ORDER This is an application under section 438, Criminal Procedure Code, for granting anticipatory bail. 2. The facts of the case are briefly as follows: The petitioner is a permanent resident of Madurai, being a licensed goldsmith having his business at No.87-B, Vadugu Perumal Maistry Street. He has no bad antecedents and he has never committed any offence. The petitioner apprehends arrest at the hands of the respondent on the strength of the statement of a co-accused arrested in O.R.No.4 of 1985 on the file of the respondent. The allegation of the co-accused is false and was made against the petitioner with a view to wriggle out from the charges so as to make the real culprit escape from the impending prosecution. The petitioner states that he has no connection with the alleged transaction. It is also stated in the petition that on 4th July, 1985 one Balakrishnan with some cash was arrested at Valliyur Bus stand in Tirunelveli Dt., and on further enquiry, two persons Subramanian and Shahjahan were arrested and from Shahjahan 11 bangles weighing 66 grams of ornamental gold were seized and 180 grams of ornamental gold were seized from 2 or 3 goldsmiths, who were not arretted by the respondent. 3. On the statement of Balakrishnan on 5th July, 1985, the house of the petitioner was thoroughly searched and no incriminating circumstances were found. The shop of the petitioner's father was also searched and nothing was seized. The petitioner also alleges that if he is arrested, he will be put to shame and that he is willing to offer necessary sureties. 4. In the counter-statement filed by the respondent it is contended as follows: The investigation done so far shows that apart from the present seizure case, the petitioner's involvement in six other incidents in the past wherein the petitioner has sent foreign gold biscuits through Balakrishnan. The petitioner's involvement in smuggling activities is seen from the statement of the co-accused. The statement made in the petition that the petitioner has no connection with the offence is not correct. 5. Balakrishnan referred to above was arrested on 4th July, 1985 by the Intelligence and he was found in possession of Rs.1,10,000/- for which he could not account. The petitioner's involvement in smuggling activities is seen from the statement of the co-accused. The statement made in the petition that the petitioner has no connection with the offence is not correct. 5. Balakrishnan referred to above was arrested on 4th July, 1985 by the Intelligence and he was found in possession of Rs.1,10,000/- for which he could not account. On interrogation, Balakrishnan stated that the amount was realised by the sale of four foreign marked gold biscuits handed over to him by the petitioner at Madurai for selling the same to one Subramania Asari of Nagercoil. On information the said Subramania Asari was traced and interrogated, Subramaniam has confirmed the version of Balakrishnan. Subramania Asari has sold gold to one Shahjahan of Nagercoil. The said Shahjahan has converted 2 gold biscuits into jewels and two other biscuits have been sold by him. The jewels and primary gold were seized from Shahjahan. Subramaniam and Shahjahan were arrested and along with Balakrishnan were remanded to judicial custody. 6. The petitioner is the principal offender and has been engaging himself in smuggling of foreign gold biscuits and dealing in the same by selling them through Balakrishnan as such. The petitioner will have to be arrested and the source of these foreign biscuits will have to be traced. Having regard to the involvement of the petitioner in the offence, the petitioner cannot invoke section 438, Criminal Procedure Code. Releasing the petitioner on anticipatory bail, will seriously jeopardise the course of the investigation and will seriously handicap the prosecution. 7. The point for consideration is, whether the petitioner is entitled to an anticipatory bail under section 438, Criminal Procedure code. 8. We will have to ascertain the principles to be adopted in the matter of enlarging persons in anticipatory bail and apply the same to the facts of this case. The provision relating to the anticipatory bail, viz., section 438, Criminal Procedure Code, is of recent origin and the same is as follows:” “438. 8. We will have to ascertain the principles to be adopted in the matter of enlarging persons in anticipatory bail and apply the same to the facts of this case. The provision relating to the anticipatory bail, viz., section 438, Criminal Procedure Code, is of recent origin and the same is as follows:” “438. Direction for grant of bail to person apprehending arrest: (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 438, Criminal Procedure Code, enables this Court and the Court of Session to release persons apprehending arrest on bail if it thinks fit. Under section 437, Criminal Procedure Code, relating to release of persons on bail after arrest, the Court is empowered to release the accused if it is satisfied that it is just and proper so to do for any other special reasons. The question whether the judicial discretion to be exercised under section 438, Criminal Procedure Code, is the same as the one contemplated under section 437, Criminal Procedure Code, had been considered in