Yogeshwar Dayal, J.
1. Capt. Suresh Vasudeva, the petitioner, has filed the present application Under Section 438 of the Cr.PC for being granted anticipatory bail for the alleged offence under Section & 6 read with Section 8(1) and Section 13(1) of the Foreign Exchange Regulation Act, 1973, for having 'otherwise acquired' foreign exchange other than through an authorised agent or having imported the foreign exchange in violation of the Act.
2. The case of the petitioner is that the Special Police Establishment of the Fraud Squad Branch, New Delhi registered a case No. 8/77-FS (1) of 14th Aug., 1977, Under Section 120-B read with Sections 5(2), 5(1)(d) of the Prevention of Corruption Act, 1947 and subsequent offence Under Section 5(2) read with Section 5(1) and 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act against Shri R. K. Dhawan and nine others including the petitioner,
3. The petitioner was arrested in connection with that case in Kanpur and ultimately produced in the court of the Chief Metropolitan Magistrate, Delhi, and was released on bail by his order dated 18th August, 1977.
4. During investigation of the above-mentioned case, the Superintendent of Police, C. B, I,, New Delhi assisted by other officers reached the residence of the petitioner on 16th Aug. 1977. The petitioner was brought to his residence in custody. During the course of the search of the petitioner's residence, various types of foreign currencies relating to. K., U. S. A., Hongkong, Singapore. Thailand and Italy were recovered. They were found in the brie-f-case of the petitioner. The details of the foreign currencies allegedly recovered were mentioned in the memo prepared at the spot by the C. B. I. and a photostat copy of the memo has been filed along with the petition.
5. The case of the petitioner is that the above mentioned foreign exchange was duly given to the petitioner under the 'permit to travel abroad' and it is the unspent amount out of that. The petitioner could legally possess this currency under the Foreign Exchange Regulation Act, 1973, (hereinafter referred to as 'the Act') and the rules made there under. No declaration is required to be made if the value does not exceed one thousand dollars in cash. It is also stated that the petitioner recently came from abroad and could legally possess this foreign currency,
6. The petitioner was directed to join the investigation of the case regisitered against him by the C. B. I. During the course of investigation, the police also interrogated the petitioner with regard to the foreign currency.
7. It is then stated that as per the allegations in the First Information Report, the petitioner has been, closely associated with Shri R. K. Dhawan, Additional Private Secretary to the former Prime Minister of India who was also one of the accused. The petitioner is being politically victimised by the police at the instance of certain persons 'including' (which probably should be 'having') political influence.
8. It is also alleged that the arrest o1 the petitioner in the aforesaid case was also the result of political pressure, otherwise, there was no direct allegation made against him warranting his arrest.
9. It is on these allegations that the application has been filed for the grant of anticipatory bail.
10. The grant of anticipatory bail has been opposed on behalf of the State and the C. B. I.
11. Mr. Z. A. Khalidi, on behalf of the State and the C. B. I. opposed the grant of anticipatory bail. The argument of the learned Counsel proceeds like this:
It is submitted that on a reading of Section 438(1) of the. Cr.PC (hereinafter referred to as 'the Code'), no person can apply for anticipatory bail unless a case has been actually registered against him. It Is further submitted that the offence for which the petitioner has applied for anticipatory bail is punishable Under Section 56 of the Act with imprisonment up to three years. In view of the provisions of Part II of Schedule I of the Code, this offence is cognizable and non-bailable but in view of the provisions of Section 62 of the Act, the offence has become non-cognizable. thereforee, the police officer could not arrest the petitioner without a warrant. It is. further submitted that Under Section 35(1) of the Act, the authorised Enforcement Officer, however, has the power to arrest without warrant. It is thus submitted that the power Under Section 438 of the Code to grant an order for anticipatory bail cannot be exercised in a case which is non-cognizable. It is further submitted that the provisions of Sub-section (3) of Section 438 should be read with the provisions of Sub-section (1) of the said section and it will appear from the provisions of Sub-section (3) that the order Under Section 43S(1) can only be directed against arrest by a police officer and will be fatale if the arrest is made by an officer of the Enforcement duly authorised Under Section 35(1) of the Act. It is submitted that an officer authorised Under Section 35(1) of the Act is not a police officer and, thereforee, the power under Sub-section (1) of Section 438 of the Code for an order for anticipatory bail cannot be exercised in a case where the arrest can be made by a person who is not a police officer. It is thus submitted that power Under Section 438(1) of the Code cannot be exercised in a case, which is non-cognizable and can certainly not be exercised if any person other than the Police Officer, is authorised to arrest.
