REPORTABLE

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

PADAM NARAIN AGGARWAL ETC. … RESPONDENTS

J U D G M E N T 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

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

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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)

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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

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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

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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

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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

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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

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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

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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.

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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

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“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.

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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.

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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

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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

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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

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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).

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(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

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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

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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

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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

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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

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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

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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,

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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

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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

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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

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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

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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,

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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

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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

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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

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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

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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

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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

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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.  

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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

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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.

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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

3

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

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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)

NEW DELHI,     ……………………………………………………J. OCTOBER 3, 2008.     (D.K. JAIN)

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