TMI Blog1983 (11) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... be deemed to have been arrested from the moment they were taken into custody by the Customs officials, even if it be under the guise of any inquiry or interrogation, and that their subsequent custody with the Customs department without being produced before the Magistrate within 24 hours as envisaged in Article 22(2) of the Constitution of India, would amount to an illegal detention and any statement or statements recorded from those persons by the Customs Omciats during this prolonged period of custody should be held to have been made by the detenues not on their own volition or free will and hence such statements cannot be made use of by the detaining authorities for drawing the requisite subjective satisfaction for passing the orders of detention. 3. As two of us constituting a Division Bench viewed that the interpretation of the word `arrest and the observation regarding the formal mode of arrest, given by the earlier Division Bench of this court in Kaisar Otmar s case, are not in consonance with Section 46 Crl. P.C. and the view taken by a Full Bench of this court in Collector of Customs v. Kothumal, A.I.R. 1967 Mad. 263, and the decision of a Division Bench of the Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the detenu could not be said to have been `arrested within the meaning of the said term from the moment when he was taken into custody for interrogation. The Bench rejecting the contention of the respondents and accepting that of the petitioner, held that the detenu in that case was arrested from the time when he was taken into custody by the customs officials, i.e., on the evening of 15-1-1981, and kept for a prolonged period in violation of Article 22(2) of the Constitution. 5. In order to answer the reference, the following questions are framed for consideration :- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dictionaries with reference to the meaning of those two terms, and urged that the words `arrest and custody are synonymous and therefore, once a person is taken for inquiry either under Section 107 or under Section 108 of the Customs Act, such a taking would amount to an arrest and the Customs officials are not at all justified in keeping and detaining a person as taken into custody for ever the statutory period authorised under law, under the guise of inquiry or interrogation. According to him, the interpretation of the term `arrest and the observation of the term `arrest in Kaiser Otmar s case, represent the correct position of law and as such there is no warrant for reconsideration of the principles laid down therein. 8. The learned Advocate General, appearing at the instance of this Court, posed three points as arising for discussion and answered the same stating (1) that the mere questioning of a person by a Customs officer either under Section 107 or under Section 108 of the Customs Act resulting in a voluntary statement which may ultimately turn out to be incriminatory, is not compulsion, attracting the application of Section 20(3), because that person, while making t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mere physical restraint of that person is not an arrest and in such a case, there is no testimonial compulsion. He would further state that as the person summoned for enquiry does not have the character of an accused, the protection given under Articles 203(3), 21 and 22(2) of the Constitution cannot be availed of. 11. In support of their respective submissions, the learned Counsel appearing for the various petitioners and the respondents and the learned Advocate General took us very meticulously through a catena of decisions and also drew our attention to various provisions of the Customs Act, the Code of Criminal Procedure and other allied enactments and certain renowned text books. 12. Meaning of the term `arrest : The term `arrest is not defined either in the procedural Acts or in the various substantive Acts, though Section 46 Crl. P.C. lays down the mode of arrest to be effected. 13. The word `arrest is derived from the French `arrester meaning `to stop or stay and signifies a restraint of the person. Lexcographically the meaning of the word `arrest is given in various dictionaries as follows - (a) In Shorter Oxford English dictionary, the various meanin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired for an `arrest is some act by officer indicating his intention to detain or take person into custody and thereby subject that person to the actual control and will of the officer, as formal declaration of arrest is required. (h) A `Dictionary of law by L.B. Curzon (1979) gives the meaning of the word `arrest at page 22, as follows - To restrain and detain a person by lawful authority....... (i) Mitra s Legal and Commercial Dictionary, 3rd Edn. (1979) gives the following definition of the word at page 77 - `Arrest means the restraining of the liberty of a man s person in order to compel obedience to the order of a court of justice, or to present the commission of crime, or to ensure that a person charged or suspected of a crime may be forthcoming to answer it. Arrest consists of the actual seizure or touching of a person s body with a view to his detention. The mere pronouncement of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting officer. An arrest may be made either with or without warrant....... (j) Words and Phrases legally defined, 2nd Edn. (1969), volume 1, at page 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im to answer a criminal charge or of preventing the commission of a criminal