12. Bawa Gnircharan Singh, learned Counsel for the petitioner, however, submitted that the provisions of Section 438(1) of the Code apply to an offence whether cognizable or non-cognizable. It is also submitted that once an officer of Enforcement authorised under Sub-section (1) of Section 35 of the Act arrests any person, thereafter he is a police officer for the purpose of granting bail or otherwise and is subject to the obligations under the Code and in that view of the matter the provisions of Sub-section (3) of Section 43fi cover the case of such an officer.
13. For understanding the submissions of the learned Counsel for the parties, it will be useful to reproduce the provisions of Section 438 of the Code as well as the provisions of Section 35 of the Act, Section 438 of the Code:
438. (1) 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 the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under Sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including -
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person 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; .
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under Sub-section (3) of Section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person,
he shall issue a bailable warrant in conformity with the direction of the Court under Sub-section (1).
Section 35 of the Act:
(1) If any officer of Enforcement authorised in this behalf by the Central Government, by general or special order, has reason that any person in India or within the Indian customs waters has been guilty of an offence punishable under this Act he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.
(2) Every person arrested under Sub-section (1) shall, without unnecessary delay, be taken to a magistrate
(3) Where any officer of Enforcement 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 provisions as the officer-in-charge of a police station has, and is subject to, under the Cr.PC 1898.
14. Before I attempt to analyze the aforesaid provisions of the Act and the Code, the observations of the Supreme Court in Balchand Jain v. State of Madhya Pradesh: AIR 1977 SC 366 : 1977 Cri LJ 225 may be noticed to which learned Counsel for the parties made a reference.
15. The case before the Supreme Court was concerned with the question whether an order of 'anticipatory bail' can be competently made by a Court of Session or a High Court Under Section 438 of the Code in case of offences falling under Rule 184 of the defense and Internal Security of India Rules 1971 made under the defense and Internal Security of India Act, 1971, The Supreme Court took the view that there was no conflict between Rule 184 of the aforesaid Rules and Section 438 of the Code and, thereforee, in appropriate cases the High Court or the Court of Session could exercise the power. While giving the main judgment, the Supreme Court dealt with the circumstances in which Section 438 of the Code came to be added to the new Cr.PC 1973.
16. The learned Judge observed as under:
Prior to the new Code there was no provision for an order of anticipatory bail in the Code, and there appeared to be a serious divergence of judicial opinion on the question whether or not a Court had the power to pass an order for anticipatory bail. Some of the High Courts held that the Courts did possess the power, while the other High Courts held that the courts did not. It is not necessary for us now to decide as to which view is correct. The controversy that existed before has now been set at rest by enacting Section 438 in the new Code of Criminal Procedure. While the Bill was in the Lok Sabha, Shri Ram Niwas Mirdha the concerned Minister detailed the various objects of the amendments and one of the observations made by him was that by virtue of the new amendment there was liberalisation of bail provisions. The relevant part in para 2 of the Statement of Objects and Reasons published in the Gazette of India Extraordinary Part II Section 2 dated December 10, 1974 at page 1309 runs thus:
2. The first Law Commission presented its Report (the Fourteenth Report) on the Reform of Judicial Administration, both civil and criminal, in 1958; it was not concerned with detailed scrutiny of the provisions of the Cr.PC but it did make some recommendations in regard to the law of Criminal Procedure, some of which required amendments to the Code.
Apart from this, the clause-wise objects and reasons with respect to Section 438 of the Code (which was Clause 447 in the Bill) runs thus.
As recommended by the Commission a new provision is being made enabling the superior courts to grant anticipatory bail, i. e. a direction to release a person on bail issued even before the person is arrested. With a view to avoid the possibility of the person hampering the investigation, special provision is being made that the court granting anticipatory bail may impose such conditions as it thinks fit. These conditions may be that a person shall make himself available to the Investigating Officer as and when required and shall not do anything to hamper investigation.
