TMI Blog1994 (1) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... t released on bail under sub-section (3) of those special Acts, will become purposeless and meaningless and to say that the Courts even in the event of refusal of bail have no choice but to set the person arrested at liberty by folding their hands as a helpless spectator in the face of what is termed as 'legislative causes omissus' or legal flaw or lacuna, it will become utterly illogical and absurd. Thus Sub-sections (1) and (2) of Section 167 are squarely applicable with regard to the production and detention of a person arrested under the provisions of Section 35 of FERA and 104 of Customs Act and that the Magistrate has jurisdiction under Section 167(2) to authorise detention of a person arrested by any authorised officer of the Enforcement under FERA and taken to the Magistrate in compliance of Section 35(2) of FERA. - 537 of 1990 - - - Dated:- 31-1-1994 - S. Ratnavel Pandian and K. Jayachandra Reddy, JJ. [Judgment per : S. Ratnavel Pandian, J.]. - The salient and indeed substantial legal question which looms for determination in this appeal may be formulated as follows : Whether a Magistrate before whom a person arrested under sub-section (1) of Section 35 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urse of the arguments, a diatribe, though not justifiable was made about the formation of the Bench, presided over by Charanjit Talwar, J who gave a dissenting judgment in the case of O.P. Gupta. 6.In Gupta's case the Bench was presided over by Yogeshwar Dayal, J (as he then was) and two other learned Judges, namely, Charanjit Talwar and Malik Sharief-ud-din, JJ of whom Charanjit Talwar, J gave his dissenting judgment. 7When the decision of. Gupta's case was holding the field, the respondent No. 1, namely, Deepak Mahajan was arrested on 13th March, 1989 by the officers of the Enforcement Directorate for an offence punishable under the provisions of FERA and taken before the Additional Chief Metropolitan Magistrate, New Delhi on the next date as per the mandate of sub-section (2) of Section 35 of the said Act. An application under Section 167(2) of the Code of Criminal Procedure (hereinafter referred to as 'the Code') was moved by the Enforcement Officer seeking petitioner's detention under judicial custody commonly known in the legal parlance as 'judicial remand' on the ground that it was necessary to complete the investigation. On the very same day, the respondent unsuccessful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o power to remand a person produced before him in accordance with Section 35 (2) of FERA. 10In this connection, be it noted that the. provisions of Section 35 of FERA (which corresponds to Section 19B of the old FERA (Act VII of 1947) and sub-section (1) to (3) of Section 104 of the Customs Act are identical and they do not explicitly lay down the procedure as to how the Magistrate should deal with an arrestee, when brought before him either by the Officer of the Enforcement Directorate or the Customs Officer, as the case may be. 11.For proper understanding and scrutiny of this rule, let us reproduce the relevant provisions of Section 35 of FERA and Section 104 of the Customs Act. "Section 35 of FERA If any officer of Enforcement authorised in this behalf by(1) the Central Government, by general or special order, has reason to believe that any person in India or within the Indian customs waters has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. Every person arrested under sub-section (1) shall, without(2) unnecessary delay, be taken to a Magistrate. Where any officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence is alleged to have been committed by an(b) officer of Enforcement lower in rank than an Assistant Director of Enforcement, except with the previous sanction of the Director of Enforcement; or of any offence punishable under Section 56 or Section 57,(ii) except upon complaint in writing made by - the Director of Enforcement; or(a) any officer authorised in writing in this behalf by the(b) Director of Enforcement or the Central Government; or any officer of the Reserve Bank authorised by the Reserve Bank(c) by a general or special order : Provided that where any such offence is the contravention of any of the provisions of this Act or any rule, direction or order made thereunder which prohibits the doing of an act without permission, no such complaint shall be made unless the person accused of the offence has been given an opportunity of showing that he had such permission." 14.The key questions that come up for consideration are whether a Magistrate before whom a person arrested under Section 35 is taken can detain that arrestee to judicial custody and if not, what the Magistrate is expected to do? To answer those questions, we have to examine sub-section (2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said Act, means the officer of Customs who is assigned those functions by the Board or Collector of Customs as defined under clause (34) of Section 2 of Customs Act, but it does not include the Officers of Police or any other Officers enumerated under Section 151. Therefore, the police officers have no independent role to play in exercise of the powers under the Customs Act as in Sections 45 and 46 of the FERA. 17.For the disposal of this appeal, we have to deal with the intendment and application of various provisions of the FERA particularly Sections 35, 45, 46, Section 104 of Customs Act, Section 68 of the Gold (Control) Act and various provisions of the Code of Criminal Procedure in particular Sections 4(2), 41, 56, 57, 157(2), 167(1)(2), 436, 437 and the allied provisions, in the light of the principles of law enunciated by the judicial pronouncements of this Court as well as of some High Courts. In fact, in the impugned judgment, the High Court also has examined all those provisions from various angles, but the question would be whether the interpretation given and the conclusion arrived at by the majority of the Court below can be sustained? 