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DELHI HIGH COURT
YOGESHWAR DAYAL, J.
SURESH VASUDEVA
VERSUS
STATE AND ANOTHER
Cri. Misc. (Main) No. 481 of 1977,
Decided on : 5 -9 -1977.
FOREIGN EXCHANGE REGULATION ACT - ANTICIPATORY BAIL - SECTION 438 OF CRPC - APPLICABILITY - CONDITIONS FOR GRANT - INTERPRETATION OF SECTION 438(1), 438(2), 438(3) AND SECTION 35 OF THE ACT - HELD, SECTION 438(1) IS APPLICABLE TO NON-BAILABLE OFFENCES, WHETHER COGNIZABLE OR NON-COGNIZABLE, AND TO AN APPREHENDED ARREST WHETHER TO BE MADE BY A POLICE OFFICER OR BY ANY PERSON AUTHORIZED TO EFFECT ARREST - SECTION 438(1) IS NOT SUBJECT TO SECTION 438(3) - SECTION 438(3) IS A MACHINERY SECTION FOR WORKING OUT AN ORDER UNDER SECTION 438(1) - SECTION 35(3) OF THE ACT GIVES THE ENFORCEMENT OFFICER THE POWERS OF AN OFFICER IN CHARGE OF A POLICE STATION FOR THE PURPOSE OF RELEASING A PERSON ON BAIL OR OTHERWISE - ONCE THE ENFORCEMENT OFFICER BECOMES AN OFFICER IN CHARGE OF A POLICE STATION, HE BECOMES SUBJECT TO THE PROVISIONS OF THE CODE AND WOULD BE BOUND TO COMPLY WITH THE ORDER PASSED UNDER SECTION 438(1) OF THE CODE - IN THE PRESENT CASE, THE OFFENCE ALLEGED IS THE RECOVERY OF FOREIGN EXCHANGE WORTH NOT MORE THAN ELEVEN OR TWELVE HUNDRED RUPEES - THE PETITIONER HAS ALREADY BEEN RELEASED ON BAIL IN A MORE SERIOUS CASE UNDER THE CORRUPTION ACT - IT IS A FIT CASE FOR THE EXERCISE OF POWER UNDER SECTION 438(1) - THE PETITIONER SHOULD BE RELEASED ON BAIL IN THE SUM OF RS. 5,000/- WITH ONE SURETY IN THE LIKE AMOUNT, SUBJECT TO CERTAIN CONDITIONS.
Fact of the Case:
The petitioner, Capt. Suresh Vasudeva, filed an application under Section 438 of the CrPC for anticipatory bail in connection with an alleged offence under Section 56 read with Section 8(1) and Section 13(1) of the Foreign Exchange Regulation Act, 1973, for having "otherwise acquired" foreign exchange other than through an authorized agent or having imported the foreign exchange in violation of the Act. The petitioner was arrested in connection with a case registered under the Prevention of Corruption Act and was released on bail. During the investigation of the case, various types of foreign currencies were recovered from the petitioner's residence. The petitioner claimed that the foreign exchange was duly given to him under the 'permit to travel abroad' and was the unspent amount out of that. He also alleged that he was being politically victimized by the police at the instance of certain persons "including" (which probably should be "having") political influence.
Finding of the Court:
The court held that Section 438(1) of the CrPC is applicable to non-bailable offences, whether cognizable or non-cognizable, and to an apprehended arrest whether to be made by a police officer or by any person authorized to effect arrest. The court further held that Section 438(1) is not subject to Section 438(3) and that Section 438(3) is a machinery section for working out an order under Section 438(1). The court also held that Section 35(3) of the Act gives the Enforcement Officer the powers of an officer in charge of a police station for the purpose of releasing a person on bail or otherwise and that once the Enforcement Officer becomes an officer in charge of a police station, he becomes subject to the provisions of the Code and would be bound to comply with the order passed under Section 438(1) of the Code. In the present case, the court found that the offence alleged is the recovery of foreign exchange worth not more than eleven or twelve hundred rupees and that the petitioner has already been released on bail in a more serious case under the Corruption Act. The court, therefore, held that it is a fit case for the exercise of power under Section 438(1) and ordered that the petitioner be released on bail in the sum of Rs. 5,000/- with one surety in the like amount, subject to certain conditions.
Issues: 1. Whether Section 438(1) of the CrPC is applicable to non-bailable offences, whether cognizable or non-cognizable, and to an apprehended arrest whether to be made by a police officer or by any person authorized to effect arrest? 2. Whether Section 438(1) is subject to Section 438(3) of the CrPC? 3. Whether Section 35(3) of the Foreign Exchange Regulation Act, 1973, gives the Enforcement Officer the powers of an officer in charge of a police station for the purpose of releasing a person on bail or otherwise? 4. Whether once the Enforcement Officer becomes an officer in charge of a police station, he becomes subject to the provisions of the Code and would be bound to comply with the order passed under Section 438(1) of the Code? 5. Whether in the present case, it is a fit case for the exercise of power under Section 438(1) of the CrPC?
