Are DRI - Enforcement Directorate - Customs Officers, Police Officers?

[BOLLOJU KUMAR]

In a recent decision of the Hon’ble High Court of Madras in MEGALA VERSUS THE STATE REPRESENTED BY DEPUTY DIRECTOR, DIRECTORATE OF ENFORCEMENT, CHENNAI, THE STATE REPRESENTED BY ASSISTANT DIRECTOR, DIRECTORATE OF ENFORCEMENT, CHENNAI - 2023 (7) TMI 389 - MADRAS HIGH COURT, the following issues were framed when the difference of opinion between the two Hon’ble Judges of the Madras High Court gave a split decision in an Appeal filed by Ms. Megala v Dy. Director, Directorate of Enforcement. The Division Bench headed by Mrs.J.Nisha Banu and D.Bharatha Chakravarthy, JJ, the Division Bench pronounced orders in the Habeas Corpus Petition on 04.07.2023. For reasons which they had substantiated in their respective Judgments, both the learned Judges differed on crucial aspects. There upon the matter was placed before the Hon’ble Chief Justice who referred the matter to Mr. Justice C.V. Karthikeyan to decide the issue.

The following issues were framed by the court:

1. Whether the Enforcement Directorate has the power to seek custody of a person arrested;
2. Whether the Habeas Corpus itself is maintainable after judicial order of remand has been passed by a Court of competent jurisdiction?; and
3. Whether as a consequential issue, if Issue No.1 is answered in favour of the respondents owing to the particular circumstances of this case, the Enforcement Directorate would be entitled to seek exclusion of time of the period of hospitalization of the detenue which extended beyond the period of 15 days from the date of first remand and therefore, whether that period of hospitalization could be excluded while taking into consideration their request for police custody?

In the decision dated 14.7.2023, a number of important decisions were examined in great detail. In particular, the following decisions were referred to before deciding the issues framed:

• VIJAY MADANLAL CHOUDHARY & ORS. VERSUS UNION OF INDIA & ORS. - 2022 (7) TMI 1316 - SUPREME COURT

The Hon'ble Supreme Court after a detailed discussion held that the officials of the Enforcement Directorate are not police officials. They had therefore stated that a statement referred under Section 50 of the Act is admissible. This statement is recorded prior to arrest but when such person is under custody of the officials of the Enforcement Directorate. In the same decision, the Apex Court held that even though it had been stated that the respondents are not police officials, the procedure under the Code of Criminal Procedure alone would apply post arrest which would mean Section 167 Cr.P.C., would apply, which would mean the respondents have a right to seek custody on remand. The arrest is on the basis of the existing material, but if there is further necessity, the respondents have every right to seek custody. It had been conclusively held that they are not police officials, but nowhere it had been stated in Vijay Madanlal Choudhary, that they have no right to take custody, if investigation required custody. The custody is to be granted. It had been positively asserted that after arrest, the Code of Criminal Procedure alone applies.

The Court also referred to the decision in the case of P. CHIDAMBARAM VERSUS DIRECTORATE OF ENFORCEMENT - 2019 (9) TMI 286 - SUPREME COURT in which the High Court of Delhi observed that

“61. The investigation of a cognizable offence and the various stages thereon including the interrogation of the accused is exclusively reserved for the investigating agency whose powers are unfettered so long as the investigating officer exercises his investigating powers well within the provisions of the law and the legal bounds. In exercise of its inherent power under Section 482 CrPC, the Court can interfere and issue appropriate direction only when the Court is convinced that the power of the investigating officer is exercised mala fide or where there is abuse of power and non-compliance of the provisions of the Code of Criminal Procedure. However, this power of invoking inherent jurisdiction to issue direction and interfering with the investigation is exercised only in rare cases where there is abuse of process or non-compliance of the provisions of the Criminal Procedure Code.”

After considering various decisions cited in the judgments, the issues were answered as mentioned below:

(i) Whether Enforcement Directorate has the power to seek custody of a person arrested? The answer given by this Court is 'Yes' in alignment with the views / opinion expressed by the Hon'ble Justice Mr. D. Bharatha Chakravarthy.

(ii) Whether the Habeas Corpus Petition itself is maintainable after a judicial order of remand is passed by a Court of competent jurisdiction? The Petition would be maintainable in exceptional circumstances, but this case does not attract any exceptional circumstance and consequently since an order of remand had been passed by a Court of competent jurisdiction, the relief sought in the petition cannot be granted. I would align with the view expressed by the Hon'ble Justice Mr. D. Bharatha Chakravarthy, with respect to this issue.

(iii) The consequential issue is as to whether Enforcement Directorate would be entitled to seek exclusion of time for the period of hospitalization beyond the first 15 days from the date of initial remand.

