Judgment :- Crl.M.P.Nos.5143 and 5144 of 1989 are petitions for bail filed by the two accused in O.S.No.l70 of 1989-RD=R.R.No.82 of 1989and O.S.No.169 of 1989-RD respectively on the file of the Assistant Collector of Customs, Prosecution, Custom House, Madras-1. Crl.M.P.No.5080 of 1989 is a petition by one other accused in the same case (O.S.No.171 of 1989-RD) praying for directions to the respondent, who is the Assistant Collector of Customs, Prosecution, to expedite filing of the complaint. Crl.M.P.No.5245 of 1989 is a petition by the Assistant Collector of Customs, Prosecution, Madras, to set aside the order granting bail to the petitioner in Crl.M.P.No.5080 of 1989 made in Crl.M.P.No.1333 of 1989 on the file of the Principal Sessions Judge, Madras. For the sake of convenience the petitioner in Crl.M.P.Nos.5143,5144 and 5080 (respondent in Crl.M.P.No.5245 of 1989), will, hereinafter be referred to as the accused in the course of this order. 2. For the disposal of these petitions a few facts need narration. The accused were arrested at Minambakkam, (Madras) Airport on 26.3.1989 for alleged smuggling of gold from Malaysia. The gold, which was concealed in the baggages brought by them, was seized by the customs authorities. The accused were questioned by the prosecuting agency and they are stated to have made voluntary statements, which, however, the accused dispute as the outcome of threat and coercion. 3. Goldand/or jewellery, worth about Rs.9 lakhs was seized from the petitioner in Crl.M.P.No.5143 of 1989 and about Rs.7 Lakhs worth from the petitioner in Crl.M.P.No.5144 of 1989. The petitioner in Crl.M.P.No.5080 of 1989 had in her possession gold jewellery worth about Rs.3 Lakhs. 4. All the three accused filed separate applications for bail before the Principal Sessions Judge, Madras. By orders passed on 19-4-1989 the learned Sessions Judge dismissed bail applications of two of the accused (Petitioners in Crl.M.P.Nos.5143 and 5144 of 1989) observing that they can renew their applications if a complaint was not instituted by 5-5-1989. As far as the third accused (Petitioner in Crl.M.P.No.5080 of 1989) was concerned, the court of Sessions directed her release on bail on condition that she deposited in Cash Rs.5,000 before the Additional Chief Metropolitan Magistrate (E.O.II), Madras apart from executing a bond for a like sum with two sureties each for a like sum to the satisfaction of the same magistrate. A further condition was attached that both the sureties must be Indian Citizens and must possess immovable property in this country. It was also specified that one such surety must be Thirumathi Lakshmi, whom the said accused claimed to be known to her. A final direction was made that the petitioner must appear before the respondent Assistant Collector of Customs, Madras, every day at 10 a.m. until further orders. It is this order of the Court of Sessions, Madras, which is sought to beset aside in Crl.M.P.No.5245 of 1989. 5. Mr.K. Ramasami, learned counsel for the accused contended that though it will be paramount for the Court to consider in the case of foreign nationals the possibility of their being available for trial, and not fleeing away from justice, it cannot be a wooden or inviolable rule, despite different set of facts, which may have to be applied depending on circumstances unfurled in every prosecution and if sufficient safeguards could be provided, which can be a fair assurance on these two aspects, the liberty of the accused could not be jeopardized endlessly, without any limit. He would further contend that in terms of Art.21 of the Constitution of India, no person shall be deprived of his life or personal liberty except according to procedure established by law. The procedure would include procedure concerning bail. Substantiating this argument, learned counsel could contend that denial of bail to an accused and keeping him in fetters would amount to a denial of a fair trial. He would also submit that the consideration for cancellation of bail would be different from the criteria adopted for grant of bail. 6. To seek support to his contentions learned counsel would rely upon the following decisions. 7. The first decision is the one reported in Gudik Anti Narasimhulu v. Public Prosecutor, A.I.R. 1978 S.C.429: (1978)1 S.C.C. 240 : 1978 S.C.C. (Crl.) 115: 1978 Crl.L.J.502, wherein it has been observed that the significance and Sweep of Art.21 makes the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Art.19. "Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice-to the individual involved and society affected. "Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice-to the individual involved and society affected. We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted...... Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Art.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......Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being." 