TMI Blog1983 (12) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... ached to Zubaida Manzil , Tellicherry. It was found to contain contraband goods valued at ₹ 50 lakhs. Further information was collected. Accordingly seven among the petitioners were arrested in September, 1983 and produced before the Chief Judicial Magistrate, Tellicherry. The Customs Officer concerned sought their detention in judicial custody. At the same time they moved the court for bail. The Magistrate held that he had no power to remand them to judicial custody and granted them conditional bail. Accordingly they were released. These orders were challenged by the Customs Department before this Court in Crl. M.C. No. 657 of 1983(reported in 1983 Cri LJ 1860). This Court hold that the Magistrate has power to order detention of the arrested persons in judicial custody, that the order granting bail was unsustainable, cancelled the bail and directed them to be taken back into custody. Accordingly these seven persons were taken back into custody. Since then they are being remanded to custody from time to time. In Oct. 1983 two more persons (who are also before this Court) were arrested and duly remanded to judicial custody, after dismissing their bail applications. Fresh appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this Court held that in the light of Section 3(2) of the Code and Section 103(3) of the Act, the provisions in Section 437 of the Code are rendered applicable to customs offences ' under the Act and that power to grant bail under Section 437 of the Code necessarily implies power to remand or order detention in judicial custody and hence Magistrate dealing with a person arrested under Section 103(1) of the Act and presented before him under Section 103(2) by a Customs Officer has power to grant bail or power to order detention of the arrested person in judicial custody, even without reference to the provisions in Secs. 167 and 309 of the Code. Therefore applicability of Section 167 of the Code to an offence under the Act was not considered in that decision. 5. On certain fundamentals there is no dispute raised before me. A Customs Officer acting under the provisions of the Act is not an officer in charge of a police station as defined in Section 2(o) of the Code. The investigation which a Customs Officer has to hold under the provisions of the Act is not an investigation which a police officer has to conduct under the provisions of the Code. The power of arrest vesting in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magisterial power in any case could be of such an uncontrolled, unfettered or unguided nature. 8. It appears that the modalities in relation to passing an order of remand are contained in Sub-sections (2) and (3) of Section 167 of the Code. Sub-section (2) states that the Magistrate may, from time to time, authorise the detention of the accused in such custody as the Magistrate thinks fit, for a term not exceeding 15 days in the whole. This is a provision by which the term for which remand or detention is to be ordered is limited. The proviso contain a further limitation regarding the total period of detention of any accused person. In the case of grave offences the total period cannot exceed 90 days and in the case of other officnces, the total period cannot exceed 60 days, The proviso also says that on the expiry of the said period, the accused shall be released on bail if he is prepared to furnish bail and he shall be deemed to be so released under Chapter XXXIII, (the Chapter containing bail provisions) of the Code. Sub-section (3) requires the Magistrate to record his reasons for authorising detention of an accused person in custody. These are controls and fetters imposed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... controls the power to remand has to be exercised. In other words, the law and procedure dealing with order of detention in such custody as thought fit of a person arrested by a Customs Officer and produced before a Magistrate are not laid down by the Act. That is a field left untouched by the Act. 10. Sub-section (2) of Section 4 of the Code states that all offences under any other law (i. e. law other than the Penal Code) shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions (i. e. the provisions of the Code), but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. This would mean that in the absence of any provision in the Act, touching any such matter as mentioned in Section 3(2) of the Code, the provisions of the Code would apply. Remand or detention of an arrested person, not being provided by the provisions of the Act, the provisions of the Code must govern the matter. It would follow that the provisions of Sub-sections (2) and (3) of Section 167 of the Code must apply in the case of a person arrested under the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Section 167 of the Code must be read suitably, that is, reference to officer in charge of a Police Station must be read as Customs Officer . This view is strengthened by the provision in Sub-section (3) of Section 104 of the Act also. 12. I therefore hold that provisions in Sub-sections (2) and (3) of Section 167 of the Code apply to persons arrested under Section 103(1) of the Act and produced before a Magistrate under Section 103(2) of the Act. The benefit of the proviso to Section 167(2) of the Code is available to them. 13. Admittedly the petitioners have been in detention as ordered by a competent Magistrate for a period of over 60 days. It must necessarily follow, by virtue of proviso to Section 167(2) read with Section 437 of the Code, that the petitioners are entitled to be released, if they are prepared to furnish bail. In the result it is directed that the petitioners in these three petitions shall be released on bail, as each of them executing bond for ₹ 10,000/- and furnishing the solvent, sureties each in the like amount 1o the statisfaction of the Chief Judicial Magistrate, Tellicherry. It is further directed that they will make themselves av ..... X X X X Extracts X X X X X X X X Extracts X X X X
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