ORDER
R.C. Chopra, J.
1. The petitioner prays for pre-arrest bail under section 438 Section 438 read with Section 482 of the Code of Criminal Procedure (hereinafter referred to as “the Code” only) in a case being investigated by Directorate of Revenue Intelligence in connection with smuggling of huge quantities of fabrics resulting in large scale evasion of Customs Duty.
2. I have heard learned counsel for the petitioner and learned counsel for the respondent.
3. The facts relevant for disposal of this application, briefly stated are that on 28.8.2000 one Olga Kozireva, an Uzbek national was intercepted at Indira Gandhi International Airport, New Delhi. It was found that she was carrying Chinese silk of the value of about Rs. 1.56 crores. she intended to smuggle it into India without paying Customs Duty, which was to the tune of about Rs. 50 lacs. When her application for bail came up before an additional Sessions Judge, certain observations were made by the Court expressing doubts that she was indulging in smuggling activities in connivance with the customs officers as she was found to be visiting India quite frequently. On the basis of these observations and on the intervention of the Central Government, the matter was taken up by the respondent, which is now inquiring into the role of the present petitioner in the transaction in question. The petitioner, an Afghan national is suspected to be aiding and assisting Loga Kozireva in the smuggling of Chinese silk. It is alleged that on many occasions, he had gone to the Airport to receive the smuggled goods and then disposed of the same int he market. It is also suspected that he was in contact with many customs officers at or about the time of arrival of the smuggled goods and as such, the respondent has reasons to believe that there was a deep rooted conspiracy between foreign nationals. Indians and some customs officers in regard to smuggling of goods.
4. Learned counsel for the petitioner has prayed for pre-arrest bail to the petitioner, mainly on the ground that petitioner is ready and willing to join investigations and in fact, he has even joined investigations after he interim protection granted by this Court vide orders dated 21.5.2001. He however, submits that the officers of the respondent are compelling the petitioner to make a statement under Section 108 of the Customs Act on the dotted lines to which the petitioner is not agreeable. he also argues that CBI, which is interrogating the petitioner in a connected matter, is satisfied with the revelations made by the petitioner, but the respondent is opposing his pre arrest bail for the reason that its officers want to compel him to make a statement the way they want. It is also submitted that wife and one daughter of the petitioner have already died and his other daughter is suffering form Thalsemia Major and in case the petitioner have already died and his other daughter is suffering from Thalsemia Major and in case the petitioner is not available to the child for looking after here, she may also die.
5. Learned counsel for the respondent, on the other hand, argues that the allegations against the petitioner are serious and the respondent has sufficient material to show that he was taking an active part in smuggling activities in connection with which Olga Kozireva has been arrested. It is submitted that the petitioner is not cooperating in the investigations and on one pretext or the other he is avoiding to divulge complete information to the investigators. Leaned counsel for the respondent vehemently opposes pre-arrest bail to the petitioner and submits that in this case custodial interrogation of the petitioner is essential to detect all the ramifications of the crime and find out as to how many others and in what manner were involved in smuggling racket.
6. Before adverting to the facts of this case, this Court must focus its attention to the principles and parameters governing the grant of pre-arrest bail orders under Section 438 of the Code. In Gurbaksh Singh Sibbia Vs. State of Punjab, , the Apex Court had examined in detail the principles governing the grant of pre-arrest bail and had laid down that the considerations relevant for bail under Sections 438 and 439 of the Code are same. In para-21 of the said judgment, however, their Lordships had highlighted the need of exercising wise judicial discretion in the matter of grant of pre-arrest bail and observed:-
“…..A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised,has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably for esseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion.”
7. In Pokar Ram Vs. State of Rajasthan & Others, , the Apex Court had again considered the powers of the Courts under Section 438 of the Code. In para-11 of the judgment, it was held that status in life, affluence of otherwise were hardly relevant considerations while examining the request for grant of anticipatory bail. It was also observed that anticipatory bail to some extent intrudes in the sphere of investigation of crime and the Courts must be cautious and circumspect in exercising this power of a discretionary nature. In para-13 of the same judgment, it was also observed that grant of anticipatory bail in serious cases may shake the faith of public in administration of justice. In Directorate of Enforcement and Another Vs. P.V. Prabhakar Rao, 1997 SCC (Crl.) 978, Their Lordships of Supreme Court had an occasion to consider the considerations relevant for grant or refusal of anticipatory and came to the conclusion that completion of investigation could be achieved only by interrogation of the person involved as well as acquainted with the matter and those involved in economic offences deserve to be dealt with sternly.
8. In State represented by the CBI Vs. Anil Sharma, , His Lordship Hon’ble Mr. Justice K.T. Thomas speaking for the Bench, held that custodial interrogation is definitely more elicitation orientated than questioning a suspect, who is well ensconced with a favorable order under Section 438 of the Code and an effective interrogation of a suspected person is of tremendous advantage in disinterring useful information and also material, which could have been concealed. His Lordship was of the view that success in such interrogations would elude if the suspected person knows that he is well protected and insulated by a pre arrest bail order during the time he is interrogated and in such a situation very often interrogation would get reduced to a mere ritual only. In para-8 of the said judgment. His Lordship held that considerations, which should weigh with the Court while dealing with application for anticipatory bail, need not be same as for an application to release on bail after arrest.
