Supreme Court of India
Union Of India vs Padam Narain Aggarwal Etc. on 3 October, 2008
Bench: C.K. Thakker, D.K. Jain
IN THE SUPREME COURT OF INDIACRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1575 OF 2008 ARISING OUT OF
SPECIAL LEAVE PETITION (CRL) NO. 2075 OF 2007
UNION OF INDIA ... APPELLANT
VERSUS
PADAM NARAIN AGGARWAL ETC. ... RESPONDENTS
J U D G M E N T
C.K. THAKKER, J.
1. Leave granted.
2. The present appeal is filed by the
Union of India against the judgment and order
dated November 30, 2006 passed by the High
Court of Judicature for Rajasthan (Jaipur
Bench) in S.B. Criminal Misc. Bail Application
Nos. 7572 and 7573 of 2006 whereby certain
directions have been issued by a Single Judge 2
to the Customs Authorities. The High Court held
that since the respondents herein 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 and non-existent entities
and at the declared address, no such firms or
business entities were found. The accused
thereby fraudulently availed drawback amounting
to Rs.75 lakhs approximately.
4. M/s B.A. International is a
partnership firm and is controlled by Padam
Narain Agarwal-respondent No. 1. Asha Rani
Aggarwal, respondent No. 2 is the wife of Padam
Narain Aggarwal. Other partners of the said
firm are family members of Padam Narain
Aggarwal. The overseas inquiry conducted
through Central Board of Direct Taxes (CBDT)
and Director of Revenue Intelligence (DRI) 4
disclosed export of readymade garments under
two shipping bills and receipt of foreign
exchange. But in fact, no such export had been
made either by Padam Narain Aggarwal or by M/s
B.A. International.
5. Investigation also revealed that false
and fabricated bills were prepared in order to
mislead Investigating Agencies. Income Tax
Department, hence, disallowed the benefit of
exports said to have been earned by M/s B.A.
International against the shipping bills as
claimed by the partnership firm under Section
80 HHC of the Income Tax Act, 1961 by treating
the remittance as bogus export proceeds.
Departmental proceedings
6. Proceedings were initiated by the
Customs Department under the Customs Act, 1962
(hereinafter referred to as `the Act). The
respondents were issued summons to appear on
September 15, 16, 22, 25, 29 and on October 6,
11, 17 and 26, 2006, so as to enable the 5
Department to investigate the case. The
respondents, however, did not join the
investigation and there was total non-co-
operation by them.
Criminal proceedings
7. In view of non-co-operation by the
respondents, complaints were filed by the
Custom Authorities in a competent Court on
September 16, 2006 and November 17, 2006 for
commission of offences punishable under
Sections 174 and 175, Indian Penal Code, 1860.
Application for anticipatory bail
8. The accused came to know about the
filing of complaints. They, therefore, made
applications for anticipatory bail before the
District and Sessions Court, Jaipur. The
learned Judge, however, dismissed the
applications by an order dated November 22,
2006. The accused approached the High Court of 6
Rajasthan (Jaipur Bench) and as stated above,
the applications were disposed of by the High
Court directing the Customs Authorities not to
arrest the respondents of any 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 counsel for the
parties.
13. The learned Addl. Solicitor General,
appearing for Union of India contended that the
order passed by the High Court is illegal and
erroneous. The counsel submitted that once the
High Court held that the respondents were
merely summoned under Section 108 of the Act to
give statements in the inquiry and anticipatory
bail applications were premature, no further
direction could have been issued. The High
Court rightly directed the respondents to 8
appear before the Customs Authorities on
December 4, 2006 at 11.00 a.m. To that extent
the Union is not aggrieved.
14. The learned counsel, however,
vehemently contended that the direction to the
Customs Authorities not to arrest the
respondents even if they had committed any
non-bailable offence without ten days prior
notice to them is totally illegal and unlawful.
No such order could have been passed by the
Court. It was submitted that on two counts the
order is illegal; (i) it is a blanket order of
anticipatory bail in respect of `any non-
bailable offence'; and (ii) a direction to
issue ten days prior notice before arrest is
unknown to law. It was, therefore, submitted
that the order deserves to be set aside by
allowing the Customs Authorities to take
appropriate proceedings in accordance with law.