8. The second decision relied on by the learned counsel for the accused is the one reported in Gurucharan Singh v. State (Delhi Administration), 1978 M.L.J. (Crl) 261:A.I.R 1978 S.C 179: (1978)1 S.C.J. 388: (1978)1 S.C.C. 118 :1978 S.C.C. (Crl.) 41:1978 Crl.L.J. 129, wherein the Supreme Court has observed that, "it was essential that due and proper weight should be bestowed on the two factors, namely, likelihood of the accused fleeing from justice and his tampering with prosecution evidence, relating to ensuring a fair trial of the case in Court of justice. “There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling the bail.....The overriding considerations in granting bail (to which the Supreme Court referred to in this case) are the nature and gravity of the circumstances in which the offence is committed, the position and the status of the accused with reference to the victim and the witnesses: the likelihood of the accused fleeing from justice; of repeating of offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case: of tempering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out”. 9. The next decision relief on by the learned Counsel for the accused is Satyan v. State, 1981 Crl.L.J. 1313, wherein, P.Janaki Amma, J. of the Kerala High Court has observed thus: “The legislature has made a liberal approach in the matter of granting bail and has shown its disapproval in the matter of keeping an accused person in custody in cases where he is ordinarily entitled to bail. The purpose of keeping a person in custody is to ensure his appearance in Court at the time of trial and that he is also made available for the purpose of execution of the sentence. The purpose is not penal in character”. 10. At this stage Mr.Ramaswami would contend that law cannot make a difference between an Indian and a foreigner without any guideline and denial of bail in certain circumstances would amount to imposing a penalty on a person simply because he was a foreigner. Though he would expatiate and say that foreigner is a circumstance to be taken into consideration for grant of bail, a wooden approach cannot be made since even an Indian national can flee from justice, though it can be stated that such a possibility may be slightly remote. 11. The next decision relied upon by the learned counsel for the accused is Smt.Maneka Gandhi v. Union of India, A.I.R 1978 S.C. 597; (1978)1 S.C.C. 248 : (1978)2 S.C.J. 512, wherein the Supreme Court while considering Art.21 of the Constitution of India held, thus; “If a law depriving a person of”personal liberty“and prescribing a procedure for that purpose within the meaning of Art.21 has to stand the test of one or more of the fundamental rights conferred under Art. 19 which may be applicable in a given situation, hypothesis it must also be. liable to be tested with reference to Art. 14”. On this basis, learned Counsel would contend that the procedure established by law reflected in the provisions of Sec.437, Cr.P.C, must be given full effect to. 12. On fact, learned counsel would submit that the three accused in these cases can be directed to furnish cash security apart from local surety, who could be suitably tested. The accused may also be directed to appear before Customs authorities or court twice a day. 12. On fact, learned counsel would submit that the three accused in these cases can be directed to furnish cash security apart from local surety, who could be suitably tested. The accused may also be directed to appear before Customs authorities or court twice a day. If need be while directions may be issued to the authorities to expedite the filing of the complaint in the event of their filing one, so that the accused can face the trial and reap the consequences. 13. As far as the petition (Crl.M.P.No.5245 of 1989) seeking cancellation of bail filed by the Assistant Collector of Customs, learned counsel would contend that the pendency of investigation though, it is more than a month old, and the accused being a foreign national, may not be sufficient grounds, especially when these aspects had been taken note of the Court of Sessions while enlarging the accused on bail with stringent conditions, to cancel the bail. Thiru P.Rajamanickam, learned counsel appearing for the Assistant Collector of Custom would counter the argument of Thiru K.Ramasamy by strenuously contending that the customs authorities will be abdicating the investigation if they do not collect details about the man behind the whole operation. He would state that on the facts presented by the prosecution it was clear that the same person Brahaman had given either gold or gold jewellery to all the three accused who had travelled by the same flight and they were to hand over the gold to a person at Madras who would identify one of them, the other two follow the said individual. He would contend that the prior preplanned arrangements of smuggling activity was so patent that while considering grant of bail which of course is a discretion, well settled principles cannot be overlooked. The bifocal interest of the prosecution and the accused will have to be kept in mind. This was sufficiently a serious case, where till, the customs department have not been able to trace the link in Madras who would have, most probably received the gold in the event of escape of the three accused from Customs check on the fateful night. This was sufficiently a serious case, where till, the customs department have not been able to trace the link in Madras who would have, most probably received the gold in the event of escape of the three accused from Customs check on the fateful night. To a pointed question as to whether one Nathmul, said to have been referred to in the statements of the accused and who had obtained anticipatory bail from this Court, has been examined, he would submit that though he had been examined, he does not appear to be connected with this crime though prior contact with him by one of the accused portrayed. 