1983 (11) TMI 290 - HC - Customs

Mode of arrest - When is a person said to be under arrest - Legality and validity of the order of detention passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (the COFEPOSA Act) - Are the terms custody and arrest synonymous - principle of natural justice - Violation of Article 21 and 22 of the Constitution of India. HELD THAT - From the various definitions it is clear that the word arrest when used in its ordinary and natural sense means the apprehension or restraint or the deprivation of one s personal liberty. The question whether the person is under arrest or not depends not on the legality of the arrest but on whether he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences an arrest consists in the taking into custody or another person under authority empowered by law for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential elements to constitute an arrest in the above sense are that there must be an intent to arrest under the authority accompanied by a seizure or detention of the person in the manner known to law which is so understood by the person arrested. In this connection a debatable question that arises for our consideration is whether the mere taking into custody of a person by an authority empowered to arrest would amount to arrest of that person and whether the terms arrest and custody are synonymous. From the discussions made we hold that custody and arrest are not synonymous terms. It is true that in every arrest there is custody but not vice versa. A custody may amount to an arrest in certain cases but not in all cases. In our view the interpretation that the two terms custody and arrest are synonymous is an ultra legalist interpretation which if accepted and adopted would lead to starting anomaly resulting in serious consequences. Following the well-recognised principle of the interpretation of the statutes laid down in the above decisions when Section 46 Cr. P.C. is examined there cannot be a second opinion that the method and the execution of arrest of a person intended to be arrested should be performed only in the manner prescribed in the statute and the other methods of performance are forbidden; otherwise the whole provisions of Section 46 Crl. P.C. would be rendered nugatory and functionless. If the method of arrest is not performed in the manner known to law and as prescribed under Section 46 Crl. P.C. but by the mere utterance of words making of gestures flickering of yes nodding of the head etc. as ruled in Kaiser Otmar s case 1981 (6) TMI 131 - HIGH COURT OF MADRAS we are of the firm view that the modes of arrest prescribed in that ruling are not only contrary to Section 46 Crl. P.C. but will also render the section non-existent or otiose and such a procedure cannot be adopted to effect a valid arrest. It is now well-settled that failure to comply with the requisite procedure would be fatal to the legality of the execution of any Act or of the passing of any order by any one authorised by law. The essence of this principle is reflected in Maneka Gandhi s case 1978 (1) TMI 161 - SUPREME COURT wherein it has been held that the procedural safeguards are the essence of liberty. For invoking Article 22(2) as pointed out by the learned Advocate-General two requirements must be satisfied (1) the person should have been arrested; and (2) he should have been detained in custody. At the state of enquiry or investigation or interrogation held under Section 107 or Section 108 of the Customs Act the person required or summoned for such enquiry or examination is not arrested nor has he become an accused. If in a given case the Customs Official detains any person required or summoned under the provisions of the Customs Act for a prolonged period even exceeding 24 hours or keeps him in closed doors as a captive prisoner surrounded by officials or locks him in a room or confines him to an office premises he does so at his peril because Sections 107 and 108 of the Customs Act do not authorise the officer belonging to the Customs department to detain a person for a prolonged custody and deprive him of the elementary facilities and privileges to which he is entitled. In such a situation the officer must be held to have over-stepped his limits and any confessional statement obtained from such a person by keeping him in a prolonged custody has to be regarded with grave suspicion because there is always room for criticism that such a confession might have been obtained from extorted mal-treatment or induced by improper means. At this juncture we feel that it will not be out of place to mention here that the individuals and the organised gangs indulging in smuggling activities by adopting devious ways and means dangerously do ruin the economy of our country. Needless to say this kind of offence which assumes dangerous magnitude gravity and seriousness are perpetrated secretly dexterously and designedly by the anti-social elements who are incorrigible and hardened criminals and as such it would be difficult if not impossible to get direct evidence or proof in all cases of this nature. There cannot be a second opinion that this kind of offences should be put down sternly. But this does not mean that the Customs officials can deviate from the legal path and overstep the legal restraints in their effort to curb the activities of the individuals believed to be engaged in committing criminal offences and act in an unbridled manner according to their whims and fancies on an assumption that their powers are unlimited and they are free to adopt any arbitrary fantastic and oppressive procedures which will result in the abuse of their powers. Sometimes the courts are pained to note that even the guardians of law themselves act in violent disobedience and with supine indifference of the rule of law and contemptuously trent even the innocent by dubbing them as wrong doers. It is true that the procedural law protects the legal rights of the suspected offender by placing numerous restraints on the power of the police or the Customs officials as the case may be but it is felt by many that the safeguards are too often proved to be a myth rather than a reality. At the same time one should not lose sight of the fact that as often as not even a maker of a confession statement incriminating himself to an authority in law when it is given in evidence in a proceeding against the maker turns round and complains that such a confession statement was extracted by threats or was made up or was framed and seeks to discredit the guardian of law. On many occasions when law-breakers are arrested they make wild allegations and shout from roof top police brutality or customs brutality which are nothing but cat-calls. Therefore the Customs officials when acting under the provisions of the Customs Act should see that the procedural safeguards which are the indispensable essence of the liberty of a citizen are not impaired in any manner. In the result the five questions formulated in the preface of this judgment for consideration of this reference are all answered as indicated above for the reasons assigned. Thus all these writ petitions are relegated back to the Division Bench exercising writ jurisdiction to consider each of the writ petitions on its merits and dispose of the same in the light of this judgment.

