JUDGMENT 1. - This is a criminal Misc. bail application under Section 438 Cr.P.C arising out of F.I.R. No. 80/1991, Police Station Pratapnagar, District Udaipur for offence under Section 411 Indian Penal Code which was subsequently transferred to Central Excise and Customs Department, Jaipur whereuoen the Superintendent (Prevention), Central Excise and Customs, Jaipur registered a case No. 1 under Section 135 of Customs Act, against the present petitioner Abdul Rehman for which the inquiry is pending. 2. The facts giving rise to the present case are that on 4th May, 1991, 3 persons namely Mohd. Parid, Mohd. lqbal and Mohd. Ashraf were searched by the team of Police Station, Pratap Nagar, Udaipur. This search resulted in the recovery of 200 Kg. of silver. Initially a case under Section 411 was registered against the aforesaid 3 persons at the Police Station, Pratap Nagar and latter on the police found it to be a case covered by the Customs Act. Therefore, the Silver as well as the arrested persons were handed over to Superintendent (Prevention), Central Excise and Customs Jaipur who registered the case under Section 135 of the Customs Act and the regular inquiry was initiated. The aforesaid 3 arrested persons were produced before the Special Magistrate, (Economic Offences), Jaipur. The accused persons were remanded from time to time by the Special Magistrate and the bail application of the aforesaid 3 persons was rejected by the Special Magistrate (Economic Offences) Jaipur City. All the aforesaid 3 persons then moved for hail before the Sessions Judge, Jaipur City and the bail was accepted on 14th May, 1991 by the Sessions Judge, Jaipur City. It is alleged that the Customs Authorities recorded the statements of the aforesaid accused persons Mohd. Parid, Mohd. Igbal and Mohd. Ashraf under Section 8 of the Customs Act. On the basis of such statements, the Customs Authorities also apprehended the present petitioner Abdul Rehman as be accused for the offence under Section 135 of the Customs Act. The present petitioner Abdul Rehman apprehending his arrest by the Superintendent (Prevention), Central Excise and Customs for the offence under Section 135 of the Customs Act moved the bail application under Section 438 Criminal Procedure Code before the Additional Sessions Judge No. 1, Jaipur City who rejected the same by his order dated 19th June, 1991. The present petitioner Abdul Rehman apprehending his arrest by the Superintendent (Prevention), Central Excise and Customs for the offence under Section 135 of the Customs Act moved the bail application under Section 438 Criminal Procedure Code before the Additional Sessions Judge No. 1, Jaipur City who rejected the same by his order dated 19th June, 1991. Thereupon, the petitioner moved the present bail application under Section 438 Criminal Procedure Code before this Court on 29th June, 1991. When the matter came up before the Court on 10th July, 1991, the copies of the papers were directed to be supplied to the Special Public Prosecutor, the matter was posted for 19th July, 1991 and it was ordered that in the meantime the petitioner shall not be arrested. The interim order was extended from time to time and now the matter has come up for final orders. 3. The learned Special Public Prosecutor submitted that such application under Section 438 Criminal Procedure Code was not maintainable because the customs officers are not the police officers and therefore, no' direction can be issued under Section 438(3) Criminal Procedure Code against the arrest of the present petitioner. It was also submitted by the Special Public Prosecutor Shri K.N. Shrimal that it has already been held by the Supreme Court in AIR 1970, S.C.P. 1065 in Illias v. The Collector of Customs , Madras that even though under the new Customs Act of 1962 a Customs Officer has been vested with many powers which were not to be found in the provisions of the old Sea Customs Act of 1878, he cannot be regarded as a "Police Officer". Shri Shrimal has further submitted with reference to 1991 R.C.C. p. 415, Swaroop Singh v. State of Rajasthan a decision of the Co-ordinate Bench of this Court that it has been held that the provisions of Sections 437 and 439 do not apply before cognizance has been taken of an offence by the Court and therefore, Shri Shrimal has argued that once it has been held by this Court that provisions of Sections 437 and 439 are not applicable, the question of invoking power under Section 438 Criminal Procedure Code simply does not arise and he has further stressed that in Section 438(3) Criminal Procedure Code there is no mention of any "Customs Officer" and the mention is there only about the 'Police Officer'. Shri Shrimal has made reference to the observations made in para 14 of Swaroop Singh's case and has submitted while referring to the Delhi High Court's decision in Deepak Mahajan's case, report in 1991 Cr.L.J., p. 1124 that it has been held that for an