B.S Rawat, Assistant Collector Of Customs, Bombay v. Andre Christopher Midlarz And Others

1. This revision application is filed by Shri B.S Rawat, Asst. Collector of Customs, R & I (P), Bombay, challenging the order dated 7th November, 1987, passed by the learned Additional Sessions Judge, Greater Bombay, releasing the respondents on bail. The learned Judge also directed that the said order should be made operative from 1 p.m on 9th November, 1987. The petitioner moved this Court at 11 a.m on 9th November, 1987, and this Court granted stay, pending admission. Record of the proceedings was called for and the matter was put up for admission on 10th November, 1987. On 10th November, 1987, after hearing both the sides, rule was issued, interim stay was continued and the petition was peremptorily fixed for hearing on 19th November, 1987.

2. Both the sides were heard for a considerable time on facts as well as on law. The facts of the case are as under:—

3. On 4th March, 1987, Officers of the Air Intelligence Unit at Sahar Airport accosted respondent No. 2, Mrs. Aurora Mydlarz, and two others by name Alfanso Maturgo and Mrs. Maria Maturgo on their arrival from Hongkong by British Airways flight No. BA-020 after they cleared themselves from ‘Walk through’ channel by making ‘nil’ declaration Respondent No. 2 was carrying a male child in her arms. On being asked by the Officers, all the three persons denied having any contraband. Not being satisfied, the Officers called two panchas and took Alfanso Maturgo to a room for his personal search. On removal of his upper garments, he was found to be wearing a specially made cloth jacket Detailed examination of the jacket resulted into recovery of 160 gold bars having foreign markings, each weighing ten tolas, collectively weighing 18,658.5 grams and valued at Rs. 48,97,856.20. Similarly, with the help of two lady panchas and a lady Customs Officer, personal search of respondent No. 2 and Mrs. Maria Maturgo was taken. Both the ladies were also found to be wearing similar cloth jackets. From the jacket worn by respondent No. 2, 155 bars of gold each of ten tolas having foreign markings collectively weighing 18.073 grams and valued at Rs. 47,44,162/- were recovered. From the jacket worn by Mrs. Maria Maturgo, 124 bars of gold with foreign marking collectively weighing 14.458.4 grams and valued at Rs. 37,95,330/- were recovered.

4. The said three persons were questioned. They are alleged to have admitted the recovery of gold from their respective persons and that they had travelled together. Respondent No. 2 is an American national of Philipine origin while said Alfanso Maturgo and Maria Maturgo are Philipine nationals and were husband and wife. Respondent No. 2 is alleged to be related to them. In the inquiry, it was revealed that the said gold was to be delivered to a person who will contact them at Hotel Leela Penta near the airport. All three of them were taken to the said hotel and pul up in room No. 332 where the officers and panchas kept a watch. A telephone call was received in the said room which was answered by respondent No. 2, who intimated the caller that he should collect the stuff within 20 minutes. The further case of the prosecution is that in about half-an-hour's time, respondent No. 1, Andre Christopher Mydlarz, knocked the door and was ushered in by respondent No. 2. He was having a black briefcase. After entering the room, he was immediately apprehended by the Customs Officers. He gave his name and further disclosed that he was the husband of respondent No. 2. Both the respondents as also Mr. & Mrs. Maturgo were brought to the Air Intelligence Unit Office at the Airport. On examination of the briefcase possessed by respondent No. 1, it was found to contain a large amount of foreign currency and Indian currency equivalent to Rs. 8,34,267/-. Two keys, one of room No. 585 of Taj Mahal Hotel and another of a room in Hotel Holiday Inn, were also recovered. Accused No. 1 disclosed being in occupation of both these rooms. Officers went to Hotel Holiday Inn with respondent No. 1 where room No. 734, which was in his occupation, was searched and 85 bars of gold each weighing 10 tolas, collectively weighing 9912.3 grams and valued at Rs. 26,02,753/- were recovered. The officers also recovered foreign currency equivalent to Rs. 10,96,485.75. The said gold, currency and some other documents were seized. Statements of both respondents 1 and 2 as well as of Mr. & Mrs. Maturgo were recorded. It is alleged that in the said statements, all of them admitted the recovery of gold, etc. Respondent No. 2 and said Maria Maturgo are also alleged to have admitted having brought gold in the past and delivered to respondent No. 1. Respondent No. 1 is alleged to have admitted having arrived from Hongkong on 3rd March, 1987 with 210 bars of gold of which 125 were disposed of locally and the balance of 85 bars were seized, by the officers from his room in the hotel. In his statement he has further admitted having engaged respondent No. 2 and two others for carrying gold and that he went to Hotel Leela Penta for receiving the same. He gave some information about his previous visits and he is also alleged to have stated that he had brought gold valued at 10 crores on about 21 occasions since July, 1986.

