1. Heard Sri I.B. Singh, learned Senior counsel assisted by Sri Kuldeep Srivastva, learned counsel for applicant as well as Sri Digvijay Nath Dubey, learned counsel for respondent.
2. The present bail application under Section 438 Cr.P.C. has been filed for grant of anticipatory bail as the accused-applicant is apprehending his arrest in connection with DRI Case No. 10 of 2020, instituted by Directorate of Revenue Intelligence Zonal Unit, Lucknow, under Sections 104, 110, 111 & 135 of the Customs Act, 1962.
3. It has been submitted by learned Senior Counsel appearing on behalf of applicant that on 28.11.2020 on the basis of an information, the intelligent unit of the Customs Department received information that certain illegally procured gold is being carried out in Bus No. U.P. 70 GT 1095. The team of the Customs Officers duly intercepted the said vehicle and in the said bus, two persons were questioned, namely Sri Nagendra Heeralal Tiwari and Sri Purnanand Ramchandra Mishra. On further investigation, it was found that these two persons were carrying Swiss 1 kg Gold 995 Bars weighing about 2797 gms valued at Rs. 1,43,85,600/-. When these two persons were further interrogated they gave a statement that the said gold belong to the applicant who was a dealer in gold and has shops in Nagpur.
4. On the basis of said information, on the same day, i.e. on 28.11.2020, shops and residence of the applicant were raided. During the said raid, further silver bullion was recovered along with certain cash. On the basis of said material, the State was of the belief that the said gold has been procured by the applicant in violation of the provisions of Customs Act and is being illegally imported thereby the applicant is being investigated for commiting an offence under Section 135 of the Customs Act.
5. Sri I.B. Singh, learned Senior Counsel for applicant further submits that firstly, the applicant has already claimed that he is the owner of the said gold. He has also submitted that he is a dealer in gold and bullion jewelery and in course of his business he is continuously purchasing and selling gold and he is maintaining regular accounts of the same. He has further submitted that he is in a position to explain the ownership of the entire gold recovered during the proceedings in the instant case as well as entire silver and gold as well as cash recovered from his shop and resident at Nagpur. He further submitted that he has already given all the details of his transactions to the Customs Department which has been admitted in the counter affidavit but the Customs Department has not taken any final decision in the same and in the counter affidavit it has been stated that they are still scrutinizing the reply filed by the applicant.
6. It has been vehemently submitted that along with the said reply, the applicant has also submitted the melting certifications which may indicate as to the quality of the gold which was procured by him and subsequently converted in the jewellery.
7. Learned Senior counsel for applicant further submits that in case the department comes to a conclusion that the said gold which was seized is a foreign origin and has been illegally imported then the same would be liable to be confiscated and subsequently the report is to be forwarded to the adjudicating authority under Section 110(a) of the Customs Act where also the applicant will have an opportunity to produce all the documents to indicate his ownership of the said goods in case of confiscation.
8. He has further drawn the attention of this court to Section 127(J) of the Customs Act whereby there is a provision for settlement and it has been submitted that the applicant would be liable to pay the customs duty and fine in order to enter into a settlement.
9. Lastly, he has submitted that for the said offence the maximum punishment prescribed is 7 years under Section 135 of the Customs Act. He further submits that as per the judgment of the Hon'ble Apex Court in the case Arnesh Kumar vs. State of Bihar and another (2014) 8 SCC 273: specifically referring to Section 41 of the Cr.P.C. he has submitted that the Hon'ble Supreme Court has clearly directed the police not to make unnecessary arrest in the matter where the offence is punishable with the sentence of 7 years or less. He has referred to paragraph Nos. 5 to 10 and 12 of the said judgment. On reproduction the same reads as under:-
"5. Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.P.C. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.
6. Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short 'Cr.P.C.), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. The value of the proportionality permeates the amendment relating to arrest.
