TMI Blog2019 (10) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... and in absence of such a definition, the terms take the meaning assigned in the Code of Criminal Procedure. In absence of any set of procedure for commencing the so-called investigation in words of the learned senior counsel Shri Maninder Singh, though the statute applies the phrase inquiry for commencing conducting and culminating a valid investigation into the distinct classes of offences, the position that would therefore emerge is to resort to sub-section (2) of Section 4 in relation to an investigation into an offence under the special statute and in absentia of any provision setting out the modalities for commencing, conduct and culmination of investigation. In absence of any overriding provision in the Customs Act, stipulating any contrary procedure, relating to an information received and the manner in which the Custom Officer, who for limited purpose posses the power of a police officer, by virtue of Section 4(2) of the Code, the respective provisions in the Code relating to dealing with the information requiring an inquiry/investigation into the offences classified as cognizable/non-cognizable shall necessarily follow. In ILLIAS VERSUS COLLECTOR OF CUSTOMS, MADR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Companies had imported about 1300 consignments of Indonesian Coal and majority of the import came to be routed through their group subsidiary company i.e. Adani Global Private Limited (AGPTE), Singapore and Adani Global (AGFZE), Dubai. It is noted that both the said companies are 100% subsidiaries of a Mauritius Based Company i.e. Adani Global Limited (AGL) which is an 100% owned subsidiary of Adani Enterprises Limited i.e. petitioner no.1 before us. It is alleged that the petitioner acting in connivance with the individuals and companies grossly overstated the import value of coal as compared to the actual export value ex-Indonesia and prevalent international prices and it is alleged that with an object of siphoning of the money abroad and to avail higher power tariff compensation, this course was adopted so that it can sold the power to the power utility public sector undertakings in India. The precise accusation allege that the comparative analysis of value of Indonesian coal declared to Indian customs by the Adani Group of Companies as against the values declared by the Indonesian exporters to the Indonesian authorities at the time of export was to the tune of ₹ 930 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rogatory to the authorities at Singapore,UAE, Hongkong, British Virgin Irelands in order to secure the necessary information. The Addl. Chief Metropolitan Magistrate obliged the authorities after examining the applications made by the DRI and the case records and issued four letters of Rogatory under the Mutual Legal Assistance Treaty (MLAT) on different dates. The Letter of Rogatory to Singapore was issued on 2/8/2016 and forwarded to the competent authority in Singapore. It is this course of action which is oppugned in the petition instituted by it. 4. In support of the petitioner, we have heard the learned senior counsel Shri Nankani who has over simplified his case by stating that the provision of issuance of Letter of Rogatory contained in Section 166-A of Cr.P.C can be availed of only when the investigation commence under Chapter XII of the Code either in form of Section 154 in respect of cognizable offence or Section 155 in form of non-cognizable offence. Shri Nankani would submit that since the DRI has summarized its allegation against the petitioner in terms of Section 132 and 135 of the Customs Act, undisputedly, being a complete Code, the authorities are empo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act. Thus, as per Shri Nankani, the offences with which he is indicted is a non-cognizable offence falling under sub-section (5) of Section 104 of the Customs Act. His argument is focused in the backdrop of the fact that the classification of the alleged offence against the petitioner under Section 135 of the Customs Act and the investigation was illegally commenced and conducted, in a non-cognizable offence, despite there being no order under Section 155(2) read with Section 4(2) of the code of Criminal Procedure. The submission of Shri Nankani is to the effect that an investigation can only be initiated by lodging an FIR and when such an information relating to commission of a cognizable offence is received by an officer in-charge of a police station, he shall follow course of action as set down in Section 154 of the Code of Criminal Procedure and result into the final report under Section 173 of the Code. Another mode, according to Shri Nankani, is when an information is given to an officer in-charge of a police station of commission of a non-cognizable offence when according to him, the course to be followed is enumerated in Section 155 of the Code. In such a situation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urse of action to be chartered by Custom Authority/DRI. We would deal with the same at a subsequent point of time since what we have noted is that the judgment which are sought to be relied by the learned senior counsel appearing for the DRI overlap and each of them making a distinction of the applicability of the ratio culled out from the said judgments. 