2023 (9) TMI 534 - ALLAHABAD HIGH COURT

Seeking grant of anticipatory bail - Proclaimed offender or not - smuggling of contraband goods of foreign origin like gold, reputed foreign brand cigarettes and saffron - proclamation issued requiring the applicant to appear before the Court - proclamation published or not - HELD THAT:- The Court issuing the proclamation has not made any statement in writing as provided in Sub-section (3) of Section 82 Cr.P.C. to the effect that the proclamation was duly published in the manner specified in clause (i) of sub-section (2) - When the proclamation has not even been published as per the law, the occasion for the applicant being “declared” a proclaimed offender under Sub-section (4) of Section 82 Cr.P.C has not yet arisen.

It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts, more particularly when the facts are not even remotely similar. As the applicant has not been declared to be a proclaimed offender as yet and the bar created by the principle of law laid down by the Hon’ble Supreme Court in Lavesh [2012 (8) TMI 1190 - SUPREME COURT] does not apply to the present case, the preliminary objection raised by the learned Counsel for the respondent is rejected.

Sanatan Pandey [2021 (11) TMI 590 - SUPREME COURT] was decided after taking into the facts of the case and present case also proceeded to be examined on the merits of the application.

In view the fact that the alleged recovery was made on 19.12.2019 but the F.I.R has been lodged on 10.08.2022 and there is no explanation for the delay in lodging the F.I.R.; that the substantive offence allegedly committed by the applicant is non-cognizable, bailable and carries a maximum punishment of imprisonment upto 3 years; that although the C.B.I. has alleged commission of offences under the Prevention of Corruption Act, 1988, the applicant is not a public servant; that the applicant has no other criminal history and that a co-accused person Ajeet Kumar has already been granted bail and without making any observations which may affect the outcome of the case, the aforesaid facts are sufficient for making out a case for granting anticipatory bail to the applicant.

The anticipatory bail application of the applicants is allowed. In the event of arrest / appearance of applicant- Khalid Anwar Alias Anwar Khalid before the learned Trial Court in the aforesaid case crime, he shall be released on bail on his furnishing personal bond and two solvent sureties, each in the like amount, to the satisfaction of Officer/Court concerned on the fulfilment of conditions imposed.