- (1.)Heard learned counsel for the parties.
(2.)These two appeals are filed by the appellant-Ishwar Das Moolrajani and the Union of India and Anr. questioning the correctness of the condition imposed upon the detenu to deposit an amount of Rs. 4.5 crores for granting him bail vide Order dated 8.09.2006 passed by the Division Bench of the High Court of Judicature for Rajasthan, Jaipur Bench (hereinafter referred to as "the High Court"). The High Court has entertained the Habeas Corpus Petition filed by the detenue. In the writ petition, certain factual aspects and legal grounds were urged inter alia contending that the arrest of the detenu was unlawful and therefore he had sought for issuance of a writ of habeas corpus to the respondents, in his appeal, and to produce him before the Court and enlarge him on bail. The said case was examined by the High Court and after adverting to certain factual aspects, legal contentions, relevant statutory provisions of the Customs Act, Code of Criminal Procedure and also referring to the judgments of this Court to examine the case put forward by the appellant-detenu, granted the relief sought for in the habeas corpus petition with certain conditions, one of them is that he should deposit Rs. 4.5 crores with competent authority. While granting the relief of bail in favour of the detenu, he was directed to deposit the amount found due under protest. That portion of the order is under challenge in the appeals filed by the appellant-detenue and another.
(3.)In the connected criminal appeal filed by the Union of India and Anr., their challenge to the impugned judgment passed by the High Court is with regard to the maintainability of the Habeas Corpus Petition filed by the detenu before the said Court contending that the detenu was lawfully arrested in exercise of the statutory power conferred under Section 104 of the Customs Act, 1962 with the Officer of Customs empowered in this behalf by general or special order of the Principal Commissioner of Customs or Commissioner of Customs, for the alleged offence punishable under Section 111 read with Section 135 and Section 2(25) of the Customs Act, is said to have been committed by him for which he has been arrested without mentioning that there was a seizure of the smuggled goods from the detenu as provided under Section 123 of the Customs Act. The detenu was produced before the learned Additional Chief Judicial Magistrate, Jaipur, pursuant to his arrest made by the Intelligence Officer, Directorate of Revenue Intelligence, Regional Unit, Jaipur. The learned Chief Judicial Magistrate while examining the bail petition filed by the detenu, by recording his reasons, rejected the bail. Thereafter, he approached the learned Additional District Judge seeking for enlarging him on bail. That petition was also rejected. During the pendency of the proceedings before the said Court, the detenu has filed a Writ Petition for grant of writ of habeas corpus and the same is allowed holding that initiation of the said proceedings against the aforesaid detenu are without jurisdiction, therefore, the bail granted with certain conditions is void ab initio in law. On the other hand, it is contended by Mr. Yashank Adhyaru, learned senior counsel appearing on behalf of the Union of India that in view of fact of arrest of the detenu, as provided under Section 104 of the Customs Act, his arrest was lawful. The Union of India and Anr. are also before this Court in Criminal Appeal No. 533/2010 questioning the correctness of the order granting bail with conditions and prayed for quashing the said order. This Court on 7.11.2006 in the criminal appeals filed by the appellant-detenu stayed the directions of deposit of Rs. 4.5 Crores with the Competent Authority.