Ratio Decidendi: 1. Section 438(1) of the CrPC is applicable to non-bailable offences, whether cognizable or non-cognizable, and to an apprehended arrest whether to be made by a police officer or by any person authorized to effect arrest. 2. Section 438(1) is not subject to Section 438(3) of the CrPC. 3. Section 35(3) of the Foreign Exchange Regulation Act, 1973, gives the Enforcement Officer the powers of an officer in charge of a police station for the purpose of releasing a person on bail or otherwise. 4. Once the Enforcement Officer becomes an officer in charge of a police station, he becomes subject to the provisions of the Code and would be bound to comply with the order passed under Section 438(1) of the Code. 5. In the present case, it is a fit case for the exercise of power under Section 438(1) of the CrPC.
Final Decision: The petitioner was ordered to be released on bail in the sum of Rs. 5,000/- with one surety in the like amount, subject to certain conditions.
Capt. Suresh Vasudeva, the petitioner, has filed the present application under S. 438 of the Cr. P. C. for being granted anticipatory bail for the alleged offence under S. 56 read with S. 8 (1) and S. 13 (1) of the Foreign Exchange Regulation Act, 1973, for having "otherwise acquired" foreign exchange other than through an authorised agent or having imported the foreign exchange in violation of the Act.
2. The case of the petitioner is that the Special Police Establishment of the Fraud Squad Branch, New Delhi registered a case No. 8/77-FS (1) of 14th Aug, 1977, under S. 120-B read with Ss. 5 (2), 5 (1) (d) Of the Prevention of Corruption Act, 1947 and subsequent offence under S. 5 (2) read with Section 5(1) and 5 (2) read with S. 5 (1) (e) of the Prevention of Corruption Act against Shri R. K. Dhawan and nine others including the petitioner.
3. The petitioner was arrested in connection with that Case in Kanpur and ultimately produced in the court of the Chief Metropolitan" Magistrate, Delhi, and was released on bail by his order dated 18th, August, 1977.
4. During investigation of the above-mentioned case, the Superintendent of Police, C. B. I., New Delhi assisted by other officers reached the residence of the petitioner on 16th Aug. 1977. The petitioner was brought to his residence in custody. During the course of the search of the petitioner's residence, various types of foreign currencies relating to U.K., U. S. A., Hongkong, Singapore. Thailand and Italy were recovered. They were found in the brief-case of the petitioner. The details of the foreign Currencies allegedly recovered were mentioned in the memo prepared at the spot by the C. B. I. and a photostat copy of the memo has been filed along with the petition.
5. The case of the petitioner is that the above mentioned foreign exchange was duly given to the petitioner under the 'permit to travel abroad' and it is the unspent amount out of that. The petitioner could legally possess this currency under the Foreign Exchange Regulation Act, 1973, (hereinafter referred to as "the Act") and the rules made thereunder. No declaration is required to be made if the value does not exceed one thousand dollars in cash. It is also stated that the petitioner recently came from abroad and could legally possess this foreign currency.
6. The petitioner was directed to join the investigation of the case registered against him by the C. B. I. During the course of investigation, the police also interrogated the petitioner with regard to the foreign currency.
7. It is then stated that as per the allegations in the First Information Report, the petitioner has been closely associated with Shri R. K. Dhawan, Additional Private Secretary to the former Prime Minister of India who was also one of the accused. The petitioner is being politically victimised by the police at the instance of certain persons "including" (which probably should be "having") political influence. "
8. It is also alleged that the arrest of the petitioner in the aforesaid case was also the result of political pressure, otherwise, there was no direct allegation made against him warranting his arrest.
9. It is on these allegations that the application has been filed for the grant of anticipatory bail.
10. The grant of anticipatory bail has been opposed on behalf of the State and the C. B. I.
11. Mr. Z. A. Khalidi, on behalf of the State and the C. B. I. opposed the grant of anticipatory bail. The argument of the learned counsel proceeds like this:
It is submitted that on a reading of S. 438 (1) of the Cr.P.C, (hereinafter referred to as "the Code"), no person can apply for anticipatory bail unless a case has been actually registered against him. It is further submitted that the offence for which the petitioner has applied for anticipatory bail is punishable under S. 56 of the Act with imprisonment upto three years. In view of the provisions of Part II of Schedule I of the Code, this offence is cognizable and non-bailable but in view o
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