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TMI Blog1994 (1) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... o as the 'FERA') and taken to the Magistrate under sub-section (2) thereof, we while disposing the legal questions posed for determination, are inclined to deal with the corresponding provisions under the Customs Act also for the reasons - (i) that the scheme for both the FERA and the Customs Act is more or less the same; (ii) the provisions relating to the arrest and production of the arrestee before the Magistrate are identical; (iii) the arguments by both the parties have been advanced pertaining to provisions of both the Acts; and (iv) almost all the decisions cited relate to the provisions of both the Acts. 3There is a vertical cleavage of opinion amongst. the various High Courts on the above legal question which has come up for adjudication in the present appeal. 4This appeal, by special leave is directed against. the judgment of the High Court of Delhi dated 6th April 1990 rendered by a five-Judges Bench in Criminal Writ No. 316 of 1989 over ruling the decision of the same High Court in Union of India v. O.P. Gupta and Others 1990 (2) Delhi Lawyer 23 (FB) rendered in Criminal Writ Nos. 104 and 116 of 1984 by a three-Judges Bench reversing an earlier decision in Dhalam Chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court in Chaganti Satyanarayana and Others v. State of Andhra Pradesh AIR 1986 SC 2130 = 1986 (2) SCR 1128 holding that the powers of remand vested in a Magistrate become exercisable only after an accused is produced before him in terms of sub-section (1) of Section 167 of the Code, referred the matter by its order dated 12th March, 1980 to a larger Bench opining that the law laid down in Gupta's case was no longer a good law and it required re-consideration. The learned Chief Justice of the High Court on such reference constituted a full Bench comprising of Charanjit Talwar, J.C. Jain and V. B. Bansal, JJ. This three-Judges Bench after hearing the matter for sometime expressed their view that the case should be heard and decided by a five-Judges Bench since the judgment in Gupta's case was already decided by a three-Judges Bench. It was under those circumstances, the Bench was constituted comprising of Charanjit Talwar, Malik Sharief-Ud-Din, Sunanda Bhandare, P.K. Bahri and R.L. Gupta, JJ. Thus the said case was heard by a five-Judges Bench. 8By majority (per Charanjit Talwar, Sunanda. Bhandare and P.K. Bahri, JJ) the decision in Gupta's case has been over ruled though Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Every person arrested under sub-section (1) shall, without(2) unnecessary delay, be taken to a Magistrate. Where an officer of customs has arrested any person under(3) sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police station has and is subject to, under the Code of Criminal Procedure, 1898 (5 of 1898). Notwithstanding anything contained in the Code of Criminal(4) Procedure 1898 (5 of 1898), an officer under this Act shall not be cognizable." 12.Though there is no specific provision in FERA as sub-section (4) of Section 104 of the Customs Act, Section 62 speaks of non-cognizable offences and that Section reads as follows : "62. Certain offences to be non-cognizable - Subject to the provisions of Section 45 and notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), an offence punishable under Section 56 shall be deemed to be non-cognizable within the meaning of that Code." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person found therein who is reasonably suspected of having committed or of committing or of being about to commit any contravention of the provisions of sub-section (1) of Section 8. The procedure to be followed, after effecting such arrest is contemplated under sub-section (2) of Section 45 which states that 'where any person is arrested under sub-section (1) by an officer other than a police officer, such officer shall, without unnecessary delay, take or send the person arrested before a Magistrate having jurisdiction or before the officer-in-charge of a police station. In this context, a perplexed question arises as to what the Magistrate or the police officer has to do in case the arrestee under Section 45(1) of FERA is taken or sent before him? Section 46 lays down the procedure in respect of foreign exchange or any other goods seized by police officers. Though we are not very much concerned, in this case, with the procedure laid down in Section 46, the fact remains that in the FERA, the police officers are given some independent authority to act in exercise of certain provisions of this Act. There is no provision in the Customs Act similar to Sections 45 and 46 of the FERA. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case may be, cannot authorise the detention of the persons, so produced or presented, either to judicial custody or to the custody of the arrestor or make subsequent periodical extension of detention or remand in exercise of the powers under Section 167(2) of the Code. In other words, the power to arrest a person coupled with the duty to produce or present him before a Magistrate under Section 35 of FERA or Section 104 of Customs Act ipso facto does not attract the operation of clauses (1) and (2) of Section 167 of the Code. Neither the Officer of Enforcement authorised under Section(2) 35 of FERA nor the Officer of Customs empowered under Section 104 is a Police Officer nor is the person arrested by any of them is yet an accused triable by a Magistrate having jurisdiction or an accused to be committed for trial at that stage. Neither the Officer of Enforcement nor the Customs Officer is(3) empowered with the power of investigation as contemplated under Chapter XII of the Code or under any specific provisions of the special laws. Neither the Officer holding inquiry under the provisions of(4) FERA or the Customs Act can