IMPORTANT POINT
Order of grant of anticipatory bail without sufficient and reasonable opportunity to investigating agency to file objections cannot be sustained.

ORDER

Heard learned counsel for the parties.

Leave granted.

2. Apprehending an arrest by the appellants for an offence under Section 104 of the Customs Act, 1962, the respondents moved an application under Section 438 of the Code of Criminal Procedure seeking anticipatory bail before the High Court of Judicature at Bombay. The said application came up before the Vacation Bench of the High Court on 2.1.2002 when the High Court granted circulation immediately for the next day. The appellants contend that a copy of the application was served on the second appellant at about 3.30 p.m. on 2.1.2002 and the matter was taken up for hearing by the court on 3.1.2002. The appellants also contend that on behalf of the second appellant a prayer was made for grant of sometime to file an affidavit in reply by giving an undertaking to the court not to arrest the petitioners before the High Court (respondents herein) in the meanwhile. The appellants further submitted that they brought to the notice of the High Court incriminating evidence against the respondents. However, the High Court by its order dated 3.1.2002 itself allowed the petition and granted anticipatory bail on certain terms and conditions.

3. It is against the said impugned order of the High Court the appellants are before us.

4. On behalf of the respondents it is submitted that appellants had sufficient notice of the application filed by them since in a connected matter the same court had already granted bail hence they had knowledge that an anticipatory bail on behalf of these respondents also would be moved. They also contended learned counsel for the appellants did not seriously oppose the application therefore no complaint could be made by the appellants at this stage against the grant of anticipatory bail to them. They also submitted that so far as first respondent is concerned he was subsequently detained under a preventive detention law and has completed the said period of detention and he has been regularly cooperating with the investigating agency hence there may not be any need at all for his custodial interrogation. It was also argued that the second respondent is a lady who was not at all involved in the business of the firm hence her custodial interrogation is also wholly unnecessary. Similar argument has been advanced on behalf of 3rd respondent. Learned counsel appearing for the respondent further argued that the officials of the Directorate of Revenue Intelligence (2nd appellant herein) have no authority in law to seek custodial interrogation therefore the above appeal ought to be dismissed.

5. We are not inclined to go into the merits of the claim of the parties to grant or not to grant anticipatory bail in this case. After hearing the arguments of the parties, we think it appropriate to dispose of this appeal solely on the ground that the procedure adopted by the High Court was not correct on facts and circumstances of this case. It is to be noted that a copy of the petition for grant of anticipatory bail was admittedly served on the 2nd appellant only in the afternoon of 2.1.2002. Though the respondents herein has denied that learned counsel for the 2nd appellant had sought time before the High Court, we do not find any such specific denial in the counter affidavit here. That apart, we think it highly improbable that the learned counsel for the 2nd appellant would have agreed to argue the matter without filing a proper objection to the bail application. We also notice from the record that the 1st respondent was not even in India on that day when the application for bail was granted and an undertaking was also offered not to arrest the respondents till the High Court passed the order. Inspite of the same, the anticipatory bail application was decided by the High Court on the very next date observing that : "Obviously this case is pertaining to examination of documents and, therefore, this court does not find that custodial interrogation is necessary." We think