1 appln4562-09 jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4562 OF 2009 Anil Pannalal Saraogi .. Applicant Versus The Union of India and others .. Respondents WITH CRIMINAL APPLICATION NO. 4563 OF 2009 Rajesh Valji Bhanushali .. Applicant Versus The Union of India and others .. Respondents Mr. Uday Warunjikar for the Applicant in both matters Ms. Nitee Punde for the Union of India- Respondent CORAM : N. D. DESHPANDE, J. DATE : 4th March, 2011 P. C. 1. Heard learned counsel Mr. Warunjikar for the applicants and Ms. Punde for the Respondent-Union of India. Application No. 4563/09 is tagged alongwith Application No.4562/09 and heard jointly. 2. These applications are arising out of proceedings instituted by the applicants before the learned Additional Sessions Judge, Greater Mumbai for anticipatory bail bearing Anticipatory Bail Application No. 811/2009 and 810 of 2009, respectively. The 2 appln4562-09 applicants succeeded in getting anticipatory bail on the terms and conditions mentioned in the order dated 16/9/2009, which reads as under : In the event of arrest of the applicants in connection with File No.DRI/MZU/G/Enq/1/09-10 each of them be released on his executing P. R. bond in the sum of Rs.20,000/- (Rupees Twenty thousand) and surety bond in the like amount. Without prejudice to the rights of both the parties, both the applicants are directed to deposit sum of Rs. 10 lacs each with the office of D.R.I. on or before 30 th September, 2009. “Both the applicants are further directed to execute Bank guarantee in the sum of Rs.37 lacs towards recovery of the amount due on account of evasion of customs duty if any. The bank guarantee shall remain in force till the conclusion of the prosecution that may be launched against the applicants. The amount to be kept in deposit shall be appropriate and the bank guarantee shall be enforced by the concerned office towards recovery of the amount due on account of evasion of customs duty after the liability of both the applicants in that regard is established in any proceeding that may be initiated under the provisions of the Customs Act or any other law. Both the applicants are directed to attend the office of DRI as and when required and operate with the investigating agency. 3 appln4562-09 So far, no arrest is effected by the department-Directorate of Revenue Intelligence, Mumbai Zonal Unit. But they are now, when asked, stated to be eager to effect arrest. However, there appears to be some disagreement on the terms and conditions imposed on the applicants for their release on bail in the event of their arrest. In anticipatory bail matters, arrest is inevitable, even after bail is allowed and it will not take shape of a regular bail in further proceeding. It has a limited purpose and is decided on a limited issue. 3. Subject matter of the original proceedings in the present case is evasion of customs duty/revenue to the tune of Rs.1 crore and odd in toto. After hearing both the sides and upon consideration of record, it is seen that last condition in the operative part of the impugned order asking the applicants for bank guarantee in the sum of Rs. 37 lacs comes to the tune of the recovery amount due on account of evasion of customs duty, if any. According to the applicants, the said compliance cannot be insisted on at the time of their release on bail, pursuant to the order passed on their anticipatory bail applications (ABA). However, Learned Counsel for Union of India did not agree to this proposition and according to her it is not a new condition, because it is stated to have been admitted in the proposal given by the applicants’ counsel at the time of hearing of ABA. There is controversy on the point, whether such instructions 4 appln4562-09 were given during the course of hearing. Two issues cannot be mixed i.e. main proceedings of evasion of revenue/customs duty and applicants’ right to ask for bail regular or anticipatory for bailable or non bailable offences, where they are apprehending arrest. 4. The main purpose of bail is to secure presence and availability for inquiry into investigation and trial on the assurance from him that he would not misuse the liberty while on bail. Right to personal liberty is considered as fundamental right and therefore, provisions of bail has a great value. In every such matter, where there is arrest or likelihood of arrest, bail applications are given top priority. In my opinion, condition No. 2 about the deposit of Rs. 10 lacs is not an unreasonable condition in the light of certain admitted evasion of customs duty. Therefore, in the above facts and circumstances of the case, in my opinion, following order would meet the ends of justice : O R D E R (1) Order of sessions Court call for no interference so far as condition nos. 1 and 2 are concerned and they are accordingly maintained and reproduced as follows: i. In the event of arrest of the applicants in connection with File No.DRI/MZU/G/Enq/1/09-10 each of them be released on his executing P. R. bond in the sum of Rs.20,000/- (Rupees Twenty thousand) and surety bond in the like amount. ii. Without prejudice to the rights of both the parties, both the applicants are directed to deposit sum of Rs. 10 lacs each with 5 appln4562-09 the office of D.R.I. on or before 30 th September, 2009. (2) The department shall not insist on condition No. 3 for release of accused- applicants on bail. To that extent the impugned order of sessions Court is modified and accordingly the said condition asking for deposit of Rs.37 lacs is revoked with liberty to the respondent- authority to proceed further in the matter of recovery of evaded customs duty in accordance with law. (3) Needless to state that the parties shall not misuse use their liberty and authority. (4) The applications are accordingly disposed of. N. D. DESHPANDE, J