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2015 DIGILAW 1133 (PAT)

Union of India v. Manoj Sah

2015-09-02

HEMANT KUMAR, SRIVASTAVA

body2015
CAV ORDER : 1. This petition for cancellation of bail granted to opposite party vide order dated 18.06.2014 passed in Cr. Misc. No. 15608 of 2014 in connection with DRI Case No. 09 of 2013 corresponding to Trial No. 301 of 2013 pending in the court of Presiding Officer (Spl.) Economic Offences, Muzaffarpur has been filed on behalf of Union of India through Directorate Revenue of Intelligence, Regional Unit, Bihar, Patna. 2. The opposite party, namely, Manoj Sah and one Brijesh Sahni were made accused in above stated DRI Case No. 09 of 2013 corresponding to Trial No. 301 of 2013 for the offences punishable under Section 135 of the Customs Act, 1962. The opposite party, namely, Manoj Sah applied for bail before the trial court which was rejected and thereafter, opposite party came before this Court for grant of bail but this Court refused to grant bail to him vide order dated 04.09.2013 passed in Cr. Misc. No. 28841 of 2013. Again, opposite party, namely, Manoj Sah filed Cr. Misc. No. 15608 of 2014 for grant of bail and it was prayed before this court that maximum punishment for the offence punishable under Section 135 of the Customs Act, 1962 was up to three years and taking note of the aforesaid submission as well as period of detention of the opposite party, this court vide order dated 18.06.2014 passed in Cr. Misc. No. 15608 of 2014 granted bail to opposite party. 3. The above stated order dated 18.06.2014 passed in Cr. Misc. No. 15608 of 2014 has been impugned before this court by filing this cancellation petition on two counts. Firstly, the Union of India was not made party in Cr. Misc. No. 15608 of 2014 though the Union of India was necessary party to the aforesaid Cr. Misc. No. 15608 of 2014 and no opportunity of hearing was given to the Union of India at the time of passing order dated 18.06.2014 in Cr. Misc. No. 15608 of 2014. Secondly, the maximum punishment for the offence punishable under Section 135 (1) (a) (i) (c) is up to seven years and with fine. 4. I have already heard all the concerned parties. 5. It was submitted on behalf of learned counsel appearing for the petitioner that there was allegation against the opposite party that he was caught red handed carrying fake Indian currency notes of worth Rs. 4. I have already heard all the concerned parties. 5. It was submitted on behalf of learned counsel appearing for the petitioner that there was allegation against the opposite party that he was caught red handed carrying fake Indian currency notes of worth Rs. 2,91,000/- and the above stated offence is punishable under Section 135 (1) (a) (b) of Customs Act, 1962 for which maximum punishment is up to seven years. It was further submitted by him that the Indian fake currency notes comes under the definition of prohibited goods and the Union of India vide notification no. 23/99-CUS(NT) dated 13.04.1999 prohibited the import of counterfeit currency notes or fake currency notes into the territory of India and again vide notification no. 43/2008-Customs(N.T.) dated 13.05.2008 notified that fake Indian currency notes shall come under the category of prohibited goods for the purpose of Section 135(1) (i) (c) of Indian Customs Act, 1962 and, therefore, by both the aforesaid notifications, it is abundantly clear that carrying fake Indian currency notes into the territory of India is punishable up to seven years and fine but at the time of passing order dated 18.06.2014 in Cr. Misc. No. 15608 of 2014, it was wrongly submitted on behalf of the opposite party that above stated offence was punishable only up to three years. 6. It was further submitted on behalf of the petitioner that admittedly, the present case was launched by Union of India but the Union of India was not made party to Cr. Misc. No. 15608 of 2014 and without giving any opportunity of hearing to Union of India, the impugned order dated 18.06.2014 was passed in Cr. Misc. No. 15608 of 2014. 7. On the strength of above stated submissions, learned counsel appearing for the petitioner prayed for cancellation of bail granted to opposite party vide order dated 18.06.2014 passed in Cr. Misc. No. 15608 of 2014. 8. On contrary, learned counsel appearing for the opposite party submitted that admittedly, the opposite party was remanded in the present case on 08.01.2013 and he was granted privilege of bail on 18.06.2014 i.e. after completion of more than one year in jail custody. Misc. No. 15608 of 2014. 