JUDGMENT
1. By this application, the Assistant Collector of Customs has sought the cancellation of the order of bail dated 5.8.1987 passed by the Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Bombay, whereunder the respondents No. 1 and 3 directed to be released on bail in a sum of Rs. 60,000 and the respondent No. 2 in the sum of Rs. 40,000 with a direction that they shall attend the customs every day between 11 a.m. and 1 p.m. till further orders.
2. The brief facts, leading to the filing of the present application, may be stated :- The respondent No. 1 is employed as loading supervisor, respondent No. 2 as casual loader and respondent No. 3 as operator in Air India, at Bombay. On 22.7.1987, two suitcases came to be seized while they were surreptitiously removed by the respondent Nos. 1 to 3. The said bags had arrived by Sabena Airways flight No. SN-273. They had stickers attached, but the same were not manifested. On examination, they were found to contain 115 gold bars of ten tolas each, 1000 Omex Quartz gents wrist watches, 500 Citizen Quartz gents wrist watches and 3,000 watch movements, totally valued at Rs. 50 lacs. The respondents in their statements under Section 108 of the Customs Act admitted their complicity in their attempt to remove the sail bags. They came to be arrested on the same night, i.e. at 10 p.m. on 22nd July, 1987 and were produced before the Additional Chief Metropolitan Magistrate on 23rd July, 1987 when an application came to be filed on their behalf for discharge on the ground that their detention was illegal, as they had not been furnished with the grounds of their arrest. By an order dated 29th July, 1987, the learned Additional Chief metropolitan Magistrate was pleased to hold that the arrest of the respondents Nos. 1 to 3 was illegal and proceeded to order their being released. While the respondents were being realised on 30th July, 1987, they came to be rearrested after the grounds of arrest were furnished to them. They were produced before the learned Magistrate on the same day when an order of the same date came to be passed holding the arrest to be valid. The respondents Nos. 1 to 3 were ordered to be remanded to the judicial custody up to 5.8.1987, on which date the impugned order was passed and that was followed by presentation of the present application dated 11.8.1987 for cancellation of bail in this Court.
3. Shri Gupte, the learned advocate appearing in support of the petition has contended that the order dated 5.8.1987 granting bail to the respondent Nos. 1 to 3 is wholly unjustified, as it had a tendency to scuttle the investigation and its threshold. The contraband goods, found in the suitcase which were sought to be smuggled by the respondents Nos. 1 to 3 was over Rs. 50 lacs. The statements recorded under Section 108 of the Customs Act reveal that the respondent Nos. 1 to 3 have been indulging in similar activity in the past. The respondents Nos. 1 to 3, were engaged to facilitate the smuggling of the said contraband, but real king-pin is yet to be traced and unless the respondents Nos. 1 to 3, are taken in custody, a proper investigation into the crime would not be possible. He also submitted that since the investigating officer had been kept busy in the Court proceedings in regard to the application of the respondent Nos. 1 to 3 for discharge of the ground that their arrest was illegal, sufficient time and opportunity had not been available to be investigating agency for the purpose of investigation.
4. In my judgment, there is merit in the aforesaid submission and the same will have to be accepted. It must be borne in mind in regard to such application for bail that the offences of smuggling are on the increase and these offences hamper the economy of the country. Hence, while considering the application for bail, balance has to be reached between the liberty of an accused person and due and proper opportunity to the investigating officer to investigate into the crime.
5. I am not in the least belittling in the value of personal liberty, but that cannot mean that the same has to be given such importance as to have the effect of scuttling the investigation at its inception. In my view, regard being had to the value of the subject-matter of the contraband, previous involvement of the respondents and the complicity of the other accused who are the kingpin being the offences, the time afforded to the investigation agency to investigate into the instant crime, is not adequate and it would be in the interest of justice that the impugned order or bail is cancelled and the respondents Nos. 1 to 3 are taken back in the custody in order to facilitate the further investigation into the crime.
