UNION OF INDIA v. PADAM NARAIN AGGARWAL ETC

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, a person shall be released on bail. There is no question of F 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 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. 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] -r--· B

2.4 Discretionary power conferred by the Legislature 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 Section 438 Cr.P.C. is not satisfied and there is no reason to believe that the applicant is likely to be arrested for 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; D 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 of accusations likely or unlikely. 'Blanket' order of bail may amount to or result in an invitation to commit an offence or 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. [Paras 49 and 53] [200,D; 201,H; 202,A] F G Gurbaksh Singh Sibbia and Ors. v. State of Punjab, (1980) 2 sec 565-- followed