18.Reverting to the judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pter XII of the Code though they are enjoying the limited power, as given to the officer incharge of a police station under the Code for the purpose of releasing an arrestee on bail or otherwise. 19.Ere, we turn to the legal issues raised by the respective parties, it has become inevitably necessary to first examine the issues on the legal principle and then to interpret the construction of the language of the statute, deployed both implicity and explicitly with reference to the provisions of the Code and of the other allied special laws. 20.Manifestly, the significant and axial issue that arises in this appeal for decision is pristinely a legal question which we have indicated in the psoemial part of this judgment and which we have to examine in the backdrop of the various provisions of the general procedural laws, keeping in mind of the dividing arguendo and the shades of divergent judicial opinions of various High Courts though the controversy centres around a short point. 21.In order to resolve that controversy, it has become essential to focus our attention on the task of proper application of the concerned law by ascertaining the purposeful meaning of the language deplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the ends of justice but not to frustrate on the mere technicalities, we shall deal with all those challenges in the background of the principles of statutory interpretations and of the purpose and the spirit of the concerned Acts as gathered from their intendment. 25.The concerned relevant provisions of the Acts with which we are concerned, no doubt, pose some difficulty in resolving the question with regard to the jurisdiction of the Magistrate authorising detention and subsequent extension of the same when the provisions of those Acts are narrowly and literally interpreted. Though the function of the Courts is only to expound the law and not to legislate, nonetheless the legislature cannot be asked to sit to resolve the difficulties in the implementation of its intention and the spirit of the law. In such circumstances, it is the duty of the Court to mould or creatively interpret the legislation by liberally interpreting the statute. 26.In Maxwell on Statutes (10the Edn.) at page 229, the following passage is found : "Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in their way perform the task of supplementing statutes. In the case of courts, we call it 'interpretation' or 'filling in the gaps'; in the case of administrators we call it 'delegation' or authority to supply the details." 30.Subba Rao, C.J. speaking for the Bench in Chandra Mohan v. State of Uttar Pradesh Ors. 1967 (1) SCR 77 has pointed out that the fundamental rule of interpretation is that in construing the provisions of the Constitution or the Act of the Parliament, the Court "will have to find out the express intention from the words of the Constitution or the Act, as the case may be..." and eschew the construction which will lead to absurdity and give rise to practical inconvenience or make the provisions of the existing law nugatory. 31.A.P. Sen, J. in Organo Chemical Industries v. Union of India 1980 (1) SCR 69 has stated thus : "A bare mechanical interpretation of the words 'devoid of concept or purpose' will reduce most of legislation to futility. It is a salutary rule, well established, that the intention of the legislature must be found by reading the statute as a whole." 32.Krishna Iyer, J has pointed out in his inimitable style in Chairman, Board of Min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law, more so with the aid of some other provisions of the procedural law so that no obscurity or absurdity may result in resolving the legal intricacy posed for consideration in this case. 36.To begin with, we shall examine the primary question whether Section 35(2) of FERA or 104(2) of the Customs Act serves as a substitute to Section 167(1) of the Code. To say in other words, whether Section 167(1) is replaced or substituted by the above said provisions of two special Acts. The majority of the Judges in O.P. Gupta in paragraph 37 has posed a similar question for their consideration and answered that question in the following words : "Section 167(1) of the Code is already replaced by Section 104(2) of the Customs Act and Section 35(2) of the Foreign Exchange Regulation Act. What is to be done to a person who is so produced before the Magistrate is dealt with only under Section 167(2) of the Code and not under Section 167(1) of the Code." 37.But Talwar, J dissented from that view observing, "the power to arrest a person coupled with the duty to