the pronouncement of the Supreme Court. In both the cases the Court on the exercise of judicial discretion can release a person on bail. The only difference is that the person accused of an offence is released in the case of anticipatory bail before arrest by the High Court and the Court of Session and in the case of bail by the Court after he was apprehended. The common aspect in both the cases is whether the person accused of an offence can be released on bail pending investigation and trial. If in the matter of granting anticipatory bail a lenient view is to be taken in the matter of the exercise of judicial discretion then it will enable every one accused of an offence to file an anticipatory bail application before arrest and take advantage of such a situation. Bearing in mind this principle we will have to examine sections 437 and 438, Criminal Procedure Code, in the light of the decisions rendered on the subject. In dealing with the provision of bail in a non-bailable offence after arrest, the Supreme Court in the case reported in State v. Captain Jagjit Singh State v. Captain Jagjit Singh (1962) 1 S.C.J. 408: (1962) 3 S.C.R. 622 ;(1962) MLJ. (Crl.) 296:A.I.R. 1962 S.C. 253, observed that the Court should have taken into account the various considerations, such as nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other consideration, when bail is asked for in a non-bailable offence. The Supreme Court also observed that the powers of the High Court in the matter of granting bail are very wide: even so where the offence is non-bailable, various considerations such as those indicated above have to be taken into account before bail is granted in a non-bailable offence. In a case where several under-trials languished in the prison for want of sureties, the Supreme Court observed in the case reported in Hussainara Khatoon (I) v. Home Secretary Hussainara Khatoon (I) v. Home Secretary (1979) Crl.L.J. 1036: (1980) 1 S.C.C. 81 :(1980) S.C.C. (Crl.) 23:A.I.R. 1979 S.C. 1360, that the risk of monetary loss is not the only deterrent against fleeing from justice, but there are also other factors which act as equal deterrents against fleeing. The Supreme Court expressed the view that the following factors will have to be taken into consideration in the matter of releasing a person accused of a non-bailable offence- 1. The length of his residence in the community, 2. his employment status, history and his financial condition, 3. his family ties and relationships, 4. his reputation, character and monetary condition, 5. his prior criminal record including any record of prior release on recognizance or on bail, 6. the identity of responsible members of the community who would vouch for his reliability, 7. the nature of the offence charged and the apparent possibility of conviction and the likely sentence in so far as these factors are relevant to the risk of non-appearance, and 8. any other factors indicating the ties of the accused to the community or bearing on the wilful failure to appear. In the case reported in G. Narasimhalu v. Public Prosecutor G. Narasimhalu v. Public Prosecutor (1978) Crl.L.J. 502:(1978) 1 S.C.W.R. 446: (1978) 1 S.C.C. 240 :(1978) S.C.C. (Crl.) 115: (1978) 2 S.C.R. 371 :A.I.R. 1978 S.C. 429, V.R. Krishna Iyer, J., observed as follows:” “Bail or jail?” … at the pre-trial or post conviction stage-belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit Court, I have to deal with this uncanalised case-flow ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty deprived when bail is refused, is too precious a value of our Constitutional system recognised under Article 21 that the crucial power to negate it is a great trust exercisable not casually but judicially, with lively concern for the cost to the individual and the community. The glamorise impressionistic orders as discretionary may, on occasion make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of “procedure established by law.” @@@@@ V.R. Krishna Iyer, J., again in the course of the judgment extracted the following words of Benjamin Cardozo on judicial discretion: “The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence, tradition, methodized analogy, disciplined by system and subordinated to ‘the primordial necessity of order in the social life’. Wide enough in all conscience is the field of discretion that remains.” The learned Judge also quoted the following observation of Lord Camden: “the discretion of a Judge in the law of tyrants; it is always unknown, it is different in different men; it is casual; and depends upon constitution, temper and passion. In the beast, it is oftentimes caprice, in the worst, it is every vice, folly and passion to which human nature is liable….” The following observation of Lord Mansfield is also referred to by the learned Judge- “discretion, when applied to a Court of justice means, discretion guided by law. In the beast, it is oftentimes caprice, in the worst, it is every vice, folly and passion to which human nature is liable….” The following observation of Lord Mansfield is also referred to by the learned Judge- “discretion, when applied to a Court of justice means, discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful, but legal and regular. An appeal to a Judge's discretion