Holding

The Supreme Court held that while anticipatory bail applications were premature, the High Court's blanket direction prohibiting arrest without ten days' notice was illegal and was set aside.

Summary

The Union of India initiated customs proceedings against Padam Narain Agarwal and others for alleged export fraud, issuing summons under Section 108 of the Customs Act to record their statements. The respondents, refusing to cooperate, were later charged with offences under Sections 174 and 175 of the IPC, and they applied for anticipatory bail, which was dismissed by the trial court. The Rajasthan High Court held the bail applications premature and, while directing the respondents to appear before customs officials, issued a blanket order that they could not be arrested for any non‑bailable offence without ten days' prior notice. The Supreme Court affirmed that the anticipatory bail applications were indeed premature but struck down the High Court’s notice‑requirement as illegal, holding that such a blanket direction curtails the statutory power of arrest under Section 104 of the Customs Act. It clarified that statements made under Section 108 are not admissible against the accused and reiterated the limited, discretionary nature of Section 438 CrPC. Consequently, the appeal was partly allowed and the High Court’s directions were set aside.

Issues considered

The applicability of anticipatory bail under Section 438 CrPC when the respondents were only summoned under Section 108 of the Customs Act.
Whether a High Court can impose a blanket condition that customs authorities must give ten days' notice before arresting a person for a non‑bailable offence.
The evidentiary value of statements recorded under Section 108 of the Customs Act.
The scope and limits of judicial discretion in granting anticipatory bail, particularly the prohibition of blanket orders.
The statutory power of arrest under Section 104 of the Customs Act and its interference by court orders.

Legislation cited

Code of Criminal Procedure, 1973s. 41, s. 42, s. 43, s. 438, s. 44, s. 46
Customs Act, 1962s. 104, s. 107, s. 108, s. 109
Indian Penal Code, 1860s. 174, s. 175

Subjects

anticipatory bailSection 438 CrPCCustoms ActSection 108arrestblanket orderjudicial discretionstatutory power of arrestnon‑cognizable offencecriminal procedure

Judgment

[2008) 14 S.C.R. 179

>--.,, UNION OF INDIA A
v.
PADAM NARAIN AGGARWAL ETC.
(Criminal Appeal No. 1575 of 2008)
OCTOBER 3, 2008
B
[C.K. THAKKER AND D.K. JAIN, JJ.]
~-
Code of Criminal Procedure, 1973 - s. 438
Anticipatory bail - Grant of by Courts of Law - Explained
- Departmental proceedings by Customs Authorities - c
Summons issued to accused to participate in investigation -
Non-cooperation by the accused - Initiation of criminal
proceedings at the instance of Customs Authorities - Accused
seeking anticipatory bail - High Court holding the application
as pre-mature anti ordering the accused to appear before the D
(
Authority- However, it directed the Customs Authorities not to
--< arrest the accused without ten days prior notice if accused found
to have committed non-bailable offence - Held: High Court
rightly held that the application for anticipatory bail was
premature - The statements recorded u/s 108 of Customs Act E
cannot be used against the accused - However, directions
issued to Customs Authorities are illegal and invalid in as
much it grants blanket protection to the accused and curtails
the statutory power of the Authority- Exercise of power to grant
anticipatory bail is unusual and discretionary - Courts to F
~
exercise such power only when it has reason to believe that
the accused is likely to be arrested for a non-cognizable
offence - Order granting anticipatory bail comes into operation
only after the accused is arrested - Customs Act, 1962 - ss.
104 and 108.
G
Words and Phrases:
__..-·1

'Anticipatory bail' and 'arrest' - Meaning of.