Summary

Issues Involved:
1. When is a person said to be under arrest?
2. Are the terms 'custody' and 'arrest' synonymous?
3. Are the Customs officials vested with powers under the Customs Act, 1962, to detain any person for any period and at any place for the purpose of an inquiry, interrogation or investigation?
4. Will the detention of a person by the Customs officers for the purpose of enquiry, interrogation or investigation amount to an 'arrest' of the said person?
5. Is detention of a person by the Customs officers for the purpose of inquiry or interrogation or investigation beyond 24 hours without producing him before a Magistrate, violative of Article 22 of the Constitution of India?

Summary:

1. When is a person said to be under arrest?
The term 'arrest' is not defined in procedural or substantive Acts, but it signifies a restraint of the person. The court explained that arrest means the apprehension or restraint or the deprivation of one's personal liberty. An arrest involves taking a person into custody under legal authority for holding or detaining him to answer a criminal charge or preventing a criminal offense. The essential elements include an intent to arrest under authority, accompanied by a seizure or detention of the person, which is understood by the person arrested.

2. Are the terms 'custody' and 'arrest' synonymous?
The court held that 'custody' and 'arrest' are not synonymous. While every arrest involves custody, not every custody amounts to an arrest. The term 'custody' implies restraint and can mean safe-keeping, protection, or control, depending on the context. The court cited various legal definitions and interpretations to conclude that custody does not necessarily equate to arrest.

3. Are the Customs officials vested with powers under the Customs Act, 1962, to detain any person for any period and at any place for the purpose of an inquiry, interrogation or investigation?
Customs officials have the authority to require or summon any person for inquiry under Sections 107 and 108 of the Customs Act, but this does not amount to an arrest. The court clarified that Customs officers are not police officers and their powers are for checking smuggling and safeguarding revenue, not for investigating crimes. Therefore, the detention for inquiry, interrogation, or investigation by Customs officials does not equate to an arrest.

4. Will the detention of a person by the Customs officers for the purpose of enquiry, interrogation or investigation amount to an 'arrest' of the said person?
The court ruled that detention by Customs officers for inquiry, interrogation, or investigation does not amount to an arrest. The court emphasized that the terms 'arrest' and 'custody' are not synonymous and that the mere taking of a person into custody by an authority empowered to arrest does not necessarily constitute an arrest.

5. Is detention of a person by the Customs officers for the purpose of inquiry or interrogation or investigation beyond 24 hours without producing him before a Magistrate, violative of Article 22 of the Constitution of India?
The court held that the requirement to produce a person before a Magistrate within 24 hours as per Article 22(2) of the Constitution applies only if the person is arrested and detained in custody. During an inquiry under Sections 107 and 108 of the Customs Act, the person is not considered arrested. However, if a Customs officer detains a person for a prolonged period exceeding 24 hours without proper authority, it would be illegal and any statement obtained during such detention would be suspect.

Conclusion:
The Full Bench concluded that the interpretation of 'arrest' and 'custody' in the earlier Division Bench ruling in Kaisar Otmar's case was incorrect. The court emphasized the importance of adhering to the legal procedures for arrest as outlined in Section 46 of the Crl. P.C. and held that the prolonged detention by Customs officials without proper authority is illegal. The writ petitions were referred back to the Division Bench for consideration on their merits in light of this judgment.