is an appeal to his judicial conscience. The discretion must be exercised not in opposition to but in accordance with, established principles of law.” The following observations of Lord Russel of Killowen, C.J., is also extracted: ““it was the duty of Magistrate to admit accused persons to bail, wherever practicable unless there were strong grounds for supporting that such persons would not appear to take their trial. It was not the poorer classes who did not appear, for, their circumstances were such as to tie them to the place where they carried on their work. They had not the gold wings with which to fly from justice.” The following passage from the book by Archbold on Pleading, Evidence and Practice in Criminal Cases is also quoted in the judgment: “The proper test of whether bail should be granted or refused is whether it is probable that the defendant will appear to take his trial…..The test should be applied by reference to the following considerations“.. 1. The nature of the accusation.…… 2. The nature of the evidence in support’ of the accusation.…. 3. The severity of the punishment which conviction will entail….. 4. 1. The nature of the accusation.…… 2. The nature of the evidence in support’ of the accusation.…. 3. The severity of the punishment which conviction will entail….. 4. Whether the sureties are independent, or indemnified by the accused person….” In the case reported in State v. Jaspal Singh Gill State v. Jaspal Singh Gill (1984) Crl.L.J. 1211:(1984) L.W. (Crl.) 18 (S.C.) (S.N.): (1984) 3 S.C.C. 555 :(1984) S.C.C. (Crl.) 444:A.I.R. 1984 S.C. 1503, the Supreme Court after considering its previous decisions observed as follows:” “On a consideration of the above three decisions, I am of the view that the Court before granting bail in cases involving non-bailable offences particularly where the trial has not yet commenced should take into consideration various matters, such as, the nature and seriousness of the offence, the charter of the evidences, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other considerations.” 9. From the above decisions of the Supreme Court, the principles to be adopted in the matter of exercise of judicial discretion in releasing of persons accused of a non-bailable offence pending trial can be ascertained. Whether the principles laid down in the matter of release of persons on bail in non-bailable offences will apply in the matter of granting anticipatory bail under section 438, Criminal Procedure Code, also came up for decision before the Supreme Court. In the case reported in Balchand v. State of Madhya Pradesh Balchand v. State of Madhya Pradesh (1977) 1 S.C.J. 348:(1977) 2 S.C.R. 52:(1976) 4 S.C.C. 572:(1977) L.W. (Crl.) 98:(1976) S.C.C. (Crl.) 689:(1977) MLJ. (Crl.) 219:(1977) Crl.L.J. 225:A.I.R. 1977 S.C. 366, in dealing with a case on the question whether persons can be released on anticipatory bail under rule 184 of the Defence and Internal Security of India Rules, 1971, which provides for release of persons on bail on certain conditions, the Supreme Court observed as follows:” “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. 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, therefore, it is only on arrest that the order granting ‘anticipatory bail’ becomes operative. 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 an 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.” In the course of the judgment, Fazal Ali, J., observed as follows:” “Section 438 does not contain unguided or uncanalised powers to pass an order for anticipatory bail, but such an order being of an exceptional type can only be passed if, apart from the conditions mentioned in section 437, there is a special case made out for passing the order. The words ‘for a direction under this section’ and Court may, if it thinks fit, direct clearly show that the Court has to be guided by a large number of considerations including those mentioned in section 437 of the Code.” The Supreme Court observed that the provisions of the Code of Criminal Procedure must be read along with rule 184 and full effect must be given to them except in so far as they are, by reason of the non obstante clause overridden by rule 184. In the case reported in G.S. Sibbia v. State of Punjab G.S. Sibbia v. State of Punjab (1980) L.W. (Crl.) 135:(1980) 2 S.C.R. 171: (1980) 2 S.C.C. 565 :(1980) S.C.C. (Crl.) 465:(1980) Crl.L.J. 1125:A.I.R. 1980 S.C. 1632, a Full Bench of the Supreme Court came to the conclusion that the granting of anticipatory bail should be left to the discretion of the Court on following reasoning- “The provisions of sections 437 and439 furnished a convenient model for the Legislature to copy while enacting section 438. If it has not done so and has departed from a pattern which could easily be adopted with the necessary modifications, it would be wrong to refuse to give to the departure its full effect by assuming that it was not intended to serve any particular or specific purpose. The departure, in our opinion, was made advisedly and purposefully. Advisedly, at least in part, because of the 41st Report of the Law Commission which while pointing out the necessity of introducing a provision in the Code enabling the High Court and the Court of Session to grant anticipatory bail