A. Y. Kogje, J. - (1.) Leave to amend the prayer clause.
(2.) This application under Section 439 of the Criminal Procedure Code is filed for regular bail in connection with arrest effected under arrest memo dated 08.10.2018 issued towards mis-declaration of importing High Speed Diesel (HSD) in the name of "Base Oil SN 50". It is the case of the Department that HSD falls under the category of prohibited goods defined under Section 2(33) of the Customs Act and therefore, the import of the so called base oil is treated as smuggled goods as defined under Section 2(39) of the Customs Act.
(3.) Learned Advocate for the applicant submitted that the applicant was initially summoned and in response to the summons, when the applicant produced himself before the authorities, arrest was effected on 09.10.2018 and since then the applicant is in custody. 3.1 It is submitted that the import of the base oil in a particular vessel was undertaken by three different parties, one of them being the company of the applicant, other being one Rajkamal Industrial Pvt. Ltd. It is submitted that said importer Rajkamal Industrial Pvt. Ltd. had challenged action of the Department in treating the base oil imported as HSD by filing SCA before the Division Bench of this Court and Division Bench of this Court had ordered for sample analysis of the base oil imported. It is submitted that in the said proceedings, when the so called sample base oil was analyzed, the report of the Laboratory of Indian Oil Corporation indicated that the sample did not have the characteristic of HSD and the product, whether is HSD, can be ascertained by the test parameters of "flash point". In the report of IOC, the flash point being 122 unit, will take the product beyond doubt from the category of HSD as the prescribed norm for flash point of HSD is 1460:2005 unit. It is submitted that when prima facie, the product is not HSD, the Department has, for oblique reasons, continues to treat such product as HSD to maintain the prosecution and departmental action against the applicant. 3.2 It is submitted that from the record, it cannot be controverted that the product imported by Rajkamal Industrial Pvt. Ltd. is in any way different from the product imported by the company of the applicant and the same has been imported in the very same vessel, but, of course, exporters from whom the product is procured can be different. 3.3 Learned Advocate for the applicant thereafter drew attention of the Court to the relevant definitions under the provisions, viz. HSD, LDO, LKO, fuel oil, flash point, etc. to submit that even from the definitions, the product in question would not fall in the definition of HSD. 3.4 Learned Advocate for the applicant submitted that the applicant has been arrested since long. No remand has been sought. Therefore, practically, investigating qua the applicant is concluded and no useful purpose will be served to continue the applicant in custody. 3.5 Learned Advocate for the applicant further submitted that the offence under the Customs Act is compoundable and the punishment prescribed is only 7 years. Hence also, the case of the applicant deserved to be considered. 3.6 Learned Advocate for the applicant lastly submitted that the applicant has concluded 45 days in custody and in any case, shortly, the applicant would be entitled to default bail in absence of any report pursuant to the investigating by the Department.;