6. In support of the respondent, we have heard the learned senior counsel Shri Maninder Singh, who would aver that the present petition is an attempt to frustrate the investigation being carried out by the DRI and is nothing but an attempt to thwart an entirely legal investigation being carried out by it into a serious allegation. The learned senior counsel would submit that section 166-A of the Cr.P.C which is a unique provision contained in the Code and which operates with a non-obstante clause can be justiciably invoked by any Investigating Officer, including a Custom officer, when it occurs to him, during investigation into an offence that evidence may be available in a country or place outside India and he may then approach any criminal Court with a letter of Request to the Court or an authority in that country or pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Cr.P.C would not have any effect on any special or local laws or any special jurisdiction unless there is any specific provision to the contrary in the entire code. According to him, section 4 of the Code which deals with both the offences under IPC as well as offences under special laws, what is eminent is the segregation of two clauses contained in section 4; Section 4(1) deal only with offences under the penal code and 4(2) deal exclusively with the offences under the special laws. On a conjoint reading, according to learned senior counsel, the position that emerges is that the provisions of Cr.P.C. including Section 166-A which are not contrary or inconsistent with the scheme envisaged in the customs Act 1962 would apply to the investigation carried out by the Custom Officer under the Customs Act, 1962 and thus he is entitled to seek letter of Request Letter of Rogatory under Section 166-A of the Cr.P.C. He uses the judgment of the Apex Court in Deepak Mahajan case as an ace up his sleeves to buttress his submission that the term Investigation is to be understood in a broad sense and according to him, the non-obstante clause in Section 166A of Cr.P.C is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her law for the time being in force. It also contains provision for levy and exemption from custom duties and set out the procedure for clearance of imported and export goods. The Act provides for constitution of an adjudicating authority and an entire mechanism for finalization of the decision of said Authority. For implementation of the provisions of the Act, classes of officers are designated as officers of Customs who are empowered to exercise the powers and discharge the duties conferred or imposed under the Act. The said enactment which empowers the Officers of Customs to deal with the prohibition and incidentally prevent or detect the illegal exports of goods, can be broadly classified into two parts i.e. the first part being exercise of power by the Custom Officer for the purpose of ensuring the collection of Revenue by preventing smuggling and enforcement and levy of proper duties and prevention of entry into India of dutiable goods without payment of duty and goods of which entry is prohibited. These adjudicatory powers relate to exercise of the Revenue powers ensuring and assuring the Revenue accruing to the State. The second limb of the powers of the Customs Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 110 authorizes the proper Officer to seize such goods as he has reason to believe which are liable to confiscation. Section 111 and Section 113 provides for confiscation of the goods which are improperly imported/ exported. Section 112, 114, 114A and 114AA, 116 and 117 provides for contravention of the provisions contained in the Act and which call for imposition of penalty. Chapter XV contains a provision for Appeal and set out the procedure in Appeal and also the powers of the Appellate Tribunal. According to the DRI, the petitioner is alleged to have misdeclared the grade and value before the custom authorities and at the time of import and the goods are liable for confiscation in terms of Section 111(m) of the Customs Act and the persons involved are liable to penalty under Section 112(b)(ii) and Section 114AA of the Customs Act. The offences as per DRI are punishable with imprisonment for a term which may extend to two years or with fine or both under Section 132 of the Customs Act. The DRI has also alleged that they are liable to be indicted under Section 135 for knowingly misdeclaring the value of the goods or for any prohibition for the time being imposed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine: Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court such imprisonment shall not be for less than 3[one year]. 8. The position that emerges from the aforesaid statutory scheme invest the Custom Officer with the power to search a person, to arrest a person and to examine the person and summon a person to give evidence and to produce documents and also empower him to seize the goods, documents and things which are liable for confiscation. The Custom Officer is also empowered to release a person on bail. The cognizance of the offences under the Customs Act, 1962 can be taken by the Court only on the previous sanction of the Principal Commissioner of Customs or Commissioner of Customs. 