179 H
180 SUPREME COURT REPORTS [2008] 14 S.C.R.

A Customs department initiated proceedings under
Customs Act, against the respondent. Summons were
issued to the respondent so as to enable the Department
to investigate the case. Since the respondent did not co-
operate, Customs. Authorities filed complaints for
B commission of offences u/ss. 17 4 and 175 IPC.
Respondents filed applic.ations see~ing anticipatory bail
and the same were dismissed. Respondent approached
High Court, and it held that $ince the respondents were
mere.ly summoned u/s. 108 of Customs Act, applications
c for anticipatory bail were pre-mature. High Court ordered
the respondents to appear before the Customs Authorities.
However, it directed ~hat if Customs Authorities found that
any non-bailable .offence had been committed by
n~spondents, they shall not arrest the respondents without'
(} ten days prior notice. Hence t~e present j'lppeal.
·Partly· allowing the appeal, the Gourt
HELD: 1.1 The respondents were only summoned
under Section tOB of Customs Act, 1962 for. recording of
their statements.' The High' Court was conscious and'
E mindful of ttiat fact. h, therefore, held that applications for
anticipatory baii, in Jhe circumstances, were pre~mature.
[Para 63] [205, B] ·
1.2 Statements recorded ·u/s. 108 of Customs Act are
F, distinct and different from statements recorded by Police
Officers during the course of investigation. under Cr.P.C.. \~
Section · 108 does not contemplate .magisterial
intervention. The power is exercised by a Gazetted Officer
of~the Department. It obliges the person summoned to
G 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
H underlying object of Section 108 is to ensure that the
UNION OF INDIA v. PADAM NARAIN 181
AGGARWAL ETC.
,.., officer questioning the person gets all the truth concerning A
the incident. [Paras 56 and 59] [204,B; 203,B-C]
Ramesh Chandra Mehta v; State of West Bengal, (1969)
2 SCR 461- followed
Assistant Collector of Central Excise, Rajamundry v. B
Duncan Agro Industries Ltd., (2000) 7 SCC 53- relied on
2.1 The order passed by the High Court to the extent
of directions issued to the Custom Authorities is liable to
be set aside. On the facts and in the circumstances of the
present case, the directions cannot be said to be legal, c
valid or in consonance with law. Firstly, because the order
passed by the High Court is a blanket one and seeks to
grant protection to respondents in respect of any non-
bailable offence. Secondly, becaus·e it illegally obstructs,
interferes and curtails the authority of Custom Officers D
( from exercising statutory power to 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. [Paras 63 and 64] [205,F; 205,D-E]
2.2 Anticipatory bail means a bail in anticipation of E
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 that in the event of arrest,
F
J 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. [Para 26] [190,G-H; 191,A]
2.3 The power of granting 'anticipatory bail' is
G
extraordinary in character and only in exceptional cases
......-·i 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
H
182 SUPREME COURT REPORTS [2008) 14 S.C.R.

A his liberty while on bail" that such power may be exercised. -r--·
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. [Para 27] [191,B-C]
2.4 Discretionary power conferred by the Legislature
B on higher judiciary cannot be put in a straight-jacket
form.ula. Such power mu~t be exercised by the Court
keeping in view facts and circumstances of an individual
case. Before power under sub-section (1) of Section 438
Cr.P.C. is exercised, the Court must be satisfied that the
c applicant invoking the provision of anticipatory bail has
'reason to believe' that he is likely to be arrested for a non-
cognizable offence. 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
D
Section 438 Cr.P.C. is not satisfied and there is no reason
to believe that the applicant is likely to be arrested for ' 'r
I

commission of a non-bailable offence, the Court has no
power to grant anticipatory bail. No blanket order of bail
can be passed by a Court while exercising power under
E Section 438 Cr.P.C. [Paras 37, 41, 43 and 48] [195,F; 197,B;
198,A-B; 200,B]
2.5 An order under Section 438 Cr.P.C. 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
F of accusations likely or unlikely. 'Blanket' order of bail may \
amount to or result in an invitation to commit an offence or t,
a passport to carry on criminal activities or to afford a shield
against any and all types of illegal operations, which can
never be allowed in a society governed by Rule of Law.
G [Paras 49 and 53] [200,D; 201,H; 202,A]
Gurbaksh Singh Sibbia and Ors. v. State of Punjab,
(1980) 2 sec 565-- followed
Balchand Jain v. State of MP (1976) 4 SCC 572; State
H of Maharashtra v. Mohd. Rashid and Anr (2005) 7 SCC 56;
UNION OF INDIA v. PADAM NARAIN 183
AGGARWAL ETC.

