TMI Blog2024 (2) TMI 1322X X X X Extracts X X X X X X X X Extracts X X X X ..... an be said that the applicant s apprehension that he may be arrested, is genuine. The present petitioner fails to show or display any well-founded reason to believe/apprehend that he will be arrested. As held by the Hon ble Apex Court in Shri Gurubaksh Singh Sibbia and Others [ 1980 (4) TMI 295 - SUPREME COURT] which was subsequently followed in the case of Sushila Aggarwal and others Vs. State (NCT of Delhi) and another , [ 2020 (1) TMI 1193 - SUPREME COURT] , no blanket orders can be passed to the effect that Not to Arrest the petitioner. In view of the fact that Respondent No. 1-DRI has powers to call the petitioner, by issuing summons u/s 108 of the Customs Act, the petitioner is bound to comply with the same and therefore, none of the decisions/authorities relied on by the learned Senior Advocate for the petitioner in given background of facts shall not help the petitioner s case. There are several vexed questions, viz. Whether, the present petitioner is Aakash or Abbas Gulamhusen Hariyani and as to whether, Aakash is using the identity of the petitioner or the petitioner is using the name of Aakash, and the answers to the same are needed to be found out by the pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Aakash, who, according to Mr. Satish Kumar T. is a native of Gujarat, but, is currently residing at Delhi. Mr. Satish Kumar T. also allegedly admitted that he had given the credentials, i.e. IEC. GST. Etc., of M.S.K. Engineering Works to said Mr. Aakash. According to Mr. Satish Kumar T., he also had received phone calls, inquiring about consignment of areca or beetle Nuts, from one Mr. Abbas, i.e. the present petitioner. Mr. Satish Kumar T. is also alleged to have admitted that he knew that areca or beetle Nuts were being imported, under the pretext of importing grinding wheels in the name of M.S.K. Engineering Works. Mr. Satish Kumar T. also allegedly admitted that he was promised by Mr. Aakash to be paid Rs. 10,00,000/- per container. However, according to Mr. Satish Kumar T., he has never met either Mr. Aakash, who claimed to be a native of Gujarat, or Mr. Abbas, who also claimed to be a resident of State of Gujarat. 3.3 Pursuant to the statement given by Mr. Satish Kumar T., as mentioned herein above, a private complaint is lodged by an officer of Respondent No. 1-DRI, namely Mr. Anil Kumar, before the learned Additional Chief Metropolitan Magistrate, Ahmedabad, under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pin in the commission of the alleged offence, however, to substantiate the same, there is no evidence available either with the Customs Department or Respondent No. 1-DRI. He would further submit that, except, the statement of Mr. Satish Kumar T., there is nothing on the record to implicate the petitioner. While referring to the summonses issued by Respondent No. 1-DRI, which are produced as Annexure-F to this petition, it was submitted that the petitioner has already supplied the details asked for by Respondent No. 1-DRI and despite that it is being insisted that the petitioner should appear before it in person and should give his statement and for the said purpose, summons after summons are being issued. It was, therefore, submitted that the petitioner apprehends that he will be arrested, under the pretext of recording his statement. 4.3 Referring to the affidavit-in-reply filed by and on behalf of Respondent No. 1-DRI, which is produced at Page No.-184 to this petition, it was submitted that even the affidavit filed by Respondent No. 1-DRI indicates that the petitioner is an accused in the offence in question and therefore, the petitioner has genuine apprehension that he will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR is not a condition precedent for filing the application under Section 438 of the Code and even in absence of an FIR anticipatory bail can be granted, provided that the concerned accused demonstrates that there is a reasonable apprehension that he/she will be arrested for a cognizable offence. Referring to the observations made by the Apex Court in Paragraph-37 in the case of Shri Gurubaksh Singh Sibbia and Others (Supra), it was submitted that the filing of or existence of an FIR is not a condition precedent to exercise the powers under Section 438 of the Code and if reasonable apprehension is shown by the concerned person, such powers can be exercised. 4.7 It was submitted that Respondent No. 1-DRI is relentlessly behind the petitioner, as can be seen from the fact that another FIR has already been filed against the nephew of the present petitioner, alleging that he used DRI logo on his own social media platform to give an impression to other persons that he is working with DRI and that the present petitioner is also being sought to arraigned as an accused in the said FIR. It was, therefore, prayed that this petition be allowed. 4.8 It was, further, submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligence Officer Lko. , Criminal Misc. Anticipatory Bail Application U/S 438 CR. P.C. No. 1172 of 2021, Allahabad High Court; (6) Sr. Intelligence Officer Vs. Sanjay Agarwal , Criminal Petition No. 5863 of 2022, Dated: 29.07.2022, High Court of Telengana; (7) Khalid Anwar @ Anwar Khalid V. CBI through Branch Hear New Delhi , Criminal Misc. Anticipatory Bail Application U/S. 438 CR.P.C. No. 1981 of 2023, Allahabad High Court; 5. Per contra, learned Advocate, Ms. Sancheti, appearing for Respondent No. 1-DRI referred to the order in Criminal Misc. Application No. 5176 of 2020, Dated: 25.06.2021, and submitted that the Coordinate Bench of this Court, after referring to the decision of the Apex Court in Union of India vs. Padam Narain Aggarwal and Others , reported in 2009 (1) SCC (Cri) 1, has observed that an application for anticipatory bail, against the summons issued under Section 108 of the Custom Act, is not maintainable, as the concerned person, by way of such summons, is just called for recording his statement and since, the summons is issued for this limited purpose, the concerned person is bound to comply with the same. Thereby, it was submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me and cooperate in the investigation. 5.2.1 It was submitted that the officers of Respondent No. 1-DRI are empowered to summon a person and ask him to give his statement and if required, to supply the necessary evidence or documents. 