illegal detention the remedy is not bail, but a wri: petition under Article 226 of the Constitution for grant of writ of habeas corpus. In para 14 of Swaroop Singh's case reference has also been made to a Full Bench decision in Mahesh Chand v. State of Rajasthan, reported in 1984 RLR. 697 . According to the Full Bench's decision if an accused person is illegally detained in prison, the least that a Court of law is expected to do for him is to quash the illegal detention and set him at liberty forthwith. Bail is no remedy for illegal detention. Bail is a forum against detention by other means. It has been concluded that it may be safely held that bail as remedy has never been conceived or intended in law to be a remedy for illegal detention. 4. Shri Shrimal has also cited before me 1991 Cr.L. Jrl. p. 1468, Shankar Nayak v. State of Karnataka wherein it has been held by Karnataka High Court that the person apprehending arrest by Forest Officer cannot invoke the provisions of Section 438 Criminal Procedure Code as there is no provision in the Forest Act equating Forest Officer with Police Officer or Forest Office with Police Station. Therefore, for the Forest Offices bail under Section 438 cannot be made available. 5. Mr. Bajwa appearing for the petitioner has first of all made reference to Section 104 of the Customs Act which reads as under : "104. Power to arrest (1) : If an officer of customs empowered in this behalf by general or special order of the Collector of Customs has reason to believe that any person in India or within the Indian Customs waters has been guilty of an offence punishable under Section 135 he may arrest such person and shall, as soon as may be, inform him of the gounds for such arrest. (2) Every person arrested under Sub-section (1) shall, without unnecessary delay, be taken to a Magistrate. (2) Every person arrested under Sub-section (1) shall, without unnecessary delay, be taken to a Magistrate. (3) Where an officer of customs has arrested any person under Sub-section (1) he shall for purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police station has and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898). (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 an offence under this Act, shall not be cognizable". 6. Shri Bajwa's submission is that he has no quarrel with the proposition of law as laid down in AIR 1970 S.C. 1065 , he has submits that the Customs Officer cannot be regarded as Police Officer within the meaning of Section 25 of the Evidence Act as has been held by the Supreme Court. But his submission is that the Supreme Court has held the Customs Officers not to be the police officers in the context of appreciating the evidenciary value of the statements made before the Customs Officer for the purpose of Section 25 of the Evidence Act. Nevertheless, his contention is that where an Officer of Customs arrests any person under Sub-section (1) of Section 104, he shall for the purpose of releasing such person on bail or otherwise have the same powers and is subject to the same provisions as the officer-in-charge of the police station is and is subject to under the Code of Criminal Procedure 1898 and therefore, according to Shri Bajwa whether an offence is cognizable or not, if it is non-bailable offence under any statute, the powers with regard to the release on bail or otherwise of a Custom Officer are the same as that of a Police Officer. The contention of Shri Bajwa is that by virtue of the provisions of Section 104(3), the powers of the Custom Officer for the purpose of release on bail or otherwise are co-terminus with that of a police officer or incharge of the Police Station. Shri Bajwa has referred to 1978 Cr.L.Jrl. p.677 a decision of the Delhi High Court in Suresh Vasudeva v. State and Another . Shri Bajwa has referred to 1978 Cr.L.Jrl. p.677 a decision of the Delhi High Court in Suresh Vasudeva v. State and Another . It was a case under the Foreign Exchange Regulation Act and the question which was raised for consideration before the Delhi High Court was as to whether the Officer of Enforcement was bound to comply with the order under Section 431(1). The provisions of Section 35 of the Foreign Exchange Regulation Act are para materia with the provisions of Section 104 of the Customs Act and Delhi High Court in this case, has held in categorical terms that where any officer of Enforcement has arrested any person under the Act he shall for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police station has, and is subject to, under the Code of Criminal Procedure. It has been further held that as far as the officer' of Enforcement authorised in this behalf by the Central Government under Sub-section (1) of Section 35 of the Act is concerned, he is not a police officer for purposes of the Police Act and is not even a Police Officer for purposes of the Act but once he has arrested any person under Subsection (1), he is, for the