7. As the offence with which we are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years and fine, Section 41(1(b), Cr.PC which is relevant for the purpose reads as follows:
"41. When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person -
(a)x x x x x x
(b)against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely :-
(i) x x x x x
(ii) the police officer is satisfied that such arrest is necessary - to prevent such person from committing any further offence; or for proper investigation of the offence; or to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
7.1 From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.
7.2 The Law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest.
7.2 In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC.
8. An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57, Cr.PC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey.
8.1 During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 Cr.PC. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner.
8.2 Before a Magistrate authorises detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused.
8.3 The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement etc., the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused.
8.4 In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny.
9. Another provision i.e. Section 41A Cr.PC aimed to avoid unnecessary arrest or threat of arrest looming large on accused requires to be vitalised. Section 41A as inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant in the context reads as follows:
"41A. Notice of appearance before police officer.-(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41A issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice." Aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41 Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.
10. We are of the opinion that if the provisions of Section 41 Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued.
12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine."
10. It is contended that the applicant has no criminal history and there is no possibility of the applicant fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is granted anticipatory bail, he will not misuse the liberty of bail.
11. Sri Digvijay Nath Dubey, learned counsel for respondent opposes the application but could not rebut the aforesaid proposition.
12. In considering as to whether the applicant is entitled for grant of anticipatory bail, this Court must take into account and weigh the relevant considerations with the facts of the case. The relevant considerations for grant of anticipatory bail have been duly considered by the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 which reads as under:
"112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made.
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence.
(iii) The possibility of the applicant to flee from justice.
(iv) The possibility of the accused's likelihood to repeat similar or other offences.
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern.
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused.
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant.
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
13. Considering the contention of the learned counsel for parties, I am of the considered view that the applicant has already given his reply to the Customs Department which has been admitted in the counter affidavit. It has also borne from the counter affidavit that the concerned authority is considering the reply submitted by the applicant wherein he has submitted all the papers regarding gold seized by them as well as Silver and cash seized at his residence. It is also duly considered that even in case a contrary finding is being recorded by the Customs Department, the applicant still will have an opportunity before the Adjudicating Officer as well as further proceedings under the settlement.
14. The Court has considered the rival submissions and looking into the circumstances as well as annexures which have been annexed with the application for anticipatory bail as well as supplementary counter, this Court finds it a fit case to allow the present anticipatory bail application.
15. After considering the rival submissions this court finds that there is a case registered/about to be registered against the applicant. It cannot be definitely said when the police may apprehend him. After the lodging of FIR the arrest can be made by the police at will. There is no definite period fixed for the police to arrest an accused against whom an FIR has been lodged. The courts have repeatedly held that arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required. Irrational and indiscriminate arrests are gross violation of human rights. In the case of Joginder Kumar v. State of Uttar Pradesh, AIR 1994 SC 1349, the Apex Court has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief source of corruption in the police. Personal liberty is a very precious fundamental rights and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the peculiar case the arrest of an accused should be made
16. Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, the applicant may be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98. The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.
17. The anticipatory bail application is allowed.
18. This Court directs that till filing of the chargesheet, in the event of arrest, the accused-applicant Anand Navalchand Pugliya, involved in DRI Case No. 10 of 2020, instituted by Directorate of Revenue Intelligence Zonal Unit, Lucknow, under Sections 104, 110, 111 & 135 of the Customs Act, 1962, shall be released forthwith on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Arresting officer/Investigating Officer/ S.H.O. concerned on the following conditions:-
(i) That the accused-applicant shall make himself available for interrogation by police authorities as and when required and will cooperate with the investigation;
(ii). That the accused-applicant shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer; and
(iii). That the accused-applicant shall not leave India without the previous permission of the Court.
19. The papers regarding bail submitted to the police officer on behalf of the accused/applicant shall form part of the case diary and would be submitted to the court concerned along with same at the time of submission of report under Section 173(2) Cr.P.C.
20. In case there is breach of any of the above conditions or in case it is otherwise found for any other reason the bail is required to be cancelled, it shall be open for the State or the appropriate authority to move application for cancellation of bail in accordance with law.
(Alok Mathur, J.) Order Date :- 3.2.2021 Ravi/