1. Heard Sri Nirankar Singh, learned counsel for the petitioners, Sri Digvijay Nath Dubey for opposite party No.2.
2. By means of present petition the petitioners have prayed for quashing the order dated 3.12.2020 passed by learned Special Judicial Magistrate (Customs), Lucknow in case crime No.06/2018 under Sections- 104/110/111/135 of Customs Act at police station D.R.I., District Lucknow.
3. It has been submitted by learned counsel for the petitioners that with regard to the aforesaid offence application for bail was moved before this Court vide Bail No.1278 of 2020 and vide order dated 26.11.2020 both the applicants were released on bail by following orders:-
"6. Let the applicants Manoj Kumar Soni and Sameer Gadtaula involved in Case Crime No. 06/2018 under Sections 104, 110, 11, 135 Customs Act, 1962, registered at Directorate of Revenue Intelligence, Lucknow Zonal Unit, U.P. Lucknow be released on bail on their furnishing a personal bond and two heavy sureties including one local surety, each in the like amount to the satisfaction of the court concerned with the following conditions....
4. It has further been submitted that the in pursuance of the bail granted by this Court they approached the trial court for fixing sureties and by means of the impugned order Special Chief Judicial Magistrate, Lucknow has fixed the personal bond at Rs.5 lakhs and two sureties of the same amount vide order dated 3.12.2020. It has been submitted that fixing sureties of such high amount is absolutely arbitrary in as much as it is impossible for the applicants to arrange for such sureties which is beyond their means and passing of such an order would amount to denial of the bail and thereby despite the order of bail having been passed by this Court , they would continue to languish in jail.
5. In support of his contentions counsel for the applicant has filed income tax return of applicant No.1 Manoj Kumar Soni which discloses that for the assessment year 2013-14 he had filed the return of about Rs.3, 33,000/- and for the assessment year 2014-15 return of Rs.3,47,000/- was filed. It has been submitted that applicant No.2 is not an assessee of the income tax and, therefore, his returns are not being filed and, therefore, he submits that it should be presumed that his income is below the taxable limits.
6. The applicants have further placed reliance upon the judgment of Hon'ble Supreme Court in the case of Parvez Noordin Lokhandwalla Vs. State of Maharashtra and another passed in Criminal Appeal No.648 of 2020, dated 1.10.2020 wherein in para 21 it has been held as under:-
"The conditions which a court imposes for the grant of bail ? in this case temporary bail ? have to balance the public interest in the enforcement of criminal justice with the rights of the accused. The human right to dignity and the protection of constitutional safeguards should not become illusory by the imposition of conditions which are disproportionate to the need to secure the presence of the accused, the proper course of investigation and eventually to ensure a fair trial. The conditions which are imposed by the court must bear a proportional relationship to the purpose of imposing the conditions. The nature of the risk which is posed by the grant of permission as sought in this case must be carefully evaluated in each case."
7. It has been further submitted that both the applicants do not have any criminal history.
8. Learned counsel for the opposite party, on the other hand, submits that fixing of sureties is totally within the domain of the court looking into the gravity of offence and other circumstances to secure presence of the accused during the trial. He also submits that amount of surety should be fixed taking into account the financial position of the applicant coupled with the fact that the amount so fixed should be sufficient to ensure the presence of the applicant before the trial court during the trial and ensure that he does not flee from justice.
9. Looking into the averments made in the application as well as the income tax returns filed by counsel for the applicants, I am of the considered opinion that personal bond of Rs.5 lakhs and two sureties of Rs.5 lakhs are excessive and beyond the means of the applicants. It has also to be seen that both the applicants are not residents of State of U.P. and it will be difficult to procure their presence in case they flee from justice and balancing both these aspects of the matter, in my opinion, personal bond of Rs.2 lakhs and two sureties (one surety should be local) of the same amount would be sufficient for release of the applicants.
10. The application is, therefore, allowed. The order dated 3.12.2020 passed by learned Special Judicial Magistrate (Customs), Lucknow arising out of case crime No.06/2018 under Sections- 104/110/111/135 of Customs Act at police station D.R.I., District Lucknow is quashed. It is directed that the petitioners/applicants be released on their furnishing a personal bond of Rs.2 lakhs and two sureties (one surety should be local) of the same amount in aforesaid case crime.
Order Date :- 8.1.2021 (Alok Mathur, J.) RKM.