exercise the power of investigation as contemplated under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the absence of any specific provision in the FERA or the Customs Act empowering the Magistrate to 'authorise the detention' of the arrestee under the Code? When the jurisdiction of the Magistrate to authorise(2) detention is not expressly forbidden by any specific exclusionary provision and when 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? What is the procedure to be followed and the order required(3) to be passed by the Magistrate when a person arrested under the FERA or Customs Act is presented before him? When the Officer of Enforcement or Customs Officer is not(4) 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, as 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 orderi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament ... and then he must supplement the written word so as to give force and life" to the intention of the legislature.....A Judge should ask himself the question how if the makers of the Act had themselves come across this ruck in the texture of it, they would have strengthened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases." 28.Though the above observations of Lord Denning were disapproved in appeal by the House of Lords in 1951 (1) All England Law Reports 839 (HL), Sarkar, J speaking for the Constitution Bench in M.Pentiah v. Muddala Veeramallapa 1961 (2) SCR 295 adopted that reasoning of Lord Denning. Subsequently also, Beg, CJ in Banglaore Water Supply v. A. Rajappa AIR 1978 SC 548 approved the observations of Lord stating thus : "Perhaps with the passage of time, what may be described as the extension of a method resembling the armchair rule" in the construction of wills, Judges can more frankly step into the shoes of the legislature where an enactment leaves its own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bare mechanical interpretation of the words and application of the legislative intent devoid of concept, purpose and object will render the legislature inane. In cases of this kind, the question is not what the words in the relevant provision mean but whether there are certain grounds for inferring that the legislature intended to exclude jurisdiction of the Courts from authorising the detention of an arrestee whose arrest was effected on the ground that there is reason to believe that the said person has been guilty of an offence punishable under the provisions of FERA or the Customs Act which kind of offences seriously create a dent on the economy of the nation and lead to hazardous consequences. Authorities, a few of which we have referred to above, show that in given circumstances, it is permissible for Courts to have functional approaches and look into the legislative intention and sometimes may be even necessary to go behind the words and enactment and take other factors into consideration to give effect to the legislative intention and to the purpose and spirit of the enactment so that no absurdity or practical inconvenience may result and the legislative exercise and its sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly refers only a person arrested and detained in custody by a police officer on well founded accusation or information; (2) there must be an investigation by a police officer as explained in Section 167(1) of the Code; (3) the words 'officer in charge of a police station or a police officer making the investigation, if he is not below the rank of Sub-Inspector' cannot be substituted by the words 'customs officer or officer of enforcement'; (4) there is no question of transmission of a copy of the entries in the diary as prescribed relating to the case in respect of the accused arrested and (5) the person arrested by the officer of enforcement or customs officer is not an accused within the purview of the Code and that the officer concerned is not investigating the commission of an offence triable by a Magistrate though they have been given a limited power of the officer in charge of a police station "to grant or not to grant bail" and nothing more. 39.The majority of the Judges in Deepak Mahajan have gone to the extent of holding that Section 4(2) of the Code cannot come in aid to invoke Section 167(2) even on interpretation of the provisions of those two special Acts read with Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f remand was the collection of sufficient evidence within the first period of fifteen days to raise a suspicion that the accused might have committed an offence and that it appeared likely that further evidence might be obtained by such a remand. This extension of remand was for enabling the investigating agency to collect further material pertaining to the offence under investigation. See (1) A. Lakshmanrao v. Judicial Magistrate, Parvatipuram 1970 (3) SCC 501; (2) Gouri Shankar Jha v. The State of Bihar 1972 (1) SCC 564 and (3) Natabir Parida v. State of Orissa 1975 (2) SCC 220. 44.The present proviso a(i) and (ii) of Section 167(2) empowers the Magistrate to authorise the detention of the accused person otherwise than in the custody of the police beyond the period of fifteen days, if the Magistrate is satisfied that adequate grounds exist for doing so, but no Magistrate can authorise the detention of the accused person in custody for a total period exceeding ninety days or sixty days as the case may be. If the investigation is not completed within the prescribed period, the accused is entitled to bail as embodied in the statute itself, provided the accused person is 'prepared t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation by the police and the transmission of the case diary to the nearest Magistrate as prescribed under the Code etc., the main object of sub-section (1) of Section 167 is the production of an arrestee before a Magistrate within twenty-four hours as fixed by Section 57 when the investigation cannot be completed within that period so that the Magistrate can take further course of action as contemplated under sub-section (2) of Section 167. 