Non-bailable warrant for evasion of customs duties.

New Delhi: The next time you glide through the airport's green channel but run into a customs man who finds something amiss, get ready to be slapped with a non-bailable warrant. For, the UPA government - regarded as the pioneer of neo-liberal reforms in the country - has taken a leaf out of the Inspector Raj era and sneakily inserted a proposal in the Finance Bill that subjects the minutest evasion of customs duties to denial of bail.

The move, in the form of an amendment of Section 104 of the Customs Act, 1962, seeks to nullify the Supreme Court's liberal approach to cases of evasion of custom and excise duties by proposing highly stringent bail provisions in all such matters.

The Finance Bill proposes to add sub-section 104a to the Customs Act, which implies that no person accused of an offence punishable for a term of imprisonment of three years or more under Section 135, pertaining to evasion of duty, shall be released on bail unless a few conditions are met.

A senior finance ministry official justified the decision by asserting that it was taken after due deliberation and incorporated the legal view. He said the apex court's view on allowing bail for all customs offences was based on the current law and that is why it was being amended.

"Smuggling of various goods, including currency, is harmful to national interest and also has security implications. Our experience shows that the biggest of culprits are walking out (of jail) on bail and getting back to business as usual. So, the law needs to be made more stringent," the finance ministry official explained.

"The decision to apprehend an offender will be taken at a senior level and it is not as if every Tom, Dick and Harry can go and make the arrest. The power to arrest will be used after a lot of circumspection and in very serious cases."

The proposed amendment specifies that bail can only be obtained after the public prosecutor gets an opportunity to oppose the application for release in such a case. Another rider is that in instances where the public prosecutor opposes the application, the magistrate must be satisfied that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail.

Persons under the age of 18 years, women or the infirm may also be released on bail on the magistrate's discretion.

Legal experts and senior MPs, particularly those well-versed in spotting such slip-ins by the government, were not impressed. According to senior counsel Mukul Rohtagi, the move was "horrendous and objectionable".

"The proposals are absolutely perverse. You are making bail subject to the study of the prosecutor. The second clause is even more horrific - to subject bail to the satisfaction of the magistrate that the suspect is 'not guilty'. This is turning the dictum of 'you are innocent till proved guilty' on its head, which was the case only in anti-terror legislations," Rohtagi pointed out.

He was of the opinion that making cases of customs and excise duty violations subject to the scrutiny of a trial judge was not fair because of the kind of classifications these cases entailed. "These are very specific classifications. How will a magistrate, who is used to dealing with regular procedural code violations, distinguish?" he asked.

The Leader of the Opposition in the Rajya Sabha, Arun Jaitley, too, likened the proposed amendment to making bail provisions as stringent as under the draconian anti-terror legislations that have since been repealed primarily because they were in violation of human rights.

"The government has sought to amend the Customs Act and make certain onerous provisions. Not only have they made offences punishable beyond three years non-bailable, the same provisions for bail that were used under TADA (Terrorist and Disruptive Activities [Prevention] Act) and POTA (Prevention of Terrorism Act) have been inserted," Jaitley observed. "This government had revoked the stringent bail provisions against terrorists who are accused under TADA or POTA on the ground that these provisions were onerous. The same provisions have now been introduced in relation to offences under the Customs Act," he added.

"My appeal to the finance minister would be to discard the pre-1991 philosophy and reconsider some of the provisions in the sync with post-1991 (thinking)," he said, noting that the proposed amendments amounted to "killing a fly with a hammer".

Senior counsel Rajeev Dhavan concurred: "Treating customs duty violations on a par with TADA and POTA-like offences is unfair to say the least. If Parliament and the SC, in their wisdom, had decided that all offences under the Customs Act should be bailable, then the government's attempt to overturn this decision is objectionable."

The move, according to a lawyer, would nullify the essence of the ruling of an SC Bench in the 'Om Prakash versus Union of India' case on September 30 last year.

The common question before the Bench was that since all offences under the Central Excise Act, 1944, and the Customs Act, 1962, were non-cognisable, were such offenders also entitled to bail? The court reasoned that such offenders should, indeed, be eligible for bail.

The judgment was seen as a setback by the indirect tax administration in the country, especially within the Central Board of Excise and Customs (CBEC).

Source : news.in.msn.com