produce him or present him before the Magistrate ipso facto does not attract the provisions of Section 167 of the Code." 38.The sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the investigation of the offence in case of a person arrested without a warrant should be completed in the first instance within twenty-four hours and if the investigation cannot be completed within that period, then the Magistrate can authorise the detention of the accused in such custody as he thinks fit for a term not exceeding 15 days. 42.The original proviso added to Section (2) of Section 167 of the Code empowered the Magistrate to authorise detention of the accused persons otherwise than in custody of the police, beyond the period of fifteen days for a total period not exceeding sixty days and on the expiry of the said period of sixty days, the accused person shall be released on bail. But subsequently, in place of the original proviso, the present proviso was substituted by Section 13A of Cr. P.C. (Amendment) Act, 1978 w.e.f. 18-12-1978 whereby the period of sixty days prescribed in general for all kinds of cases under the original proviso has been modified as ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than two years, and sixty days, where the investigation relates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnish bail. This doubt is cleared by Explanation I of Section 167(2) stating that notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. We feel that it is not necessary, in this context, to go in detail of the powers of the Magistrate to extend the period of detention under Section 167(2) or to remand the accused resorting to Explanation I of Section 309 corresponding to Explanation of Section 344 of the old Code since that question is not germane to the issue pertaining to this case. However, reference may be made to Chaganti Satyanarayana and Ors. v. State of Andhra Pradesh 1986 (3) SCC 131 paragraph 10. 46.To say differently, Section 167(2) in its entirety uses the expression only 'detention' but not 'remand' (as found in Section 309 of the Code). Under Section 167(2), the Magistrate to whom the accused person is forwarded irrespective of the fact that whether he has or has not jurisdiction to try the case, authorises the detention of the accused in such custody as he thinks fit for a term not exceeding fifteen days and if he has no jurisdiction to try the case or commit it for trial, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go wherever he pleases. When used in the legal sense in connection with criminal offences, an 'arrest' consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential elements to constitute an arrest in the above sense are that there must be an intent to arrest under the authority, accompanied by seizure or detention of the person in the manner known to law, which is so understood by the person arrested." 50.There are various Sections in Chapter V of the Code titled "Arrest of persons" of which Sections 41, 42, 43 and 44 empower different authorities and even private persons to arrest a person in given situation. Section 41 deals with the power of a police officer to arrest any person without an order from a Magistrate and without a warrant. Section 42 deals with the power of a police officer to arrest any person who in the presence of a police officer has committed or has been accused of committing a non-cognizable offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a case and the entries in the diary relating to that case as prescribed by the Code are sine quo non for a Magistrate taking into custody of a person when that person appears or surrenders or is brought before the magistrate and whether that person should have assimilated the characteristic of 'an accused of an offence' at that stage itself within the meaning of sub-section (1) of Section 167 or sub-section (1) of Section 437 Cr .P.C. 54.This question is in a way answered in Gurbaksh Singh Sibbia etc. v. State of Punjab - 1980 (3) SCR 383. While examining the scope of Section 438 of the Code in that case, Chandrachud, CJ speaking for the Constitution Bench held that "The filing of a first information report is not a condition precedent to the exercise of the powers under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed." 55.The dictum laid down in that case indicates that the registration of a case and the entries of the case diary are not necessary for entertaining an application for grant of anticipatory bail, but the mere imminence of a likely arrest on a reasonable belief on an accusation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onditions contained therein. 59.No doubt, there is no investigation by any officer equivalent or comparable to an officer in charge of police station or a police officer in a proceeding under any of these two special 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. 