purpose of releasing such person on bail or otherwise, is at par with an officer-in-charge of a Police Station. Once the Officer of Enforcement, after arresting the person concerned, becomes an officer-in-charge of a police station, for the purpose of releasing such person on bail or otherwise, it presents no difficulty in working out an order under Section 438(1) of the Code. Therefore, as an officer-in-charge of a police station, for purposes of Sub-section (3) of Section 35 of the Act, such an officer of enforcement becomes subject to the provisions of the Code as well and would, therefore, be bound to comply with the order under Section 438(1) of the Code. Shri Bajwa has also cited before me 1982 Cr.L. p. 559, a decision of the Madras High Court considering the provisions of Customs Act itself which are under consideration before me in the case at hand. Shri Bajwa has also cited before me 1982 Cr.L. p. 559, a decision of the Madras High Court considering the provisions of Customs Act itself which are under consideration before me in the case at hand. The Madras High Court in its decision has held that provisions of Section 438 can be applied with respect to the offences contemplated under the Customs Act, 1962, and anticipatory bail can be granted by applying the principles laid down in decisions with respect to the offences under the Penal Code. It has been further held in para 12 of this judgment, while considering the considerations which are relevant for the purpose of exercise of powers under Section 438 Criminal Procedure Code that the principles embedded for the penal offences are equally applicable to the offences contemplated under the Customs Act, 1962, and as such, the provisions Section 438 Criminal Procedure Code can certainly be applied with respect to a position that exists in this case, i.e. a case under the Customs Act. 7. Shri Bajwa has also argued that the cognizance of the offences under the Customs Act cannot be taken unless the complaint is filed, therefore, there is no question of remand under Section 309 unless the cognizance is taken. He has submitted that it is admitted case that the complaint has not been filed in the present case and therefore, even if the petitioner is arrested by the Customs Officer it would create predicament because even if they are produced before the Magistrate, the Magistrate cannot pass a remand order under Section 309 in view of the law laid down in Swaroop Singh's case (Supra) by this Court relying upon the decision of the Delhi High Court in Deepak Mahajan's case (Supra). 8. I have considered the submissions made from both the sides and am of the opinion that even if the Customs Officers are not at par with the Police Officers, the Supreme Court has held it to be so in the context of Section 25 of the Evidence Act as to what evidentiary value is to be attached to the statements made before the Customs Officers by a person who is arrested or against whom an inquiry is made with reference to Section 25 of the Evidence Act. In order to appreciate the submissions, the provisions of Section 438, as such may be readily quoted : "438. In order to appreciate the submissions, the provisions of Section 438, as such may be readily quoted : "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 for having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction tinder 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 - (3) 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) that the person shall not direct, 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 any police officer; and (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other conditions as may be imposed under Sub-section (3) of Section 437 as if the bail were granted 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 congnizance of such offence decided that a warrant should issue in the first instance against that person he shall issue a bailable warrant to confirmity with the direction of the Court under Sub-section (1). 9. A perusal of the very Section 438 would show that it essentially provides for the direction for grant of bail, to person apprehending arrest. The apprehended arrest is therefore, the first and basic requirements for the purpose of Section 438 in order to see that the Constitutional right of liberty is not encroached upon in a manner which is not provided or permissible under the law. The apprehended arrest is therefore, the first and basic requirements for the purpose of Section 438 in order to see that the Constitutional right of liberty is not encroached upon in a manner which is not provided or permissible under the law. Section 438, is, therefore, a provision of safety valve for the protection of the right of liberty. Whenever a citizen feels that his right or liberty is in peril and he apprehends his arrest for the purpose which is neither authorised nor permissible under the law, he seeks the protection of the Court under Section 