15. The learned counsel for the
respondents, on the other hand, supported the 9
order passed by the High Court. It was
submitted that the High Court felt that since
only summons was issued to the respondents for
recording statements in inquiry, anticipatory
bail applications were premature and High Court
rightly disposed them of on that ground. A
direction was also issued to the respondents
herein to appear before the Customs Authorities
on a particular day. However, with a view to
protect interest of the respondents, the High
Court directed the authorities not to arrest
them before issuing prior notice of ten days.
In exercise of discretionary power, the High
Court issued the above direction which may not
be interfered with in exercise of discretionary
jurisdiction under Article 136 of the
Constitution.
High Court's directions not in accordance with law
16. Having heard the learned counsel for
the parties and having given anxious
consideration to the controversy raised and the 1
proceedings initiated against the respondents,
we are of the view that no such order could
have been 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)
deals with offences and prosecutions.
Power to arrest
21. Having noticed the relevant provisions
of the Act, let us now consider ambit and scope
of power of arrest.
22. The term "arrest" has neither been
defined in the Code of Criminal Procedure, 1973
nor in the Indian Penal Code, 1860 nor in any
other enactment dealing with offences. The
word "arrest" is derived from the French word 1
"arrater" meaning "to stop or stay". It
signifies a restraint of a person. "Arrest" is
thus a restraint of a man's person, obliging
him to be obedient to law. "Arrest" then may be
defined as "the execution of the command of a
Court of Law or of a duly authorized officer".
23. Sections 41-44 and 46 of the Code of
Criminal Procedure, 1973 deal with arrest of a
person. Section 41 empowers a Police Officer
to arrest any person without warrant. Section
42 deals with the power of a Police Officer to
arrest any person who in the presence of such
Police Officer has committed or has been
accused of committing a non-cognizable offence
and refuses to give his name and residence or
gives a name or residence which such officer
has reason to believe to be false. Section 43
enables a private person to arrest any person
who in his presence commits a non-cognizable
offence, or is a proclaimed offender. Section
44 deals with cases of arrest by a Magistrate.
Section 46 lays down manner of arrest. 1
24. So far as the Customs Act, 1962 is
concerned, the power to arrest is contained in
Section 104 thereof. It reads thus;
Power to arrest.--(1) If an officer of customs empowered in this behalf by general or special order of the Commissioner of Customs has reason to believe that any person in India or within the Indian customs waters has committed an offence punishable under section 132 or section 133 or section 135 or section 135A or section 136, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.
(2) Every person arrested under sub- section (1) shall, without unnecessary delay, be taken to a magistrate.
(3) Where an officer of customs has arrested any person under sub-section (1), he shall, for the purpose of releasing such 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 the2Code of Criminal Procedure, 1898 (5 of 1898).
(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 arrest that the
order granting anticipatory bail becomes
operative.
27. It was also observed that the power of
granting `anticipatory bail' is extraordinary
in character and only in exceptional cases
where it appears that a person is falsely
implicated or a frivolous case is launched
against him or "there are reasonable grounds
for holding that a person accused of an offence
is not likely to abscond, or otherwise misuse
his liberty while on bail" that such power may
be exercised. Thus, the power is `unusual in
nature' and is entrusted only to the higher
echelons of judicial service, i.e. a Court of
Session and a High Court.
28. The Code of Criminal Procedure, 1898
(old Code) did not contain specific provision
corresponding to Section 438 of the present 1
Code of 1973. Under the old Code, there was a
sharp difference of opinion amongst various
High Courts on the question whether a Court had
inherent power to make an order of bail in
anticipation of arrest. The preponderance of
view, however, was that it did not have such
power. The Law Commission of India considered
and question and recommended to introduce
express provision by observing as under;
"The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully considered by us. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to' implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his 1
liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.
We recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at 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 could be granted. But we found that it may not be
practicable to exhaustively enumerate those conditions; and moreover, the laying down of such conditions may be construed as prejudging (partially at any rate) the whole case. Hence we would leave it to the discretion, of the; court and prefer not to fetter such discretion in the statutory provision itself. Superior Courts will, undoubtedly, exercise their discretion properly, and not make any observations in the order granting anticipatory bail which will have a tendency to prejudice the fair trial of the accused".
[Law Commission of India, Forty-first Report, Vol. 1, p.32, para 39.9.]
29. The suggestion of the Law Commission
was accepted by the Central Government and in 1
the Draft Bill of the Code of Criminal
Procedure, 1970, Clause 447 conferred an
express power on the High Court and the Court
of Session to grant anticipatory bail.