said in paragraph 39.9 that it had considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted, but had come to the conclusion that the question granting such bail should be left ‘to the discretion of the Court’ and ought not to be fettered by the statute provision itself, since the discretion was being conferred upon superior Courts which were expected to exercise it judicially. The Legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should not be granted and, secondly, because the intention was to allow the higher Courts in the cohelon a somewhat free hand in the grant of relief in the nature of anticipatory bail. That is why, departing from the terms of sections 437 and439, section 438(1) uses the language that the High Court or the Court of Sessions ‘may, if it thinks fit’ direct that the applicant by released on bail. Sub- section (2) of section 438 is a further and clearer manifestation of the same legislature intent to confer a wide discretionary power to grant anticipatory bail. Sub- section (2) of section 438 is a further and clearer manifestation of the same legislature intent to confer a wide discretionary power to grant anticipatory bail. It provides that the High Court or the Court of Sessions, while issuing a direction for the grant of anticipatory bail, ‘may include such conditions in such directions in the light of the facts of the particular case, as it may think fit’, including the conditions which are set out in clauses (i) to (iv) of sub- section (2). The proof of legislative intent can best be found in the language which the legislature uses. Ambiguities can undoubtedly be resolved by resort to extraneous aids but words, as wide and explicit as have been used in section 438, must be given their full effect, especially when to refuse to do so will result in undue impairment of the freedom of the individual and the presumption of innocence. It has to be borne in mind that anticipatory bail is sought when there is mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail is generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non-bailable offence asks for bail. In the latter situation, adequate data is available to the Court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in section 43. This is not to say that anticipatory bail, if granted, must be granted without the imposition of any conditions. That will be plainly contrary to the very terms of section 438. This is not to say that anticipatory bail, if granted, must be granted without the imposition of any conditions. That will be plainly contrary to the very terms of section 438. Though sub- section (1) of that section says that the Court ‘may, if it thinks fit’ issue the necessary direction for bail, sub- section (2) confers on the Court the power to include such conditions in the direction as it may think fit in the light of the facts of the particular case, including the conditions mentioned in clauses (i) to (iv) of the sub-section. The controversy therefore is not whether the Court has the power to impose conditions while granting anticipatory bail. It clearly and expressly has that power. The true question is whether by a process of construction, the amplitude of judicial discretion which is given to the High Court and the Court of Session, to impose such conditions as they may think fit while granting anticipatory bail, should be cut down by reading into the statute conditions which are not to be found therein, like those evolved by the High Court or canvassed by the learned Additional Solicitor General. Our answer, clearly and emphatically, is in the negative. The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in section 437 or which are generally considered to be relevant under section 439 of the Code. Generalisation on merits which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, the Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. No two cases are alike on facts and therefore, the Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher Courts manned by experienced persons, secondly their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by Courts judicially and not according to him, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed, because life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges. While dealing with the necessity for preserving judicial discretion unhampered by rules of general application, Earl Loreburn, L.C. said in Hyman and Anr. v. Rose Hyman and Anr. v. Rose (1912) A.C. 623: ‘I desire in the first instance to point out that the discretion given by the section is very wide….. Now it seems to me that when the Act is so express to provide a wide discretion….. it is not advisable to lay down any rigid rules for guiding that discretion. I do not doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims in general, and that in general they reflect the point of view from which judges would regard an application for relief. But, I think it ought to be distinctly understood that there may be cases in which any or all of them may be disregarded. If it were otherwise the free discretion given by the statute would be fettered by limitations which have nowhere been enacted. It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. If it were otherwise the free discretion given by the statute would be fettered by limitations which have nowhere been enacted. It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the Court where the conditions are not safe, I think, to say that the Court must and will always insist upon certain things when the Act does not require them, and the facts of some unforeseen cases may make the Court wish it had kept a free hand.’ Judges have to decide cases as they come before them mindful of the need to keep passions and prejudice out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a straitjacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the content of emerging concerns as and when it arises: Therefore, even if we were to frame a ‘Code for the grant of anticipatory bail’ which really is the business of the legislature, it can at best furnish broad guidelines and cannot compel blind adherence. In which case to grant bail and in which case refuse it is, in the very nature of things, a matter of discretion. But, apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question in the discretion of the Court, by providing that it may grant bail ‘if it thinks fit.‘The concern of the Courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the Courts by law.” @@@@@@@@@@ Chandrachud, C.J., characterised the procedure adopted by the High Court in following certain norms in the matter of granting anticipatory bail, as follows: “In its anxiety, otherwise, just to show that the power conferred by section 438 is not ‘unguided or uncanalised’ the High Court has subjected that power to a restraint which will have the effect of making the power utterly unguided. To say that the applicant must make out a ‘special case’ for the exercise of the power to grant anticipatory bail, is really to say nothing. The appellant has undoubtedly to make out a case for the grant of anticipatory bail. But, one cannot go further and say that he must make out a ‘special case’. We do not see why the provisions of section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. 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 foreseeable consequences of its use, is the hall mark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.” In referring to the decision of Bhagwati, J., as he then was, in the case reported in Balchand Jain v. State of Madhya Pradesh Balchand Jain v. State of Madhya Pradesh (1977) 1 S.C.J. 348:(1977) MLJ. (Crl.) 219:(1977) 2 S.C.R. 52, referred to supra, Chandrachud, C.J., observed as follows:” “We hold the decision in Balchand Jain (supra) in great respect but it is necessary to remember that the question as regards the interpretation of section 438 did not at all arise in that case. (Crl.) 219:(1977) 2 S.C.R. 52, referred to supra, Chandrachud, C.J., observed as follows:” “We hold the decision in Balchand Jain (supra) in great respect but it is necessary to remember that the question as regards the interpretation of section 438 did not at all arise in that case. Fazal Ali, J., has stated in paragraph 3 of his judgment that the only point which arose for consideration before the Court was whether the provisions of section 438 relating to anticipatory bail stand overruled and repealed by virtue of rule 184 of the Defence and Internal Security of India Rules, 1971, or whether both the provisions can, by the rule of harmonious interpretation, exist side by side. Bhagwati, J., has also stated in his judgment, after adverting to section 438, that rule 184 is what the Court was concerned with in the appeal. The observations made in Balchand Jain (Supra), regarding the nature of the power conferred by section 438 and regarding the question whether the conditions mentioned in section 437 should be read into section 438 cannot therefore be treated as concluding the points which arise directly for our consideration. We agree, with respect, that the power conferred by section 438 is of an extraordinary character in the sense indicated above, namely, that it is not ordinarily resorted to like the power conferred by sections 437 and 439. We also agree that the power to grant anticipatory bail should be exercised with due care and circumstances, but beyond that, it is not possible to agree with the observations made in (1977) 1 S.C.J. 348, in an altogether different context or an altogether different point.” @@@@@@@ Chandrachud, C.J., later, in dealing with the principles to be adopted in the matter of granting anticipatory bail, observed as follows:” “An over-generous infusion of constraints and conditions which are not to be found in section 438 can make its provisions constitutionaly vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficient provision contained in section 438 must be saved, not jettisoned. The beneficient provision contained in section 438 must be saved, not jettisoned. No doubt can linger after the decision in (1978) 1 S.C.C. 248 : (1978) 2 S.C.R. 621 :(1978) 2 S.C.J. 312:A.I.R. 1978 S.C. 597, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein.” Though the Supreme Court expressed the view against the Court following any set of principles in the matter of anticipatory bail yet it laid down the four corners within which the discretion regarding the release of a person on anticipatory bail is to be exercised. In paragraph 29 of its judgment it has been observed as follows:” “In regard to anticipatory bail if the proposed accusation appears to stem not from motives of furthering the ends of justice, but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail, he will flee from justice such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides, and, equally that anticipatory bail must be gained if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the Court while granting or rejecting anticipatory bail. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the Court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and the larger interests of the public or the State are some of the considerations which the Court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in the State v. Captain Jagjit Singh State v. Captain Jagjit Singh (1962) 1 S.C.J. 408: (1962) 3 S.C.R. 622 , which though, was a case under the old section 498, which corresponds to the present section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the Court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.” The Supreme Court later observed that a word of caution may perhaps be necessary in the evaluation of the consideration whether the applicant is likely to abscond, and there can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, any more than there can be a presumption that the former are not likely to commit a crime and the latter and more likely to commit it. In considering the nature of discretion to be exercised, the Supreme Court observed as follows:” “We would, therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under section 438 by a wise and careful use of their discretion which by their long training and experience, they are ideally suited to do. In considering the nature of discretion to be exercised, the Supreme Court observed as follows:” “We would, therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under section 438 by a wise and careful use of their discretion which by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these Courts to act objectively and in consonance with principles governing the grant of bail which are recognised over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost chronic, to take a statute as one finds it on the ground that, after all, ‘the legislature in its wisdom’ has thought it fit to use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom especially when the discretion is entrusted to their care by the legislature in its wisdom. If they err, they are liable to be corrected.” In paragraph 32 of its judgment the Supreme Court observed anticipatory bail 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. 10. Considering the judgment of the Supreme Court in the proper perspective the following conclusion is inevitable: 1. In exercising judicial discretion under section 438, Criminal Procedure Code, the Court is not bound by any set of principles or norms; 2. The judicial discretion will have to be exercised having in mind the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and the larger interests of the public or the State and at the same time having in mind the special circumstances present in a case which cannot be enumerated. 3. 3. In the matter of exercise of judicial discretion the Court must be guided by the purpose for which section 438, Criminal Procedure Code, was enacted, viz., to prevent persons from being humiliated for motives other than bringing the offenders to book; 4. The legislature did not intend to impose any hard and fast rule in the matter of exercise of judicial discretion, but left the same to the discretion of Court and the exercise of discretion depends on the circumstances in each case bearing in mind the necessity of bringing offenders to book and the liberty of the individual. 11. We will have to examine the facts of this case on the above lines and see whether the judicial discretion can be exercised in favour of the petitioner in the matter of releasing him on anticipatory bail. The accusation against the petitioner is that he had been indulging in smuggling foreign gold. According to the respondent one Balakrishnan was arrested on 4th July, 1985 with a cash of Rs.1,10,000, which he could not account for and on interrogation he stated that the amount represented the sale proceeds of four foreign marked gold biscuits handed over to him by the petitioner for selling the same to one Subramania Asari of Nagarcoil. The said Subramania Asari confirmed the version of Balakrishnan and he seems to have sold the gold to one Shahjahan of Nagarcoil. The said Shahjahan had converted two gold biscuits into jewels and two other biscuits have been sold by him. The jewels and primary gold were seized from Shahjahan. In the case reported in Assistant Collector of Customs v. M. Ashok Assistant Collector of Customs v. M. Ashok (1984) 16 E.L.T. 202 (A.P.), a single Judge of the Andhra Pradesh High Court observed that when the goods seized is of a foreign origin the burden of proof lies on the person who is possessing the same to show that the same was not smuggled. According to the version of Balakrishnan the petitioner herein entrusted him with gold biscuits. Under the circumstances the petitioner may have to establish that the gold possessed by him was not smuggled. Further, it