438. The provisions of Section 438(1) ate, therefore, substantive provisions against apprehended arrest for the purposes of safeguarding right of liberty. The provisions of Section 438(1) are independent of the provisions of Section 438(3). Section 438(3) contains the procedure to be followed after the order is passed under Section 438(1) and, therefore, the provisions of Section 438(1) cannot be rendered to be subservient to the provision of Section 438(3). Reference may also be made to the the later part of Sub-section (3) of Section 438 as was pointed out and argued by Shri Bajwa. In the later part of Sub-section (3) of Section 438, it has been provide that if a Magistrate taking conginance of such offence decides that a warrant should issue in the first instance against the person, he shall issue a bailable warrant in confirmity with the directions of the Court under Sub-section (1) of Section 438. Therefore, it is very clear that the mandate contained under Section 438 is not directed with regard to the police officer only, it also provides a course of action to be followed by the Magistrate inasmuch as if a direction is issued by the Court under Sub-section (1) of Section 438, a Magistrate taking cognizance even for a non-bailable offence will not issue a non-bailable warrant and would issue bailable warrant only. Therefore, the help of the direction to be issued under Section 438(1) can be taken by an accused apprehending arrest under the Customs Act even before the Magistrate; at the time when the cognizance is taken or at the time when he is produced before such Magistrate by the Customs Officer. Therefore, the help of the direction to be issued under Section 438(1) can be taken by an accused apprehending arrest under the Customs Act even before the Magistrate; at the time when the cognizance is taken or at the time when he is produced before such Magistrate by the Customs Officer. In Swaroop Singh's case, the Court was concerned, with a bail application under Section 439 Criminal Procedure Code and it was a case in which the person had already been arrested and it was in that context that the Court held that if the detention is unlawful, the remedy does not lie in filing a bail application but a writ of habeas corpus. Remedy of habeas corpus is not available against apprehended detention. In this view of the matter it can be safely held that the non-applicability of the provisions of the Code of Criminal Procedure, in the context of the law laid down in the Swaroop Singh's case will not cover the case in which the arrest is yet to be made and the arrest is only apprehended. The writ habeas corpus cannot be considered unless a person's right or liberty has already been encroached upon; it does not take within its sweep the cases of threat or anticipated invasion of right of liberty. Therefore, in Swaroop Singh's case, the Court observed that when an arrested person is taken to Magistrate under Section 104(2) of the Customs Act and he is not forwarded under Section 167(1) of the Code. Customs Act being silent about the procedure to be adopted by the Magistrate thereafter and Magistrate has no inherent power of remand; it was by virtue of non-application of Section 309(2) that the provisions of Sections 437 and 439 would not apply before the cognizance has been taken of an offence by the Court and in such cases, the detention of the accused is illegal and the remedy is not the bail but a writ of habeas corpus. In my considered opinion, looking to the provisions of Section 438 and the object for which these provisions have been inserted in the Criminal Procedure Code lately, to advance the object sought to be achieved for the protection of the Constitutional right of liberty and the other provisions of the Customs Act to which the reference has been made here-in-above, it would be preposterous to deny the consideration of a case of citizen under Section 439 who is apprehending his arrest and to wait till the precipitation of a situation wherein there is unlawful detention and then give rise to a cause of action for filing a writ of habeas corpus. Such could never be the intention of the framers of the law as the same would be contrary to the object of the Constitutional right of liberty which we cherish the most. 10. So far as 1991 Cr.L.J. p.1468, a case under the Forest Act which was cited by Shri K.N. Shrimal is concerned, it will be sufficient to say that the Karnataka High Court has itself observed in the judgment that in the Forest Act which was under consideration before the Court, there was no provision equating the 'Forest Officer' with 'Police Officer' or Forest Office with Police Station. Thus the absence of the provisions like Section 104(3) of the Customs Act has been conspicuously noted by the Court itself and the whole case, therefore proceeds on the promise that the Forest Act itself does not equate the Forest Officer with Police Officers. Under the Customs