30. The Law Commission again considered
the issue and stated;
"The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission. We agree that this would be a useful addition,
though we must add that it is in very exceptional cases that such a power should be exercised.
We are further of the view that
in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor. The initial order should only be an interim one. Further, the relevant section should make it clear that the direction can be issued only for reasons to be
recorded, and if the court is satisfied that such a direction is necessary in the interests of justice.
It will also be convenient to
provide that notice of the interim order as well as of the final orders 2
will be given to the Superintendent of Police forthwith".
[Law Commission of India, Forty-eighth Report, para 31]
31. Keeping in view the reports of the Law
Commission, Section 438 was inserted in the
present Code. Sub-section (1) of Section 438
enacts that when any person has reason to
believe that he may be arrested on an
accusation of having committed a non-bailable
offence, he may apply to the High Court or to
the Court of Session for a direction that in
the event of his arrest he shall be released on
bail, and the Court may, if 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, AIR1978 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
it would be difficult to enumerate the 2
conditions under which anticipatory 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.
36. The Court stated;
"Generalizations on matters which rest on discretion and the attempt to
discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher Courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by Courts
judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take 2
these possibilities in its stride and to meet these challenges".
(emphasis supplied)
37. According to this Court, therefore,
discretionary power conferred by the
Legislature on higher judiciary cannot be put
in a straight-jacket formula. Such power must
be exercised by the Court keeping in view facts
and circumstances of an individual case.
38. Speaking for the Court, Chandrachud,
C.J. stated;
"Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait- jacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an
imperfect awareness of the needs of new situations. Life is never static and every situation has 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 been `misused by
rich and influential people'. The Committee, 2
however, opined to retain the provision subject
to two conditions;
(i) Public Prosecutor should be heard by
the court before granting an
application for anticipatory bail;
and
(ii) Petition for anticipatory bail
should be heard only by the court of
competent jurisdiction.
40. It may be stated that Section 438 has
been amended by the Code of Criminal Procedure
(Amendment) Act, 2005 which now provides for
hearing of Public Prosecutor before granting an
application for anticipatory bail. Sub-sections
(1A) and (1B) also provide for notice and
presence of applicant in the Court seeking
anticipatory bail. The said provisions,
however, have not been brought into force so
far.
41. In Gurbaksh Singh, this Court also
held that before power under sub-section (1) of
Section 438 is exercised, the Court must be 2
satisfied that the applicant invoking the
provision of anticipatory bail has `reason to
believe' that he is likely to be arrested for a
non-cognizable offence.
42. The Court stated;
"Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has "reason to believe" that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief, for which reason it is not enough for the applicant to show that he has some sort of a vague
apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively, because it is then alone that the Court can determine whether the applicant has reason to believe that he may be so arrested. Section 438 (1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as
2
large as, at any rate, the adult
populace. Anticipatory bail 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 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 founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever." That is what is meant by a 'blanket order' of anticipatory bail, an order which serves as a blanket to cover or
protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had. The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But 2
specific events; and facts must be disclosed by the applicant in order to enable the court to judge of the
reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section". (emphasis supplied)
46. The Court also stated that apart from
the language of the statute, there is an
important principle involved in the insistence
of the fact that the direction under Section
438(1) must be clear and specific and not vague
and general.
47. The Court stated;
"Apart from the fact that the very language of the statute compels this construction, there is an important principle involved in the insistence that facts, on the basis of which a direction Under Section 438(1) is sought, must be clear and specific, not vague and general. It is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to investigate into crimes reported to them can be avoided. A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, 3
regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he 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 3
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 accusations likely or unlikely.
50. The Court proceeded to state;
"Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance to maintain law and order in the locality. For these or other reasons, arrest may become inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in 3
an application under Section 438 of the Code. The role of the investigator is well-defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code". (emphasis
supplied)
Safeguards against abuse of power
51. From the above discussion, it is amply
clear that power to arrest a person by a Custom
Officer is statutory in character and cannot be
interfered with. Such power of arrest can be
exercised only in those cases where the Custom
Officer has `reason to believe' that a person
has been guilty of an offence punishable under
Sections 132, 133, 135, 135A or 136 of the Act.
Thus, the power must be exercised on objective
facts of commission of an offence enumerated 3
and the custom officer has reason to believe
that a person sought to be arrested has been
guilty of commission of such offence. The
power to arrest thus is circumscribed by
objective considerations and cannot be
exercised on whims, caprice or fancy of the
officer.
