BADAR DURREZ AHMED, J. - (1.)This is an application for bail under Section 439 of the Criminal Procedure Code, 1973. The petitioner has been in custody since 05.05.2006 on the allegation of having committed offences under Sections 132 / 135 of the Customs Act, 1962. The learned counsel for the petitioner pointed out straightway that an application for bail had been moved before the Sessions Court and by an order dated 22.05.2006, the Sessions Court had granted bail to the petitioner, but had imposed a condition of requiring the petitioner to deposit a sum of Rs.1 crore. He referred to the said order and said that such a condition cannot be imposed. In support of this proposition, he referred to the following decisions:-
i) M.R. Narayanan v. State: 103 (2003) DLT 534 (DB); ii) M. Sreenivasulu Reddy v. State of Tamil Nadu: 2001 (2) Crimes 230 (SC); iii) Sumitra Chauhan (Ms.) v. State and Anr: 2005 VI AD (Delhi) 821; and iv) Sandeep Jain v. National Capital Territory of Delhi, Rep. By Secretary, Home Deptt.: 2001 (1) Crimes 163 (SC).
He further submitted that imposition of such a condition would amount to denial of bail and since the petitioner was not in a position to deposit the said sum of Rs.1 crore, it virtually meant that the petitioner's application for bail was rejected by the learned Sessions Court and, therefore, the present application for bail was maintainable. He further submitted that, however, to demonstrate his bona fides in the matter, he is willing to make a deposit of Rs.25 lakhs with the customs authorities without prejudice to his rights and contentions.
(2.)The learned ASG was also heard. He opposed the grant of bail on the ground that the petitioner is involved in evasion of duties to the extent of Rs.3.5 crores.
(3.)Considering the facts and circumstances of the case as also the fact that the Sessions Court had, in point of fact, granted bail to the petitioner, but imposed an onerous condition which is not permissible in law, I feel that the petitioner is prima facie entitled to bail. The petitioner has also shown his willingness to make a deposit of Rs.25 lakhs. The petitioner is accordingly directed to be released on bail on furnishing a personal bond in the sum of Rs.1 lakh with one surety of the like amount to the satisfaction of the ACMM / Duty Magistrate. The deposit of the said sum of Rs.25 lakhs shall be made without prejudice to the petitioner's rights and contentions. This deposit will be made with the Commissioner of Customs (Import), Nhava Sheva, Mumbai in the following manner:-
a) A sum of Rs.10 lakhs shall be deposited within one week of this order; and b) the balance amount of Rs.15 lakhs shall be deposited within three weeks of this order.
The petitioner shall, however, not leave India without permission of the concerned court and he shall fully co-operate with the investigating agency as and when directed by it.