48.The first limb of sub-section (1) of Section 167 uses the expression "person is arrested and detained in custody". The word "accused" occurring in the second limb of sub-section (1) and in sub-section (2) of Section 167 refers only that person "arrested and detained in custody". 49.The word 'arrest' is derived from the French 'Arreter' meaning 'to stop or stay' and signifies a restraint of the person. Lexicologically, the meaning of the word 'arrest' is given in various dictionaries depending upon the circumstances in which the said expression is used. One of us, (S. Ratnavel Pandian, J as he then was being the Judge of the High Court of Madras) in Roshan Beevi v. Joint Secretary, Government of Tamil Nadu 1985 Crl. L.J. had an occasi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasise that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice-versa and that both the words 'custody' and 'arrest' are not synonymous terms. Though 'custody' may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences, vide Roshan Beevi (supra). 52.While interpreting the expression 'in custody' within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accusations levelled against the person appearing or surrendering or being brought before the Magistrate, the Magistrate can in exercise of the powers conferred on him by Section 167(2) keep that offender or person under judicial custody in case the Magistrate is not inclined to admit that offender or person to bail. 57.The above deliberation leads to a derivation that to invoke Section 167(1), it is not an indispensable pre requisite condition that in all circumstances, the arrest should have been effected only by a police officer and none else and that there must necessarily be records of entries of a case diary. Therefore, it necessarily follows that a mere production of an arrestee before a competent Magistrate by an authorised officer or an officer empowered to arrest (notwithstanding the fact that he is not a police officer in its stricto sensu) on a reasonable belief that the arrestee "has been guilty of an offence punishable" under the provisions of the special Act is sufficient for the Magistrate to take that person into his custody on his being satisfied of the three preliminary conditions, namely, (1) the arresting officer is legally competent to make the arrest; (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or "accused person" or "accused of an office" are not defined either in the Indian Penal Code or in the Indian Evidence Act or in the General Clauses Act, 1897. In the Code of Criminal Procedure also, these words are not defined except an inclusive meaning of the word "accused" is given in the Explanation to Section 273 of the Code of 1973, of course, confined only to the mode of taking and recording evidence in the course of the trial or other proceedings as envisaged in the said Section. Though this explanation of the word 'accused' limited to that Section 273 cannot and should not be strained and stretched to such an extreme extent to make it applicable in all circumstances wherever the word 'accused' appears in the Code, this explanation gives a clue, providing or suggesting an answer to the problem that we are trying to solve. 62.To perfectly understand the vital significance and impetus of the introduction of this new explanation, one must take note of the legislative change in the substantive provision of Section 273 which corresponds to Section 353 of the old Code which Section laid down the general rule that at any inquiry or trial, all evidence "shall be taken in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such warrant is produced before the Magistrate, the Magistrate has either to detain him or to release him on bail. For the enforcement of preventive action under Chapter VIII of the Code, the officer in charge of a police station is authorised under Section 41(2) of the Code to arrest or cause to be arrested any person belonging to one or some of the categories of persons specified in Sections 109 or 110 of the Code. It may be recalled in this context, that Magistrate under Section 122 of the Code can commit any person to prison if that person ordered to give security under Section 106 or Section 117 of the Code does not give such security. Similarly, under Section 151 which falls under Chapter XI under the heading "Preventive action of the police", the police officer is empowered to arrest a person so as to prevent the commission of a cognizable offence which commission of the offence cannot be otherwise prevented. Sub-section (2) of Section 151 restricts the period of detention of the person arrested in custody for a period exceeding 24 hours unless his further detention is required or authorised under any of the provisions of the Code or for any other law for the time being in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asoned opinion, yet it has become necessary confined to the limited question as to whether the expression "accused" and "accused person" appearing in Section 167(1) and (2) denote "a person accused of any offence" at the stage of authorising detention on production of an arrestee before a Magistrate. 72.The legislative change in Section 436 of the old Code (about which we shall deal with presently) and the introduction of the explanation to Section 273 of the new Code as well as the legislative intendment of some other provisions of the Code to be mentioned hereafter insunate in finding out the answer to the above query. 