The provisions of Section 438 CrPC can be applied to offences contemplated under the Customs Act, 1962, and anticipatory bail can be granted to the accused in appropriate cases.

The Customs Act, 1962, is an enactment which contains provisions like Sections 106A to 110, the underlying principles of which are somewhat not having features, which may be akin to the provisions imbedded in Part IV of the Constitution (Fundamental Rights), viz., against the testimonial compulsion contemplated under Article 20, clause (3), which imbibes in itself the principles that an accused person cannot be compelled to be a witness against himself, and as such, starting fromIn re. Swarnalingam Chettiar'scase (Swarnalinga Chettiarv.Assistant Labour Inspector, Karaikudi) 1956 AIR(Mad) 165, (with respect to our agency bus transport he was plying from Devakottai Ry. Station to the town proper) dealt with by Rajamannar C.J. and Rajagopala Iyengar, J. which had been followed in a number of cases and subsequently, culminating in decisions of the Supreme Court, dealing about this testimonial compulsion, the decisions held that Article 20 is not applicable to the procedures that are adopted by an investigating officer who confronts a person who is accused of having contravened the provisions of the Customs Act, 1962, because, seen after his arrest, the contraband articles, which are the subject matter of the offence, had been seized as a result of the voluntary statement either recorded at the instance of the person from whom such objects are seized or given in writing if he is a literate person, and certainly, that statement is admissible in evidence. As a matter of fact, a copy of such statement given in writing by the person responsible, has been actually handed over to the accused person soon after the said document is taken on file by the concerned official.

2.The learned counsel appearing for the Customs submits that a statement had been recorded from a person on 8-9-1981, as a result of which two out of twenty foreign air conditioners were recovered at Tuticorin port. This court is not concerned with the merits or otherwise of such a statement or regarding the circumstances under which it came into existence at this stage, but it is only for the sake of considering the merits or demerits of the present application, this aspect of the matter has been incorporated in this order.

3.Mr. G. Krishnan, learned counsel for the petitioners submits that even according to the Customs authorities only two out of twenty foreign air conditioners had been recovered as a result of the alleged statement given by one person. He also submits that the petitioners have nothing to do with such seizures and as a matter of fact, this case has been foisted against them with some ulterior motives by the officials.

4.The learned counsel for the Customs submits that the petitioners herein made themselves scarce and only after their apprehension, the Customs authorities may be in a position to say when it may be possible for them to file a complaint against the petitioners. It is further submitted that when the matter is under investigation, it is too immature for this court to think of enlarging the petitioners on bail by invoking the provisions of Section 438 Crl. P.C.

5.Mr. G. Krishnan, learned counsel appearing for the petitioners, on the other hand, fervently submits that the provision of Section 438 Crl. P.C. has to be used in favour of the petitioners herein because the discretionary power vested in court has to be exercised judicially. It is relevant in this connection to note that it is only a statement that has been signed by the counsel for the respondent that has been filed and that counter is benefit of particulars which are absolutely necessary for deciding the merits of the present petition.

6.Now, the point for consideration in these applications is whether anticipatory bail can be granted to the petitioners herein.

It has been observed by the Supreme Court inState of Rajasthan, Jaipurv.Balchand Alias Baliay, 1977-4-S.C.C. 308 as follows -

"It is true that the gravity of the offence involved is likely to induce the petitioner to av