9. At this stage, it would be apposite to reproduce Section 104 which confers a power on the Officer of Customs to arrest a person and it also classifies the offences as under : 104 Power to arrest : (1) If an officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of the Code of Criminal Procedure. An offence relating to prohibited goods or evasion or attempted evasion of duty exceeding 50 lakhs is cognizable and all other offences under the Act are non-cognizable. At this point, it would be relevant to note that this provision has been has been substituted with effect from 28th May 2012 and prior to the said amendment and all offence under the Customs Act were classified as non-cognizable. Further, an offence punishable under Section 135 relating to clauses (a) to (d) of sub-section (6) are non-cognizable and all other offences under the Act are bailable. 10. The stanchion of the arguments advanced on both the sides is as to whether the offences which are cognizable/non-cognizable under the Customs Act, 1962 must undertake the route of Section 154 and 155 of the Cr.P.C and therefore, we deem it appropriate to briefly refer to the scheme of Chapter XII contained in the Code of Criminal procedure. Code of Criminal Procedure is Code which consolidated and amended the law relating to Criminal Procedure. It is enacted in exercise of powers conferred under Entry II of VII Schedule. It is necessarily procedural in n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seek permission of the Magistrate as contemplated under sub-section (2) of Section 155 of Cr.P.C and the broader submission of the petitioner is to the effect that in absence of following the said pathway of Section 155(2) of Cr.P.C which happens to be a part of Chapter XII of Cr.P.C, it is not open for the officer of the custom to take recourse to the provisions contained in form of Section 166-A which pertains to issuance of Letter of Rogatory. 12. Once we have the spectrum of the two enactments before us, we would like to highlight the interplay between the operation of the two enactments and their impact on each other so as to unravel the conundrum. Section 4(1) of the Code of Criminal Procedure rule that the procedure contained in the Code would govern the offences under the Indian Penal Code whereas sub-section (2) of Section 4 determine the situation when the special offences would follow the procedure set out in the Code. The said section can be said to act as a bridge before embarking upon an investigation either into the offences under the IPC or a special statute. Section 4 reads as under :- 4. Trial of offences under the Indian Penal Code and other l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. In the absence of a specific provision made in the statute indicating that offences will have to be investigated, inquired into, tried and otherwise dealt with according to that statute, the same will have to be investigated, inquired into, tried and otherwise dealt with according to the Code of Criminal Procedure. In other words, Code of Criminal Procedure is the parent statute which provides for investigation, inquiring into and trial of cases by criminal courts of various designations. 17. Now the Code of Criminal Procedure prescribed only four methods of taking cognizance of an offence whether it be a Magistrate or a Sessions Court is for the time being immaterial. The Code prescribes four methods for taking cognizance upon a complaint, or upon a report of the police officer or where the Magistrate himself comes to know of the commission of offence through some other source and in the case of Sessions Court upon a commitment by the Magistrate. There is no other known or recognized mode of taking cognizance of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lating to prohibited goods; or evasion or attempted evasion of duty exceeding ₹ 50 lakhs to be cognizable, notwithstanding anything contained in the Code of Criminal Procedure. All other offences under the Act are non-cognizable. The offences under sub-section (6) of Section 104 are declared to be non-bailable notwithstanding anything contained in the Cr.P.C and this covers the offence punishable under Section 135 relating to evasion or attempted evasion of duty exceeding 50 lakhs of rupees or prohibited goods notified under Section and also notified under sub-clause (c) of clause (i) of sub-section(1) of Section 135. By virtue of Section 135, the evasion of duty or prohibition, depending upon the category of the goods is punishable with Imprisonment for a term which may extend to 7 years and with fine, in case where the market price of the goods exceed Rs.One crore or the evasion or the attempted evasion of duty exceed 50 lakhs rupees or it is a fraudulent availment or an attempt to avail drawback and if the amount of the drawback or exemption duty exceeds 50 lakhs. In any other case, the offence under Section 135 is punishable with Imprisonment for a term which may extend t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the provisions of the Act of 1948 would reveal that whenever the legislature intended a departure from the procedure contemplated under the Code, it expressly provided so. As a necessary corollary, if an offence is cognizable, then, it is either made bailable or non-bailable under Part-I of Schedule-I of Cr.P.C. Under the Customs Act, though the offence punishable under Section 135 are made cognizable, it is also made bailable. In case of a cognizable offence, which in terms of the Code of Criminal Procedure is an offence in which a police officer may, in accordance with the First Schedule or under any other law for the time being in force arrest without warrant. A non-cognizable offence in terms of Section 2(l) of the Code of Criminal Procedure means an offence in which a police officer has no authority to arrest without warrant. 