60.We shall presently ponder over the true meaning of the word/words "person", "accused person", "person accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... become necessary to introduce the explanation so that the evidence in security proceeding against a person also shall be taken in his presence or in the presence of his pleader when his personal attendance is dispensed with. 63.The relevant explanation reads : "In this section, 'accused' includes a person in relation to whom any proceeding under Chapter XIII has been commenced under this Code." [Emphasis supplied] 64.Chapter VIII deals with (1) security for keeping the peace (a) on conviction; (b) on information; and (2) with security for good behaviour, covering Sections 106 to 124 of the Code. The provisions of this Chapter are preventive in their scope and object and they are not intended to punish but to prevent against possible hazard to the community as well as commission of crimes. There is no question of making any investigation by any police officer as contemplated under Chapter XII of the Code and forwarding of any report under Section 173(2) of the Code to a Magistrate pertaining to security proceedings under this Chapter though such proceedings are criminal in nature but not relating to any offence. 65.In none of the sections in Chapter VIII, the words "accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 167. We have already referred to various sections empowering the Magistrate or any private person to effect and arrest and in that case also, the subsequent detention is made by the Magistrate only in exercise of his powers under Section 167(2) of the Code. 69.As we have pointed out in the preceding part of this judgment, that in the first limb of Section 167(1), the expression used is 'person........arrested and detained in custody' and the word 'accused' occurs only in the second limb of the same provision denoting that 'person arrested and detained in custody' as envisaged in the first limb of that section. 70.Section 35 of FERA and 104 of the Customs Act which confer power on the prescribed officer to effect the arrest deploy only the word 'person' and not 'accused' or 'accused persons' or 'accused of any offence'. In fact, the word 'accused' appears only in the penal provisions of the special Acts, namely, sub-section (4) of Section 56 of FERA and sub-section (3) of Section 135 of the Customs Act while explaining as to what would be the special and adequate reasons for awarding the sentence of imprisonment for a sub-minimum period. Though sub-sections (1) to (3) of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the old Code are similar except for the substitution of the words 'Chief Judicial Magistrate' in place of the words 'District Magistrate'. 76.In other words, by the introduction of the expression "person accused of an offence" Section 398 is made inapplicable to the security proceedings as well as to proceedings under Sections 133, 144 and 145 of the Code. 77.The above legislative change of the expression in Section 436 of the old Code serves as a guide in adjudging the distinction between the two expressions "accused person" and "accused of an offence." 78.Let us now approach this aspect of the matter from different angle with reference to the provisions of Article 20(3) of the Constitution as well as to Sections 24 to 27 of the Evidence Act. 79.The prohibitive sweep of Article 20(3) which imposes the ban on self-accusation reads, "No person accused of any offence shall be compelled to be a witness against himself." 80.In explaining the intendment of Article 20(3), relating to search and seizure of documents under Sections 94 and 96 of the old Code, a eight-Judges Bench of this Court in M.P. Sharma and Others v. Satish Chandra, District Magistrate, Delhi and Others 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in writing. To bring the statement in question within the prohibition of(7) Art. 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused any time after the statement has been made." 86.See also Nandini Satpathy v. P.L. Dani and Another - 1978 (2) 424. 87.The essence of the above decisions is that to bring a person within the meaning of 'accused of any offence', that person must assimilate the character of an 'accused person' in the sense that he must be accused of any offence. 88.We think it is not necessary to interpret the expression, "person accused of any offence" as appearing in Article 20(3) any more but suffice to note that the same expression is found in Sections 25 and 27 of the Evidence Act. 89.It is apposite to note that Clauses (1) to (3) of Article 22 which speak of a 'person arrested' use only the word 'person'. Article 22(2) states that "every person who is arrested and detained in custody ......" A similar expression is used in Section 167(1) of the Code reading, "Whenever any person is arrested and detained in custody .....". Thus while referring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d down in Ramesh Chandra Mehta observed that in order to claim the benefit of the guarantee against testimonial compulsion embodied in Clause (3) of Article 20 it must be shown, firstly that the person who made the statement was "accused of any offence"; secondly that he made the statement under compulsion. It has been further held that when the statement of a person is recorded by the Customs Officer under Section 108, he is not a person 'accused of an offence under the Customs Act' and that an accusation which would stamp a person with the character of an accused of any offence is levelled only when the complaint is filed against that person by the Customs Officer complaining of the commission of any offence under the provisions of the Customs Act. 95.In a recent decision, this Court in Poolpandi and Others v. Superintendent, Central Excise and Others - 1992 (3) SCC 259 has reiterated the same view and held that a person being interrogated during investigation under Customs Act or FERA is not a person accused of any offence within the meaning of Article 20(3) of the Constitution. See also Percy Rustomji Basta v. State of Maharashtra - 1971 (1) SCC 847. 