offence......The terms `arrest and `apprehension have been by some courts used interchangeably as meaning the same thing when employed in connection with the taking of a person into custody. The effect of facts as constituting an arrest is a question of law. Whether the particular circumstances have been established which constitutes an arrest is ordinarily, however, a question of fact. According to this text book `to constitute an arrest there must be an intent to arrest, under a real or pretended authority, accompanied by a seizure or detention of the person, which is so understood by the person arrested. (o) In `A Handbook in Criminal Procedure and the Administration of Justice by Allen P. Bristow and John B. Williams at 834 I.C. it is stated that an arrest is taking a person into custody in a case and in the manner authorised by law. At 835 P.C. it is stated that an arrest is made by an actual restraint of the person or by submission to the custody of an officer. (p) In another text book `The Criminal Prosecution in England by Patrick Devlin at page 68, the author has expressed his view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount to `arrest of that person and whether the terms `arrest and `custody are synonymous. 14. (a) The term `custody appears in a number of enactments. However, we are not giving an exhaustive list of the provisions of enactments containing the said expression `custody . In Sections. 439 and 442 (heading alone of the section) and Section 451 of the Crl. P.C., Section 223, I.P.C., Sections 26 and 27 of the Indian Evidence Act, Section 45 of the Customs Act, 1962, and Sections 19(c), 25(b) and (c), 29(2) and (3) and 40 of the Tamil Nadu Children Act etc., the said term is used However, it may be noted that the said word is not defined in any of these enactments. (b) The meaning of the term `custody is given in the Shorter Oxford English dictionary, as follows - 1. Safe keeping, protection, charge, care, guardianship; 2. The keeping of an officer of justice; confinement; imprisonment, durance; 3. Guardianship. (c) In Webster s Third International Dictionary, Volume I at page 559 the word `custody is given the following meanings : 1. (a) The act or duty of guarding and preserving: safe-keeping; (b) judicial or penal safe-keeping; control of a thing or person wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22(1) and (2). It was contended in that case, after referring to the various definitions of the word `arrest given in several well-known law dictionaries and urged in the light of such definitions, that any physical restraint imposed upon a person must result in the loss of his personal liberty and must accordingly amount to his arrest and that it is wholly immaterial why or with what purpose such arrest is made and the mere imposition of physical restraint, irrespective of its reason, is arrest and as such attracts the application of the constitutional safeguards guaranteed under Article 22(1) and (2). While meeting that argument, the court observed : That the result of placing such wide definition on the term `arrest occurring in Article 22(1) will render many enactments unconstitutional, is obvious. To take one example, the arrest of a defendant before judgment under the provisions of Order 38, Rule 1 C.P.C. or the arrest of a judgment debtor in execution of a decree under Section 55 of the Code will, on this hypothesis, be unconstitutional inasmuch as the Code provides for the production of the arrested person, not before a Magistrate but before the civil court which made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in custody for the purpose of Section 439. This word is of elastic semantics and its core meaning is that the law has taken control of the person. Equivocatory quibblings and the hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and the other like terminological dubictics are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose. Custody in the context of Section 439 (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in court with submission to the jurisdiction and order of the court. He should be in custody not merely when the police arrests him, produce him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions. In order to fully understand the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we shall pass on to discuss about the interpretation of the same term `in custody occurring in Sections 26 and 27 of the Evidence Act. In Laymoung v. Emperor, AIR 1924 Rang. 173, it was said by the learned Judges in that case that the correct interpretation of the term `police custody would be that `as son as an accused or suspected person comes into the hands of a police officer, is, in the absence of any clear and unmistakable evidence to the contrary, no longer at liberty and is therefore in custody within the meaning of Sections 26 and 27 of the Evidence Act . See also Paramahamsa v. State of Orissa, AIR 1964 Orissa 144 F.B. It has been held in Gurdial Singh v. Empiror, AIR 1932 Lah. 609 and in Re : Edukondalu, AIR 1957 A.P. 729, that there may be police custody even without formal arrest. The Supreme Court in State of Uttar Pradesh v. Deoman, AIR 1960 S.C. 1125, has observed thus - Section 46 Crl. P.C. does not contemplate any formality before a person can be said to be taken in custody. Submission to the custody by words of mouth or action by a person is sufficient. A person directly giving a police officer by word of mouth information which may be used as evidence aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the scope of Section 27. The Division Bench, observing