The Assistant Director, Directorate of Revenue, Intelligence, Madras 17 vs Srinivasan

K.M. Natarajan, J.—This petition has been filed u/s 482 , Code of Criminal Procedure to cancel the order passed by the learned First Additional Sessions judge, Madras, granting anticipatory bail to the Respondent herein.

It is alleged in the petition that the Respondent herein is concerned in a case bearing file No. VIII/26/156-84-DRI of the Directorate of Revenue Intelligence, Madras wherein the Petitioner was engaging himself, along with others in a matter of illicit export of banned item, namely, snake skins on a very large scale, the value of which would be over several lakhs of rupees, that the learned Sessions Judge failed to draw a distinction between a case under the Indian Penal Code and a case involving grave economic offences while granting anticipatory bail and that armed with the order of anticipatory bail, the Respondent here in is refusing to co-operate with the investigation and be is unduly obstructive and fails to turn up promptly or submit himself for interrogation for any intended period and therefore, the anticipatory bail granted to the Respondent may be cancelled.

The Respondent herein filed a detailed counter denying the allegations in the petition. It is contended by the Respondent that his residential premises was searched on 19th May, 1984, between 12 noon and 1.30 p.m. by the Customs officials in the absence of the Respondent and nothing incriminating was found. On 28th May, 1984, they searched the business premises of the Respondent and they took the Respondent''s brother to the Customs House. Apprehending arrest by the Customs Officials, the Respondent moved before the court below for anticipatory bail in Cr.M.P.2113 of 1984. Since the department represented that no case was pending against the Respondent, the said petition was dismissed with a direction that the Respondent can appear before the department along with his advocate. Thereafter, the officers attached to the DRI started investigation in connection with the attempted expert of snake skins by Messrs. G. D. Traders and Messrs. Gay Dev Exports. Apprehending arrest, the Respondent filed Cr.M.P. 2346 of 1984 before the learned Sessions Judge, Madras, for anticipatory bail. Since the department represented before court that no case was pending against the Respondent, the petition was dismissed on 26th July, 1984. Again the Respondent filed Cr.M.P.2426 of 1984 for anticipatory bail apprehending arrest by the Petitioner. The learned First Additional Sessions Judge granted anticipatory bail to the Respondent imposing conditions as per Section 438, Code of Criminal Procedure on 8th August, 1984. Thereafter, the Respondent has been sincerely complying with the condition in that, he has been regularly appearing before the Petitioner daily and nine persons were examined by the Petitioner in his presence and statements running to several pages were recorded. Since the Petitioner has failed to get a statement from the Respondent according to his dictation and direction, he has come forward with this petition with an intention to extract a statement from the Respondent by threat and coercion on the cancellation of the order of anticipatory bail. The department is unnecessarily delaying the investigation. The Respondent is an Income tax assesses and he is a law abiding citizen. The Petitioner''s personal liability will be whittled down if the bail granted already is cancelled. The Petitioner has almost completed the investigation. Therefore, this petition may be dismissed.

In support of the respective contentions, both the counsel relied on a number of decisions. Since granting of anticipatory bail to a person apprehending arrest is a discretionary relief, we have to see whether the learned Sessions Judge has properly exercised his judicial discretion in ordering anticipatory bail to the Respondent herein. The learned Counsel for the Petitioner submitted that since the Respondent is involved in a case of illicit export of banned item, viz., snake skins, on a very large scale, the value of which comes to several lakhs of rupees, thereby committing a serious economic offence, he does not deserve to be enlarged on anticipatory bail. The learned Counsel further submitted that the interrogation by the Customs officials is quite different from that of the interrogation by the police in a case under the Indian Penal Code and that the Petitioner is unable to get useful information from the Respondent on account of the anticipatory bail granted to the Respondent. In support of this contention, the learned Counsel drew my attention to the decision reported in Gurbaksh Singh Sibia Vs. State of Punjab, F.B wherein it was held as follow;:

......a mere joining of a person in the course of the investigation whilst on anticipatory bail is no substitute for investigation in custody in all those cases where his personal interrogation may be legitimately required. We have yet to come across a case where a party seeking bail would not zealously offer to join the investigation thereof and to similarly undertake not to tamper with the witness. If this by itself were to be sufficient then perhaps the provisions of Section 167 (2) need hardly ever be resorted to

According to the learned Counsel, even though the said decision was reversed by the Supreme Court in Gurubaksh Singh Sibbia v. State of Punjab A.I R. 1980 S.C.1631 : 1980 S.C.C. (Crl) 465 the above observation has not been set aside and as such it still holds good.

Learned Counsel for the Petitioner contended that unless the offenders committing economic offences are put on a different category, the investigating agency would be put to a very great hardship and it is very difficult to proceed against those offenders who are all rich and influential persons and therefore the learned Sessions Judge ought not to have granted anticipatory bail to the Respondent, who is involved in the commission of an economic offence. On the other hand, learned Counsel for the Respondent submitted that the learned Sessions Judge has exercised his judicial

Learned Counsel for the Respondent drew my attention to the ruling reported in Devadass, In re 1980 M.L.J. Crl.723 : l980 L.W. (Crl.) 56 and contended that there is no legal bar (sic) to apply for anticipatory bail in respect of offences under the Tamil Nadu Prohibition Act and that it is nowhere provided that anticipatory bail should not be granted to persons involved in economic or social offences. Similarly, in E. Joseph and Another Vs. The Assistant Collector of Customs, Tuticorin, Swamikkannu, J. had granted anticipatory bail to a person involved in an offence under the Customs Act. In Balchand Jain v. State of M.P. 1976 S.C.C. (Crl.) 689 their Lordships of the Supreme Court have held that an order for anticipatory bail can be issued even to a person apprehending arrest under the Defence and Internal Security of India Act, 1971, and the Rules framed thereunder. In the light of the above decisions, I am of the view that the contention of the learned Counsel for the Petitioner that the offenders committing economic offences should be put to a different category than that of offenders committing offences under the Indian Penal Code cannot be accepted.

