of the goods as 10937. 5 Kgs. The said goods was discharged at the port of Dubai. Overseas enquiry was undertaken and the said container bearing No. YMLU 2849618 was weighed at port Dubai and the net weight was found 4290 Kgs. and not 10937. 5 Kgs. as declared by the opposite party. it is clear that the opposite party gave misdeclaration of the weight of consignment to avail undue drawback. It violated provisions of Section 3 (3) of the Export Control order, 1988 and it was not changed after the amendment dated 14. 5. 03. The offence was made on 14. 2. 03. Clause 3 (3) of the Export Control Order stipulates that if in any case it is found that the value, sort specification, quality of description of the goods to be exported are not in conformity with the declaration of the exporter, the export of such goods shall be deemed to be prohibited. By virtue of Section 4 of the Foreign Trade (Development and regulation) Act, 1992 the said order of 1988 continued to be in force and it is clear, therefore, that for such wilful and deliberate misdeclaration the exporter is punishable under Section 135 of the CUSTOMS ACT, 1962 as the opposite party knowingly violated provisions of clause 3 (3) of the Exports Control order and it renders that the O. P. is punishable for offence under Section 135 of the CUSTOMS ACT, 1962. The amendment in Section 135 does not create any offence but merely clarifies the offence which was already existing in the present provision of law. Moreover, the case was at the stage of investigation and at such a stage the learned Magistrate was not empowered to come to a finding that implicating the accused under Section 135 (1) (c) of the Customs act does not arise at all. ( 4 ) HE further contended that the contention of O. P. that he did not claim drawback and so it does not amount to misdeclaration is not acceptable. Drawback not claimed cannot be used as not leading to misdeclaration. ( 4 ) HE further contended that the contention of O. P. that he did not claim drawback and so it does not amount to misdeclaration is not acceptable. Drawback not claimed cannot be used as not leading to misdeclaration. When an exporter gives misdeclaration regarding weight of the consignment the said goods becomes prohibited goods and are liable to be confiscated, and the person who violates such prohibition falls within the penal ambit of Section 135 (1) (a) of CUSTOMS ACT, 1962 in its unamended form. The opposite party in his statement on 10. 9. 03 before the customs official admitted that he is not only the proprietor of M/s. Lokenath Exports situated at Falta Special Export Zone (hereinafter called the Falta SEZ), but also is the proprietor DTA supplier of M/s. Lokenath Exports and has submitted drawback claim on behalf of the said DTS supplier. Provisions of Rule 3 sub section 2 (i) of Foreign Trade (Exemption From Application of Rules in Certain cases) Order, 1993 is not applicable in the instant case as claimed by the opposite party since he is not only the proprietor of M/s. Lokenath Exports situated at Falta SEZ but also the proprietor of the supplier to the said M/s. Lokenath Exports and tried to take benefit of duty drawback in such capacity. ( 5 ) HE further contended that the bail order passed by the learned cmm is unfounded in law and if any bail order is unfounded in law the same should be cancelled. The learned Magistrate has made mistake in interpreting customs law and the said order was perverse. There was wrong exercise of jurisdiction on the part of the learned Magistrate and as such the said bail order requires to be cancelled. In support of his contention he cited the decisions reported in (2001)6 SCC 338 : 2001 C Cr LR (SC) 391; 2002 c Cr LR (Cal) 296; (1997)90 ELT 31 (Cal); (2003)3 SCC 161 ; (2002)5 SCC 285 and (2003)7 SCC 389 . ( 6 ) LEARNED Advocate appearing for the opposite party contended that in the remand prayer dated 11. 9. 03 and 24. 9. 03 the Enquiring Officer or the Investigating Officer did not mention at all that there was violation of clause 3 (3) of the Export Control Order. From 10. 9. 03 to 30. 9. ( 6 ) LEARNED Advocate appearing for the opposite party contended that in the remand prayer dated 11. 9. 03 and 24. 9. 03 the Enquiring Officer or the Investigating Officer did not mention at all that there was violation of clause 3 (3) of the Export Control Order. From 10. 9. 03 to 30. 9. 