that there should not be a rigid interpretation of Section 27, held thus- Though formally the accused was in judicial custody under an order of remand made by the Magistrate, he was temporarily in the custody of the police officer when he was interrogated and must be held to have been in such custody for the purpose of the applicability of Section 27. A close study of the above decision shows that the Bench had taken the view that though the accused was in jail, he must be deemed to have been in temporary custody of the police at the time of the interrogation, which position, in our view cannot be recognised in law. With great respect to the learned Judges, we feel that such an extreme view would lead to an anomalous position in the sense that the accused should be presumed to have been both in judicial custody and the temporary custody of the police at the time of his interrogation and that the said view cannot be in strict compliance with Section 27 of the Evidence Act, which envisages that the accused should be in custody of the police officer at the time of making confession leading to the discovery of a releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en by a Customs Officer either for the purpose of enquiry or interrogation or investigation, should be held to have come into the custody and detention of the Customs Officer and he should be deemed to have been arrested from the moment he was so taken into custody. We cannot agree with this submission for a number of reasons. Firstly, the specified Customs Officer is empowered to require or summon any person for the purpose of an enquiry or examination in connection with the smuggling of any goods, either under Section 107 or under Section 108 of the Customs Act, as the case may be. Secondly, it is well settled that Customs Officers whose powers are for the purpose of checking the smuggling of goods and the due realisation of the Customs duties and determining the action to be taken in the interest of the revenues of the country by way of confiscation of goods on which no duty had been paid and by imposing penalties and fines, and who are not primarily concerned with the detection and punishment of the crimes committed by those persons but only interested in the detection and prevention of the smuggling of goods and safeguarding the recovery of Customs duties are not police office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by an officer in charge of a police station under Chapter XIV of the old Code, which is the primary test for the application f Section 25 of the Evidence Act. Seventhly, the Supreme Court in Veera Ibrahim v. State of Maharashtra, AIR 1976 S.C. 1167, agreeing with the principle laid down in Mehta v. State of West Bengal, AIR 1970 S.C. 940 held that when the statement of a person is recorded by the Customs Officer under Section 108, that person is not a person `accused of any offence under the Customs Act and that an accusation which would stamp him with the character of such a person was levelled only when the complaint was filed against him by the Assistant Collector of Customs complaining of the commission of the offence under Section 135(a) and under Section 135(b) of the Customs Act. 23. Mr. Kareem, relying (1) on the decision in Francis Coralie v. Union Territory of Delhi, AIR 1981 S.C. 745, wherein it has been observed that the right to life enshrined in Article 21 cannot be restricted to mere animal existence and it means something much more than just physical survival; (2) on the observation of the Supreme Court in Malak Singh v. State of Punjab, AIR 1981 S.C. 760, readi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lest it should be misused the law is choosy and requires the empowerment of Customs officers by a general or special power of the Collector to exercise these larger powers. Does Section 107 enable the interrogation of even the potential delinquent or must it be confined only to witness who throw light on the delinquent s contravention of the law. `Any person in the section certainly covers every person including a suspect and potential accused. These words of the statute have to be interpreted in the light of the policy and purpose of the law. The object of Section 107, located in the neighbourhood of Section 108 indicates that while the normal process of enquiry is facilitated by Section 108 investigatory emergencies are taken care of by Section 107. May be situations arise where the failure to question a witness quickly may mean irretrievable loss of a valuable material and Section 107 meets this need. The context in which the words `any person occur, the object of the provision and the policy underlying Chapter XIII of the Customs Act assume relevance and become material in the construction of the text. Nor are we faced with any difficulty on account of Article 20(3) of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uarantee enshrined in Article 20(3) is that a formal accusation relating to the commission of an offence which would normally lead to his prosecution must have been levelled against the party who is being compelled to give evidence against him. See also State of Bombay v. Kathi Kalu AIR 1961 S.C. 1808, Popular Bank v. Madhava Naik AIR 1965 S.C. 654, Collector of Customs v. Kotmal AIR 1957 Mad. 263, (F.B) Yousuf Ali Ismail Nagri v. State of Maharashtra, AIR 1968 S.C. 147 and Veera Ibrahim v. State of Maharashtra, AIR 1978 S.C. 1167. In this connection, Mr. Kareem would state that the above conditions for invoking Article 20(3) is not in dispute. 