Adri Oharan Das v. State of West Bengal, (2005) 4 SCC 303- A
relied on
Law Commission of India, Forty-first Report, Vol. 1, p.32,
para 39.9.; Law Commission of India, Forty-eighth Report,
para 31; Report of 'Malimath Committee on Reforms of
Criminal Justice System'- referred to B
2.6 The term "arrest" has neither been defined in the
Cr.P.C. nor in IPC nor in any other enactment dealing with
offences. The word "arrest" is derived from the French
word "arrater'' meaning "to stop or stay". It signifies a c
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". [Para 22]
[189,C-D]
D
/
2. 7 The 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 E
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 and the Custom
Officer has reason to believe that a person sought to be
I arrested has been guilty of commission of such offence. F
The power to arrest thus is circumscribed by objective
considerations and cannot be exercised on whims,
caprice or fancy of the officer. [Para 51] [201,C-E]
2.8 The law, on the one hand, allows a Custom Officer
to exercise power to arrest a person who has committed G
,_.,~ 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. [Para
53] [201,F-G] H
184 SUPREME COURT REPORTS [2008] 14 S.C.R.

A CASE LAW REFERENCE
(1976) 4 sec 572 Relied on Para 26
(1980) 2 sec 565 Followed Para 34
(2005) 4 sec 303 Relied on Para 49·
B (1969) 2 SCR 461 Followed Para 57
(2000) 1 sec 53 Relied on Para 58 I
\----

(2005) ·1 sec 56 Relied on Para 61
CRIMINALAPPELLATE JUR.ISDICTION: Criminal Appeal
C No. 1575 of 2008
From the final Judgment and Order dated 30.11.2006 of
the High Court of Rajasthan, at Jaipur Bench, jaipur in S.Ba. Cr.
Misc. Bail Application Nos. 7572 and 7573 of 2006
o Gopal Subramanium, ASG., Alka Sharma and B. Krishna
Prasad for the Appellant. ·
Rupesh Kumar for the Respondent.
The Judgment of the Court was delivered by
E 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. ~rim.inal Misc. Bail Application Nos. 7572 and 7573 of
F 2006whereby certain directions have b~en issued by a Single
Judge to the Customs Authorities. The High Court held th~t 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-
G 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, how-
ever, directed that in case the Customs Authorities find that any
non-bailable offence has been committed by the respondents,
H they shall not be arrested without ten days prior notice.
UNION OF INDiA v. PADAM NARAIN 185
AGGARWAL ETC. [C.K. THAKKER, J.]
~
Facts A
3. It is the case of the appellant (Union of India) that Di rec-
tor of Revenue Intelligence ('ORI' for short) was .investigating
the matter in respect of export of readymc;ide garments by Mis
B.A. International valued at Rs.4.75 crores through varic;>uspqrts
during December, 2000 to March, 2003. According to the alle- 8
~
gation of the appellant, on the basis of information received from
the Income Tax Department on September 15, 2006, investiga-
tion was conducted ·and search operation was carried out at
two office premises ·of Mis B.A. International which revealed
that the so-called suppliers of raw material i.e. fabrics and job c
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 t? Rs. 75 lakhs approximately.
D
I 4. M/$ B.A. International is a partnership firm ~nd is_ con-·
-, .trolled 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 inqu.iry conductecl
through Central Board of Direct Taxes (CBDT) and Dir~ctor o'f E
Revenue Intelligence (ORI) disclosed export of readymade gar·-
ments 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.
·F
· 5. Investigation also revealedthatfal~e and fabricated bills
~

. were prepared jn order to mislead lnv~stigating Agencies. In··
come Tax Department, hence, disaliowed the-benefit of exports
said to have been earned by M/s B.A. International ag~inst the!
shipping bills as claimed by the partnership firm under' Section
G
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 •
H
186 SUPREME COURT REPORTS [2008] 14 S.C.R.

