1990 PCr (PLP)

S. Ashique Ali Zaidi, DA. -G. for the State. Applicant Saeed Ahmad imported plastic moulding compound (Polypro Pylene H-356-P) under free list. It is alleged that he got the consignment released on production of exemption certificate issued by Directorate-General Procurement (Army), Ministry of Defence, Rawalpindi, which was subsequently found to be forged one. However, on 31-5-1989, the applicant paid a sum of Rs.9,58,891 towards sales tax and customs duty for the entire consignment and informed the Collector of Customs (Appraisement) Karachi, accordingly. On 19 6-1989, 956 bags out of the above consignment were seized by the customs officials and a notice under section 171 of the Customs Act, 1969, was also issued. Apprehending his arrest the applicant approached this Court for the grant of anticipatory bail. Since the F.I.R. is not registered in this case, the office brought this fact to the notice of Wajihuddin Ahmed, J., who passed the following order:-- (1) It is contended that F.I.R., for mala ride reasons, is not being lodged but Annexures `K' and `L' to the petition clearly spell out a case under section 32 of the Customs Act. It is further urged that under section 171 of the said Act the law enforcing agency shall first arrest the applicant and do the rest later on. As to the provisions of section 498-A of the Cr.P. Code it is said that lodging of F.I.R. is not necessarily equivalent to registration of a case under that section and in the circumstances of the case, the concept of registration by effecting seizure and above intimation has actually come into play. Since this is not a heinous offence involving narcotic or brazen smuggling, I would like to issue notice to DA.-G. to place the point of view of the State. (2) Miscellaneous Application No. 861 of 1989 is granted subject to all just exceptions. (3) Notice to DA.-G. for 5-7-1988. In the meantime interim bail before arrest is granted to the applicant subject to furnishing security to the satisfaction of the Nazir in the sum of Rupees one lac with one surety and P.R. of the like amount: 2. The applicant furnished the requisite surety and he continues to be on interim bail. 3. Section 498-A, Cr.P.C., which was added by Code of Criminal Procedure (Amendment) Act, 1976, reads as follows:-- "No bail to be granted to a person not in custody, in Court or against whom no case is registered etc. Nothing in section 497 or section 498 shall be deemed to require or authorise a Court to release on bail, or to direct to be admitted to bail, any person who is not in custody or is not present in Court or against whom no case stands registered for the time being and an order for the release of a person on bail, or a direction that a person be admitted to bail, shall be effective only in respect of the case that so stands registered against him and is specified in the order or direction." 4. The conditions to be fulfilled for the grant of bail under section 498-A, Cr.P.C. are: -- (a) That the person accused of a crime is in custody, or, (b) That the accused must be in Court, or, (c) That a case stands registered against him. 5. The condition at (a) is relevant only where the bail application is made after the arrest of accused, while conditions at (b) and (e) are attracted when an application for pre-arrest bail is made. Mr. Rashid Munir Ahmud, learned counsel for applicant who has presented his case with considerable ability has contended that filing of F.I.R. is not a condition precedent to the exercise of powers under section 498, Cr.P.C. He has submitted that the imminence of a likely arrest founded on a reasonable belief can be shown to exist even if the F.I.R. is not yet registered. Reliance is placed upon cases reported as Emperor v. Khawaja Nazir Ahmed A I R 1945 PC 18, Punhal Shah and others v. The State P L D 1984 SC 22, and Sabz Ali v. The State 1.985 P Cr. L J 437. Out of the above authorities the case of Khawaja Nazir Ahmed is relevant, wherein their Lordships of the Privy Council held that receipt and recording of F.I.R. is not condition precedent to criminal investigation. At page 20 it was observed:-- But, in any case, the receipt and recording of an information report is not a condition precedent to the setting in motion -of a criminal investigation. No doubt in the great majority of cases, criminal prosecutions are undertaken as a result of information received and recorded in this way but their Lordships see no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognisable offence has been committed, should not of their own motion undertake an investigation into the truth of the matters alleged. Section 157, Criminal P.C., when directing that a Police Officer, who has reason to suspect from information or otherwise that an offence which he is empowered to investigate under section 156 has been committed shall proceed to investigate the facts and circumstances, supports this view. In truth the provisions as to an information report (commonly called a first information report) are enacted for other reasons. Its object is to obtain early information of alleged criminal activity, to record the circumstances before there is time for them to be forgotten, or embellished, and it has to be remembered that the report can be put in evidence when the informant is examined if it is desired to do so. 6. The grant of bail before arrest to a person presupposes the imminence of a likely arrest founded on a reasonable belief. The registration of case (F.I.R.) makes this ground certain. If, however, the accused has not been arrested nor detained nor any process has been issued against him from the Court nor any case is registered against him, he cannot be said under a restraint and no bail can be granted to him merely because he appears before the Court and prays for grant of bail in anticipation of any such action against him. A mere possibility of a person being arrested cannot amount to a restraint for the purpose of grant of bail under section 498, Cr.P.C. The commencement of investigation without getting the case registered does not necessarily follow the arrest of accused, specially in cases falling under the provisions of Customs Act, 1969. Section 179 g of the Customs Act, 1969, empowers the officers of customs to adjudicate the cases involving confiscation of goods or imposition of penalty. The seizure of 956 bags and issuance of notice under section 171 of the Customs Act, 1969, (Annexure `K' and `L') could be the preliminary steps towards adjudication proceedings and cannot be equated with the lodging of F.I.R. 7. Section 498-A, Cr.P.C. provides in specific terms that no bail can be granted to a person against whom no case is registered. The Legislature in its wisdom insisted upon the registration of a case before invoking the provisions of section 498, Cr.P.C., and made such order effective only in respect of a case that so stands registered and is specified in the order or direction of the Court granting such bail. As observed in Gurmukh Singh and another v. Intizamia Committee Gurduwara Bhai Sewa Singh reported in A I R 1942 Lah. 19, it is well-settled that the primary test for the interpretation of a statute is the language used therein. When the words used in a statute are plain and unambiguous and admit of but one meaning, a Court is not at liberty to speculate on the intention of the legislature and to construe them according to its own notions of what ought to have been enacted. To depart from the plain language used on account of such notions is in reality not to be interpret the law but to alter it. If indeed there is any lacuna left in the Act, it is for the Legislature to intervene and amend the Act in such manner as may be expedient. 8. Since no case is registered against the applicant upto this time, the present application for the grant of anticipatory bail is not competent and is accordingly dismissed. As a necessary corollary the order by which interim bail was granted to applicant is recalled. N.H.Q./S-467/K Interim bail recalled.