17. Code of Criminal Procedure contains a detailed procedure for investigation into cognizable as well as noncognizable offences. Chapter XII of the Code of Criminal Procedure to which we had made a reference above includes Section 154 and 155. The procedure to be followed would thus depend upon whether the offence is cognizable or nonco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormant to the Magistrate and will not investigate a noncognizable case without order of a Magistrate having power to try such case or commit the case for trial. This police officer, on receipt of the order, from the Magistrate is then empowered to exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in-charge of a police station may exercise in a cognizable case. On such an investigation being completed, he would file his report and thereupon the Magistrate to whom the report is forwarded may take cognizance of the offence. This procedure for investigation and of submission of the report to the competent court is not to be found in the Customs Act though the offences are classified into cognizable/non-cognizable. In absence of any procedure being prescribed for investigation of such offences under the special enactment, recourse must necessarily be had to sub-section (2) to Section 4. The necessary sequitur is that in case of an offence which is made cognizable under the Customs Act, the procedure contemplated under Section 154 and in case of an offence which is non-cognizable, the procedure under Section 155 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons in other enactments all offences under other laws shall also be investigated, inquired into, tried and otherwise dealt with under the provision of the Code, This means that if other enactment contains any provision which is contrary to the provisions of the Code, such other functions would apply in place of the particular provision of the Code, If there is no such contrary provision in other laws, then provisions of the code would apply to the matters covered thereby. This aspect has been emphasised by a Constitution Bench of this Court in paragraph 16 of the decision in A.R. Antulay v. Ramdas Sriniwas Nayak and Anr., [1984] 2 SCC 500. 14. Nor can Section 5 of the Code be brought in aid for supporting the view that the Court of Session specified under the Act can obviate the interdict contained in Section 193 of the Code as long as there is no provision in the Act empowering the Special Court to take cognizance of the offence as a court of original jurisdiction. Section 5 of the Code reads thus : 5. Saving. Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27 The provisions of the Code, thus, for all intent and purport, would apply only to an extent till conflict arises between the provisions of the Code and TOHO and as soon as the area of conflict reaches, TOHO shall prevail over the Code. Ordinarily, thus, although in terms of the Code, the respondent upon completion of investigation and upon obtaining remand of the accused from time to time, was required to file a police report, it was precluded from doing so by reason of the provisions contained in Section 22 of TOHO. 36 We are, however, not oblivious of some decisions of this Court where some special statutory authorities like authorities under the Customs Act have been granted all the powers of the investigating officer under a special statute like the NDPS Act, but, this Court has held that they cannot file chargesheet and to that extent they would not be police officers. [See Ramesh Chandra Mehta v. The State of West Bengal AIR 1970 SC 940, Raj Kumar Karwal v. Union of India (1990) 2 SCC 409 ] 20. As per the learned senior counsel Shri Maninder Singh, the judgment of the Apex Court in case of Directorate of Enforcement Vs. Deepak Mahajan Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen such exclusion of jurisdiction cannot be clearly implied or readily inferred, does the detention authorised by the Magistrate either to judicial custody or otherwise become ab initio void and illegal and can the Magistrate be said to have exceeded or abused his authority? (3) What is the procedure to be followed and the order required to be passed by the Magistrate when a person arrested under the FERA or Customs Act is presented before him? (4) When the Officer of Enforcement or Customs Officer is not inclined to release the arrestee on bail or otherwise by exercising the power under sub section (3) of Section 35 of FERA or Section 104 of the Customs Act, a s the case may be, but produces the arrestee before a Magistrate as mandated by sub section (2) of the abovesaid provisions, will it not be a legal absurdity to say that the Magistrate should forthwith let go the arrestee without ordering detention and also extension of further detention or remand? And (5) Whether the Magistrate has no other alternative except to release that arrested person, produced before him on bail or direct him to be freed unconditionally and whether the Magistrate is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Acts as contemplated under Chapter XII of the Code. But what Section 167 envisages is that the arrestee is an accused or accused person against whom there is well founded information or accusation requiring an investigation. Firstly the reason given in the impugned judgment for holding that Section 167(1) is neither replaced nor substituted by any provision of the special Acts is that the arrestee by the authorised officer or empowered officer under the FERA or Customs Act respectively cannot be said to be an accused or accused person which expressions are used in Section 167 or accused of an offence which expression is used in Article 20(3) of the Constitution and in Sections 25 and 27 of the Evidence Act. In support of this reasoning, some decisions of this Court have been relied upon about which we would deal at the later part of this judgment. 