73.It may be noted in Section 436 of the old Code (1898) which corresponded to Section 437 of the Code of 1861 and Section 298 of the Code of 1872, the expression "accused person" alone was employed but subsequently, the expression was substituted by "person accused of an offence" by Section 117 of Act XVIII of 1923. This legislative change by substituting the new expression was made in order to supersede a number of rulings, rendered under the old Code (Section 437) employing the words, "accused person" which held the section applicable to proceedings against pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng required for investigation into the alleged offences, such searches were for incriminating material." 82.Thereafter, a Constitution Bench of this Court in Raja Narayanlal Bansilal v. Maneck 1961 (1) SCR 417 at 438 while dealing with the import of Art. 20(3) with reference to certain provisions of the Indian Companies Act made the following observation, relying on the decision in M.P. Sharma (supra) : "......Similarly for invoking the constitutional right against testimonial compulsion guaranteed under Art. 20(3) it must appear that a formal accusation has been made against the party pleading the guarantee and that it relates to the commission of an offence which in the normal course may result in prosecution. Here again the nature of the accusation and its probable sequel or consequence are regarded as important." 83.In the above two judgments, both the Benches have not discussed the distinction between the expression 'accused person' and 'person accused of any offence'. 84.Subsequently, a eleven-Judges Bench of this Court in State of Bombay v. Kathi Kalu Oghad - 1962 (3) SCR 10 went into the question and by majority concluded that an accused person cannot be said to have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench in Raja Narayanlal Bansilal (supra) speaking for the majority of a Constitution Bench in State of Uttar Pradesh v. Deoman Upadhyaya - 1961 (1) SCR 14 has observed as follows : "The ban which is partial under S.24 and complete under S.25 applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was at the time of making the confession in custody. For the ban to be effective the person need not have been accused of an offence when he made the confession. The expression, "accused person" in S. 24 and the expression "a person accused of any offence" have the same connotation and describe the person against whom evidence is sought to be led in a criminal proceeding." 92.The judgment in Deoman's case (supra) is referred to State of Bombay v. Kathi Kalu Oghad (supra) but that Bench has not expressed any view as to whether the expression 'accused person' and the expression 'person accused of any offence' have the same connotation. But in none of these judgments, Section 167 has come up for interpretation. 93.In Ramesh Chandra Mehta v. State of West Bengal - AIR 1970 SC 940 = 1969 (2) SCR 461, a constitution Bench of this Court while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.Though this Bench is bound by the decisions of all the above Constitution Benches yet these decisions are distinguishable since none of the above decisions relates to the interpretation of Section 167 of the Code explaining the meaning of the word "accused" or "accused person" limited to the purpose of Section 167. On the other hand, all those decisions are rendered only on the question of admissibility or otherwise of the statement of a person arrested under the provisions of the general Act or special Acts concerned and recorded while in the custody of the arrester. 98.A thorough and careful study of all the provisions of the Code manifestly discloses that the word 'accused' in the Code denotes different meanings according to the context in which it is deployed; in that sometimes the said word is employed to denote a person arrested, sometimes a person against whom there is an accusation, but who is yet not put on trial and sometimes to denote a person on trial and so on. 99.It is apposite, in this context, to refer to the following passage found in Chapter 4 in the book titled, "The Loom of Language": "Words are not passive agents meaning the same thing and carrying the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VIII of the Code has been commenced. Thus the explanation gives a clear clue that in given situation the word "person" can be construed as 'accused' or 'accused person'. 104.Thirdly, in the Code different expressions are used under various provisions to denote a person involving in a criminal proceeding such as 'offender', 'person', 'accused', 'accused person', 'accused of an offence' depending on the nature of the proceeding. 105.Fourthly, the very legislative change made in Section 436 of the old Code corresponding to Section 398 of the new Code substituting the words "person accused of an offence" in the place of "accused person" as originally stood makes it clear that in the procedural Code, these two expressions cannot always denote the same meaning or be construed as synonymous or interchangeable and this legislative change indicates that the Legislature in its wisdom intended to make a clear distinction between these expressions for the reasons mentioned supra. 106.Fifthly, if the expression 'accused person' and 'a person accused of an offence' are to be held denoting the same meaning and interchangeable at all times and situations, it will become fallacious and pernicio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaint being filed. Therefore, the judgment of the Supreme Court in the case of Ramesh Chander Mehta or Illias referred to above do not stand in the way of applicability of Section 167(2) of the Code to the person detained and produced by competent officer before the Magistrate in pursuance of Section 104(2) of the Customs Act or Section 35(2) of the Foreign Exchange Regulation Act." 110.Further, in the latter part of his judgment the learned Judge has observed; "The word accused is to be construed in its widest connotations. It means the one who is arrested and detained." 