8. On contrary, learned counsel appearing for the opposite party submitted that admittedly, the opposite party was remanded in the present case on 08.01.2013 and he was granted privilege of bail on 18.06.2014 i.e. after completion of more than one year in jail custody. It was further contended by him that according to Section 135 of Customs Act, 1962, the maximum punishment of seven years imprisonment can only be awarded if the evasion of duty exceeds one crore of rupees or thirty lacs of rupees but in the present case, admittedly, the worth of seized currency was of only Rs. 2,91,000/- and, therefore, the offence for which the opposite party has been charged is punishable only up to three years or with fine or with both. It was further contended by him that no doubt, the Union of India was not made party in Cr. Misc. No. 15608 of 2014 but the interest of Union of India was represented by the Additional Public Prosecutor, who appeared on behalf of the State of Bihar and, therefore, no prejudice was caused to Union of India. It was further contended by him that order dated 18.06.2014 in Cr. Misc. No. 15608 of 2014 was passed not only taking note of period of sentence but also taking note of detention of the opposite party in jail custody and, therefore, it cannot be said that the order dated 18.06.2014 in Cr. Misc. No. 15608 of 2014 was passed taking note of only period of maximum punishment prescribed under Section 135 of the customs Act, 1962. 9. Certain facts are admitted in this matter. It is an admitted position that opposite party was charged for the offences punishable under Section 135 of Customs Act, 1962 on the accusation that he was caught red handed carrying fake Indian currency notes of worth Rs. 2,91,000/- The above stated offence is punishable under Section 135 (a) (b) of Customs Act, 1962. Furthermore, Section 135 (1) (i) (c) gives power to the Central Government to notify any goods under the categories of prohibited goods by issuance of notification in the official gazette. 2,91,000/- The above stated offence is punishable under Section 135 (a) (b) of Customs Act, 1962. Furthermore, Section 135 (1) (i) (c) gives power to the Central Government to notify any goods under the categories of prohibited goods by issuance of notification in the official gazette. The prohibited goods have been defined under Section 2(33) of Customs Act, 1962 which says that “prohibited goods” means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with. 10. From bare perusal of the aforesaid provisions, it is abundantly clear that the Central Government by issuance of notification may notify any goods under the category of prohibited goods and if any goods is prohibited by issuance of notification and if any person imports or exports the prohibited goods, he shall be punished under Section 135(1) (a) (b) of Customs Act, 1962 and for the aforesaid offence, the maximum punishment is up to seven years and with fine. Therefore, in my view, learned counsel for the petitioner rightly submitted that a wrong submission was made on behalf of the opposite party at the time of passing order dated 18.06.2014 in Cr. Misc. No. 15608 of 2014. 11. Furthermore, it is an admitted position that the present case was launched by the Union of India but the Union of India was not made party in Cr. Misc. No. 15608 of 2014 and, therefore, it is apparent that the union of India did not get any opportunity to oppose the prayer of bail of opposite party while passing order dated 18.06.2014 in Cr. Misc. No. 15608 of 2014. No doubt, the order dated 18.06.2014 in Cr. Misc. No. 15608 of 2014 was passed taking note of period of detention of the opposite party in jail custody also but prior to filing of the present petition, the State of Bihar had filed Cr. Misc. No. 35444 of 2014 for cancellation of bail of opposite party and this court vide order dated 26.11.2014 disposed of aforesaid Cr. Misc. Misc. No. 15608 of 2014 was passed taking note of period of detention of the opposite party in jail custody also but prior to filing of the present petition, the State of Bihar had filed Cr. Misc. No. 35444 of 2014 for cancellation of bail of opposite party and this court vide order dated 26.11.2014 disposed of aforesaid Cr. Misc. No. 35444 of 2014 giving liberty to Union of India to file a petition for cancellation of bail and in pursuant to the aforesaid liberty, the Union of India has filed the present cancellation petition. 12. In view of the aforesaid facts and circumstances, I am of the opinion that bail granted to opposite party vide order dated 18.06.2014 passed in Cr. Misc. No. 15608 of 2014 is liable to be cancelled. Accordingly, bail granted to opposite party, namely, Manoj Sah vide order dated 18.06.2014 passed in Cr. Misc. No. 15608 of 2014 stands cancelled and the opposite party, namely, Manoj Sah is directed to surrender before the court of Presiding Officer (Special) Economic Offences, Muzaffapur /concerned court in connection with DRI Case No. 09 of 2013 corresponding to Trial No. 301 of 2013 within three weeks from today, failing which the concerned court shall take all possible steps to secure the attendance of the opposite party, namely, Manoj Sah.