5.3 Distinguishing the judgment of Shri Gurubaksh Singh Sibbia and Others (Supra), it was submitted that issuance of Summons under Section 108 of the Customs Act to the petitioner, by no means, can be treated as a reasonable belief / apprehension that the petitioner shall be arrested and therefore, it was submitted that the decision of the Apex Court in Shri Gurubaksh Singh Sibbia and Others (Supra) shall not apply to the facts of the case on hand. 5.4 It was submitted that looking to the gravity of the offence, whereby, areca / beetle nuts weighing 75.098 Mts, having market value of Rs. 6,53,00,000/- have been imported and customs duty towards the same is evaded, the complicity of the petitioner in the commission of the alleged offence cannot be ruled out, at this stage. 5.5 It was submitted that, as per the statement given by the co-accused, Mr. Satish Kumar T., present petitioner is the kingpin, who sometimes used name and introduce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Code or under any other law for the time being in force and therefore, the Apex Court came to the conclusion that such an order was an absolute erroneous order, which was passed after the anticipatory bail application of the concerned accused person was already rejected. It was, therefore, again prayed that this petition be allowed. 8. Having heard the learned Advocates for the parties and having perused the material on record, at the outset, it can be stated that, in view of the decision of the Apex Court in the case of Shri Gurubaksh Singh Sibbia and Others (Supra), which was subsequently followed in the case of Sushila Aggarwal and others Vs. State (NCT of Delhi) and another , reported in AIR 2020 SC 831 , filing of an FIR is not a condition precedent to exercise the powers/jurisdiction under Section 438 of the Code. However, the concerned accused has to show/demonstrate that he has a reasonable apprehension or belief that he may be arrested in connection with a cognizable offence. The Apex Court has further observed that the use of the expression, Reason to Believe in Section 438(1) of the Code shows that the belief, that the applicant may be so arrested, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38. 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 39. 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. Section 108 which is a material provision, reads thus; Power to summon persons to give evidence and produce documents.- (1) Any gazetted officer of cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted in 1976(2) SCC 302. Relevant Paragraphs 5 to 9 thereof, read as under; 5. Clause (3) of Article 20 provides: No person accused of any offence shall be compelled to be a witness against himself. 6. From an analysis of this clause, it is apparent that in order to claim the benefit of the guarantee against testimonial compulsion embodied in this clause, it must be shown, firstly, that the person who made the statement was accused of any offence secondly, that he made this statement under compulsion. The phrase accused of any offence has been the subject of several decisions of this Court so that by now it is well settled that only a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in his prosecution, would fall within its ambit. 7. In R. C. Mehta v. State of West Bengal, this point came up for consideration in the context of a statement recorded by an officer of Customs in an enquiry under s. 171-A of the Sea Customs Act. One of the contentions raised was, that a person against whom such an enquiry is made is a `person accused of an offence', and on that acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrests a person and informs that person of the grounds of his arrest (which he is bound to do under Art. 221) of the Constitution for the purpose of holding an enquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence. In the case of an offence by infringement of the Sea Customs Act and punishable at the trial before a Magistrate, there is an accusation when a complaint is lodged by an officer competent in that behalf before the Magistrate . 9. The above-quoted observations are a complete answer to the contention of the appellant. In the light of these principles, it is clear that when the statement of the appellant was recorded by the Customs officer under s. 108, the appellant was not a person accused of any offence under the Customs Act, 1962. An accusation which would stamp him with the character of such a person was, levelled only when the complaint was filed against him, by the Assistant Collector of Customs complaining of the commission of offences under s. 135(a) and s. 135(6) of the Customs Act. 8.3 In the case of Naresh J. Sukhwani Vs. Union of India , r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an offence punishable under section 132 or section 133 or section 135 or section 135-A or section 136, he may arrest such person and shall, as soon as may be possible, inform him of the grounds for such arrest. Section 104(2) provides that such a person arrested under sub-section (1) shall, without unnecessary delay, be produced before a magistrate. Section 104(3) provides that a Customs Officer shall, for the purpose of releasing such arrested person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police-station has and is subject to under the Code. 8.6 In the case of Adri Dharan Das Vs. State of West Bengal , 2005 (4) SCC 303 , the Apex Court has observed that an order under Section 438 is a device to secure an individual's liberty'. it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. It is further observed as under; Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead, innocence, since he is not on the date of application for exercise of power under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ummons under Section 108 of the Custom Act is only issued for recording the evidence and the High Court cannot direct the respondent authorities not to arrest such accused, as the anticipatory application would be premature at this stage. Even the direction issued by the High Court not to arrest such accused for limited period would be illegal and against the law. 8.8 In view of the above discussion, the present petitioner fails to show or display any well-founded reason to believe/apprehend that he will be arrested. As held by the Hon ble Apex Court in a catena of decisions, no blanket orders can be passed to the effect that Not to Arrest the petitioner. In view of the fact that Respondent No. 1-DRI has powers to call the petitioner, by issuing summons under Section 108 of the Customs Act, the petitioner is bound to comply with the same and therefore, none of the decisions/authorities relied on by the learned Senior Advocate for the petitioner in given background of facts shall not help the petitioner s case. 8.9 There are several vexed questions, viz. Whether, the present petitioner is Aakash or Abbas Gulamhusen Hariyani and as to whether, Aakash is using the identity o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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