03 the opposite party accused was in judicial custody but the Enquiring Officer never expressed his intention to interrogate him. Even after the bail' order, the enquiring Officer did not issue any notice upon the opposite party asking him to appear before him for interrogation. Learned CMM nowhere in his order observed that provisions of Section 135 of the CUSTOMS ACT, 1962 is bailable. There was no earlier allegation against the opposite party for violation of export control order. The Export Control Order was repealed in 1993 and in its place foreign Trade (Exemption From Application of Rules in Certain Cases) Order, 1993 was introduced by notification of the Ministry of Commerce dated 31. 12. 93. The opposite party will not get any benefit for products approved for manufacturing and export from respective Free Trade Zones/export processing Zones in view of clause 2 (i) of this order. Therefore, the opposite party is not entitled to get benefit of drawback by exporting the goods from falta SEZ. Rule 3 of this order prescribes exemption from the application of rules and in view of Sub-rule 2 (i) of this rule under this order the opposite party will not get benefit of drawback. No drawback is payable on the goods and now the Enquiring Officer leaving everything has fallen upon weight of the exported goods. The petitioner earlier did not allege about violation of export Control Order and in the remand order it was mentioned only that declaration of weight was not correctly given and a misdeclaration was given. All these are matters of assessment and these are cannot be matters of arrest, detention and bail matter. What are matters of adjudication and confiscation cannot be matter of arrest, detention or bail. There was wrongful arrest of petitioner. Under the Foreign Trade (Development and Regulation) act, 1992. All prohibitions'on export of the subject goods have been removed by specifically mentioning in the ITC classification that goods are free under the Foreign Trade (Development and Regulation) Act, 1972. What are matters of adjudication and confiscation cannot be matter of arrest, detention or bail. There was wrongful arrest of petitioner. Under the Foreign Trade (Development and Regulation) act, 1992. All prohibitions'on export of the subject goods have been removed by specifically mentioning in the ITC classification that goods are free under the Foreign Trade (Development and Regulation) Act, 1972. Section 135 (1) (c) of the CUSTOMS ACT, 1962 was brought under the enactment on 14. 5. 03 whereas export of the goods was made prior to that and so Section 135 (1) (c) was not applicable against the O. P. in the remand prayer there was no allegation of offence under Section 135 (1) (a) of the CUSTOMS ACT, 1962 made by the prosecution. The opposite party was in custody for 21 days and there was no investigation after the arrest and there was misuse of power against the opposite party under Section 104 of the CUSTOMS ACT, 1962. He contended that there is no ground for cancellation of bail. Now for the first time in this prayer for cancellation of bail the prosecution has made allegation of breach of clause 3 (3) of the export Control Order, 1988 read with Section 4 of the Foreign Trade (Development and Regulation) Act, 1992 which was not made before the learned CMM. When the learned Magistrate granted bail he acted rightly within his jurisdiction and there cannot be any ground for cancellation of bail. in support of his contention he cited the decisions reported in (1984)1 SCC 284 , (2001)44 RLT 32 (CEGAT-L. B.), (1995)1 SCC 349 : 1995 C Cr LR (SC) 124. ( 7 ) IT appears from the application, affidavit in opposition, affidavit in reply filed by the parties along with annexures and from the submissions of the learned Advocates of the parties that the opposite party being the proprietor of M/s. Lokenath Export, SDF Building, Falta SEZ had exported goods declared as wall coverings (articles of silk) under shipping bill No. 00326 (C) FSEZ dated 13. 2. 03 and the said goods were shifted by the exporter in container No. YMLU 2489618 (20) and the said goods were discharged at the port of Dubai and the consignment was made for M/s. Diamond millennium at Ryadh, Saudi Arabia. 2. 03 and the said goods were shifted by the exporter in container No. YMLU 2489618 (20) and the said goods were discharged at the port of Dubai and the consignment was made for M/s. Diamond millennium at Ryadh, Saudi Arabia. Overseas enquiry was undertaken to weigh the said container at Dubai and it was weighed at port of Dubai and the net weight was found to be 4290 Kgs. instead of declared net weight of 10937. 5 Kgs. It further appears that statement of the opposite party was recorded on 4. 6. 03 under Section 108 of the CUSTOMS ACT, 1962 and another statement was recorded on 10. 9. 