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Mohan Lal Thapar v. Y.P. Dabara, Inspector, Customs, New Customs House, New Delhi
Factual and Procedural Background
This order governs the disposal of three bail applications (Crl.M.(M) 3871/2001, 3855/2001, and 3852/2001) filed by Mohan Lal Thapar, Gagan Thapar, and Kuldeep Thapar respectively. The petitioners-accused are jointly facing trial under a complaint filed by Y.P. Dabara, Inspector, New Customs House, under Section 135 of the Customs Act, 1962. The bail applications arise in the context of alleged evasion of customs duty involving large sums of money. Interim bail had been granted earlier but was declined on 12th October 2001, leading to the petitioners being ordered into judicial custody.
Legal Issues Presented
- Whether the offence under Section 135(1)(ii) of the Customs Act, 1962 falls under the third entry (bailable offences) or the second entry (non-bailable offences) in Table II of the First Schedule appended to the Code of Criminal Procedure, 1973.
- Whether the interim bail granted by the Additional Chief Metropolitan Magistrate, New Delhi, prior to 12th October 2001, constituted regular bail.
- Whether the petitioners deserve to be released on bail considering that the offence is punishable with imprisonment which may extend up to three years or with fine or both.
Arguments of the Parties
Petitioners' Arguments
- The offence under Section 135(1)(ii) of the Customs Act is punishable with imprisonment up to three years or fine or both, and therefore should be governed by the third entry in Table II of the First Schedule to the Cr.P.C., which relates to bailable offences.
- The bail granted up to the date of their custody on 12th October 2001 by the Additional Chief Metropolitan Magistrate was regular bail.
- Since the offence can be compounded by imposing a fine, the petitioners deserve to be released on bail.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rajeev Chaudhary v. State (NCT) of Delhi, 2001 SCC (Cri) 819 | Interpretation of the phrase "offences punishable with imprisonment for a term of not less than 10 years" in proviso (a) to Section 167(2) Cr.P.C. and its application to custody period limits. | The Court distinguished this precedent, noting it only applies to what was actually decided and not to logical extensions; hence, it rejected the petitioners' reliance to classify their offence as bailable under the third entry of Table II. |
Court's Reasoning and Analysis
The Court analyzed the classification of offences under Table II of the First Schedule to the Cr.P.C., focusing on the interpretation of the word "for" in relation to the term of imprisonment specified. It held that the phrase "imprisonment for a term" includes offences punishable with imprisonment extending "up to" that term. Since the offence under Section 135(1)(ii) of the Customs Act carries punishment of imprisonment which may extend up to three years, it falls under the second entry in Table II, which is non-bailable, rather than the third entry which pertains to bailable offences.
The Court further examined the interim bail granted by the Additional Chief Metropolitan Magistrate and found it was not regular bail on merits but merely interim bail pending reply to the bail application. The bail was declined on 12th October 2001, and the petitioners were ordered into judicial custody.
On merits, the Court noted the serious nature of the allegations involving evasion of customs duty worth crores of rupees and concluded that the case was not fit for bail despite the possibility of fine being imposed as a punishment under the statute.
Holding and Implications
The bail petitions Crl.M.(M) Nos. 3871/2001, 3855/2001, and 3852/2001 are dismissed.
The direct effect of this decision is that the petitioners remain in judicial custody pending trial. The Court did not grant bail, emphasizing the non-bailable nature of the offence and the gravity of the allegations. No new precedent was established by this ruling.
JUDGMENT K.S. Gupta, J.
1. This order will govern the disposal of Crl.M.(M) 3871/2001 filed by Mohan Lal Thapar, Crl.M.(M) 3855/2001 filed by Gagan Thapar And Crl.M.(M) 3852/2001 filed by Kuldeep Thapar seeking regular bail. The petitioners-accused are jointly facing trial in a complaint filed by Y.P. Dabara, Inspector, New Customs. House under Section 135 of the Customs Act, 1962 (for short the 'Act').
2. Submission advanced by Sh. D.C. Mathur for petitioners is said Crl.M.(M) Nos. 3871/2001 and 3855/2001 which was also adopted by Sh. Harjinder Singh for petitioner in Crl. M.(M) 3852/2001, was that the offence for which compliant has been filed, admittedly is punishable with imprisonment for a term which may extend to 3 years or with fine or with both. Such an offence is governed by the third and not second entry in Table II of the First Schedule appended to Code of Criminal Procedure, 1973, offence being not punishable for a clear period of 3 years. Reliance was placed on the decision in Rajeev Chaudhary v. State (Nct) Of Delhi., 2001 SCC (Cri) 819. To appreciate the said submission, it is necessary to reproduce Table II dealing with classification of offences against other laws:-
Offence Cognizable or not Bailable or not By What court friable if punishable with death Congnizasble Non-bailable Court of imprisonment for life, Sessions or imprisonment for more than 7 years.
