2008 Supreme(SC) 1477

2008(7) Supreme 165
SUPREME COURT OF INDIA
(From Rajasthan High Court)
C.K. Thakker and D.K. Jain, JJ.
Union of India — Appellant
versus
Padam Narain Aggarwal Etc. — Respondents
Criminal Appeal No. 1575 of 2008
Arising Out of Special Leave Petition (Crl.) No. 2075 of 2007
Decided on : 03-10-2008

IMPORTANT POINTS
No blanket order of bail can be passed by a Court while exercising power under Section 438 of the Code.
Power to arrest a person by a Custom Officer is statutory in character and cannot be interfered with.

Headnote:(a)Words and Phrases – Arrest – “Arrest” may be defined as “the execution of the command of a Court of Law or of a duly authorized officer”. (Para 22)

       (b)Code of Criminal Procedure, 1973 – Section 438 – Anticipatory bail – 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 – 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. (Para 26)

       (1976) 4 SCC 572 – Relied upon.

       (c)Code of Criminal Procedure, 1973 – Section 438 – 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 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. (Paras 34 and 35)

       (1980) 2 SCC 565 – Relied upon.

       AIR 1978 P & H 1 : 1978 Crl LJ 20 (FB) – Referred.

       (d)Code of Criminal Procedure, 1973 – Section 438 – The direction under Section 438(1) must be clear and specific and not vague and general – No blanket order of bail can be passed by a Court while exercising power under Section 438 of the Code – Therefore, normally no direction should be issued to the effect that the applicant should be released on bail “whenever arrested for whichever offence whatsoever”. (Paras 46, 48 and 49)

       (1980) 2 SCC 565; (2005)4 SCC 303 – Relied upon.

       (e)Customs Act, 1962 – Section 104 – Power to arrest a person by a Custom Officer is statutory in character and cannot be interfered with. (Para 51)

       (f)Customs Act, 1962 – Section 104 – The provision allows a Custom Officer to exercise power to arrest a person who has committed certain offences – On the other hand, it 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. (Para 53)

       (g)Customs act, 1962 – Section 108 – A person called upon to make a statement before the Custom Authorities cannot be said to be an accused of an offence – Statements recorded under Section 108 are distinct and different from statements recorded by Police Officers during the course of investigation under Cr. P.C. (Paras 57 and 59)

       (1969) 2 SCR 461; (2000) 7 SCC 53 – Relied upon.

       (h)Code of criminal Procedure, 1973 – Section 438 – High court even though declaring the anticipatory bail application as premature passing a blanket order granting protection to respondents in respect of any non-bailable offence and further imposing a condition of giving ten days prior notice – Such order illegally obstructs, interferes and curtails the authority of Custom Officers from exercising statutory power of arrest. (Para 64)

       (2005) 7 SCC 56 – Relied upon.

       Facts of the case :

       1.On the basis of information received from the Income Tax Department on September 15, 2006, investigation was conducted and search operation was carried out by Director of Revenue Intelligence 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.

       2.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.

       3.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 Department to investigate the case. The respondents, however, did not join the investigation and there was total non-co-operation by them.

       4.Therefore, 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.

       5.The accused 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.

       6.The accused approached the High Court of Rajasthan which disposed of the applications directing the Customs Authorities not to arrest the respondents of any non-bailable offence without ten days prior notice to them.

       Finding of the Court :

       Impugned order is illegal.

       Result : Appeal partly allowed.