03. it is alleged that in the said statements the opposite party mentioned that M/s. Lokenath Exports exported the said goods and he is the proprietor of M/s. Lokenath Export and the opposite party is also the proprietor of DTA supplier. it is alleged that in the statements the O. P has mentioned that he had submitted drawback claim to the D. C. , Falta SEZ in the name of M/s. Lokenath Export. The allegation against the opposite party is that there was wilful misdeclaration in respect of the quantity of the goods exported by M/s. Lokenath Export. it is alleged that by misdiclaring the weight of consignment, the O. R wanted to avail of undue drawback to the tune of Rs 30. 29 lakhs. Accordingly, the opposite party was arrested on 10. 9. 03 for alleged offence under Section 135 read with Section 132 of the customs ACT, 1962 and was produced before the learned CMM, Calcutta on 11. 9. 03. He was remanded to judicial custody till 24. 9. 03 and on 24. 9. 03 there was further remand prayer and he was remanded to judicial custody and on 30. 9. 03 the bail application filed by the accused was taken up for hearing and after hearing the learned Advocates of both parties the learned Magistrate by order dated 30. 9. 03 granted bail to the opposite party. it appears from the certificated copy of the order dated 30. 9. 9. 03 the bail application filed by the accused was taken up for hearing and after hearing the learned Advocates of both parties the learned Magistrate by order dated 30. 9. 03 granted bail to the opposite party. it appears from the certificated copy of the order dated 30. 9. 03 that consideration for granting bail was that Section 132 of the CUSTOMS ACT, 1962 being bailable and that the alleged offence was committed before amending provision of Section 135 (1) (c) of the customs ACT, 1962 was introduced and so implicating the accused under Section 135 (1) (c) of the CUSTOMS ACT, 1962 does not arise. ( 8 ) IT appears that the contention of the prosecution was that Section 135 (1) (c) of the CUSTOMS ACT, 1962 had retrospective effect and, even if for the sake of argument, it is taken into consideration that it had no restrospective effect, still there was element of Section 135 (1) (a) of the CUSTOMS ACT, 1962 against the accused opposite party. The main contention of the learned Advocate for petitioner regarding cancellation of bail is that misdeclaration would result in making the exported goods prohibited goods and the said goods are liable for confiscation. It has been contended that by virtue of Section 4 of the foreign Trade (Development and Regulation) Act, 1992 the Export Control order was continued to be in force and shall be deemed to have been made under the 1992 Act ibid. Clause 3 (3) of the Exports Control Order, 1988 stipulates that if, in any case, it is found that the value, sort specification, quality of description of the goods to be exported are not in inconformity with the declaration of the exporter, the export of such goods shall be deemed to be prohibited. So it appears that for such wilful and deliberate misdeclaration at the time of export, the exporter is punishable under Section 135 of the customs ACT, 1962, since he had knowingly violated prohibitions under clause 3 (3) of the Export Control Order, 1988. Amendment in Section 135 of the Customs act further clarified the offence which already existed under the provisions of law prior to amendment. Consequence to the offence committed by the. opposite party which was punishable under Section 135 of the CUSTOMS ACT, 1962, the O. P was arrested and was brought before the learned Magistrate on 11. 9. Amendment in Section 135 of the Customs act further clarified the offence which already existed under the provisions of law prior to amendment. Consequence to the offence committed by the. opposite party which was punishable under Section 135 of the CUSTOMS ACT, 1962, the O. P was arrested and was brought before the learned Magistrate on 11. 9. 03 and he was remanded to judicial custody. On 24. 9. 03 another remand prayer was submitted and a bail application was made on behalf of the accused and it was heard on 30. 9. 