96.In this connection, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 156 to investigate on an information received under Section 154 or otherwise takes up the investigation by proceeding to the spot "for the discovery and arrest of the offender when he has reason to suspect the commission of an offence" as contemplated under Section 157 of the Code. At that stage, the investigating officer does not suddenly jump to a conclusion that the person against whom the investigation has commenced has committed an offence. But he can arrive at such conclusion only when the investigation consummates to a finality on the collection of evidence eliminating all suspicion and establishing the commission of the offence. In case the investigating officer arrives at a conclusion that no offence is made out he forwards his final report to that effect. 101.The view of majority in the impugned judgment that the person arrested under the FERA or Customs Act cannot fall within the meaning of the word 'accused' for invoking Section 167 solely based on the decisions of this Court, namely, Ramesh Chandra Mehta as well as Illias v. Collector of Customs, Madras - AIR 1970 SC 1065 is not logically concluded for more than one reason. 102.Firstly, almost all the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ussion, it is clear that the word 'accused' or 'accused person' is used only in a generic sense in Section 167(1) and (2) denoting the "person" whose liberty is actually restrained on his arrest by a competent authority on well-founded information or formal accusation or indictment. Therefore, the word 'accused' limited to the scope of Section 167(1) and (2) - particularly in the light of Explanation to Section 273 of the Code includes 'any person arrested'. The inevitable consequence that follows is that 'any person is arrested' occurring in the first limb of Section 167(1) of the Code takes within its ambit 'every person arrested' under Section 35 of FERA or 104 of the Customs Act also as the case may be and the 'person arrested' can be detained by the Magistrate in exercise of his power under Section 167(2) of the Code. In other words, the 'person arrested' under FERA or Customs Act is assimilated with the characteristics of an 'accused' within the range of Section 167(1) and as such liable to be detained under Section 167(2) by a Magistrate when produced before him. 109.In fact, Justice Yogeshwar Dayal speaking for the majority in Union of India v. O.P. Gupta Ors. has right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulty, except the consideration of the words 'accused person' used in that sub-section. if we construe the words "an accused person" in S. 167(2) of the Code, it wil be clear that the words would take in, the person who is arrested or detained in custody by the Customs Officer who had reason to believe that such person was guilty of an offence punishable under S. 135 of the Act. Looked at in this background, the word 'accused' in Section 167(2), Crl. P.C., will have to be construed in its widest connotation meaning "one who has been arrested and detained" which will include even a person suspected of having committed an offence. I hold that the Magistrate has the power to remand a person produced before him in accordance with S.104 of the Customs Act by virtue of the powers of remand under S.167(2) and (3) of the Code and could further exercise the powers under S. 437 of the Code." 113.In our considered opinion, the view taken in O.P. Gupta and M.K.S. Abu Bucker and also of the Kerala High Court and Gujarat High Court is the logical and correct view and we approve the same for the reasons we have given in the preceding part of this judgment. We, indeed, see no imponderabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the investigation and to be produced at the trial, and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173." 116.The steps involved in the course of investigation, as pointed out in Rishbud's case have been reiterated in State of M.P. v. Mubarak Ali - 1959 Supp. (2) SCR 201. 117.No doubt, it is true that there is a series of decisions holding the view that an officer of enforcement or a customs officer is not a police officer though such officers are vested with the powers of arrest and other analogous powers. Vide Ramesh Chandra v. The State of West Bengal - 1969 (2) SCR 461 and Illias v. Collector of Customs, Madras - 1969 (2) SCR 613. In the above decisions, this Court has held that the above officers under the special Acts are not vested with the powers of a police officer quo investigation of an offence under Chapter XII of the Code including the power to forward a report under Section 173 of the Code. See also State of Punjab v. Barkat Ram - 1962 (3) SCR 338 and Badaku Jyoti Savant v. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution and Section 50 of the Code. Therefore, they have necessarily to make records of their statutory functions showing the name of the informant, as well as the name of the person who violated any other provision of the Code and who has been guilty of an offence punishable under the Code, nature of information received by them, time of the arrest, seizure of the contraband, if any and the statements recorded during the course of the detection of the offence/offences. 