Act, the Customs Officers have been equated with the police officers under Section 104(3) and therefore, I am in full agreement with the view taken by the Delhi High Court and Madras High Court (supra) and I hold that in the cases of apprehended arrest under the Customs Act the provisions of Section 438 can be effectively invoked and thus be prclimirary objections raised by Shri K.N. Shrimal, the learned Special Public Prosecutor are rejected and the application is held to be maintainable under Section 438 Criminal Procedure Code in the cases of apprehended arrest for the offence under the Customs Act and appropriate directions can certainly be issued under Section 438 to the Customs Officers with the same efficacy as to the 'police officers'. 11. 11. So far as the merits of the case, are concerned, Shri Bajwa has referred to the statements of Mohd. lqbal, Mohd. Ashraf and Mohd. Farid and has also referred to the receipt from S.S. Silver India where form the Silver in question was purchased and he has submitted that since it is a case of Silver which is more than 100 Kg. there should be foreign marking thereon which is wanting in this case and therefore, the presumption for the offence cannot be drawn. Mr. Bajwa has also cited before me 1989 Cr.L.J. p. 49, Jagdish Soni's case and 1987 (3) (Crime) p.724. The Bombay High Court in 1987 (3) (Crime) p.724 has taken the view that, if the only foundation or basis for the complaint filed under Section 135 of Customs Act, 1962 is the statement of a co-accused recorded by the Customs Authorities under Section 108 of the Customs Act, the issue of process is not justified against the petitioners, Shri Bajwa's arguments is that in the instant case, there is no material against him except the statements of the co-accused persons recorded by the Customs Authorities under Section 108 of the Customs Act and such statements were also immediately disowned by the co-accused persons who stated that their statements had been recorded under coercion. Shri Bajwa has also submitted that in favour of the present accused petitioner an interim order against his arrest was passed on 10th July, 1991 and the petitioner has not misused the liberty granted to him. Shri K.N. Shrimal learned Special Public Prosecutor has submitted that merely because the process is sought to be initiated on the basis of the statements of the co-accused persons recorded before the Customs Authority under Section 108 of the Customs Act, it does not entitle the petitioner for grant of bail under Section 438 and further that the petitioner has not appeared before the Customs Authorities for interrogation although letters were sent to him to this effect. Shri Bajwa has submitted that no such letters were ever served upon the petitioner and therefore, there is no question of his non-appearing before the Customs Authorities when called upon to do so and he further submits that in case any date is fixed by the Court for that purpose his client would be available before the Customs Authority for interrogation. 12. 12. Without expressing any opinion on the merits of the case; looking to the facts and circum stances of the case in its entirety and the submissions on the question of law as have been advanced before me, I am of the opinion that the petitioner is entitled to the grant of bail under Section 438 Criminal Procedure Code. 13. It is, therefore, directed that in the event of the arrest of the petitioner, Abdul Rehman s/o Shri Mohd. Ismail, he be released on bail, provided he furnishes a personal bond in the sum of #2352; 20,000/- (twenty thousand) with two sureties in the sum of #2352; 10,000/- (Ten thousand) each to the satisfaction of Superintendent (Prevention) Central Excise and Customs, Udaipur with an undertaking to appear before the Investigating Officer/Superintendent, (Prevention), Central Excise and Customs, Udaipur on February 24, 1992 and for on future dates before the aforesaid officer or any other officer of the Central Excise and Customs Department as may be directed by the Superintendent (Prevention) Central Excise and Customs, Udaipur in this regard with the further conditions as under : 1. that the person shall make himself available for interrogation by a police officer as and when required; 2. 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; 3. that the person shall not leave India without previous permission of the Court. 14. Shri Bajwa submits that it may take some time to get the certified copy of this order and the copy may not be available for few days as it is a long order and therefore, a copy of the operative part may be made available to him. Shri K.N. Shrimal submits that he would convey the concerned Investigating Officer about passing of this order and therefore, there is no need to supply the operative part of the order. Ordered accordingly. This bail application under Section 438 Criminal Procedure Code is thus allowed.Appeal allowed. *******