TMI Blog1981 (9) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... is testimonial compulsion, the decisions held that Article 20 is not applicable to the procedures that are adopted by an investigating officer who confronts a person who is accused of having contravened the provisions of the Customs Act, 1962, because, seen after his arrest, the contraband articles, which are the subject matter of the offence, had been seized as a result of the voluntary statement either recorded at the instance of the person from whom such objects are seized or given in writing if he is a literate person, and certainly, that statement is admissible in evidence. As a matter of fact, a copy of such statement given in writing by the person responsible, has been actually handed over to the accused person soon after the said document is taken on file by the concerned official. 2. The learned counsel appearing for the Customs submits that a statement had been recorded from a person on 8-9-1981, as a result of which two out of twenty foreign air conditioners were recovered at Tuticorin port. This court is not concerned with the merits or otherwise of such a statement or regarding the circumstances under which it came into existence at this stage, but it is only for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the petitioner will report himself before the police station at Baren on every fortnight." 7. It is also laid down in Balchand Jain v. State of Madhya Pradesh, A.I.R. 1977 S.C. 366 = 1977 Crl. L.J. 225, as follows - "On a reading of Section 438 Crl. P.C. and Rule 184, it can be laid down (1) that Section 438 of the Code has not been repealed or overruled by Rule 184 of the Rules but the two have to be read harmoniously without interfering with the spheres contemplated by each of those provisions. In fact, Rule 184 of the Rules is only supplemental to Section 438 of the Code and contains the guidelines which have to be followed by the Court in passing orders for anticipatory bail in relation to cases covered by Rule 184 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... get bail as a matter of right under Section 436 of the Code unless the Court complies with the conditions laid down in Rule 184, clauses (a) and (b). So far as the question of anticipatory bail is concerned that does not apply to bailable offences at all. The rule of prudence requires that notice should be given to the other side before passing a final order for anticipatory bail so that wrong order of anticipatory bail is not obtained by a party by placing incorrect or misleading facts or suppressing material facts. In future the courts will exercise this power keeping these observations in view. In emergent cases, the courts may make an interim order of anticipatory bail before issuing notice to the other side. It is clear that the intention of the Legislature in enshrining the salutary provision in Section 438 of the Code which applies only to non-bailable offences was to see that the liberty of the subject is not in jeopardy on frivolous grounds at the instance of unscrupulous or irresponsible persons or officers who may sometimes be in charge of prosecution." 8. It was laid down in Mahanthagauda v. State of Karnataka, I.L.R. 1978 Karnataka Series, 905, as follows - "On t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Section 438 of the Code would be to cases where the charge itself is of a frivolous nature. A case of this kind would be fit one to exercise jurisdiction in order to needlessly prevent the humiliation of the offender. Similarly the source from which such a charge stems has been considered of significance and where it has been levelled by unscrupulous or irresponsible persons, that would itself be a ground for consideration in the exercise of the power. Where the court can on adequate material come to a firm conclusion that the charge is totally false, it may nevertheless resort to Section 438, however, serious be the nature of the crime. Section 438 of the Code is in the nature of a shield for protecting entirely innocent persons from malicious humiliation, if the necessary conditions for its exercise are satisfied. Care had to be taken that this provision does not become a sword in the hands of the unscrupulous persons to gain time for destroying the incriminating evidence against them and to mock at the legitimate investigative processes authorised by the law. The power under Section 438 is not to be exercised in a vacuum, but only on the satisfaction of the conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cognisable cases as laid down in Chapter XII of the Code. This indeed is not the stage for invoking the known maxim of the Criminal Law that the burden of proof rests upon the prosecution. That stage arrives at the end of the investigation and in the course of the trial itself. The inception of the investigation is not a trial. Thus the petitioner must show (and the court must be wary that mere allegations of mala fides by the petitioner are inadequate) and the court must be satisfied on materials before it that the allegations of mala fides are substantial and the accusations appear to be false and groundless. It is difficult to unravel the crimes of corruption. It is harder to detect the same when it is committed by what is now a well known category of white-collar criminals. However, it is hardest to bring to book when such crime stems from the corridors of executive power and the nitches of high offices. Therefore, the courts must ever remain wary of throttling and in any way impeding the legitimate investigative process in such cases. In cases of serious economic offences involving blatant corruption at the higher rungs of executive and political power, the larger interest of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry bail should or should not be granted and secondly, because the intention was to allow the higher courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail. It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrest asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail is generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non-bailable offence asks for bail. In the latter situation, adequate data is available to the court or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in Section 437. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested." 11. Though the principles laid down in the above decisions were with respect to penal offences contemplated under the Penal Code, yet, this court feels that the principles imbedded therein can be equally applicable to the offences contemplated under the Customs Act, 1962, also and as such the provisions of Section 438 Crl. P. C. can certainly be applied with respect to a position that exists in this case. 12. On a careful and anxious consideration of the entire submissions that have been made with respect to the various allegations made in the petition as well as the counters, this court feels that at this stage the petitioners can be enlarged on bail, of course by imposing some stringent conditions. 13. The petitioners in Crl. M. P. 4970 and 4971 of 1981 will be enlarged on bail in the event of their arrest, on their each executing a bond for Rs. 5000 each with two sureties for alike sum to the satisfaction of the Sub-Divisional Judicial Magistrate, Tuticorin, on condition that they should report themselves before the respondent viz., the Assistant Collector of Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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