122.Apart from those two special Acts under consideration, there are various Central Acts containing provisions of prevention of offences enumerated therein and also for enforcement of the said provisions. Certain provisions of the Central Acts which we would like to give below by way of illustration in a tabular form showing the powers vested and the duties cast on the concerned officers will show that those officers enjoy certain powers during the course of any investigation or inquiry or proceeding under the special Acts concerned though not in strict sense of an investigation under Chapter XII of the Code as undertaken by police officers including the filing of a police report under Section 173(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed officer of the special Acts has to file only a complaint of facts constituting any offence under the provisions of the Act on the receipt of which the Magistrate may take cognizance of the said offence under Section 190(1)(a) of the Code. After taking cognizance of the offence either upon a police report or upon receiving a complaint of facts, the Magistrate has to proceed with the case as per the procedure prescribed under the Code or under the special procedure, if any, prescribed under the special Acts. Therefore, the word 'investigation' cannot be limited only to police investigation but on the other hand, the said word is with wider connotation and flexible so as to include the investigation carried on by any agency whether he be a police officer or empowered or authorised officer or a person not being a police officer under the direction of a Magistrate to make an investigation vested with the power of investigation. 125.It may be recalled, in this connection, that Section 202(1) of the Code falling under Chapter XV under the caption "Complaints to Magistrates" envisages that any Magistrate on receipt of a complaint of an offence of which he is authorised to take cogniza ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether Section 4(2) of the Code of Criminal Procedure can be availed of for investigating, inquiring or trying offences under any law other than the Indian Penal Code which expression includes FERA and Customs Act etc. 131.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 offence is shown in the First Schedule to be triable. The combined operation of Sections 4(2) and 26(b) of the Code is that the offence complained of should be investigated or inquired into or tried according to the provisions of the Code where the enactment which creates the offence, indicates no special procedure. 132.We shall now consider the applicability of provisions of Section 167(2) of the Code in relation to Section 4(2) to a person arrested under FERA or the Customs Act and produced before a Magistrate. As we have indicated above, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure which prescribes an offence and simultaneously specifies the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences, the provisions of the Code of Criminal Procedure shall apply in respect of such offences and they shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure." 136.In A.R. Antulay v. Ramdas Sriniwas Nayak - 1984 (2) SCR 914, a Constitution Bench of this Court while examining the similar question with regard to applicability of Section 4 with reference to the Prevention of Corruption Act has laid down the law thus :- "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 wil have to be investigated, inquired into, tried and otherwise dealt with according to the Criminal P.C. In other words, Criminal P.C. is the parent statute which provides for investigation, inquiring into and trial of cases by criminal Courts of various designations." 137.To sum up, Section 4 is comprehensive and that Section 5 is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... traightaway attracted to the area of investigation, inquiry and trial of the offences under the special laws including the FERA and Customs Act and consequently Section 167 of the Code can be made applicable during the investigation or inquiry of an offence under the special Acts also inasmuch as there is no specific provision contrary to that excluding the operation of Section 167. 143.Though much argument was advanced on the expression 'otherwise dealt with', we think it is not necessary to go deep into the matter except saying that the said expression is very wide and all comprehensive. Vide Bhim Singh v. State of U.P. - AIR 1955 SC 435 and Delhi Administration v. Ram Singh - 1962 (2) SCR 694. 144.There is a series of decisions of various High Courts, of course with some exception, taking the view that a Magistrate before whom a person arrested by the competent authority under the FERA or Customs Act is produced, can authorise detention in exercise of his powers under Section 167. Otherwise the mandatory direction under the provision of Section 35(2) of FERA or 104(2) of the Customs Act, to take every person arrested before the Magistrate without unnecessary delay when the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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