6. Shri Merchant, the learned advocate appearing on behalf of the respondents Nos. 1 to 3 strenuously urged that this was not a fit case for cancellation of bail, as the investigating agency has had sufficient opportunity to investigate into the crime and it would be unjust to detain the respondents Nos. 1 to 3 merely on the ground that the main culprits have remained to be arrested. He pointed out that the respondents Nos. 1 to 3 were in custody for almost a fortnight and even after they were released on bail, they have continued to report to the petitioner daily between 11 a.m. and 1 p.m. as directed by the impugned order granting bail. He further submitted that rather than cancel their bail, the respondents Nos. 1 to 3 be directed to report even during longer hours every day until further orders. In my view, there is no merit in this contention, as casual reporting during specified hours of the day cannot take the place of custody remand in order to facilitate a thorough investigation into the crime.
7. Shri Merchant further submitted that the rearrest of the respondents Nos. 1 to 3 on 30th July, 1987 was itself illegal inasmuch as the order of discharge passed by the learned Additional Chief Metropolitan Magistrate on 29th July, 1987 amounted to an order of bail, and in view of Section 59 of the Code of Criminal Procedure, the rearrest of the respondents Nos. 1 to 3 is illegal. In order to appreciate this contention, it may be convenient to reproduce Section 59 of the Code of Criminal Procedure which reads as under :-
“No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of Magistrate.”
According to Shri Merchant, the words under the special order or a Magistrate should be reckoned “ejusdem generis” to the words “on his own bond”, “or on bail.” He submitted that the phrase special order of the Magistrate should be given the same meaning as the words “on his own bond, or on bail”. Once the same is done, the rearrest of the accused would be illegal, as the learned Additional Chief Metropolitan Magistrate could not be said to be sitting in judgment over his earlier order discharging the respondents Nos. 1 to 3. Reliance was placed on Bindra’s Interpretation of Statutes on the following passage :-
EJUSDEM GENERIS. – “The words ‘ejusdem generis’ means ‘of the same kind of nature’. The rule of ejusdem generis is that where particular words are followed by general, the general words should not be construed in their widest sense but should be held as applying to objects, persons or things of the same general nature or class as those specifically enumerated, unless of course there is a clear manifestation of a contrary purpose. Or to put it in a slightly different language, where general and special words which are capable of analogous meaning are associated together, they take colour from each other and the general words are restrained and limited to a sense alongous to the less general. The ejusdem generis doctrine has been described in the words of Lopes, L.J. in Smelting Co. of Australia v. Commissioner of Inland Revenue (1897) 1 QB 275, as meaning.
that where general words immediately follow or are closely associated with specific words, their meaning must be limited by reference to the preceding words.’
Ejusdem generis is not a rule of law but a rule of construction which enables a Court to ascertain the intention of the Legislature when the intention is not clear, and does not warrant the Court in subverting or defeating the legislative will by confining the operation of a statute within narrower limits than intended by the lawmakers. It should be resorted to not for the purpose of defeating the intention of the Legislature but for the purpose of elucidating its words and giving effect to its intention. It is based on the idea that if the Legislature intended its general words to be used in an unrestricted sense so as to embrace the objects, persons or things covered by the particular words, it would not have taken the trouble of using the particular words at all. .”
“The rule is to be made use of only where the language of the statute under consideration is somewhat vague or uncertain…….”
8. All that Section 59 of the Cr. P.C. provides is that once the accused is arrested by the police officer, he shall not be discharged except on his own bond, or on bail, or under a special order. If the arrest and detention of the accused cannot be said to be illegal, he can be discharged either on his own bond, or on bail. However, if the arrest is found to be illegal, as in the present case, there would arise no question of releasing the accused on his own bond or bail and the only proper order would be an order of discharge i.e., the order of his release by passing of the special order, as contemplated in the latter part of Section 59. I find no ambiguity in construing the phrase “under the special order of a Magistrate” so as to take resort to the principle of “ejusdem generis”, as submitted by Shri Merchant. In this view of the matter, I find this case to be one which requires interference in the impugned order granting bail. Consequently, the order of bail is cancelled and the respondent Nos. 1 to 3 are directed to be taken in custody for a period of seven days. At the expiry of the said period of seven says, the respondent Nos. 1 to 3 will be produced before the learned Additional Chief Metropolitan Magistrate when it will be open to the respondent Nos. 1 to 3 apply for bail and to the petitioner to apply for extension of custody remand, and the learned Additional Metropolitan Magistrate will, then, proceed to decide the case on its own merit. On surrender of the respondent Nos. 1 to 3, their bail bonds to stand cancelled.
9. Rule absolute.