'
A under the Customs Act, 1.962 (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 Department to investigate the case.
The respondents, however, did not join the investigation and
8 there was total non-co-operation by them.
Criminal proceedings
7. In view of non-co-operation by the respondents, com-
plaints were filed by the Custom Authorities in a competent Court
on September 16, 2006 and November 17, 2006 for commis-
C sion of offences punishable under Sections 174 and 175, In·
dian Penal Code, 1860.
Application for anticipatory bail
8. The accused came to know about the filing of com-
D plaints. 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 Rajasthan (Jaipur Bench) and as stated above, the applica-
E tions were disposed of by the High Court directing the Cus-
toms Authorities not to arrest the respondents of any non-bail-
able offence without ten days prior notice to them.
9. The High Court stated;

F "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
G 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 t~em."
(emphasis supplied)
H
UNION OF INDIA v. PADAM NARAIN 187
AGGARWAL ETC. [C.K. THAKKER, J.]
-< '•
10. The said order is challenged by the Union of India in A
this Court.
Earlier orders
11. On April 23, 2007, the matter was placed for admis-
sion hearing. Notice was issued by this Court and respondents B
were granted time to file affidavit in r~ply. Affidavits were, there-
after, 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 c
12. We have heard learned counsel for the parties.
13. The learned Addi. Solicitor General, appearing for
Union of India contended that the order passed by the High Court
is illegal and erroneous. The counsel sub~itted that once the D
!
--; 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 appear before the Customs Authorities on E
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 direc;:tion to the Customs Authorities not to arrest the
respondents even if they ·had committed any non-bailable of- F
fence 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-bail-
able offence'; and (ii) a direction to issue ten days prior notice G
... -·\ 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.
H
r-
.--
\
188 SUPREME COURT REPORTS [2008] 14 S.C.R.

~
A 15. The learned counsel for the respondents, on the other I

hand, supported the ord.~r passed by the High Court. It was sub-
mitted that the High Court felt that since only summons was is-
sued to the respondents for recording statements in inquiry, an-
ticipatory bail applications were premature and High Court rightly
B disposed them of on that ground. A direction was also issued to
the respondents herein to appear before the Customs Authori-
ties on a particular day. However, with a view to protect interest }----'

of the respon·dents, the High Court directed the authorities not
to arrest them before issuing prior notice of ten days. In exer-
c cise of discretionary power, the High Court issued the above
direction which may not be interfered with in exercise of discre-
tionary jurisdiction under Article 136 of the Constitution.
High Court's directions not in accordance with law
~
D
16. Having heard the learned counsel for the par.ties and r"
having given anxious consideration to the controversy raised ~.
and the proceedings initiated against the respondents, we are 'r.
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.
E
Statutory provisions "
r.·
17. To understand the issues raised by the Union of India
in the appeal, let us examine the relevant provisions of the Gus-
toms Act, 1962.
F
18. The Act consolidates and amends the law relating to 1

customs. Chapter IV empowers the Central Government to pro- '
hibit import or export of goods of specified description. Chap- ~

ters IVA to IVC relate to detection of illegally imported goods,
prevention of disposal thereof, etc.
G
19. Chapter XI II (Sections 100-110) is an important Chap- ( .
:-;,...
.
ter and deals with search, seizure and arrest. Sections 100-03
authorise Custom Officers to search suspected persons. Sec-
tion 104 enables Custom Officers to arrest a person. Similarly,
H power to search premises and conveyances is found in Sec-
f
UNION OF INDIA v. PADAM NARAIN 189
AGGARWAL ETC. [C.K. THAKKER, J.]
4-
tions 105 to 106A. Sections 107-09 empower Custom Officers A
to examine persons and summon them to give evidence and
produce documents. Seizure of goods, documents and things
can be effected under Section 110.
I 20. Chapter XIV provides for confiscation of goods and
conveyances as also imposition of penalties. Chapter XVJ (Sec- B
tions 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. c
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 "ar-
1
rest" is derived from the French word ' arrater" meaning "to stop
D
or stay". It signifies a restraint of a person. "Arrest" is thus a
. ·-f restraint of a man's pe~son, 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 Pro- E
cedure, 1973 deal with arrest of a person. Section 41 empow-
ers a Police Officer to arrest any person without warrant. Se.c-
tion 42 deals with the power of a Police Officer to arrest any
person who in the presence of such~olice Officer has commit-
ted or has been accused of committing a non-cognizable of- F
fence 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 per-
son who in his presence commits a non-cognizable offence, or
is a proclaimed offender. Section 44 deals with cases of arrest
G
by a Magistrate. Section 46 lays down manner of arrest.
-· (
24. So far as the Customs Act, 1962 is concerned, the