The learned Counsel for the Petitioner contended that the learned Sessions Judge has failed to apply the correct principles while ordering anticipatory bail. In Gurucharan Singh v. State 1978 M L.J. Crl. 261 : 1978 L.W. (Crl.) (S.C.) 67 (S.N.)their Lordships of the Supreme Court have held as follows:

We may repeat that the two paramount considerations, viz., likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair trial of the case in a court of justice. It is essential that due and proper weight should be bestowed on these two factors apart from others. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.

The Respondent has refuted the allegation of the Petitioner that he is refusing to co-operate with the investigation and he is unduly obstructive by contending that ever since the date of anticipatory bail granted to the Respondent, he has been regularly appearing before the Customs officials, that the department has already recorded the statement of several persons in his presence, that the investigation is almost over and that, therefore, the question of tampering with the prosecution evidence does not arise. The Petitioner has not controverted the above statement of the Respondent by filing any reply affidavit. It is not established to the satisfaction of this Court that the Respondent is fleeing away from justice and he is tampering with prosecution evidence. Therefore, the contention of the Petitioner that the Respondent is refusing to co-operate with the investigation also fails.

My attention was also drawn to the decision of the Supreme Court reported in Niranjan Singh v. Prabhakar Rajaram Kharote 1980 L.W. (Crl.) 116 (S.C.) wherein it was held that detailed examination of the evidence and elaborate documentation of the merits should be avoided while passing orders on bail applications. The learned Sessions Judge while passing the order has taken into consideration the relevant materials and exercised his discretion properly.

In Ratilal Bhanji v. Asst Customs Collector, Bombay AIR 1967 S.C. 1639 the Supreme Court held as follows:-

Nevertheless, if at any subsequent stage of the proceedings, it is found that any person accused of a bailable offence is intimidating, bribing or tampering with the prosecution witnesses or is attempting to abscond, the High Court has inherent power to cause him to be arrested and to commit him to custody for such period as it thinks fit. This overriding inherent power can be invoked in exceptional cases only when the High Court is satisfied that the ends of justice will be defeated unless the accused is committed to custody.

In this case, it has not been satisfactorily established that the Respondent is tampering with the witnesses or is attempting to abscond and, therefore, the bail granted to him is liable to be cancelled.

Gurubaksh Singh Sibbia v. State of Punjab 1980 S.C.C. (Crl.) 465 the Supreme Court held as follows:

"It is also not proper to hold that in serious cases like economic offences involving blatant corruption at the higher range of the executive and political power the discretion u/s 438 of the Code should not be exercised. It is not possible for the Court to assess the blatantness of corruption at the stage of anticipatory bail.

It is also not possible to hold that anticipatory bail cannot be granted unless it is alleged and shown that the proposed accusations are mala fide.

This decision supports the contention of the Respondent that no distinction can be made between economic offences and the offences committed under the Indian Penal Code.

The learned Counsel for the petitioner argued that as the Respondent is armed with an order of anticipatory bail, be is refusing to co-operate with the investigation and if the bail is cancelled it will enable the Petitioner to get information from the Respondent and nab other persons who are largely involved in the illicit export of snake skins along with the Respondent. This argument is hardly convincing in the light of the decision in Premchand v. Union of India 1981 M.L.J. (Crl.) 481, wherein the Supreme Court held as follows:

The provisions of the statute ostensibly have a benign purpose and in the context of escalation of crimes, may be restrictions which, in normal times might appear unreasonable, may have to be clamped down, on individuals. We are conscious of the difficulties of detention and proof and the strain on the police in tracking down Criminals. But fundamental rights are fundamental and personal liberty cannot be put at the mercy of the police. We are further clear that natural justice must be fairly complied with and vague allegations and secret bearings are gross violations of Arts. 14,19 and 21 of the Constitution as expounded by this Court in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, .

In Mohinder Singh and Ors. v. Mal Singh and Ors. 1983 2 Cri 271, the Delhi High Court followed the judgment of the Supreme Court in the State v. Sanjay Gandhi A.I R. 1978 S.C. 861 : 1978 L.W. Crl 76 (S.N ), wherein it was observed as follows:

... Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. A bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused. But in an application for cancellation of bail, the prosecution can establish its case by showing on a preponderance of probabilities and not beyond reasonable doubt that the accused has attempted to tamper or has tampered with its witnesses, has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice. If the accused has abused his liberty by attempting to suborn the prosecution witnesses, he has forfeited his right to remain free. The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspections...

In the latest decision reported in Bhagirathsinh Judeja Vs. State of Gujarat, the Supreme Court held:

.. The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances are necessary for an order seeeking cancellation of the bail. And the trend today is towards granting bail because it is now well settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be really available for his trial and whether he is likely to abu e the discretion granted in his favour by tampering with evidence. The order made by the High Court is conspicuous by its silence on these two relevant considerations.

It is very clear from the above decisions that the gravity of the offence is not the criterion for the cancellation of the bail, but only the two material factors, viz., the accused is absconding and be is likely to abuse the discretion granted in his favour by tampering with evidence, have to be taken into consideration in dealing with an application for cancellation of bail. Except the vague allegations in the petition, it is not established by the Petitioner to the satisfaction of this Court that the order of the learned Sessions Judge, granting bail to the Respondent herein is vitiated by any serious infirmity for which this Court can interfere in the interests of justice. In my view, the learned Sessions Judge, has exercised his discretion properly.

In the result this petition fails and is dismissed.