52. The section also obliges the Custom
Officer to inform the person arrested of the
grounds of arrest as soon as may be. The law
requires such person to be produced before a
Magistrate `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 3
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) Any gazetted officer of customs duly empowered by the Central Government in this behalf, shall have power to
summon any person whose attendance he 3
considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making under this Act.
(2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain
description in the possession or under control of the person summoned.
(3) All persons so summoned shall be bound to attend either in person or by an authorized agent as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject, respecting which they are examined or make statements and produce such documents and other things as may be required;
Provided that the exemption under Section 132 of the Code of Civil
Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section.
(4) Every such inquiry as aforesaid shall be deemed to be a judicial
proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860)
56. This section does not contemplate
magisterial intervention. The power is
exercised by a Gazetted Officer of the
Department. It obliges the person summoned to 3
state truth upon any subject respecting which
he is examined. He is not absolved from
speaking truth on the ground that such
statement is admissible in evidence and could
be used against him. The provision thus
enables the officer to elicit truth from the
person examined. The underlying object of
Section 108 is to ensure that the officer
questioning the person gets all the truth
concerning the incident.
57. As held by Constitution Bench of this
Court in Ramesh Chandra Mehta v. State of West
Bengal, (1969) 2 SCR 461, a person called upon
to make a statement before the Custom
Authorities cannot be said to be an accused of
an offence. It is, therefore, clear that if a
person is called upon to make a statement under
Section 108 of the Act and summon is issued for
the said purpose, he is bound to comply with
such direction. This view has been reiterated
in several cases thereafter.
3
58. In Assistant Collector of Central
Excise, Rajamundry v. Duncan Agro Industries
Ltd., (2000) 7 SCC 53, this Court stated;
"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 3
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 settled law on the
point, the directions issued by the High Court
have made the statutory provisions ineffective,
nugatory and meaningless. Even if on the basis
of statements of the respondents, the Custom
Authorities are satisfied that the respondents
had committed non-bailable offence and in
exercise of statutory power, they could be
arrested, the directions of the High Court will
come in the way of the Authorities and will
prevent them from exercising the power of
arrest without complying the conditions imposed
by the Court. No such condition on the exercise
of statutory power could have been imposed by
the High Court and since they are not in
consonance with law, they are liable to be set
aside.
3
61. The counsel, in this connection,
invited our attention to a decision of this
Court in State of Maharashtra v. Mohd. Rashid
& Anr., (2005) 7 SCC 56. In that case, the
High Court had issued a direction to the effect
that if any crime is registered against M in
future with a particular Police Station within
three years, he shall not be arrested in
connection therewith, except after service of
four working days' advance notice in writing to
him.
62. Describing the order as `blanket',
this Court held that, no such direction could
have been issued by the High Court. The order
was, therefore, set aside. The Court, however,
observed that if a false case is registered
against M, he can challenge it in an
appropriate forum.
Conditions not lawful
63. In the case on hand, the respondents
were only summoned under Section 108 of the Act 4
for recording of their statements. The High
Court was conscious and mindful of that fact.
It, therefore, held that applications for
anticipatory bail, in the circumstances, were
pre-mature. They were, accordingly, disposed
of by directing the respondents to appear
before the Custom Authorities. The Court,
however, did not stop there. It stated that
even if the Custom Authorities find any non-
bailable offence against the applicants
(respondents herein), they shall not be
arrested "without ten days prior notice to
them.
64. In our judgment, on the facts and in the
circumstances of the present case, neither of the
above directions can be said to be legal, valid or
in consonance with law. Firstly, the order passed
by the High Court is a blanket one as held by the
Constitution Bench of this Court in Gurbaksh Singh
and seeks to grant protection to respondents in
respect of any non-bailable offence. Secondly, it 4
illegally obstructs, interferes and curtails the
authority of Custom Officers from exercising
statutory power of arrest a person said to have
committed a non-bailable offence by imposing a
condition of giving ten days prior notice, a
condition not warranted by law. The order passed
by the High Court to the extent of directions
issued to the Custom Authorities is, therefore,
liable to be set aside and is hereby set aside.
Final order
65. For the foregoing reasons, the appeal
filed by the Union of India is partly allowed
and the directions issued and conditions imposed
by the High Court on the Custom Authorities are
hereby set aside.
66. Ordered accordingly.
............................................................J. (C.K. THAKKER)
NEW DELHI, ............................................................J.
OCTOBER 3, 2008. (D.K. JAIN)
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