22. The Apex Court in Deepak Mahajan (supra) has re-iterated the view taken earlier that the Officer of Enforcement or a Custom Officer is not a police officer though such officers are vested with the powers of arrest or analogus powers by making reference to the judgment in case of Ilias Vs. Collector of Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation is used in various provisions, namely Sections 34, 36, 37, 38 and 40 reading, ... any investigation or proceeding under this Act....... though limited in its scope. 120 From the above discussion it cannot be said that either the Officer of Enforcement or the Customs Officer is not empowered with the power of investigation though not with the power of filing a final report as in the case of a police officer. The Apex Court also dealt with Section 4(2) of the Code and as to whether it can be availed of for investigating, inquiring or trying offences under any other law, other than the Indian Penal Code including FERA and Customs Act, etc, and then it proceeds to answer in the following words :- Para 122 and 123 122 Section 4(2) of the Code corresponds to Section 5(2) of the old Code. Section 26(b) of the Code corresponds to Section 29 of the old Code except for a slight change. Under the present Section 26(b) any offence under any other law shall, when any court is mentioned in this behalf in such law, be tried by such court and when no court is mentioned in this behalf, may be tried by the High Court or other court by which such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n attempted to be given a wider meaning by Their Lordships. However, the ratio that flows from it in unequivocal terms lay down that in absence of any special procedure being carved out in the special enactment, the provisions contained in the Code and continue to govern the area of investigation, inquiry and trial of the offences under the Customs Act. 25. The learned Senior counsel Shri Nankani has placed heavy reliance in case of Om Prakash Anr Vs. Union of India, (2011) 14 SCC 1. The argument of Shri Maninder Sigh is that the verdict of the Apex Court in the said case only deals with power or arrest and therefore, according to him, the field is governed by the earlier judgment in case of Deepak Mahajan. 26. We have perused the said judgment and at the outset, we must mention that at the time when the said judgment was delivered, all the offences under the Customs Act 1962 were non-cognizable and the issue before the Apex Court was since they are non-cognizable, whether they are bailable. The issue was answered in the affirmative and it was held that the non-obstante clause contained in section 9A of the Excise Act made it clear that notwithstanding a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the two enactments which are uniformly non cognizable. Both Section 9A of the 1944 Act and Section 104(4) of the Customs Act, 1962, provide that notwithstanding anything in the Code of Criminal Procedure, offences under both the Acts would be non cognizable. 68 Accordingly, on the same reasoning, the offences under the Customs Act, 1962 must also be held to be bailable and the Writ Petitions must, therefore, succeed. The same are, accordingly, allowed. Crl. M.P. No.10673 of 2011 in WP (Crl.) No.76 of 2011 is also disposed of accordingly. Consequently, as in the case of offences under the Central Excise Act, 1944, it is held that offences under Section 135 of the Customs Act, 1962, are bailable and if the person arrested offers bail, he shall be released on bail in accordance with the provisions of sub Section (3) of Section 104 of the Customs Act, 1962, if not wanted in connection with any other offence. 27. The said judgment in our considered view clearly set out the proposition of law which would intend to propound. An argument was advanced by the learned ASG that the bailability or non-bailability of an offence is not depending upon the offence being cogniza ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29. Shri Nankani has placed reliance on a judgment of the Punjab Haryana High Court in case of Gaurav Kathuria Vs. Union of India 2017 (348) E.L.T. 24 (P H) and which is affirmed by the Apex Court in view of the dismissal of the Appeal before the Apex Court. The said judgment of the Punjab Haryana High Court follow the decision of the Apex Court in case of Deepak Mahajan as well as Om Prakash Vs. Union of India (supra). The petitioner before the High Court who was desirous of instituting criminal case alleging duty evasion in import of heavy metal scrap and according to whom the imports were made by mis-declaring the relevant price to evade duty and which would constitute offences under Section 132 of the Customs Act, challenged the vires of the provisions of the PMLA Act. The petitioner argued that he intended to apply before the Judicial Magistrate for issuance of directions to the Custom Officer for commencing the investigation into the criminal offences and prosecuting the accused for commission of the offences under the Customs Act. However, according to him, he could not be permitted to set the criminal law into motion by approaching the jurisdictional Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer would have power to arrest under Section 104(1) without a warrant. He would comply with provisions of Sections 154 to 157 by recording the information and sending forthwith a copy of the Report under Section 157 to the jurisdictional Magistrate. But in a non cognizable offence under the Act, he would have to obtain from jurisdictional Magistrate permission to investigate and a warrant of arrest under Section 104(1) of the Act, as already held by the Hon ble Supreme Court in Om Prakash (supra). 