I would again align with the views of the Hon'ble Justice Mr. D. Bharatha Chakravarthy, but leave it to the wisdom of the Division Bench to actually determine the first date of such custody and the days for which exclusion should be granted, since the date of that judgment was 04.07.2023 and the conditions stipulated by Hon'ble Justice Mr. D. Bharatha Chakravarthy had long since lapsed. It is for the original Division Bench to re-examine the starting date of custody. But as a finding, I would hold that exclusion of time as sought is permissible. It is the prerogative of the learned Judges to determine as to when the first date of custody would begin and the manner in which it should be granted. The concept whether the period of hospitalization can be excluded or not alone can be answered by this Court and I would answer that the period of hospitalization has to be excluded.

A similar issue came up before the Hon’ble Supreme Court (2023-TIOM-101-SC-CUS) in which the following issues were framed:

1. Whether a DRI Officer is a “proper officer” for the purposes of Section 28 of the Customs Act, 1962?
2. Whether the summons issued by the DRI Officer to the respondent under Section 108 of the Customs Act, 1962 could be said to be without jurisdiction?
3. Whether the Customs/DRI Officers are police officers and, therefore, are required to register FIR in respect of an offense under Section 133 to 135 respectively of the Customs Act, 1962?
4. Whether the provisions of Sections 154 to 157 respectively and 173(2) of the Code of Criminal Procedure, 1973 would apply in respect of the proceeding under the Customs Act, 1962, in view of Section 4(2) of the Code?
5. Whether in respect of the offenses under Section 133 to 135 respectively of the Customs Act, 1962, the registration of the FIR is mandatory before the person concerned is arrested and produced before the Magistrate?”

In this connection, reference could be made to the following decisions in which similar matters came up for consideration before the Apex Court.

• TOFAN SINGH VERSUS STATE OF TAMIL NADU - 2013 (10) TMI 361 - SUPREME COURT
• DIRECTORATE OF ENFORCEMENT VERSUS DEEPAK MAHAJAN - 1994 (1) TMI 87 - SUPREME COURT
• RAJU PREMJI VERSUS CUSTOMS NER SHILLONG UNIT - 2009 (5) TMI 864 - SUPREME COURT
• ILLIAS VERSUS COLLECTOR OF CUSTOMS, MADRAS - 1968 (10) TMI 48 - SUPREME COURT

In the Illias case, the Apex Court held that

"The test for determining whether such a person is a 'police officer' for the purpose of S. 25 of the Evidence Act would, in our judgment, be whether the powers of a police officer which are conferred on him or which are exercisable by him because he is deemed to be an officer in charge of a police station establish a direct or substantial relationship with the prohibition enacted by S. 25, that is, the recording of a confession. In other words, the test would be whether the powers are such as would tend to facilitate the obtaining by him of a confession from a suspect. or a delinquent. If they do, then it is unnecessary to consider the dominant purpose for which he is appointed or the question as to what other powers he enjoys."

Emphasis was laid on the police officers having such powers which enable them to exercise a kind of authority over the persons arrested which facilitate the obtaining from them statements which may be of incriminating nature. The case of RAJA RAM JAISWAL VERSUS STATE OF BIHAR - 1963 (4) TMI 68 - SUPREME COURTcame up for discussion in the third of series of these cases, namely,  BADKU JOTI SAVANT VERSUS STATE OF MYSORE - 1966 (3) TMI 103 - SUPREME COURT.. The appellant there had been found in possession of contraband gold. He was prosecuted under S. 167(81) of the Sea Customs Act read with S. 9 of the Land Customs Act. A question arose whether the statement made by the appellant to the Deputy Superintendent of Customs and Excise was admissible in evidence. The contention raised was that the Central Excise Officer under the Central Excises & Salt Act (Act 1 of 1944), hereinafter called the "Central Excise Act", was a police officer within the meaning of those words in S. 25 of the Evidence Act. Therefore even though the Deputy Superintendent of Customs and Central Excise had acted under the power conferred on him by the Sea Customs Act, he was still a police officer and the statement made to him which was in the nature of a confession was inadmissible in evidence. This Court referred to the difference of opinion among the High Courts as to the meaning of the words "police officer" used in S. 25 of the Evidence Act. One view was that those words must be construed in a broad way and all officers would be police (1) [1964] 2 S.C.R. 752. (2) [1966] 3 S.C.R.

