TMI Blog2008 (10) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ein were merely summoned under Section 108 of the Customs Act, 1962 to give their statements in the inquiry, anticipatory bail applications filed by them were pre-mature and were required to be disposed of. The learned Single Judge, therefore, ordered the respondents to appear before the Customs Authorities in response to the summons. He, however, directed that in case the Customs Authorities find that any non- bailable offence has been committed by the respondents, they shall not be arrested without ten days prior notice. Facts 3. It is the case of the appellant (Union of India) that Director of Revenue Intelligence (`DRI' for short) was investigating the matter in respect of export of readymade garments by M/s B.A. International valued at Rs.4.75 crores through various ports during December, 2000 to 3 March, 2003. According to the allegation of the appellant, on the basis of information received from the Income Tax Department on September 15, 2006, investigation was conducted and search operation was carried out at two office premises of M/s B.A. International which revealed that the so-called suppliers of raw material i.e. fabrics and job workers of garments, were bogus a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny non-bailable offence without ten days prior notice to them. 9. The High Court stated; "Having considered the rival submissions, since the accused petitioners have only been summoned under S. 108 of the Customs Act, 1962 to give their evidence in the inquiry, these anticipatory bail applications are pre-mature and are disposed of with the direction that they shall appear before the concerned custom authorities on 4-12-2006 at 11 AM in response to the summons issued to them and in case the customs authorities found any non bailable offence against the accused petitioners, they shall not be arrested without ten days prior notice to them." (emphasis supplied) 10. The said order is challenged by the Union of India in this Court. Earlier orders 11. On April 23, 2007, the matter was placed for admission hearing. Notice was issued 7 by this Court and respondents were granted time to file affidavit in reply. Affidavits were, thereafter, filed. Considering the nature of directions issued by the High Court, the Registry was asked to place the matter for final hearing and that is how the matter has been placed before us. Submissions of counsel 12. We have heard learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en passed nor a direction as to prior notice before effecting arrest could have been issued by the High Court. Statutory provisions 17. To understand the issues raised by the Union of India in the appeal, let us examine the relevant provisions of the Customs Act, 1962. 18. The Act consolidates and amends the law relating to customs. Chapter IV empowers the Central Government to prohibit import or export of goods of specified description. Chapters IVA to IVC relate to detection of illegally imported goods, prevention of disposal thereof, etc. 19. Chapter XIII (Sections 100-110) is an important Chapter and deals with search, seizure and arrest. Sections 100-03 authorise Custom Officers to search suspected persons. 1 Section 104 enables Custom Officers to arrest a person. Similarly, power to search premises and conveyances is found in Sections 105 to 106A. Sections 107-09 empower Custom Officers to examine persons and summon them to give evidence and produce documents. Seizure of goods, documents and things can be effected under Section 110. 20. Chapter XIV provides for confiscation of goods and conveyances as also imposition of penalties. Chapter XVI (Sections 132-140A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), an offence under this Act shall not be cognizable. 1 25. Section 104 thus empowers a Custom Officer to arrest a person if he has `reason to believe' that such person has committed any offence mentioned therein. It also enjoins the officer to take the arrested person to a Magistrate `without unnecessary delay'. The section also provides for release of such person on bail. Anticipatory bail 26. Section 438 of the Code makes special provision for granting `anticipatory bail' which was introduced in the present Code of 1973. The expression (`anticipatory bail') has not been defined in the Code. But as observed in Balchand Jain v. State of M.P., (1976) 4 SCC 572, anticipatory bail means a bail in anticipation of arrest. The expression `anticipatory bail' is a misnomer inasmuch as it is not as if bail presently granted in anticipation of arrest. Where a competent court grants `anticipatory bail', it makes an order 1 that in the event of arrest, a person shall be released on bail. There is no question of release on bail unless a person is arrested and, therefore, it is only on arre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the time of arrest or thereafter. In order to settle the details of this suggestion, the following draft of a, new section is placed for consideration: 497A. (1) When any person has a reasonable apprehension that he would be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section. That Court may, in its discretion, direct that in the event of his arrest, he shall be released on bail. (2) A Magistrate taking cognizance of an offence against that person shall, while taking steps Under Section 204(1), either issue summons or a bailable warrant as indicated in the direction of the Court under Sub-section (1). 1 (3) if any person in respect of whom such a direction is made is arrested without warrant by an officer in charge of a police station on an accusation of having committed that; offence, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, such person shall be released on bail. We considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it thinks fit, direct that in the event of such arrest he shall be released on bail. 32. Sub-section (2) empowers the High Court or the Court of Session to impose conditions enumerated therein. 