5. The petitioner contended that as the two respondents and two other persons viz., Mr. & Mrs. Maturgo, were foreigners and were in custody, even without waiting for the completion of the investigation, a complaint was filed against respondents 1 and 2 as also Mr. & Mrs. Maturgo in respect of the seized gold keeping the other aspects of foreign exchange recovered as also others involved pending. It is contended on behalf of the prosecution that the prosecution kept its witnesses present. But however, it is the defence which did not allow the case to proceed on day-to-day basis. On 19th August, 1987, an application was made on behalf of Alfanso Maturgo for bail on the ground of his serious illness. The learned Additional Chief Metropolitan Magistrate, Bombay, granted him bail in the sum of Rs. 1 lakh on 21st August, 1987. On 1st September, 1987, Mrs. Maria Maturgo made an application for bail on the ground of her requirement of attending her husband Alfanso who was ill. The learned Magistrate on compassionate ground granted bail to her in the sum of Rs. 1 lakh for a period of three weeks.

6. On 11th September, 1987, both the respondents moved an application for bail on the ground that their child, who was with respondent No. 2 in jail, is ill. The learned Metropolitan Magistrate recorded the statement of a Paediatrician of the Cama Hospital who treated the child. The Doctor deposed that there was nothing seriously wrong with the child and the learned Magistrate by his order dated 22nd September, 1987, rejected the said application. Respondents 1 and 2, thereafter, moved the Sessions Court by Criminal Application No. 413 of 1987. The trial was expedited and the matter was fixed before the learned Magistrate for framing of charges after examining about six to seven witnesses. The learned Additional Sessions Judge by his order dated 15th October, 1987 rejected the said application without expressing anything on the merits of the application. The learned Sessions Judge clarified that if for any reason the trial of the case is delayed on account of the prosecution, liberty was given to respondents 1 and 2 to apply for bail.

7. Before the learned Magistrate, the case was fixed for framing charges from time to time. But it appears that the respondents or either of them was not produced in the Court by the jail authorities on one ground or the other. Sometime it was due to either of the respondents being taken to the hospital for the illness of either of them or the child and sometime due to non-availability of escort. The other two accused Mr. & Mrs. Maturgo also did not appear. It was found that neither of them was in the hospital and their whereabouts were not known. Warrants for their arrest were issued, but they were returned unexecuted. Ultimately, the learned Magistrate forfeited the bail bonds of Mr. & Mrs. Maturgo. As Mr. & Mrs. Maturgo were absconding, their case was separated and the matter proceeded against respondents 1 and 2 only.

8. In these circumstances, respondents 1 and 2 again moved Criminal Application No. 448 of 1987 for bail. The application for bail was opposed by the Customs Department on the ground that the same was not maintainable in view of the fact that the Sessions Court had rejected identical application and liberty was granted to the respondents if the trial was prolonged by the prosecution. Secondly, it was contended that this is not a case for grant of bail. The other two accused, viz., Mr. & Mrs. Maturgo, who were released on bail, had absconded.