14. In this turn, Mr.P. Rajamanickam would refer to the following decisions; the first is the one reported in State v. Captain Jagijit Singh, A.I.R. 1962 S.C. 253: 1962 M.L.J. (Crl.) 296: (1962) 1 S.C.J. 408: (1962)1 Crl.L.J.215, wherein the Supreme Court has observed that if the offence is not bailable, further considerations arise and the Court has to decide the question of grant of bail in the light of those further considerations, such as, nature and seriousness of the offence, the character 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 interest of the public or the State and similar other consideration, which arise when a court is asked to admit accused to bail in a non-bailable offence. It was held that a Court has to take into account in deciding whether bail should be granted in a non-bailable offence, the nature of the offence and if the offence was of a kind, in which bail should not be granted considering its seriousness, the Court should refuse bail even though it has very wide powers under Sec.498 of the Criminal Procedure Code, 1898 (Old Code). 15. The second decision relied on by the learned counsel for the prosecuting agency is Gudikanti Narasimhulu’s case, A.I.R. 1978 S.C. 429 (Cited supra). In that case, the accused have been acquitted in the trial court although the acquittal was set aside by the High Court and pending appeal to the Supreme Court, bail was considered, though general considerations for grant of pre-trial bail also formed part of the dicta. In that case, the accused have been acquitted in the trial court although the acquittal was set aside by the High Court and pending appeal to the Supreme Court, bail was considered, though general considerations for grant of pre-trial bail also formed part of the dicta. The learned counsel would add that the accused in this case are liable in the event of a conviction for a minimum sentence of one year though it can extend to a period of 7 years. He would point out that in the said decision public justice has been stated to be the centre of the whole scheme of bail law. No seeker of justice shall play confidence tricks on court or community. Thus conditions may be hung around bail orders, not to cripple but to protect State. He would submit that the goals of community good and State necessity and bi-focal interest of justice would be paramount. Even if, there is an apprehension that the petitioners are likely to flee away from justice since getting them back for trial would be impossible, there being no treaty, he would contend that strict norms may have to be followed on the plea of bail in this case. In this context. Mr.P. Rajamanickam would refer to Gurcharam Singh’s A.I.R. 1978 S.C. 179 (Supra), to reiterate the two overriding considerations stated therein, attached to the grant of bail, viz. likelihood of the accused fleeing from justice and his tampering with the prosecution evidence. He would also slate that the second part of it may not loom charge for consideration is in these petitions. According to him, the accused on the facts unfurled, knew what they were doing and they were aware that they were carrying on gold to Madras contrary to law. 16. Nextly, relying on Delhi Administration v. Sanjay Gandhi, 1978 M.L.J. (Crl.) 509: A.I.R. 1978 S.C. 961: (1978)2 S.C.J. 159: (1978)2 S.C.C. 411 :1978 S.C.C. (Crl.) 223:1978 Crl.L.J. 952, learned counsel would contend that in an application for cancellation of bail it was not necessary for the prosecution to prove by a mathematical certainty or even beyond a reasonable doubt that the accused had in fact, abused his liberty for, it could be so done by preponderance of probabilities even at a pre-bail stage, that there was a lurking possibility of misusing liberty. 17. 17. The principles laid down in Bhagirath Singh Judeja v. State of Gujarat, 1984 Crl. L.J.160, are relied upon to indicate the relevant considerations under which an application for cancellation of bail may have to be considered. 18. Learned counsel would also refer to the decision reported in Hussainara Khatoon v. State of Bihar, A.I.R. 1979 S.C. 1360:1979 Crl.L.J. 1036, to point out the several factors that the court may have to consider which determine whether the accused have roots in the community which would deter him from fleeing. Finally, reliance is placed upon the Judgments of Padmini Jesudurai, J. in Assistant Collector of Customs Prosecution, Madras-1 v. Paolo Mortuzzi, 1988 L.W. (Crl) 10 S.C. and Assistant Collector of Customs v. Shanmugham, 1988 L.W.(Crl) 10 S.N., wherein the learned Judge, while considering the criteria for setting aside the order of granting Bail, had observed that it was common ground that the respondents (in those cases.) who were foreign nationals, had absolutely no roots in India, nor had they claimed employment status or association in India and that the apprehension of the prosecuting agency that the respondents (in those cases) who had absolutely no roots in India would flee from justice crossing the Indian border through illicit channel, if need be, by forfeiting the amount of bond, was a reasonable apprehension. 