' power to arrest is contained in Section 104 thereof. It reads
thus;
H
190 SUPREME COURT REPORTS [2008] 14 S.C.R.

·¥""""'
i
A 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
B 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. r
(2) Every person arrested under sub-section (1) shall,
without unnecessary delay, be taken to a magistrate.
c
(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
D
the~Code 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.
E 25. Section 104 thus empowers a Custom Officer to ar-
rest 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 un-
necessary delay'. The section also provides for release of such
F person on bail.
Anticipatory bail
26. Section 438 of the Code makes special provision for
granting 'anticipatory bail' which was introduced in the present
G 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 sec 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
H anticipation of arrest. Where a competent court grants 'antici-
UNION OF INDIA v. PADAM NARAIN 191
AGGARWAL ETC. [C.K. THAKKER, J.]
/-j-
I patory bail', it makes an order that in the event of arrest, a per- A
son 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 opera-
tive.
27. It was also observed that the power of granting 'antici- B
patory 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" c
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)
D
did not contain specific provision corresponding to Section 438
of the present Code of 1973. Under the old Code, there was a
'--1 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 Com- E
mission 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 F
--. '
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
G
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
H
192 SUPREME COURT REPORTS [2008] 14 S.C.R.

·-r-~
A 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 liberty while on bail, there seems no justification to
require him first to submit to custody, remain in prison for
B 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 tof arrest
c 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
D 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
'1-
of Session for a direction under this section. That
Court may, in its discretion, direct that in the-event of
E his arrest, he shall be released on bail.
(2) A ty1agistrate 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 ,_
F under Sub-section (1 ). '
t-
(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
G
committed that; offence, and is prepared either at
the time of arrest or at any time while in the custody
f.
of such officer to give bail, such person shall be ~-

released on bail.
We considered carefully the question of laying down in the
H statute certain conditions under which alone anticipatory
UNION OF INDIA v. PADAM NARAIN 193
AGGARWAL ETC. [C.K. THAKKER, J.]
r:- bail could be granted. But we found that it may not be A
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 B
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, c
para 39.9.]
29. The suggestion of the Law Commission was accepted
by the Central Government and in the Draft Bill of the Code of
Criminal Procedure, 1970, Clause 447 conferred an express
D
power on the High Court and the Court of Session to grant an-
'-I
ticipatory bail.
30. The Law Commission again considered the issue and
stated;
"The Bill introduces a provision for the grant of anticipatory E
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. F

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
G
an interim one. Further, the relevant section should make
- t 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 H
194 SUPREME COURT REPORTS [2008] 14 S.C.R.

A order as well a::; of,the final orders will be given to the -r
I

Superintendent of Police forthwith".
[Law Commission of India, Forty-eighth Report, para 31]
31. Keeping in view the reports of the Law Commission,
B 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
,,,
c 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. t-