9. The learned Judge heard the parties. The learned Judge also considered several authorities which were cited before him, and ultimately, granted the application and ordered both the respondents to be released on bail in the sum of Rs. 1,50,000/- each with one surety each in the like amount. The respondents were also directed to attend the Customs Office daily between 5 p.m and 7 p.m for a period of one week and, thereafter, as and when required by the Customs. The respondents were further directed not to leave Greater Bombay without permission from the trial Court. As said earlier, the learned Judge himself granted time upto 1 p.m on 9th November, 1987 before which the Customs approached this Court and orders were passed which have been already mentioned at the beginning of the judgment.

10. I have heard both the sides at some length. Both the sides have cited several authorities. Shri Gupte, the learned counsel appearing for the petitioner, submitted that in view of the facts and circumstances of the case and in view of the material which is brought on record of the case as well as of this petition and in view of the principles laid down by several Courts on the subject of grant or refusal of bail, the order of the learned Addi. Sessions Judge is absolutely improper and incorrect and deserves to be quashed. On the other hand, Shri Bhonsale and Smt. Agarwal, the learned counsel appearing for respondents Nos. 1 and 2 respectively, submitted that this application is, in fact, an application for cancellation of bail and no supervening circumstances are brought on record to interfere with the just and proper order passed by the learned Additional Sessions Judge. It is further submitted that in any case, the order of the learned Additional Sessions Judge is absolutely correct, just and fair and ought to be upheld by this Court.

11. Before dealing with the controversies, it would be better to make a brief reference to various authorities cited before me. In the case of State v. Captain Jagjit Singh, AIR 1962 SC 253, the Supreme Court has observed:—

“If the offence is bailable, bail will be granted under Section 496 of the Code of Criminal Procedure without more ado; but if the offence is not bailable, further considerations will arise and the court will decide the question of grant of bail in the light of those further considerations.”

12. The further considerations which are mentioned by the Supreme Court are nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State, and similar other considerations which arise when a Court is asked for bail in a non-bailable offence.

13. In the case of Niranjan Singh v. Prabhakar, (1980) 2 SCC 559 : AIR 1980 SC 785, the Supreme Court has observed:—

“Detailed examination of the evidence and elaborate documentation of the merits should be avoided while passing orders on bail applications. No party should have the impression that his case has been prejudiced. To be satisfied about a prima facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself.”

14. In Bhagirathsingh Judeja v. State of Gujarat, (1984) 1 SCC 284 : AIR 1984 SC 372, the Supreme Court has observed:—

“Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. And the trend today is towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence.”

15. In Gurcharan Singh v. State (Delhi Admit.), (1978) 1 SCC 118 : AIR 1978 SC 179, the Supreme Court has observed as follows:—

“The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1), Criminal Procedure Code of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out.”

16. The Supreme Court further observed:—

“We may repeat the two paramount considerations, viz. likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair trial of the case in a court of justice. It is essential that due and proper weight should be bestowed on these two factors apart from others. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.”

17. In the case of Delhi Admn. v. Sanjay Gandhi, (1978) 2 SCC 411 : AIR 1978 SC 961, the Supreme Court has observed:—

“The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power though of an extraordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the Courts to be silent spectators to the subversion of the judicial process.”

18. In fact, on consideration of several authorities in the field, my brother Mehta, J. has laid down certain principles that the learned Judge has described as reiteration of the principles laid down by the Supreme Court by his judgment and order dated 14 & 15th September, 1987 in Criminal Applications Nos. 1638 and 1679 of 1987 (Y.R Mahey v. Shashikant Chadha). The learned Judge has laid down the principles is follows:—

“(i) The first consideration which the Trial Magistrate granting bail should take into consideration is the nature and seriousness of the offence. I may state here that Shri Desai presented me with an elaborate dissertation on the issue that an offence under the Narcotics Act was of a more serious nature than an offence under the Official Secrets Act, 1923. I refuse to be drawn into any such controversy as I consider it to be inane and infructuous. Suffice it to say that offences under both the Acts are of an extremely grave and serious nature. Cases under the Narcotics Act and the offences thereunder affect the health — mental as well as physical — of the populace at large, particularly the younger members and a society might find on its hands a young generation of doped morons. Offences under the Official Secrets Act may affect the very security and stability of a nation. I may mention here that there is a third kind of offence which is equally grave and serious in nature and that is an offence which has come to be described as “an economic offence”, that is the offences like smuggling or breach of the Foreign Exchange Regulation Act and the like.