19. In applications for bail or for cancellation of bail, there can be no binding judicial precedent though, enunciated guidelines and broad Principles laid down for grant or refusal to grant may have to be kept in mind while arriving at conclusions on the peculiar facts of each case. There can be no doubt that grant to or refusal of bail is absolutely discretionary and the conscience of the Court would dictate the need either way depending on the fact of each case. While considering the facts, one cannot overlook that the liberty of an accused is held so sacrosanct that at every stage right from the stage of arrest, statutory safeguards have been provided, for production before Court and custody there after. While considering the facts, one cannot overlook that the liberty of an accused is held so sacrosanct that at every stage right from the stage of arrest, statutory safeguards have been provided, for production before Court and custody there after. Further, keeping, in view that a person cannot be deprived of his liberty without limit, statutory safeguards have been provided under S.167, Cr.P.C. indicating that beyond the period of 60 days in some cases and of 90 days, in certain other cases remand cannot be extended unless the complaint or the final report, as the case may be, had been filed. The courts will also keep in their view the time factor that had elapsed from the date of apprehension of the accused and the time when the plea for bail is made. The need for a proper investigation in cases affecting the economy of the country cannot be overlooked and at the same time, the liberty of the accused cannot also be allowed to be jeopardised. On facts, I find that the accused have been arrested on 26-3-1989 and more than a month had elapsed since then providing sufficient opportunity for the Assistant Collector of Customs to collect materials. The statements of the accused have been recorded on 26-3-1989, and one statement from one of the accused had been recorded on 28-3-1989. It is also admitted that one NATHMUL had been examined though his version was not useful to the prosecution. The statements of these accused did contain information which is capable of verification and action by the Customs authorities. The jobs and status of the individuals in their country as revealed from the confessional statements cannot be overlooked while considering the possibility of their being concerned in smuggling activities as their profession. These accused are not highly paid individuals and at this stage even their statements indicate temptation in their having engaged themselves on this one occasion in this nefarious activity. The criteria for grant of bail may differ from case to case depending on the nature of material collected by the prosecution and the statements made by the accused, which are admissible subject to their challenge during trial such statements having been made under threat and coercion. Though the value of the gold seized will be a criterion to consider grant of bail, value alone cannot be the basis, for refusal of bail. Though the value of the gold seized will be a criterion to consider grant of bail, value alone cannot be the basis, for refusal of bail. A cumulative consideration, on the totality of the circumstances will have to be kept in mind while considering the liberty plea of the accused and the possible polluting of investigation pleaded by the prosecution, apart from the apprehension of the accused fleeing away from the justice. It is possible to conceive that however high the bond amount may be, in economic offences, any amount would be cheap price to secure one’s freedom or liberty. In cases of this type it would be no adequate safeguard requiring execution of bonds alone with sureties. However, this criterion cannot cloud the exercise of the discretion on the facts presented in each case, because adequacy of the bonds to be executed will only be subsidiary consideration after the initial decision to allow the plea of bail. The amount of bail and the fixation of sureties operate in two different fields, though at certain times, they are bound to overlap, but once a decision, is arrived at, that it was possible on facts to view favourably the bail plea, the safeguards which could normally be thought of as sufficient and stringent enough in the light of the two paramount considerations, for grant of bail as laid down by the Supreme Court, will attract attention. 20. Learned counsel for the accused, as stated earlier, has submitted that atleast one surety who has roots in India can be furnished apart from cash security for each one of the accused in the first two cases. The other stringent conditions that the Court may consider necessary could be imposed, according to him, and the only request he would put forth would be for a quick trial in the event of a prosecution being thought of. 21. I am satisfied that sufficient material had not been placed before Court to take a view even prima facie, that the accused may not be readily available for trial or that they are likely to abuse the discretion granted in their favour except to harp on their being foreigners. 