25. In Urban Singh s case, AIR 1970 Bom. 79, what the Division Bench of the Bombay High Court observed was that the words `in custody which are to be found in certain sections of Evidence Act denote surveillance or restriction on the movements of the person concerned. We feel that we need not elaborately deal with the judgment of the Bombay High Court since we have exhaustively discussed supra, the question of custody and surveillance. In this connection, we would like to point out that Section 24 of the Evidence Act bars the use of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Customs officers in general in the matter of enquiry, interrogation or investigation, based on any assumption or conjecture. 26. In an enquiry under Section 107 or Section 108 of the Customs Act, not only the person who subsequently becomes the accused with reference to the matter under enquiry, but also persons who are conversant or suspected to be conversant with the smuggling of any goods, are examined. This is the reason why in the said sections the words `any person are used so as to denote all the persons inclusive of the persons who subsequently become accused. At that stage, there is no question of arrest. Arrest comes into the picture only when an officer of the Customs empowered in this behalf by general or special order of the Collector of Customs has reason to believe that any person has been guilty of an offence punishable under Section 135. Section 107 and Section 108, as they stand, do not give any power to the Customs Officer to take any person under compulsion and detain him for a prolonged period under the guise of enquiry, investigation or interrogation. The statutory threat embodied in sub-section (4) of Section 108 is to the effect that in case the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consequences. 29. Mode of arrest : This is a crucial question in those cases which had led to the constitution of this Full Bench. Section 45(1) Crl. P.C. under the heading `arrest how made coming under Chapter 5 with the caption `arrest of person reads thus :- (1) In making an arrest the Police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. (2)........ (3)............ The above section applies to all arrests whether made under a warrant or without a warrant, and prescribes the mode of arrest. The Criminal Procedure Code contains various provisions by and under which various authorities and private persons are empowered to arrest. An analysis of the provisions under this chapter shows that a person may be arrested by - (1) a police officer without a warrant under Sections 41(1) and 151; under a warrant under Sections 72 and 74; under the written order of an officer in charge of a police station under Sections 55 and 157; under the orders of a Magistrate under Section 44 and in non-cognisable offence under Section 42; (2) a superior polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re attendance or uttering of words not in conformity with the provisions of Section 45 Crl. P.C. does not amount to arrest. Vide In re Amarnath 5 All. 318. 33. Before the Queen s Bench division, in Alderson v. Booth 1969-2 All. E.R. 271, an interesting question came up for consideration as to whether the accused in that case had been arrested after the first breath test under Section 2(4) of the Road Safety Act, 1967. Lord Parker C.J. speaking for himself, observed thus : There are a number of cases both ancient and modern, as to what constitutes an arrest; and whereas there was a time when it was held that there could be no lawful arrest unless there was an actual seizing or touching; it is quite clear that that is no longer the law. There may be an arrest by mere words, by saying `I arrest you without any touching, provided of course, that the accused submits and goes with the police officer. Equally it is clear, as it seem to me, that an arrest is constituted when any form of words is used which, in the circumstances of the case, were calculated to bring to the accused s notice, and did bring it to the accused s notice, that he was under compulsion and thereafter he subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified provisions of the Criminal Procedure Code. If it is to be held that the actual seizure or touching of a person s body with a view to his arrest is not necessary, in order to make his arrest, but that the mere utterance of a guttural word or sound, a gesture of the index finger or hand, the sway of the head or even the flicker of an eye are enough to convey the meaning to the person concerned that he has lost his liberty and brought under arrest, as pointed out by the Division Bench in Kaisek Otmar s case 1981 L.W. Cr. 158, then it will not only be in conflict with the modality of arrest prescribed in Section 46 of the Crl. P.C. but also will lead to a startling anomaly and cause serious consequences. Can it be said that a private citizen who is empowered to make the arrest under Section 43, Cr. P.C. can say that he has arrested a person merely by uttering of words or making of a gesture? Even in the case of a police officer or other officers empowered to arrest, the mere utterance of words or gesture or flickering of eyes, etc. would never amount to an arrest, unless the person concerned submits to the custody of the arrester. 