(ii) The second consideration which should weigh with the learned trying Magistrate is the character of the offence. At the stage of bail, the learned Magistrate is not called upon to weigh or scrutinise the evidence in detail. He, however, has to see whether there is some evidence against the Accused even on a preponderance of probabilities.

(iii) The third criterion is the circumstance peculiar to the Accused. The Trial Court must consider whether the Accused is a minor under the age of sixteen years; whether the Accused is a female or was sick or infirm. The other consideration is whether the Accused is a national of this country or is a foreigner.

(iv) The fourth criterion is the possibility of the presence of the Accused not being secured at the trial. Whilst considering this aspect, the trial Magistrate must take into account whether the Accused is a national of this country or whether he is a foreigner. Experience has shown that foreigners, even when granted bail of an astronomical amount, have fled the country and failed to face justice. I should like to make it clear that this does not mean that in every case a foreigner must be denied bail, but it only means that greater caution has to be exercised when dealing with foreigners.

(v) The fifth consideration is the apprehension of tampering with witnesses. If there was any likelihood of the Accused pressurising or tampering with the witnesses, the Trial Magistrate will be loath to grant bail in such a case.

(vi) Lastly, the larger interest of the State of the public must prevail. As I have already pointed out, offences under the Narcotics Act, the Official Secrets Act and what are known as “the economic offences” affect the very fabric of the society and the nation, and this aspect must at all times be borne in mind by the learned Trial Magistrate.”

19. Now, taking into consideration the aforesaid principles, I have to find out whether the order of the learned Additional Sessions Judge granting bail to respondents 1 and 2 is a correct or proper order. Before doing it, I would deal with the first objection raised on behalf of the respondents viz., that, in fact, this is an application for cancellation of bail and, therefore, without there being any supervening circumstances, there is no ground to cancel the bail. I am not inclined to accept this submission. The learned Additional Sessions Judge passed the order on 7th November, 1987. But after hearing both the sides, he directed that the order should be made operative from Monday, the 9th November, 1987, at 1 p.m Before the order became operative and the respondents were, in fact, released on bail, on 9th November, 1987, this Court was moved and stay, pending admission, had been granted by this Court. And ultimately, after hearing both the sides on 10th November, 1987, this petition was admitted and interim stay of the order granting bail was granted. As such, this cannot be termed as an application for cancellation of bail. But this is a petition challenging the order of grant of bail on the ground that it is improper and unjust.