This clause clearly refers to the recommendations made by the Law Commission in its Forty-first Report which read as follows:
39.9). Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.
In its forty-eighth Report the Law Commission while commenting on the bail provision observed in para 31 as follows:
31. The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendations made by the previous Commission (41st Report). We agree that this would be useful addition, though we must add that it is in very exceptional cases that such a power should be exercised. We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the public prosecutor. The initial order should only be an interim one. Further the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the Court is satisfied that such a direction is necessary in the interests of justice.
17. Bhagwati, J. for himself and on behalf of A. C. Gupta, J, in the aforesaid judgment of the Supreme Court, observed: (at p. 368 of AIR).
We do not find in this section the words 'Anticipatory bail', but that is clearly the subject with which the section deals. In fact 'Anticipatory bail' is a misnomer. It is not as if bail is presently granted by the Court in anticipation of arrest. When the court grants 'anticipatory bail' what it does is to make an order that in the event of arrest, a person shall be released on bail. Manifestly there is no question of release on bail unless a person is arrested and, thereforee, it is only on arrest that the order granting 'anticipatory bail' becomes operative.
It was further observed at page 369:
Now, this power of granting 'anticipatory bail' is somewhat extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, or 'there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail' that such power is to be exercised. And this power being rather of an unusual nature, it is entrusted only to the higher echelons of judicial service, namely, a court of Session and the High Court. It is a power exercisable in case of anticipated accusation of non-bailable offence and there is no limitation as to the category of non-bailable offence in respect of which the power can be exercised by the appropriate court.
18. To begin with Section 438(1) of the Code applies only to non-bailable offences. Secondly, the power Under Section 438(1) can be exercised only by the Court of Session or the High Court. The section itself especially prescribes that any order passed under this section would be effective only after the person concerned has been arrested. It does not require that the offence must have been registered. AD that this section contemplates is that the person applying has reasonable belief that he may be arrested on accusation of having committed non-bailable offence. It will depend on the facts of each case whether the person applying could have the necessary 'reason to believe'. This 'reason to believe1' is not dependent upon the registration of the case only.
19. Even in the aforesaid case, Bhagwati, J, had observed, as stated earlier, 'there is no limitation as to the category of non-bailable offence in respect of which the power can be exercised by the appropriate court'. It must, thereforee, be held that the applicability of Section 438(1) is not limited to a cognizable offence only. It is equally applicable to a case of arrest by an officer in charge of a police station.
20. Section 43& (1) really deals with [the statutory conferment of substantive power to order for anticipatory bail to a person apprehending arrest. Sub-section (1) of Section 438 has not been made subject to Sub-section (3) of this section.
21. Sub-section (2) of Section 438 is a provision for conditions being imposed on the person in whose favor the order is being passed Under Section 438(1). This Sub-section, in enumerating the various conditions, is not exhaustive of the conditions which may be imposed. The conditions mentioned under Sub-section (2) which may be imposed are merely illustrative. In any case, it does not control the power conferred by Section 438(1),
22. Next, I come to analyze the provisions of Sub-section (3) of Section 438. Sub-section (3) of this section starts with the proposition 'if'. It does not start with the proposition 'when'. The use of the proposition 'if at the start of the Sub-section (3) indicates that Section 43 (1) is not dependent on the provisions of sub-see-'.tion (3) of this section,
23. The expression 'if such person is (thereafter arrested without warrant by an officer in charge of a police station' merely illustrates the ease of working out an order for anticipatory bail granted Under Section 438(1) in respect of a cognizable offence but that does not mean that Section 438(1) is limited to the apprehended arrest only in a cognizable offence or arrest only by an officer in charge of a police station. Sub-section (3) of Section 438 is really what may be termed as 'machinery section' for working out an refer under Sub-section (1) of Section 438 by way of an illustration.
24. Mr. Z. A. Khattdi, learned Counsel for the State however, submitted that the opening part of Sub-section (3) i.e. 'If such person is thereafter arrested without warrant by an officer in charge of a police station' shows that the power under Sub-section (1) of Section 438- could not be exercised in a Nan cognizable offence, like the one in the present case, and also when arrest is to be made by an officer of Enforcement duly authorised to effect arrest Under Section 35(1) of the Act.
