TMI Blog1982 (8) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... face and permit him to go without anything more. 2. The Customs Officer it is said, has the power to arrest and release on bail. If he refuses to release him or the arrested person refuses to be released the only power is to produce him before a Magistrate within twenty-four hours. But thereafter he has no power to do anything but to release him. The Magistrate concerned has no power to release on bail or even on personal bond. Nor the power to keep him in judicial custody. The order passed by the learned Chief Metropolitan Magistrate on May 23, 1982 as per Annexure 'D' below application marked as M/48 made by respondent No. 7 herein (Shri Jayantilal Maneklal Soni) wherein such a view has been taken and the learned Magistrate has ordered release of the said respondent No. 7 who was produced by an officer of customs before him, has been challenged by way of the present petition under Article 227 of the Constitution of India instituted by the Inspector of Customs (P) Ahmedabad. So also the order as per Annexure 'C' passed by the learned Chief Metropolitan Magistrate simultaneously with the impugned order as per Annexure 'D' whereby even the persons who had not made any request for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has given rise to the present petition in view of the fact that the learned Chief Metropolitan Magistrate upheld his contention that he had no power or authority to remand the arrested person produced before him by an officer of customs to judicial custody or require him to furnish bail or to execute a bond and that in point of fact the Magistrate had no power but to direct that the person so arrested shall be released forthwith without anything more as soon as such a person was produced before the learned Magistrate. And it is legality and validity of this order which has been called in question by the petitioner in the present petition. 4. In order to comprehend the problem and the submission urged by the respective parties it is necessary to have a look at Section 104 of the Customs Act. It reads as under :- "104. (1) If an officer of Customs empowered in this behalf by general or special order of the Collector of Customs has reason to believe that any person in India or within the Indian Customs Waters has been guilty of an offence punishable under Section 135, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (2) Every pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the arrested person is brought before him by the officer of Customs. It is because of the fact that Section 104 is silent in this behalf that the learned Magistrate has taken the view that he has no power to pass any order in regard to the custody of the arrested person when he is brought before him and all that he can do is to be a silent spectator of the fact that the person concerned is brought before him. Having taken a note of the fact that the person has been brought before him (such is his view) he has legal authority to pass any order in regard to the custody of the arrested person. It would also appear to be his view that he would have no power even to require the arrested person to furnish bail or even to execute a personal bond to appear before any authority when required. It may be stated that if this view were to hold the field, Section 104 would be robbed of all efficacy and the power conferred by the said section to effect arrest of a person in respect of whom the officer of Customs has reason to believe that he has been guilty of an offence punishable under Section 135 would be rendered meaningless and purposeless. What purpose would be served by merely effecting ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced before the Magistrate by the officer of customs to judicial custody or to grant him bail or refuse to grant bail or to direct that the said person be released on executing a personal bond; (3) Section 4(2) read with Section 167 of the Code also empowers the Magistrate to do so. 5. We need not examine the validity of all the three contentions. In our opinion, the contention urged by learned Counsel for the petitioner in the context of sub-section (2) of Section 4 of the Code read with Sections 436 and 437 of the Code is unanswerable. We will therefore deal with this contention in the first instance. But before we do so we must advert to the following propositions which emerge from the provisions of the Act and the Code which are not disputed even by the other side, namely :- (1) That an offence under Section 135 of the Customs Act is a non-cognizable offence, that is to say it is an offence which cannot be investigated by the police; (2) The Code of Criminal Procedure is applicable mutatis mutandis to proceedings in relation to offences other than an offence under Indian Penal Code to the extent specified in sub-section (2) of Section 4 of the Code and that the Code wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears. Such being the position the offence is non-bailable. The view taken by the learned Single Judge in Miscellaneous Criminal Application No. 1202 of 1979 is not correct. The decision has been rendered per incuriam having regard to the fact that the aforesaid provisions of the Code were not brought to the notice of the learned Single Judge. It cannot be considered as good law. Counsel for the arrested persons also concedes that such is the position and does not dispute it. That is why we have referred to proposition No. (1) as an undisputed proposition. 6. We must mention that none of the arguments argued before us was canvassed before the learned Magistrate who has rendered the decision as per Annexures 'C' and 'D' in the light of the decision rendered by the High Court of Delhi in Dalam Chand Baid v. Union of India and others, 1982 Criminal Law Journal 747. We may also mention that the aforesaid dimensions of the matter were not brought to the notice of the High Court of Delhi as would appear from the discussion made in the course of the judgment. 