20. If the circumstances in which the gold was attempted to be smuggled into India are taken into consideration, it is clear that respondents 1 and 2 had full knowledge of what they were doing. The offence alleged is of smuggling which can be described as an economic offence. The nature of offence against the accused is also such that their involvement albeit prima facie is evident. The further consideration is whether the accused would be readily available for trial. In this behalf, the Intelligence Officer, Bombay Customs, has filed an affidavit in this Court in which he has stated that from the records of the Customs Department, it is found that during the period from 1-11-1985 to 31-10-1987, in all 97 foreign nationals were arrested by the Department for offences under the Narcotic Drugs and Psychotropic Substances Act, 1985. Out of them, 85 foreigners obtained bail. All of them availed of the bail and 84 of them have since absconded. The remaining 12 foreigners who are still in custody are available for investigation and prosecution. During the said period, the Customs Department arrested in all 162 foreigners under the Customs Act, 1962 for smuggling of gold and other goods. All the foreigners who availed of the bail orders have absconded and only those who could not avail of the bail orders or who have been detained under the COFEPOSA are available for investigation and trial. I have also found in several orders of the learned Metropolitan Magistrates that it is their experience that foreign nationals involved in offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 or the Customs Act, 1962, when released on bail invariably abscond. In fact, in the judgment of my brother Judge (Mehta, J.), it is mentioned that experience has shown that foreigners, even when granted bail of an astronomical amount, have fled the country and failed to face justice. I do not mean that in every case a foreigner must be denied bail. But greater caution has to be exercised while dealing with foreign nationals involved in such offences. In the facts of the present case, it is evident that smuggling of large scale is involved. The further aspect of the present case is that two co-accused, viz., Mr. & Mrs. Maturgo, who obtained bail on the ground of sickness of Mr. Maturgo have since absconded. On the material placed before me, I am satisfied that, in the facts and circumstances of this case, the probability of the respondents absconding is very high. Now, if economic offences like smuggling which endanger the economy of the country in a substantial way are to be curbed, then, apart from the higher punishments which are prescribed by the law the first essential thing is that the accused should be brought to book, and for that purpose, they must be available for trial. It is in this context that the aspect of the probability of the accused fleeing from justice assumes importance. Now, as far as the order of the learned Additional Sessions Judge is concerned, he has said that the question which merits consideration is whether the applicants are likely to jump bail in the event they are released on bail. But, unfortunately, the learned Judge has not answered that question in his order at all. The learned Judge has given reasons firstly that the offence with which the accused are charged are not punishable with death or imprisonment for life. Secondly, two other accused, who are foreign nationals, have been released on bail. Unfortunately, the learned Judge has not taken into consideration the fact that those two co-accused after being roleased on bail, have absconded. The learned Judge has further observed thirdly that the child of the applicants, who was about seven months' old at the time of arrest, continued to be in custody for more than seven months, and fourthly, that the child is suffering for the sins committed by others. Fifthly, there is some medical evidence that the child was given treatment in the hospital. Similarly, both the respondents have been visiting the hospital for their treatment. Now, undoubtedly, the child so tender in age should be required to be in custody alongwith its mother is a very sad and unfortunate fact. But it can't be forgotten that the mother carried her child in her arms and also a jacket having special pockets to hide gold biscuits. In fact, it is very unfortunate that the parents have exposed their child to such a situation. As far as the sickness of the child is concerned, the learned Magistrate was particular to get the child examined by the Paediatrician of the Cama Hospital. Then, the learned Magistrate also examined Dr. Deshpande and after being satisfied that there was nothing seriously wrong with the child and the child was given all required proper treatment while in custody, he rejected the application of the respondents for bail. The sixth reason given by the learned Additional Sessions Judge is that another wanted person, Nadir, was released by the High Court when he applied for anticipatory bail in the sum of Rs. 20,000/-. Seventhly, COFEPOSA order against the respondents has been set aside by the High Court. To say the least, these last two grounds were irrelevant for consideration of the application for bail by respondents 1 and 2. The learned Additional Sessions Judge ultimately observed that the cumulative effect of the aforesaid circumstances would be that further detention of respondents 1 and 2 in custody would be unjustifiable. I think that the learned Additional Sessions Judge was impressed by irrelevant considerations and failed to take into consideration and failed to note the most relevant considerations, viz., whether in the facts and circumstances of the case, the nature and the seriousness of the offence, the nature of material available on record, the respondents would be readily available for trial. Shri Bhonsale submitted that the so-called statements or confessions are, admittedly, retracted and, therefore, they cannot be the basis of any conviction nor can they be taken into consideration even at this stage. I do not think that it is possible to accept this submission. This is not a stage where detailed examination of the material and the aspect of their admissibility or ultimate value can be assessed. This is the stage where prima facie view of all the general circumstances has to be taken with a view to ascertain whether the accused would be readily available for trial. The nature of the evidence and the probability of conviction would be relevant at this stage only for the limited purpose of ascertaining whether that would be one of the factors inducing the accused to flee from justice and abscond.