is stated on behalf of the respondent that investigation revealed the petitioner is involved in several other transactions which will have to be traced. According to the version of Balakrishnan the petitioner herein entrusted him with gold biscuits. Under the circumstances the petitioner may have to establish that the gold possessed by him was not smuggled. Further, it is stated on behalf of the respondent that investigation revealed the petitioner is involved in several other transactions which will have to be traced. If the petitioner is at large then it may be possible for him to suppress the source of information. In the case reported in Kasturchand Ramlal v. State of Maharashtra Kasturchand Ramlal v. State of Maharashtra (1981) 83 Bom. L.R. 8:(1981) Crl.L.J. 1328, a single Judge of the Bombay High Court in dealing with the question whether the person who was shown to have possessed of 14 bags of cement in violation of the provisions of the Essential Commodities Act read with clause 8 of Maharashtra Cement (Licensing and Control) (Amendment) Order, 1978, can be released on anticipatory bail, observed as follows:” “Bearing in mind these observations and looking to the facts in the present case, it would be clear that there is no attempt to involve the petitioner in a false case with a view to disgrace him or malign him. His conduct as observed above does not inspire confidence. Furthermore, the investigation machinery has still not completed its investigation, for, the investigating machinery is still trying to secure evidence to establish a conspiracy. It may be open for the petitioner to move the proper Court for releasing him on bail under the ordinary provisions of the Code. However, as earlier stated the remedy for anticipatory bail is an extraordinary remedy provided in law and has to be resorted to only in exceptional cases and if special grounds are made out. I do not find that any special grounds are made out, in this case for the exercise of the powers for anticipatory bail.” In this case also, the further investigation is in progress and there is nothing to show that there is any attempt to malign the petitioner by foisting a false case against him. Releasing the petitioner on anticipatory bail will also hamper the unearthing of several transactions alleged to have been entered into by him. Another question to be considered in this case is whether there is any likelihood of the petitioner indulging in such activities if he is at large. Releasing the petitioner on anticipatory bail will also hamper the unearthing of several transactions alleged to have been entered into by him. Another question to be considered in this case is whether there is any likelihood of the petitioner indulging in such activities if he is at large. If as contended by the respondent the petitioner had been habitually indulging in such offences it is likely that he will try to dispose of all the stocks of gold with him or with his agents. In the case reported in Somabhai v. State of Gujarat Somabhai v. State of Gujarat (1977) 18 Guj.L.R. 131:(1977) Crl.L.J. 1523, a single Judge of the Gujarat High Court observed as follows:” “In cases of economic offences where the likelihood of repetition of the offence whilst on bail cannot be foreclosed, such as, smuggling, hoarding, profiteering, indulging in manipulations of foreign exchange, etc., the Court will not consider it safe to exercise the powers.” 12. Considering the entire circumstances anticipatory bail cannot be granted to the petitioner on account of the following reasons- 1. There is no material to show that the prosecution is intending to malign the petitioner or to disgrace him and not in furtherance of justice. There is no motive for the persons mentioned above to implicate the petitioner falsely; 2. The investigation with regard to the offence in question had not been completed and several similar transactions in respect of which prosecution had received information have to be unearthed and if the petitioner is at large it may be difficult for the prosecution to secure material regarding the same; 3. If the petitioner is at large there is a likelihood of his making an attempt to see that no evidence is forthcoming against him, since he can reach the concerned persons before the prosecution can discover them and record their statements; 4. If the petitioner is at large, there is a likelihood of his continuing the activities alleged against him; 5. The offence complained of is not one against an individual but one affecting the economy of the country. If the petitioner is at large, there is a likelihood of his continuing the activities alleged against him; 5. The offence complained of is not one against an individual but one affecting the economy of the country. The materials available against the petitioner, the nature of the offence, and the absence of materials to show that the case is intended to malign the petitioner, the possibility of suppression of evidence, and the repetition of the act, do not warrant the exercise of judicial discretion in favour of the petitioner in the matter of releasing him on anticipatory bail under section 438, Criminal Procedure Code. There are ho merits in this petition and the same is dismissed. B.S. ----- Petition dismissed.