03 and on that date the learned magistrate granted bail to the accused opposite party. ( 9 ) AFTER going through the provisions of Export Control Order, foreign Trade (Development and Regulation) Act, 1992 and Foreign Trade (Exemption From Application of Rules in Certain Cases) Order, 1993 I am of opinion that the contention of the learned Advocate of the opposite party that export Control Order was repealed in 1993 is not acceptable. Rule 4 of the foreign Trade (Development and Regulation) Act, 1992 makes it clear that all orders made under the Imports and Exports (Control) Act, 1947 and in force immediately before commencement of this Act shall so far as they are not inconsistent with the provisions of this Act continue to be in force and shall be deemed to have been made under this Act. The contention of the learned advocate for opposite party that Export Control Order was repealed is, therefore, not acceptable and the Import and Export Control Order is still continuing. Introduction of Foreign Trade (Exemption From Application of Rules in Certain Cases) Order, 1993 by the notification of Ministry of Commerce dated 31. 12. 93 cannot amount to repeal of Import and Export Control Act. An act passed by Parliament can be repealed only by Parliament and not by a notification issued by a particular Ministry of the Central Government. Therefore, if there was misdeclaration regarding the weight of the exported goods there was violation of clause 3 (3) of the Export Control Order. In the remand applications as it appears dated 11. 9. 03 and 24. 9. 03 the Enquiring or the Investigating Officer did not mention that there was violation of rule 3 (3) of the Export Control Order. In the remand applications as it appears dated 11. 9. 03 and 24. 9. 03 the Enquiring or the Investigating Officer did not mention that there was violation of rule 3 (3) of the Export Control Order. Be that as it may, it appears that there was allegation of commission of offence under Section 135 of the CUSTOMS ACT, 1962 and whether it is under Section 135 (1) (a) or under Section 135 (1) (c) it is immaterial. No doubt, Section 135 (1) (c) was introduced after amendment on 14. 5. 03 whereas the export was made on 13. 2. 03 and that prompted the learned Magistrate to opine that Section 135 (1) (c) of the CUSTOMS ACT, 1962 was not applicable. The said order passed by the learned Magistrate does not indicate that the learned Magistrate ever observed that there was no allegation under Section 135 of the CUSTOMS ACT, 1962 against the accused opposite party. ( 10 ) IT is clear that, for the first time in this application the petitioner has introduced that there was violation of rule 3 (3) of the Export Control order and it was never stated in the Court of the learned Magistrate in the remand applications dated 11. 9. 03 and 24. 9. 03. it appears that the accusedopposite party was in custody from 11. 9. 03 to 30. 9. 03 and he was arrested on 10. 9. 03. It appears that the accused was in custody for 20 days and it is alleged that during this time the Enquiring/investigating Officer never interrogated him and there is nothing to show that the said officer obtained the permission of the learned Magistrate to interrogate him during his custody in jail. Since 30. 9. 03 till this date nearly 6 months have, passed the investigating/enquiring Officer did not serve any notice upon the accused opposite party asking him to appear before him with papers for the purpose of interrogation or investigation. ( 11 ) BOTH sides have placed decisions in support of their respective cases. Since 30. 9. 03 till this date nearly 6 months have, passed the investigating/enquiring Officer did not serve any notice upon the accused opposite party asking him to appear before him with papers for the purpose of interrogation or investigation. ( 11 ) BOTH sides have placed decisions in support of their respective cases. The petitioner cited the cases namely Puran v. Rambilas, reported in (2001)6 SCC 338 : 2001 C Cr LR (SC) 391, State of West Bengal v. Noor ahmed, reported in 2002 C Cr LR (Cal) 296, Collector of Customs v. Pankaj v. Sheth, reported in (1997)90 ELT 31 (Cal), Om Prakash Bhatia v. Commissioner of Customs, Delhi, reported in (2003)6 SCC 161 and Union of india v. Venkateshan S. , reported in (2002)5 SCC 285 and the opposite party referred to the decisions of Bhagirathsinh S/o Man/pat Singh Judeja v. State of Gujarat, reported in (1984)1 SCC 284 , Doulat Ram v. State of Haryana, reported in (1995)1 SCC 349 : 1995 C Cr LR (SC) 124, Sri Ram Mills v. Union of India, reported in (2000)123 ELT 448. Detailed discussion of these decisions in this application for cancellation of bail is not necessary namely, collector of Customs (supra), Om Prakash Bhatia (supra), Union of India (supra) cited by the learned Advocate for petitioner and Sri Ram Mills (supra) cited by the learned Advocates for the opposite party as after considering the respective submissions of the parties I have expressed my opinion that Export control Order was not repealed in 1993 by introduction of Foreign Trade (Exemption From Application of Rules in Certain Cases) Order, 1993 by the notification of Ministry of Commerce dated 31. 