33. Sub-section (3) states that if such person is thereafter
D
arrested without warrant by an officer in charge of a police sta-
tion on such accusation, he shall be released on bail. \
)---
34.ln the leading case of Gurbaksh Singh Sibbia & Ors.
v. State of Punjab, (1980) 2 SCC 565, the Constitution Bench
E of this Court was called upon to consider correctness or other-
wise 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
F reflected in Section 438 of the Code and laid down certain prin-
ciples as to when discretionary power to grant anticipatory bail
may be exercised by a Court. \ I'
35. This Court partly disagreeing with the judgment of the t
High Court h~ld that the Legislature conferred a wide discre-
G tion on the High Court and the Court of Session to grant antici-
patory bail since it felt, firstly, that it would be difficult to enumer-
ate the conditions under which anticipatory bail should or should
t~
l
not be granted and· secondly, because the intention was to al-
low the higher courts in the echelon a somewhat free hand in
H the grant of relief in the nature of anticipatory bail.
UNION OF INDIA v. PADAM NARAIN 195
AGGARWAL ETC. [C.K. THAKKER, J.]
-----( -
36. The Court stated; A
"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 B
a little free play in the joints if the conferment of discretionary
--.J
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, c
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 D
anticipatory bail may be allowed because life throws up
~-I
unforeseen possibilities and offers new challenges.
Judicial discretion has to be free enough to be able to
take these possibilities in its stride and to meet these
challenges". E
(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 F
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
G
of their decisions. And it will be strange if, by employing
~i 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
H
196 SUPREME COURT REPORTS [2008] 14 S.C.R.

like granting anticipatory bail, as the High Court has done,
--r
;
A
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
in the context of emerging concerns as and when it arises.
B 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
c
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
D
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)
E 39. We may also refer to at this stage 'Malimath Commit-
tee 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 ob-
served that the provision as to anticipatory bail has often been
•...,
~

F 'misused by rich and influential people'. The Committee, how-
ever, opined to retain the provision subject to two conditions; t
(i) Public Prosecutor should be heard by the court before
granting an application for- anticipatory bail; and
G (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
H
UNION OF INDIA v. PADAM NARAIN 197
AGGARWAL ETC. [C.K. THAKKER, J.]

granting an application for anticipatory bail. Sub-sections (1A) A
and (18) a!so provide for notice and presence of applicant in
the Court seeking anticipatory bail. The said provisions, how-
ever, 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 8
Court must be satisfied that the applicant invoking the provi-
sion of anticipatory bail has 'reason to believe' that he is likely
to be arrested for a non-cognizable offence.
42. The Court stated; c
"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 D
( belief that the applicant may be so arrested must be
-i
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 E
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 F
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 large as, at·· G
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) H
198 SUPREME COURT REPORTS [2008] 14 S.C.R.

.,_.._
A 43. The Court proceeded to state that the High Court or I

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 Sec-
tion 438 is not satisfied and there is no reason to believe that
B 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
C 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 regard to accusations not so far
levelled".
D
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
E 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
!-
F 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
G 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
H that he may be arrested for a non-bailable offence. It is
UNION OF INDIA v. PADAM NARAIN 199
AGGARWAL ETC. [C.K. THAKKER, J.]
.~i

unrealistic to expect the applicant to draw up his application A
with the meticulousness of a pleading in a civil case and
such is not requirement of the section. But 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 B
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 insis- c
tence 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
D
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 E
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
;l duty of the police in the matter of investigation because,
·--; regardless of what kind of offence is alleged to have F
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 G
~1 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 H
200 SUPREME COURT REPORTS [2008] 14 S.C.R.

A 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 blan-
B ket order of bail can be passed by a Court while exercising
power under Section 438 of the Cod~.
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
C applicant should be released on 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 Sec-
tion 438 is a device to secure the individual's liberty, it is neither
D 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
E 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
F 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
G
reasons, arrest may become inevitable part of the process
of investigation. The legality of the proposed arrest cannot
be gone into in 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
H
UNION OF INDIA v. PADAM NARAIN 201
AGGARWAL ETC. [C.K. THAKKER, J.]