21. Smt. Agarwal, the learned counsel appearing for respondent No. 2, made a plea that respondent No. 2, being a woman, is entitled to be released on bail, under the provisions of the first proviso to Section 437(1), Criminal Procedure Code. Undoubtedly, the said proviso indicates that the Court may direct that the persons even if answers the description of sub-clause (i) or sub-clause (ii) of sub-section (1) of Section 437 if under the age of sixteen years or is a woman or is sick or infirm, be released on bail. Despite this provision, all other considerations have to be weighed and if on those considerations the Court finds that the person should not br released on bail, then, I do not think that it is obligatory on the Court to release the person only, on the count that she is a woman. Smt. Agarwal, in this behalf, relied upon the decision of the Allahabad High Court in Shakuntala Devi v. State of U.P, 1986 Cri. L.J 365 wherein the learned single Judge of the Allahabad High Court held:—

“…..that the word ‘may’ has been used in the first proviso to section 437 of the code to mean ‘shall’ and ‘must’. The expression has been used as mandatory and not as directory. However, as the word ‘may’ has been used in connection with the right of liberty of the citizen which has been guaranteed as a fundamental right in view of Art. 21 of the Constitution. Hence it has assumed more dimension and cannot be taken lightly.”

22. With respect, it is not possible to agree with the construction put by the learned Judge on word ‘may’ appearing in the first proviso to Section 437 of the Code of Criminal Procedure. Secondly, if that was the interpretation the learned Judge put on that word, then, on that count alone the learned Judge could have granted bail to the applicant in the said case. However, in para 15 of the judgment the learned Judge observed as follows:—

“It is more important to mention here that even the informant has not seen the occurrence rather a police constable has informed him that his daughter has been murdered. Thereafter he reached the place of occurrence and thereafter lodged the first information report. The applicant having been lodged in the jail and the matter is still to be tried and evidence to be collected and further as the applicant is a woman aged about 72 years, as is clear from the report of the police officer (Annexure ‘3’), I am of the opinion that just on compassionate grounds, without going into the merits of the case the applicant is entitled to be released on bail.”

23. If, ‘may’ was ‘must’, there was no necessity to consider any other factors like age and compassion at all.

24. Smt. Agarwal also relied on sub-section (6) of Section 437 and contended that as the trial in the present case is not concluded within the period of 60 days from the first date fixed for taking evidence in the case, such person shall be released on bail. In this behalf, Shri Gupte cited a decision of the Delhi High Court in Robert Lendi v. Collector of Customs, 1987 Cri. L.J 55. In the said case, the Division Bench of the Delhi High Court has held that the expression “the first date fixed for taking evidence in the case” in Section 437(6) would mean the first date fixed for recording evidence after the accused is charge-sheeted and the prosecution is given notice of that date for recording its evidence and, therefore, the period of sixty days under Section 437(6) will start from that date. The time spent in recording the pre-charge evidence which is usually recorded in complaint cases before the charge is framed will not be counted for purposes of Section 437(6), the Division Bench added I am in respectful agreement with the aforesaid decision and, therefore, it is not possible to accept the submission of Smt. Agarwal that the respondent No. 2 is entitled to be released on that count.

25. I must also make a reference to another decision of this Court cited by Shri Bhonsale in Criminal Application No. 1316 of 1981 (Walter Peter v. State of Maharashtra decided on 13th August, 1981. It is pertinent to note that in the said order, the learned Judge began his judgement by saying “I am inclined to grant bail to the applicant mainly because accused Nos. 2 and 3 have been granted bail by the learned Chief Metropolitan Magistrate.” The learned Judge further observed as follows:—

“With this background if these two persons could be enlarged on bail, then surely it is not proper to deny same to the applicant.”

