TaxTMI 
TaxTMI 
2021 (2) TMI 1372
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat certain illegally procured gold is being carried out in Bus No. U.P. 70 GT 1095. The team of the Customs Officers duly intercepted the said vehicle and in the said bus, two persons were questioned, namely Sri Nagendra Heeralal Tiwari and Sri Purnanand Ramchandra Mishra. On further investigation, it was found that these two persons were carrying Swiss 1 kg Gold 995 Bars weighing about 2797 gms valued at Rs. 1,43,85,600/-. When these two persons were further interrogated they gave a statement that the said gold belong to the applicant who was a dealer in gold and has shops in Nagpur. 4. On the basis of said information, on the same day, i.e. on 28.11.2020, shops and residence of the applicant were raided. During the said raid, further silver bullion was recovered along with certain cash. On the basis of said material, the State was of the belief that the said gold has been procured by the applicant in violation of the provisions of Customs Act and is being illegally imported thereby the applicant is being investigated for commiting an offence under Section 135 of the Customs Act. 5. Sri I.B. Singh, learned Senior Counsel for applicant further submits that firstly, the appli....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of 7 years or less. He has referred to paragraph Nos. 5 to 10 and 12 of the said judgment. On reproduction the same reads as under:- "5. Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.P.C. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive. 6. Law Commissions, Police Commissions and this Court in a large number of judgments....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ficer is satisfied that such arrest is necessary - to prevent such person from committing any further offence; or for proper investigation of the offence; or to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or to prevent such person from making 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 the police officer; or as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest. 7.1 From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that suc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner. 8.2 Before a Magistrate authorises detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused. 8.3 The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order. It ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice." Aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41 Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid. 10. We are of the opinion that if the provisions of Section 41 Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....affecting a very large number of people. (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern. (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused. (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant. (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of ev....