21. I am satisfied that sufficient material had not been placed before Court to take a view even prima facie, that the accused may not be readily available for trial or that they are likely to abuse the discretion granted in their favour except to harp on their being foreigners. Illicit escape may be a possibility but check thereof will be a necessity, and the scope for such escape without a passport or with forged passports may also have to be kept in mind, which as I stated earlier, forms part of the melting pot of the decision-taking process. Both the cases cited by Thiru P.Rajamanickam, of Padmini Jesudurai, J. relate to setting aside the orders of the Sessions Court directing the release of the respondents therein (accused) on bail and several factual details have been taken note of by the learned judge in arriving at her conclusions. At the risk of repetition I may state that bail or jail depends on the facts of each case and generally, an inflexible formula of a rigid nature cannot be put forth for universal application. 22. I respectfully agree on the principles enunciated by the learned Judge based on the guidelines laid down by the Supreme Court, but would only add that in discretionary matters there cannot be strait-jacket approach for exercise of discretion depends on the facts put forth in each case. If the Court is satisfied on consideration of relevant factors that by production of proper sureties the accused would show his ties with the local community and there is no substantial risk of nonappearance, an order of bail can be made. 23. I am of the view that petitioners in Crl.M.P.Nos.5143 and 5144 of 1989 can be enlarged on bail on each one of them depositing in cash rupees fifty thousand (Rs.50,000) and executing a bond for a like sum each apart from furnishing a local surety with immovable property worth rupees one lakh (Rs.1,00,000) together with another resident of Madras whose suretyship for a like sum is acceptable and satisfactory to the trial Magistrate, and with a further condition that these petitioners will have to appear before the respondent-Assistant Collector of Customs, Prosecution, Custom House, Madras daily at 10 A.M. and 5 P.M. until further orders. 24. 24. As far as CrlM.P.No.6245 of 1989, for cancellation of bail is concerned, I have already stated that grant of bail and cancellation of bail may stand on different footing and before exercising the discretion in cancelling the bail sufficient and satisfactory reasons must make an impact in the mind of the Court to accept the prayer to cancel bail. Of course, as contended by the prosecution the main ground of release on bail of the accused that a complaint had not been filed though three weeks had elapsed, may not be readily acceptable. I am not able to erase from my mind the other consideration inclusive of furnishing of a local surety which had weighed in the mind of the Sessions Judge and that coupled with the proviso to Sec.437, Cr.P.C. leads me to hold that the bail already granted to the accused (respondent in Crl.M.P.No.5245 of 1989) docs not deserve cancellation. Though the Sessions Judge could have imposed strict or terms as far as the sureties are concerned and a higher deposit of cash security, I do not think it will be necessary at this stage to interfere with the discretion exercised and require her to do so in view of the suretyship of one local resident having been tested by the magistrate before acceptable and whose father, living in Malaysia appears to be known to the accused respondent in this application, which makes the execution of bond meaningful. The possibility of her having been unwittingly lurked into this activity by the family friend, cannot be lost sight of while viewing her case, slightly differently from the other accused. However she is directed to furnish to the respondent her local residential address. 25. With regard to Crl.M.P.No.5080 of 1988 it may not be possible to direct the respondent to file the complaint expeditiously, for then it would amount to directing them to file a complaint’. Filing of the complaint by the prosecuting agency is discretionary and is subject to sanction. The interests of the accused and the prosecution, in the event of the latters’ decision to file a complaint, will be best served by their doing it expeditiously for, apart from a quick trial the apprehension of the accused fleeing away from justice and not being available for trial will be minimised, let alone, the ushering in of the statutory, safeguard limitation vis-a-vis liberty. The views expressed by me are not for universal application, but are restricted to the facts of this case. 26. In the result, CrlM.P.Nos.5143 and 5144 of 1989 are allowed and the petitioners in these petitions shall be enlarged on bail on each one of them depositing in cash a sum of Rs.50,000 (Rupees Fifty thousand only) in the trial court and executing a bona for a like sum each and also each one of them furnishing a local surety possessing immovable property worth Rs.1,00,000 (one Lakh only) and another resident of Madras, whose suretyship for a like sum is acceptable and satisfactory to the trial court. The petitioners in these petitions will have to appear before the respondent-Assistant Collector of Customs, Prosecution, Custom House, Madras, daily at 10 A.M. and 5 P.M. until further orders. These petitioners will furnish to the court and the respondent their local residential addresses. 27. CrlM.P.No.5245 of 1989 is dismissed. 28. Crl.M.P.No.5080 of 1989 is also dismissed, with observations.