698. officers within the meaning of those words if they had powers of the police officer with respect to investigating of offences with which they were concerned even if they were police officers properly so called or not. The narrow view was that these words in S. 25 meant a police officer properly so called and did not include officers of other departments of Government who might be charged with the duty to investigate, under special Acts, special crimes like the excise or customs offences etc. The Court proceeded on the assumption that the broad view was correct. After examining the various provisions of the Central Excise Act and in particular S 21 it was observed that a police officer for the purpose of cl. (b) of s. 190 of the Code of Criminal Procedure could only be one properly so called. A Central Excise Officer had to make a' complaint under cl. (a) of S. 190 of the Code to a magistrate to enable him to take cognizance of an offence committed under the special statute. 'The argument that a Central Excise Officer under S. 21(2) of the Central Excise Act had all the powers of an officer-in-charge of a police station under Chapter XIV of the Code and, therefore, he must be considered to be a police officer within the meaning of those words in S. 25 of the Evidence Act was repelled for the reason that though such officer had the power of an officer-in-charge of a police station he did not have the power to submit a charge sheet under S. 173 of the Code. RAJA RAM JAISWAL VERSUS STATE OF BIHAR - 1963 (4) TMI 68 - SUPREME COURT case was distinguished on the ground that S. 21 of the Central Excise Act was in terms different from S. 78(3) of the Bihar & Orissa Excise Act, 1915 which provided that for the purpose of S. 156 of the Code of Criminal Procedure the Excise Officer empowered under S. 77(2) of that Act shall be deemed to be the officer-in- charge of a police station. The following observations at page 704 are indeed important:

"All that S. 21 provides is that for the purpose of his enquiry, a Central Excise Officer shah have the powers of an officer-in-charge of a police station when investigating a cognizable case. But even so it appears that these powers do not include the power to submit a charge-sheet under S. 173 of the Code of Criminal Procedure, for unlike the Bihar & Orissa Excise Act, the Central Excise Officer is not deemed to be an officer-in- charge of a police station."

It was reiterated that the appellant could not take advantage of the decision in Raja Ram Jaiswal's case and that Barkat Ram's” case was more apposite. The ratio of the decision BADKU JOTI SAVANT VERSUS STATE OF MYSORE - 1966 (3) TMI 103 - SUPREME COURT. is that even if an officer under the special Act has been invested with most of the powers which an officer-

(1) RAJA RAM JAISWAL VERSUS STATE OF BIHAR - 1963 (4) TMI 68 - SUPREME COURT

(2) STATE OF PUNJAB VERSUS BARKAT RAM - 1961 (8) TMI 28 - SUPREME COURT

(3) BADKU JOTI SAVANT VERSUS STATE OF MYSORE - 1966 (3) TMI 103 - SUPREME COURT.

Sup CI/69-7 in-charge of a police station exercises when investigating a cognizable offence he does not thereby become a police officer within the meaning of S. 25 of the Evidence Act unless he is empowered to file a charge sheet under S. 173 of the Code of Criminal Procedure.

Learned counsel for the appellant when faced with the above difficulty has gone to the extent of suggesting that by necessary implication the power to file a charge sheet flows from some of the powers which have already been discussed under the new Act and that a customs officer is entitled to exercise even this power. It is difficult and indeed it would be contrary to all rules of interpretation to spell out any such special power from any of the provisions contained in the new Act. In this view of the matter even though under the new Act a customs officer has been invested with many powers which were not to be found in the provisions of the old Act, he cannot be regarded as a police officer within the meaning of S. 25 of the Evidence Act. In two recent decisions of this Court in which the judgments were delivered only on October 18, 1968 i.e. ROMESH CHANDRA MEHTA VERSUS STATE OF WEST BENGAL - 1968 (10) TMI 50 - SUPREME COURT and Dady Adarji Fatakia v. K.K. Ganguly, Asstt Collector of Customs & Ant.,('2) the view expressed in Barkat Ram's(3) case with reference to the old Act has been reaffirmed on the question under consideration and it has been held that under the new Act also the position remains the same. This is what has been said in Dady Adarji Fatakia's (2) case:

"For reasons set out in the judgment in Cr. A. 27/67 (ROMESH CHANDRA MEHTA VERSUS STATE OF WEST BENGAL - 1968 (10) TMI 50 - SUPREME COURT ) and the judgment of this Court in BADKU JOTI SAVANT VERSUS STATE OF MYSORE - 1966 (3) TMI 103 - SUPREME COURT. case, we are of the view that a Customs Officer is under the Act of 1962 not a police officer within the meaning of S. 25 of the Evidence Act and the statements made before him by a person who is arrested or against whom an inquiry is made are not covered by S. 25 of the Indian Evidence Act."

The question whether the DRI, Enforcement Officers of the Directorate of Enforcement, Customs, and Officers of the NCB are Police Officers or otherwise has come up before and would probably come up from time to time till it is finally decided by a Larger Bench of Seven Judges of the Supreme Court.

B.V. Kumar

Former DG, DRI and Member, CBIC