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2021 (7) TMI 1028 - HC - CustomsGrant of anticipatory bail - Smuggling - Gold - offence under Section 135(1)(b) of the Customs Act - bailable offence - Power of Customs Officer to arrest a person - HELD THAT - The applicant apprehends that he may be arraigned as an accused in OR No. 7/2020 of Ernakulam Customs in which his son-in-law has been implicated as an accused. Going by the allegations he apprehends that he may be implicated for an offence punishable under Section 135(1)(b) which is only a bailable offence coming within the purview of Section 104(7) of the Customs Act. In case that argument is accepted application for anticipatory bail under Section 438 of Cr. P.C. is not sustainable. In UNION OF INDIA VERSUS PADAM NARAIN AGGARWAL ETC. 2008 (10) TMI 1 - SUPREME COURT it was held that the power to arrest a person by a Customs Officer is statutory and cannot be interfered with. It was observed that Section 108 does not contemplate magisterial intervention. As the power under the statute is exercised by a Gazetted Officer of the Customs Department the person summoned is under obligation to state truth upon any subject in respect of which he is examined. This Court is prevented from entertaining the application. In the event of his arrest the jurisdictional Court is at liberty to consider the applicant s plea of illness in case the proviso to Section 437 of Cr. P.C. is found applicable - application for pre-arrest bail is only to be dismissed.
Issues: Application for anticipatory bail under Section 438 of Cr. P.C.
Analysis: 1. Apprehension of Arrest by Customs Authorities: The applicant, a businessman, sought anticipatory bail due to the apprehension of arrest by customs authorities in connection with a gold smuggling case involving his son-in-law. The applicant was served a notice under Section 108 of the Customs Act to appear for recording a statement, leading to his application for anticipatory bail. 2. Legal Precedents and Interpretation of Section 108 of the Customs Act: The court referred to the case of Union of India v. Padam Narain Aggarwal, emphasizing that the power to arrest by a Customs Officer is statutory and cannot be interfered with. Section 108 of the Customs Act requires the person summoned to state the truth, and statements recorded under this section serve the purpose of eliciting the truth from the person examined, distinct from statements recorded by police officers during investigations. 3. Bailability of Offence and Jurisdiction of the Court: The applicant feared being implicated for an offence under Section 135(1)(b) of the Customs Act, which is a bailable offence under Section 104(7). The court noted that if the applicant could be arrested for a bailable offence, the application for anticipatory bail under Section 438 of Cr. P.C. would not be sustainable. The court also highlighted that in case of arrest, the jurisdictional court could consider the applicant's plea of illness under the proviso to Section 437 of Cr. P.C. 4. Decision and Dismissal of Anticipatory Bail Application: After considering the arguments and legal precedents, the court dismissed the application for pre-arrest bail, stating that the applicant's apprehension of arrest did not warrant granting anticipatory bail. The court emphasized that based on the circumstances and legal provisions, the application could not be entertained, and the jurisdictional court could address any further issues upon arrest. This detailed analysis of the judgment highlights the key issues addressed by the court regarding the application for anticipatory bail under Section 438 of Cr. P.C. The court's decision was based on legal precedents, the interpretation of relevant sections of the Customs Act, and the bailability of the alleged offence, ultimately leading to the dismissal of the anticipatory bail application.
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