3. Table I of the First Schedule deals with classification of offences under IPC. Phraseology similar to that in Table II, has been used in Table I. By was of illustration entry made in Table I in regard to offence punishable under Section 379 IPC is extracted below:-
4. Punishment provided under Section 379 IPC is imprisonment of either description for a term which may extend to three years or with fine or with both. To be noted that the offence for which complaint has been filed against the petitioners, is also punishable with similar imprisonment which may extend to three years or with fine or with both under Section 135(1)(ii) of the Act. Controversy at hand mainly revolves around the interpretation and construction of the word 'for' as used in the entries against the column of 'offence' in he Table. Word 'for' used before the term of sentence of imprisonment in Table I if read with corresponding sections providing punishment, would clearly indicate that it refers to the term of sentence of imprisonment which may extend up to the period of punishment provided for the offence(s). Thus, the word 'for' occurring before the words '3 years and upwards but not less than 7 years' in said second entry in Table II would include the offences under other laws wherein punishment may extend up to 3 years. The offences for which punishment provided may nt go up to 3 years, only will be governed by third entry in Table II. In Rjaeev Chaudharys' case (supra) the question involved before the Supreme Court was in regard to interpretation and construction of the expression 'offences punishable with imprisonment for a term of not less than 10 years' occurring in proviso (a) to Section 167(2) Cr.P.C. in context of expression 'imprisonment which may extend to 10 years' occurring in Section 386 IPC. Ratio of this decision is that for an offence under Section 386 the detention of an accused in custody can be permitted up to a maximum period of 60 and not 90 days under Section 167(2) Cr.P.C. It is settled law that the decision of Supreme Court is only an authority for what is actually decided and not what logically follows from it. Thus, I am unable to agree with the submission advanced on behalf of petitioners that offence under said Section 135(1)(ii) of the Act would fall under third entry in Table II which has been made bailable.
5. It was next argued on behalf of petitioners that the bail granted to petitioners up to the period they were taken into custody on 12th October 2001 by the Additional Chief Metropolitan Magistrate, New Delhi was regular bail. Along with petition being Crl.M.(M) 3871/2001 the extract of order sheets(at pages 61 to 67) of ACMM, New Delhi before whom the complaint is pending form 23rd February 2001 to 12th October 2001 has bene filed. It seems that pursuant to summons, Mohan Lal Thapar, petitioner-accused No. 1 put in appearance on 29th May 2001 and he filed application for grant of bail and at the request of SPP for time to file reply, he was admitted to interim bail up to 2nd June 2001 on furnishing personal bond in the sum of Rs. 1 lac with one surety in like amount. This interim bail continued to operate uptil 12th October 2001. Gagan Thapar, petitioner-accused No. 2 who put in appearance on 21st July 2001, on bail application being moved was admitted to interim bail on furnishing bail bond in the said sum which interim bail continued uptil 12th October 2001. Kuldeep Thapar, petitioner-accused No. 3 appeared on 2nd June 2001 and on his bail application he was admitted to interim bail on furnishing personal bond in the said amount which interim bail continued up to 12th October 2001. Interim bail up to this period was not granted on merits. Therefore, I am unable to agree with the said submission advanced on behalf of petitioners that the bail granted to the petitioners by ACMM, New Delhi was regular. To be noted that by the order dated 12th October 2001 the bail was declined to all the three petitioners and they were ordered to be taken into judicial custody.
6. On merits, it was, lastly, urged that petitioners can even be let off by imposing fine under Section 135(1)(ii) of the Act and, therefore, they deserve to be released on bail. Copy of complaint filed against the petitioners is placed at pages 17 to 56 in Crl.M.(M) 3871/2001. Department alleges therein the involvement of all the petitioners in evasion of customs duty worth crores of rupees by them. In the facts and circumstances of case, I am of the view that it is not a fit case for admitting the petitioners on bail.
7. Consequently, Crl.M.(M) Nos. 3871/2001, 3855/2001 and Crl.M.(M) 3852/2001 are dismissed.
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