TMI Blog1981 (12) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Directorate situated at Khan Market, New Delhi. He was questioned by the deponent who came to the conclusion that the petitioner was guilty of an offence punishable under the Foreign Exchange Regulation Act, 1973 (contravention of Section 8(1). The petitioner was, therefore, arrested and produced before the Additional Chief Metropolitan Magistrate, New Delhi. A bail application moved by the petitioner was rejected and he was remanded to judicial custody till 4th August, 1981. Another bail application moved to the Additional District Sessions Judge was rejected on 7th August, 1981. The petitioner was again remanded to judicial custody and is still in custody. It was brought to our notice that the petitioner had been informed on 15th September, 1981, that he was no longer required for investigation and he could be released on bail if he moved an application, but he did not move any application. (2) The case of the petitioner in this petition is slightly different. He claims that he was man-handled in the Enforcement Directorate and his Advocate was also not allowed to interview him ; he claims that his statements were recorded under torture, duress and mal-treatment. He claims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of Section 104 of the Customs Act, 1962 and of Section 35 of the Foreign Exchange Regulation Act, 1973, are practically the same. In one case the power to arrest is exercisable by a specially authorised officer of Customs and in the other by a specially authorised Officer of Enforcement. In each case, the officer concerned may arrest the person believed to be guilty of an offence punishable as prescribed by the Act and inform him of the grounds for such arrest. Under Sub-section (2) such an arrested person has to be taken to a Magistrate without unnecessary delay. Sub section (3) gives the Officer of Enforcement or the Officer of Customs, as the case may be, the same power for releasing the arrested person on bail or otherwise, and subject to the same provisions as are available to an officer- in-charge of a Police Station. However, neither Act indicates what the Magistrate has to do after the arrested person has been produced before him. (8) The question that has arisen before us is whether the arrested person can be remanded to judicial custody, or has necessarily to be given bail. Even if he refuses to furnish the bail can the Magistrate order his detention? (9) In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y transforms the Enforcement Officer into an in charge of a police station is of a restricted application and the transformation is only transitory and only for the purpose of grant of bail or refusal of the same. This being so the provisions of Section 167(2) of the Code of Criminal Procedure do not apply to an arrest of this type. A similar view was taken in Brian Bannett's case as well as by the Allahabad in U.B. Singh's case. As the matter has already been concluded by the Supreme Court's judgment, we are unable to hold that the Magistrate can rely on Section 167 of the Criminal Procedure Code to remand the accused to judicial custody or other custody. (10) This brings us to the question as to what other type of remand is possible. Under the Criminal Procedure Code of 1898, Section 344 was available for enabling the Magistrate to order a remand. The Section has been re-enacted as Section 309 in the Criminal Procedure Code of 1973. The new wording of the Section is quite different. Section 309(2) reads as follows : If the Court, after taking congizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conferred by statute. It was said : It may be emphasised here that the Court will have no inherent power of remand of an accused to any custody unless the power is conferred by law. In the order under appeal the High Court without reference to Section 344 of the Old Code, seems to have assumed that such a power existed. That is not correct. We are bound by these observations and we see no escape from the same. Unless the power to remand can be found in some provisions of Foreign Exchange Regulation Act, 1973, and Criminal Procedure Code, 1973, we have to hold that there was no power to remand. We have reluctantly come to the conclusion that we cannot find any provision allowing the remand. We also do not accept the contention that Section 437 of the Code permits the Court to put the petitioner in jail if bail is refused or not furnished. Such a view would be contrary to the observation of the Supreme Court reproduced above. (13) Although, this discussion is sufficient to decide this case, we must point out that a serious lacuna now exists in cases arising under the Customs Act or the Foreign Exchange Regulation Act. The learned counsel for the respondents relied on anot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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