7. The contention which appears to us to be unanswerable is the one which is urged in the context of Section 4(2) read with Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on bail are conferred on the customs officer, Section 104 makes no provision with regard to exercise of powers of bail on the part of the Magistrates, power to release on bail of necessity takes within its sweep the power to refuse bail. Thus an officer of customs in under no obligation to release an arrested person on bail. If he does not release the arrested person on bail, he has to produce him before the Magistrate within 24 hours as enjoined by Section 104(2) of the Act and the constitutional provisions. When he is produced before the Magistrate, the Magistrate would have also no power to release him on bail if one were to restrict oneself only to Section 104 of the Customs Act. When the, arrested person is brought before the Magistrate the Magistrate would have the power to release such person on bail having regard to Section 437 of the Code which provides that when any person accused of or suspected of the commission of any non-cognizable offence is arrested or detained without warrant, the Magistrate would have the powers specified therein. At this juncture we wish to emphasize the significance of the expression "suspected of the commission of any non-cognizable offence". F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence under the Customs Act who has been arrested by the officer of Customs and produced before the Court, he can also be committed to custody if the Court consider it necessary to do so even after he has been released by the Court under sub-section (1) or sub-section (2). Thus, Section 437 in terms contemplates that the Court has the power to commit him to custody. Now it must be realised that since Section 437 empowers the Magistrate concerned to release him on bail and also obliges him to record reasons in writing whenever clause (4) is attracted, and to impose conditions envisaged in clause (3), it follows of logical necessity that the Court has the power to remand the person suspected of the commission of an offence under Section 135 of the Customs Act who has been arrested and produced before the Court, to judicial custody in a case where he does not consider it proper to release him on bail or where the person refused to be released on bail. If the power to release on bail of necessity includes the power to refuse to release him on bail, by necessary implication, confers on the Magistrate power to remand him to judicial custody. This position is made abundantly clear by sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding - * * * * (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter; (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; * * * * (3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing. (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use he is not a person who has been sent to him by a police officer or an officer in-charge of a police station making investigation in regard to an offence. We do not propose to examine whether or not the expression "accused person" can be employed in the context of a person arrested by the Customs officer under Section 104 on suspicion. Nor is it necessary to examine the submission that Counsel for the arrested persons is not right in his submission that investigation under Section 167 must mean investigation only by a police officer in a cognizable offence. The expression "investigation" has been defined in Section 2(b). It is an inclusive definition. No doubt it will not strictly fall under the definition of "investigation" is so far as the inclusive part is concerned. But then it being an inclusive definition the ordinary connotation of the expression "investigation" cannot be overlooked. An "investigation" means search for material and facts in order to find out whether or not an offence has been committed. It does not matter whether it made by the police officer or a customs officer who intends to lodge a complaint. (In regard to an offence under the Customs Act a complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld the contention of learned Counsel for the petitioner on the first point, we have no hesitation in reaching the conclusion that the Magistrate had the power to remand the arrested persons produced before him by the officer of Customs to judicial custody. 11. The same reasoning would apply to an offence under Section 68 of the Gold Control Act. In fact, there is internal evidence in support of the proposition that the Magistrate has such a power having regard to the fact that Section 68 of the Gold Control Act in terms refers to the power of the Magistrate to authorise detention in custody beyond the period of 24 hours. 12. We therefore allow this petition, (quash the impugned orders at Annexures 'C' and 'D' and direct as under :- (1) The impugned order at Annexure 'C' dated May 28, 1982 and the impugned order as per Annexure 'D' dated May 28, 1982 passed by the learned Chief Metropolitan Magistrate, Ahmedabad, below Application M/48 are quashed and set aside. (2) Before the impugned order was passed, the learned Chief Metropolitan Magistrate had directed the release of respondents Nos. 5 and 6, namely, Miss Rekhaben Sheth and Srimati Indumatiben Champaklal Sheth, on bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quires that an order in terms other than the aforesaid terms is passed by this Court upon quashing and setting aside the impugned order at Annexure 'C'. The development in question is that the said two persons, namely, respondent Nos. 2 and 3 herein, have meanwhile been detained under COFEPOSA. Since they are already in detention under COFEPOSA, instead of directing that these persons, respondents 2 and 3, shall appear before the Chief Metropolitan Magistrate for being remanded to judicial custody in order to restore status quo ante in the wake of the quashing of the impugned order at Annexure 'C', we direct that they may be produce before the Chief Metropolitan Magistrate only in order to comply with the technical requirements and be continued in detention under COFEPOSA till orders of detention passed against them are in existence. It will be open to respondents 2 and 3 herein to make fresh application in accordance with law for bail, if so desired, having regard to the fact that originally the applications made by them were rejected and they were directed to be remanded to judicial custody. Unless such an order is obtained, it will be necessary for respondents 2 and 3 herein to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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