"" ~ process of investigation is limited. The .Court ordinarily A
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 B
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 c
to arrest a person by a Custom Officer is statutory in character
and cannot be interfered with. Such power of arrest can be ex-
ercised only in those cases where the Custom Officer has 'rea-
son to believe' that a person has been guilty of an offence pun-
ishable under Sections 132, 133, 135, 135A or 136 of the Act. D
Thus, the power must be exercised on objective facts of com-
mission of an offence enumerated 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 E
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'. F
53. The law thus, on the one hand, allows a Custom Of-
ficer to exercise power to arrest a person wt:w has committed
certain offences, and on the other hand, takes due care to en-
sure individual freedom and liberty by laying down norms and
G
providing safeguards so tt:iat the power of arrest is not abused
~ or misused by the authorities. It is keeping in view these con-
siderations that we have to decide correctness or otherwise of
the directions issued by a single Judge of the High Court. 'Blan-
ket' order of bail may amount to or result in an invitation to com-
H
202 SUPREME COURT REPORTS [2008] 14 S.C.R.

A mit 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 gov-
erned by Rule of Law.
Statements under Section 108, Customs Act : Eviden-
B tiary 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
c 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
D
have power to summon any person whose attendance he
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.

E (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.
F (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
G 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.
H
UNION OF INDIA v. PADAM NARAIN 203
AGGARWAL ETC. [C.K. THAKKER, J.)

(4) Every such inquiry as aforesaid shall be deemed to be A
a judicial proceeding within tne meaning of section 193
and section 228 of the Indian Penal Code (45 of 1cs60)
56. This section does not contemplate magisterial inter-
vention. The power is exercised by a Gazetted Officer of the
Department. It obliges the person summoned to state truth upon B
• any subject respecting which he is examined. He is not absolved
-,·
from speaking truth on tne ground that such statement is ad-
missible in evidence and could be used against him. The provi-
sion thus enables the officer to elicit truth from the person ex-
amined. The underlying object of Section 108 is to ensure that C
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
0
person called upon to make a statement before the Custom
~1
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 state- ·
ment 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. , E
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 F
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 G
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 H
204 SUPREME COURT REPORTS [2008] 14 S.C.R.

-:~ ~

A 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)
B
59. It is thus clear that statements recorded under Section
108 of the Act are distinct and different from statements recorded _ ~/"
I
by Police Officers during the course of investigation under the
Code. .
•
c 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, nuga-
torY and meaningless. Even if on the basis of statements of the I
D ~
respondents, the Custom Authorities are satisfied that the re-
spondents 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 pre-
vent them from exercising the power of arrest without comply-
E ing 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.
.
!'-

F 61. The counsel, in this connection, invited our attention I-

to a decision of this Court in State of Maharashtra v. Mohd.
Rashid & Anr., (2005) 7 SCC 56. In that case, the High Court
t
had issued a direction to the effect that if any crime is regis-
tered against M in future with a particular Police Station within
three years, he shall not be arrested in connection therewith,
G
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.
H The order was, therefore, set aside. The Court, however, ob- ...
UNION OF INDIA v. PADAM NARAIN 205
AGGARWAL ETC. [C.K. THAKKER, J.] '

served that if a false case is regi:'tered against M, he can chal- · A·
lenge it in an appropriate forum. ·
Conditions not lawful
"
63. In the case on hand, the respondents were only sum-
moned under Section 108 of the Act for recording of their state- B
ments. The High Court was conscious and mindful of that fact.
--< It, therefore, held that applications for anticipatory bail, iri the
circumstances, were pre-mature. They were, accordingly, dis-
posed of by directing the respondents to appear before the
Custom Authorities. The Court, however, did not stop there. It c
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 D
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 Con-
stitution Bench of this Court in Gurbaksh Singh and seeks to
grant protection to respondents in respect of any non-bailable
offence. Secondly, it illegally obstructs, interferes and curtails E
the authority of Custom Officers from exercising statutory power
of arrest a person said to have committed a non-bailable of-
fence by imposing a condition of giving ten days prior notice, a
condition not warranted by law. The order passed by the High
j Court to the extent of directions issued to the Custom Authori- F
ties 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 condi::., G .
tions imposed by the High Court on the Custom AuthoriUes are
-+: hereby set aside.
66. Ordered accordingly.
K.K.T. Appeal partly allowed.
H