33. Sub-section (3) states that if such person is thereafter arrested without warrant 2 by an officer in charge of a police station on such accusation, he shall be released on bail. 34. In the leading case of Gurbaksh Singh Sibbia Ors. v. State of Punjab, (1980) 2 SCC 565, the Constitution Bench of this Court was called upon to consider correctness or otherwise of principles laid down by the Full Bench of High Court of Punjab Haryana in Gurbaksh Singh Sibbia v. State of Punjab, AIR 1978 P H 1 : 1978 Crl LJ 20 (FB). The Full Bench of the High Court summarized the law relating to anticipatory bail as reflected in Section 438 of the Code and laid down certain principles as to when discretionary power to grant anticipatory bail may be exercised by a Court. 35. This Court partly disagreeing with the judgment of the High Court held that the Legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail since it felt, firstly, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be assessed 2 in the context of emerging concerns as and when it arises. Therefore, even if we were to frame a 'Code for the grant of anticipatory bail', which really is the business of the Legislature, it can at best furnish broad guide-lines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail "if it thinks fit". The concern of the Courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the Courts by law". (emphasis supplied) 39. We may also refer to at this stage `Malimath Committee on Reforms of Criminal Justice System'. Considering the exercise of power by Courts under Section 438 and grant of anticipatory bail in favour of applicants, the Committee observed that the provision as to anticipatory bail has often ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l kinds of accusations, likely or unlikely". (emphasis supplied) 43. The Court proceeded to state that the High Court or the Court of Session must apply its own mind to the question and decide whether a case has been made out for grant of such relief. If condition precedent laid down in sub-section (1) of Section 438 is not satisfied and there is no reason to believe that the applicant is likely to be arrested for commission of a non-bailable offence, the Court has no power to grant anticipatory bail. 44. This Court, however, held that the High Court was wholly right so far as proposition (2) was concerned. The High Court in proposition (2) said; "Neither Section 438 nor any other provision of the Code authorizes the grant of blanket anticipatory bail for offences not yet committed or with 2 regard to accusations not so far levelled". 45. Agreeing with the said proposition, this Court stated; "We agree that a 'blanket order' of anticipatory bail should not generally be passed. This flows from the very language of the section which, as discussed above, requires the applicant to show that he has "reason to believe" that he may be arrested. A belief can be said to be f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commits, say, a murder in the presence of the public. Such an order can then become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. The power should not be exercised in a vacuum". (emphasis supplied) 48. Gurbaksh Singh, thus clearly laid down that no blanket order of bail can be passed by a Court while exercising power under Section 438 of the Code. 49. In Adri Dharan Das v. State of West Bengal, (2005) 4 SCC 303, referring to Gurbaksh Singh, this Court observed that normally, no direction should be issued to the effect that the applicant should be released on bail "whenever arrested for whichever offence whatsoever". Such order should not be passed as it would serve as a blanket to cover or protect any and every kind allegedly unlawful activity. An order under Section 438 is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrate `without unnecessary delay'. 53. The law thus, on the one hand, allows a Custom Officer to exercise power to arrest a person who has committed certain offences, and on the other hand, takes due care to ensure individual freedom and liberty by laying down norms and providing safeguards so that the power of arrest is not abused or misused by the authorities. It is keeping in view these considerations that we have to decide correctness or otherwise of the directions issued by a single Judge of the High Court. `Blanket' order of bail may amount to or result in an invitation to commit an offence or a passport to carry on criminal activities or to afford a shield against any and all types of illegal operations, which, in our judgment, can never be allowed in a society governed by Rule of Law. Statements under Section 108, Customs Act : Evidentiary value 54. As already noted in the earlier part of the judgment, Sections 107-09 confer power on Custom Officers to examine persons, to summon them to give evidence and to produce documents. 55. Section 108 which is a material provision, reads thus; Power to summon persons to give evidence and produce documents.— (1) An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; "Section 108 of the Customs Act does not contemplate any magisterial intervention. The power under the said section is intended to be exercised by a gazetted officer of the Customs Department. Sub-section (3) enjoins on the person summoned by the officer to state the truth upon any subject respecting which he is examined. He is not excused from speaking the truth on the premise that such statement could be used against him. The said requirement is included in the provision for the purpose of enabling the gazetted officer to elicit the truth from the person interrogated. There is no involvement of the magistrate at that stage. The entire idea behind the provision is that the gazetted officer questioning the person must gather all the truth concerning the episode. If the statement so extracted is untrue its utility for the officer gets lost". (emphasis supplied) 59. It is thus clear that statements recorded under Section 108 of the Act are distinct and different from statements recorded by Police Officers during the course of investigation under the Code. Imposition of condition before effecting arrest 60. The counsel for the Union of India submitted that in spite of settl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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