30. On carefully examining the principle enunciated by the Apex Court, the position that emerge is to the effect that though the Customs Act, 1962 classifies the offence punishable thereunder as cognizable/non-cognizable, it do not lay down any set of procedure for dealing with the information received by the Custom Officer for proceeding under the provisions of the Act. It also do not define the term cognizable/non-cognizable and in absence of such a definition, the terms take the meaning assigned in the Code of Criminal Procedure. In absence of any set of procedure for commencing the so-called investigation in words of the learned senior counsel Shri Maninder Singh, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer 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. 15. 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 v. State of West Bengal(1) 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 Chand Mehta v. State of West Bengal) and the judgment of this Court in Badk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment of the Constitution Bench in regard to admissibility of statements in light of Section 20(3) and Section 25 of the Evidence Act and was not applicable for deciding the issue of applicability of the provisions of the Code in light of Section 4(2) thereof. The contention of the petitioner is not to the effect that in every non-cognizable offence, an FIR has to be registered but according to the petitioner, the course to be adopted would depend on whether the offence is cognizable / non-cognizable, but it necessarily fall within the purview and ambit of Chapter XII of Cr.P.C. The commencement point therefore lies either Section 154 or 155 and in absence of following the said path, the investigation cannot be said to have been commenced which would permit the authorities to take recourse to Section 166A contained in Chapter XII. 32. Turning back to Section 166A which opens with a non-obstante clause Notwithstanding anything contained in this Code are not the only guiding words of the said section but the decisive words of the said section i.e. In the course of investigation . In order to appreciate the contention of Shri Maninder Singh, it would be apposite t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be the evidence collected during the course of investigation under Chapter XII. Sub-section (3) of Section 166A therefore, introduces the deeming provision and the evidence collected by issuing the Letter of Request to the competent authority in a country or place outside India, is accepted as an evidence collected during the course of investigation. The non-obstante clause in the beginning of Section 166A of the Code thus deviates from the golden thread which runs through the entire Code i.e. only the evidence collected by adopting the procedure prescribed under the Code being admissible in evidence. The non-obstante clause, therefore, in our considered view does not exclude/override all the provisions of the Code and only such provisions of the Code which are inconsistent with the application of Section 166A are overriden. The said non-obstante clause cannot be construed in a manner that it stands in deviation and derogation of all the procedural safeguards contained in Chapter XII including the mode and manner of commencing a valid investigation. The non-obstante clause is a well known legislative device and in olden times, it had the effect of non-obstante aliquo statuto in con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure as a purpose to serve and without being stuck in the procedural rigmarole of jurisdictional Court, it is any criminal court which can issue such a Letter of Request. However, this provision, which according to Shri Singh is a special provision do not exclude the applicability of the procedure contemplated under Section 154/155 of the Code of Criminal Procedure. The statutory safeguard contained in Section 155(2) of the Code has been construed to be mandatory in nature since the said safeguard are conceived in public interest and has a guarantee against frivolous and vexatious investigation in case of Tilak Nagar Industries Ltd vs. State of U.P Anr, 2011(15) SCC page 571. 33. Pertinent to note that when we heard the matter on 19th September 2018, our attention was invited to the guidelines issued by the Government of India, Ministry of Home Affairs, Internal Security Division on 31st December 2007, relating to the issue of Letter of Rogatory (LRs) for causing investigation abroad. The said guidelines contemplate that in order to obtain proposal from the Ministry of Home Affairs, the Investigating Agency is expected to sent certain documents which incl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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