Union of India Vs.
Padam Narain Aggarwal Etc. [2008] INSC 1704 (3 October 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1575 OF 2008
ARISING OUT OF SPECIAL LEAVE PETITION (CRL) NO. 2075 OF 2007 UNION OF INDIA ...
APPELLANT VERSUS
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.
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.
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, 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 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.
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.
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)
...........................................................J.
NEW
DELHI
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