26. No doubt, in para 5 of the said judgment, the learned Judge has observed as follows—.

“The only ground to be found in the order of the learned Chief Metropolitan Magistrate seems to be that after bail is given 99 out of 100 foreigners have absconded. If this reason can be considered as adequate it would mean that till the entire case is disposed of the applicant will have to be kepi in custody. The delay in Customs Cases is notorious. Even charge sheets are filed or complaints made after two or three years. If the learned Chief Metropolitan Magistrate is right in his reasoning, then until the trial is completed the applicant cannot be permitted to go out of custody which would mean that if the trial in the Metropolitan Magistrates Court takes 4 to 5 years then for this entire period the applicant will have to remain in custody. The reasoning appears to be unsound. Mr. Gupte informs me that the percentage given by the learned Metropolitan Magistrate is conjectural and can be demonstrated to be incorrect.”

27. No factual data, it appears, was produced before the learned Judge at that time whereas on the record of the present petition, the Customs Department has not only filed an affidavit giving the exact number of foreign nationals arrested, released on bail and who have absconded, but also given all the details regarding case number, names of the accused who were released on bail, who are absconding, who are in custody and who are available. Shri Gupte has also stated that invariably the complaints are filed within a period of six months in case of foreigners and who are in custody. He has further submitted that cases of foreigners who are in custody and who have been refused bail are invariably tried expeditiously and on day-to-day basis and can be finished within a period of 18 months. I am informed that in the Sessions Court, in normal course, the cases could be taken up within a period of 18 months to two years and if expedited, would be even within six months. I find from the record of the present case that the case was taken up, on a day-to-day basis but was withheld mainly due to the fact that the accused, viz., respondents Nos. 1 and 2 were not produced before the Court by the jail authorities which was again due to the fact that either of the respondents or the child was required to be taken to the hospital or the escort was not available. In view of this factual data being placed before me and in view of the period of trial, I think there is change of circumstances which were available in the case before the learned Judge and which are available before me.

28. Smt. Agarwal makes a fervent plea that at least respondent No. 2 should be released on bail on the ground of the illness of the child of tender age. Indeed, I am sorry for the plight of the poor child. Even yesterday I was informed by Smt. Agarwal that the child is seriously ill and requires hospitalisation. I immediately called upon Shri Gupte, the learned counsel appearing for the Customs Department, to inquire regarding the seriousness or otherwise of the illness of the child and inform this Court. Shri Gupte made inquiries with the concerned officers and has stated that the child was brought to the Court alongwith the mother and there is nothing seriously wrong with the child or the mother. It is, indeed, very difficult to investigate the seriousness or otherwise of the illness either of the child or of the mother. But the record of the Court does show that whenever the child or the mother or the father was sick, the authorities concerned with the custody of them took them to the hospital and gave them required treatment. Even the learned Magistrate was particular to order the examination of the child by a Paediatrician of the Cama Hospital. The learned Magistrate, in fact, recorded the statement of the Doctor concerned who treated the child and got himself satisfied that the child was treated and there was nothing seriously wrong with the child. I am not satisfied that the child or the mother needs such special or other medical treatment which is not available or is not being provided while in custody. I have no manner of doubt that all required medical help and treatment shall be given to the child or the mother whenever required in the Government Hospitals, in accordance with the rules in that behalf. In that view of the matter, I am unable to accede to the request of Smt. Agarwal that at least respondent No. 2 should be released on bail on the ground of illness of the minor child. In view of this, the judgment and order of the learned Additional Sessions Judge releasing both respondents Nos. 1 and 2 on bail is quashed and set aside. I further direct that in view of the fact that the accused are in custody for a considerable period and in view of the fact that due to the detention of both the accused, the child also as of necessity has to remain in custody, the learned Magistrate shall take every precaution to conduct and complete the trial with utmost dispatch and on day-to-day hearing basis. Accordingly, the rule is made absolute.

Rule made absolute.