36. In regard to the principles to be applied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Narbada Prasad v. Chhagalal A.I.R. 1969 S.C. 395, the Supreme Court, posing a question for its consideration whether there was power in a court to dispense with the compliance of the provisions of Section 33(5) of the Representation of the People Act, 1951, answered negatively, holding. It is well understood rule of the law that if a thing is to be done in a particular manner it must be done in that manner or not at all. Other modes of compliance are excluded. The above principle was reaffirmed by the Supreme Court in State of Gujarat v. Shantilal A.I.R. 1969 S.C. 634, while disposing of a civil appeal relating to the acquisition of a land required for the purpose of a Town Planning Scheme. The ratio of that case is as follows - Land required for any of the purposes of a town planning scheme cannot be acquired otherwise than under the Act, for it is a settled rule of interpretation of statutes that when power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all. Following the well-recognised principle of the interpretation of the statutes, laid down in the above decisions when Section 46 Cr. P.C. is exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Kaiser Otmar s case, 1981 L.W. Cr. 158 is not in conformity with Section 46 Crl. P.C. which section by itself is very clear. We feel that the Bench perhaps would not have laid down this dictum regarding the mode of arrest had Section 46 Crl. P.C. been brought to their notice. Further, the Bench has not also adverted to the leading Full Bench decision of this court in Collector of Customs v. Kotumal, A.I.R. 1967 Mad. 263, and Harbans Singh v. State A.I.R. 1970 Bom. 79, touching on this issue. For the reasons stated above, we hold that the rule laid down by the learned Judges constituting the Division Bench, in Kaiser Otmar s case, 1981 L.W. Cr. 158, with great respect, with regard to the mode of arrest is not goods law. 43. The other question that arises for our consideration in this reference is whether the Customs Officer can detain any person under the guise of an enquiry, interrogation or investigation beyond 24 hours before producing him before the Magistrate and whether such a detention would be violative of Article 22 of the Constitution of India. We have launched on a detailed discussion while interpreting the term `custody , which discussion has a bearing on this quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as involuntary one, and the intrinsic value of such a statement may be vitiated. The question whether a person has been kept in prolonged custody is a question of fact, which has to be carefully considered against the background of the circumstances disclosed in each case. So, it is neither advisable nor possible to lay down any inflexible standards for the guidance of courts, though in the ultimate analysis, it is the court which is called upon to decide the circumstances of a particular case. 45. Mr. Kareem brought to the notice of this court a copy of the notice issued under Section 108 of the Customs Act, wherein the person concerned in that notice was summoned to appear before the Superintendent of Customs at 10 a.m. and required not to leave the Customs House without leave, and if the case is adjourned, without ascertaining the date of adjournment. The grievance of the learned Counsel is that this kind of summons does not specify and regulate the commencement and ending of the time of enquiry and that the mere reading of the notice would indicate that the person summoned should be in the Customs House until he is given a green signal by the Customs official, which, in turn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be produced before a Magistrate without giving room for any complaint that Article 22(2) is violated. 48. It would be apposite in this connection to refer to the observations made in Harban Singh v. State A.I.R. 1970 Bom. 79 at page 81, paragraph 4, before which the same question was raised : It is true that there is no provision similar to Section 61 Crl. P.C. (Old) [corresponding to Section 57 of the new Code, Crl. P.C. and which is analogous to Section 104(2) of the Customs Act] which lays down a maximum period of 24 hours within which an accused person should be put up before a Magistrate, but that may have been unnecessary in view of the fact that such a maximum period is now laid down by the Constitution itself in Article 22(2) thereof. See also Jeevakan v. Officer in Charge of Q. Branch of T.N. Police, 1982 L.W. Crl. 261 at pp. 268 and 269; and also Jagannathan v. State 1983 L.W. Cr. 250 at p. 255 and 256. Hence, in view of the Constitutional provisions, of Article 22(2), the submission of the learned Counsel that the person arrested under the Customs Act should be produced before a Magistrate without any interval of time from the moment the arrest is effecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsable essence of the liberty of a citizen are not impaired in any manner. 50 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. In the light of the views expressed above, 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. 51. Mr. Kareem, in addition to the question of law referred to us, would like to raise, and in fact, raised two other questions to be decided by this Full Bench, viz., (1) that since there are no well defined and guided procedures established by law, in conformity with human dignity, with regard to the mode of enquiry under Section 108 of the Customs Act, and on the other hand, the vagueness of the expression used in the section confers uncontrolled discretion on the executive to expand the horizon of their power to the detriment of the liberty of the subject, Section 108 must be held as violative of Article 21 of the Constitution, and as such ultra vies; and (2) that the person summo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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