25. As I have stated earlier, Sub-section (1) of Section 438- is not subject to the provisions of Sub-section (3) of this section. In other words, Sub-section (3) has no overriding effect on Sub-section (1).
26. Now, the provisions of Section 35 of the Act may be considered. I have already reproduced Section 35 of the Act above. It is clear from the provisions of Sub-section (31) of this section that where any officer of Enforcement has arrested any person under Sub-section (1) of the Act, he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the provisions as the officer in charge of a police station has, and is subject to, under the Code of Criminal Procedure. As far as the officer of Enforcement authorised in this behalf by the Central Government under Sub-section (1) of Section 35 of the Act is concerned, he is not a police officer for purposes of the Police Act and is not even a police officer for purposes of the Act but once he has arrested any person under Sub-section (1), he is, for the purpose of releasing such person on bail or otherwise, an officer in charge of a police station. The provisions of Sub-section (3) after giving power to the Enforcement Officer to arrest, were very necessary. The reason is simple. After the Enforcement Officer duly authorised has effected the arrest he is required by Sub-section (2) of Section 35 of the Act to take the person arrested to a magistrate without unnecessary delay. If, thereafter, he was not having the powers or was not subject to the liabilities of an officer-in-charge of a police station, the magistrate could not recognise him under Sub-sections (1) and (2) of Section 167 of the Code in spite of his taking the arrested: person before the magistrate under Sub-sections (2) of Section 35 of the Act.
27. Once the officer of Enforcement, after arresting the person concerned, become an officer in-charge of a police station, for the purpose of releasing such person on bail or otherwise, it presents no difficulty in working out an order Under Section 43B(1) of the Code. As observed by the Supreme Court in the aforesaid case, 'manifestly there is no question of release on bail unless a person is arrested and, thereforee, it is only on arrest that the order granting 'anticipatory bail' becomes operative'. thereforee, as an officer in-charge of a (police station, for purposes of Sub-section (3) of Section 35 of the Act, such an officer of Enforcement becomes subject to the provisions of the Code as well and would, thereforee, be bound to comply with the order passed Under Section 438(1) of the Code.
28. It must, thereforee, be held that the provisions of Section 438(1) are applicable to non-bailable offences - whether cognizable or non-cognizable. It is again applicable to an apprehended arrest whether to be made by a police officer in charge of a police station or by any person who is authorised in law to effect arrest. There is thus no force in the submission of the learned Counsel for the State that on the facts of the present case, Section 438 of the Code cannot be resorted to by the petitioner.
29. The next question which arises Is whether it is a fit case for the exercise of power Under Section 438. It is true that this power has to be exercised sparingly. One of the categories or cases for the grant of anticipatory bail, as pointed out by the Supreme Court in the concurring judgment of Bhagwati, J. as well as in the main judgment of Fazl Ali, J., is that there should be 'reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on ball', In the present case in which the application has been filed, the offence alleged is in view of the recovery effected from the petitioner of foreign exchange as stated in the memo of recovery filed along with the petition. The foreign currency is not worth more than eleven or twelve hundred rupees. The present case be not concerned with any other offence which the petitioner may have committed under he Act. The petitioner has already been released on bail in a more serious case under the Corruption Act. It was not even argued on behalf of the State that the petitioner is likely to abscond or otherwise misuse his liberty while on bail.
30. The order for anticipatory bail is really an order for ball in the event of arrest. Like any other order for bail, it can always be cancelled in appropriate oases if a case Is made out for the same.
31. Taking into account the nature of the office and the other relevant factors for releasing a person in a fit case for the exercise of power Under Section 438(1). It is accordingly ordered that in the event of the petitioner's arrest for the aforesaid alleged offence Under Section 56 read with Section 8(1) of the Act, he should be released on bail in the sum of Rs. 5,000/' with one surety in the like amount, subject to the conditions that (1) the petitioner will make himself available to the arresting authority as and when required for interrogation and (2) that the petitioner will not directly or indirectly interfere with any inquiry or investigation against him under the Foreign Exchange Regulation Act, 1S73, or any other law and (3) that the petitioner will produce any document lawfully required by the authorities i under the Act for purposes of investigation.