9. In another judgment in State of Andhra Pradesh Vs. Bimal Krishna Kundu & Another, JT 1997(8) SC 383. His Lordship Hon’ble Mr. Justice K.T. Thomas again speaking for the Bench, held that a pre-arrest bail order before an accused is interrogated by the police, would greatly harm the investigations and would impede the prospects of unearthing all the ramifications involved in the conspiracy. His Lordship was of the view that in such cases public interest would also suffer as consequence. In Dukhishyam Benupani, Assistant Director, Enforcement Directorate (FERA) Vs. Arun Kumar Bajoria, 1998 SCC (Crl.) 261. His Lordship Honb’el Mr. Justice K.T. Thomas in para-8 of the judgment again reiterated that the considerations to be weighed while dealing with a prayer for pre-arrest bail order are materially different form a post-arrest bail application. The pleas of the accused that he had made himself available for interrogation for several days after being armed with an order preventing his arrest or that he was a sick person, were negated by His Lordship. Another Bench of the Supreme Court of India headed by Hon’ble Mr. Justice G.B. Pattanaik in the case of Enforcement Officer, Ted, Bombay Vs. Bher Chand Tikaji Bora, 2000(121) E.L.T. 7 (S.C.) expressed its anguish in regard to a pre arrest bail order and after reiterating the criteria and questions to be considered for exercising powers under Section 438 of the Code, held that white collar criminals are a menace to the Society and, therefore, unless they allege and establish that they are being unnecessarily harassed by the Investigating Agency, the Court would not be justified in invoking jurisdiction under Section 438 of the Code for granting anticipatory bail.
10. The judgments of the Apex Court, referred to above, clearly lay down that for invoking the powers of the Courts under Section 438 of the Code for grant of anticipatory bail, an accused has to show something more than what he is required to show for exercising discretion under Section 439 of the Code. The reason is that a pre-arrest bail order puts the Investigating Agency into a disadvantageous position by reducing the efficacy of custodial interrogation. It also emboldens the accused and demoralises the complainant and general public, who feel that inspite of serious allegations, the accused remains beyond the reach of law. Such orders sometimes have the tendency of eroding public faith in the administration of justice. The seriousness of the offence and gravity of the allegations is always on important factor for an order under Section 439 of the Code if something more is required to be shown for exercise of discretion under Section 438 of the Code, it is obvious that seriousness of offence and the gravity of the allegations remains a relevant factor for orders under Section 438 of the Code also.
11. In economic offences where deep rooted conspiracies are hatched and heavy loss of revenue is shown to have been caused to the exchequer, the offences have to be viewed as serious and grave and the Courts must feel reluctant to arm such offenders with pre-arrest bail orders. Offences relating to large scale corruption, brutal violence, kidnapping, robberies, sexual offences and those threatening the security of the State also are serious offences which are required to be dealt with sternly.
12. The aforesaid observations are neither intended to underscore nor undermine the importance of powers of the Courts under Section 438 of the Code, which at times are required to be invoked for preventing misuse of powers of arrest and victimisation of innocent and law abiding, who appear to be falsely implicated in criminal cases or those, who are otherwise law abiding and respectable, but happen to get involved in some petty non-bailable where in custodial interrogation or judicial custody are not at all justifiable. The Courts may with advantage take a clue from proviso to Section 437(1) of the Code to exercise discretion under Section 438 of the Code in favor of a child, woman, sick or infirm as well as upon satisfaction that it is just and proper for any other special reason. The Courts are, therefore, under a highly onerous duty to strike a balance between the pre-arrest bail applications of offenders involved in petty non-bailable offences and those involved in serious offences, who cannot be permitted to take the system for a ride. Wise exercise of judicial discretion is thus, the hall mark and due care and circumspection the watch-word for exercise of powers under Section 438 of the Code.
13. Coming to the facts of the case in hand, it is found that the petitioner, who is an Afghan national, after having taken shelter in this country, appears to be deeply involved in a smuggling racket. The material collected by the investigators so far shows that he was actively engaged in the smuggling of goods and evasion of Customs Duty, which on one occasion itself was to the tune of about Rs. 50 lacs. It also appears that the did not cooperate with the investigators after he joined investigations, armed with interim protection granted vide orders dated 21.5.2001. There are no good grounds to believe that the Investigating Officers are compelling him to make a false statement under Section 108 of he Customs act. It appears that in this case he is not willing to make full disclosures as statement under Section 108 of the Customs Act, amy be used against him during trail, but in the connected matter where CBI is interrogating him, he is all support inasmuch as by making disclosures therein, he himself does not get seriously implicated and only others get exposed. the personal problems of the petitioner in regard to the ailment of his daughter cannot be permitted to stand in the way of effective investigations for the simple reason that the petitioner has to blame himself only for the situation that confronts him. If he had any regard or concern for his family and children, he would not have indulged in criminal activities. After involving himself in a serious offence, he cannot now take refuge under the cover of family problems to avoid and obstruct the process of law. Moreover Special Court, Delhi has already issued certain directions regarding the care and welfare of petitioner’s daughter.
14. Those involved is economic offence of vast magnitude affecting the economic stability of the country pose a threat greater than an armed invasion form across the border. The black money generated by the smugglers, drug traffickers, money launderers and other similar offenders becomes handy to the subversive elements engaged in destabilising and destroying the nation form within. Therefore, persons involved in such offences neither deserve any sympathy nor nay indulgence and have to be dealt with sternly.
15. In the result, this Court is of the considered view that keeping in mind the serious nature of the offence, gravity of the allegations and the facts and circumstances of the case, there are no grounds at all for allowing the request of the petitioner for grant anticipatory bail.
16. The application, therefore, stands dismissed.