12. 93. Other decisions are concerning factors to be taken into consideration for cancellation of bail and guideline set out by the Supreme Court in this respect is well settled. it is true that the bail if granted exercising wrong jurisdiction or wrong interpretation of law such order granting bail is bad and liable to be cancelled. But it is also the decision of the Hon'ble Supreme Court that cancellation of bail should not bs by way of punishment even if prima facie case against the accused is established as observed by the Apex Court in Bhagirathsinh's case (supra ). But it is also the decision of the Hon'ble Supreme Court that cancellation of bail should not bs by way of punishment even if prima facie case against the accused is established as observed by the Apex Court in Bhagirathsinh's case (supra ). in Doulat Ram (supra) the Supreme Court made it clear that rejection of bail in non bailable offence and cancellation of bay already granted must be considered and dealt with on different basis. ( 12 ) IN the instant case it has been contended on behalf of prosecution that the learned Magistrate misinterpreted the law and acted without jurisdiction and, therefore, the bail granted by him should be cancelled. it should be remembered that the learned Magistrate granted bail to the accused opposite party on 30. 9. 03 and in the mean time nearly 6 months have passed, there is nothing to show that the investigating agency took steps to interrogate the accused opposite party during the 6 months. There is nothing to show that while the accused was in judicial custody for 20 days the Investigating/enquiring Agency made any attempt to interrogate him in jail. At the same time it is crystal clear that after he was enlarged on bail the Investigating/enquiring Officer made no attempt to call for papers and documents from him by issuing any notice on him and did not try to interrogate him. ( 13 ) THERE is no allegation that the opposite party is trying to conceal his presence or is threatening the witnesses or is trying to tamper with the evidence or causing obstruction to the investigation. it is also established that before the learned Magistrate, the prosecution never alleged that the accused opposite party committed violation of Rule 3 (3) of the Export Control Order which they are now introducing for the first time in the application for cancellation of bail. It is the law that bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during trial. Here there is no supervening circumstance to render it no longer conducive to allow the accused to retain his freedom by enjoying concession of bail during enquiry or investigation. Here there is no supervening circumstance to render it no longer conducive to allow the accused to retain his freedom by enjoying concession of bail during enquiry or investigation. The learned Magistrate nowhere in his order ever stated that there is no element of Section 135 of the CUSTOMS ACT, 1962 against the accused opposite party. It is not such a case that he was released on bail within 3/4 days after his detention. The accused opposite party was in custody for 20 days and during this time the prosecution did not make any serious attempt to interrogate him in jail custody and also after his release on bail did not make attempt to interrogate him by issuing notice upon him and also did not make attempt to inspect his papers by issuing notice/ summons upon him to produce his papers. Considering all aspects I am of opinion that it is not a fit case to cancel the bail of the accused which has been granted to him by the learned CMM. ( 14 ) OF course, I am of opinion that, the order passed by the learned cmm requires modification as at the time of granting bail learned Magistrate did not impose any condition upon the accused. Accordingly, the order dated 30. 9. 03 passed by the learned CMM is modified and it is ordered that henceforth, the accused opposite party shall report to Sri S. K. Chakraborty, St. Intelligence Officer, Directorate of Revenue Intelligence, Kolkata Zonal Unit thrice in each week on Tuesday, Thursday and Saturday for the purpose of interrogation, investigation and enquiry etc. between 12 to 4 RM. and shall surrender his passport to the said officer. The application being CRM No. 5879 of 2003 for cancellation of bail of the opposite party is hereby dismissed and the matter is disposed of in terms of the order as indicated above. ( 15 ) SEND a copy of this order to the learned CMM, Kolkata for information and necessary action.