111.After having observed as above, it has been concluded by the learned Judge thus : "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) and not under Section 167(1) of the Code." 112.Agreeing with the majority judgment in O.P. Gupta, and with the view of the High Court of Kerala in C.I.U. Cochin v. P.K. Ummerkutty 1983 Crl. L.J. 1860 and N.K. Ayoob v. The Superintendent, C.I.W., Cochin 1984 Crl. L.J. 949 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecuting agency who is invested with the power of investigation. 114.We next proceed to consider the second question whether the authorised or empowered officer under FERA or Customs Act exercises all or any of the powers of a police officer outlined under Chapter XII of the Code and conducts any investigation within the meaning of Section 2(h) of the Code. 115.The word 'investigation' is defined under Section 2(h) of the present Code [which is an exact reproduction of Section 4(1)(1) of the old Code] which is an inclusive definition as including all the proceedings under the Code for the collection of evidence conducted by a police officer or any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. The said word 'investigation' runs through the entire fabric of the Code. There is a long course of decisions of this Court as well as of the various High Courts explaining in detail, what the word 'investigation' means and is? It is not necessary for the purpose of this case to recapitulate all those decisions except the one in H.N. Rishbud v. State of Delhi - 1955 (1) SCR 1150. In that decision, it has been held that "under the Code investigation co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in duties of the police are the prevention, detention and investigation of crimes. As the powers and duties of the State have increased and are increasing manifold, various Acts dealing with Customs, Excise, Forest, Taxes etc. have come to be passed and consequently the prevention, detention and investigation of offences as prescribed under those Acts have come to be entrusted to officers with different nomenclatures appropriate to the subject with reference to which they function. However, as stated supra, though the powers of customs officers and enforcement officer are identical to those of police officers quo the investigation under Chapter XII of the Code yet the officers under the FERA and Customs Act are vested with certain powers similar to the powers of police officers. 120.The expression 'diary' referred to in Section 167(1) of the Code is the special diary mentioned in Section 167(2) which should contain full and unabridged statements of persons examined by the police so as to give the Magistrates a perusal of the said diary, a satisfactory and complete source of information which would enable him to decide whether or not the accused person should be detained in custody ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. 8. 9. 10. Sec. 36 Sec. 38 Sec. 35 Sec. 39 Sec. 40 Sec. 106 Sec. 110 Sec. 104 Sec. 107 Sec. 108 Sec. 61 Sec. 66 Sec. 68 Sec. 64 Sec. 63 — Sec. 10 Sec. 10(B) — — — — Sec. 6 — Sec. 9 123.The above table manifestly imparts that all the powers vested on various authorities as given in the table are equipollent as being enjoyed by a police officer under the Code and exercised during investigation under Chapter XII because the investigation is nothing but an observation or inquiry into the allegations, circumstances or relationships in order to obtain factual information and make certain whether or not a violation of any law has been committed. 124.It should not be lost sight of the fact that a police officer making an investigation of an offence representing the State files a report under Section 173 of the Code and becomes the complainant whereas the prosecuting agency under the special Acts files a complaint as a complainant i.e. under Section 61(ii) in the case of FERA and under Section 137 of the Customs Act. To say differently, the police officer after consummation of the investigation files a report under Section 173 of the Code upon which the Mag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efinition. No doubt it will not strictly fall under the definition of 'investigation' in 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 is made by the police officer or a customs officer who intends to lodge a complaint." 127.We are in total agreement with the above view of M.P. Thakkar, CJ. 128.The word 'investigation' though is not shown in any one of the sections of the Customs Act, certain powers enjoyed by the police officer during the investigation are vested on the specified officer of customs as indicated in the table given above. However, in the FERA the word 'investigation' 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. 129.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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force." The expression 'special law' or 'local law' is defined under Sections 41 and 42 of the Indian Penal Code. 135.Desai, J in Viswa Mitter of Vijay Bharat Cigarette Stores v. O.P. Poddar - 1983 (4) SCC 701 speaking for the Bench on the import of Section 4(2) has stated thus :- "Section 190 thus confers power on any Magistrate to take cognizance of any offence upon receiving a complaint of facts which constitute such offence. It does not speak of any particular qualification for the complainant. Generally speaking, anyone can put the criminal law in motion unless there is specific provision to the contrary. This is specifically indicated by the provision of sub-section (2) of Section 4 which provides that all offences under any other law - meaning thereby law other than the Indian Penal Code - shall be investigated, inquired into, tried and otherwise dealt with according to the provisions in the Code of Criminal Procedure but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing empowered to order the arrested person to be kept in such other custody as he deems fit" - Vide S.O.R. Gaz. of India 1962, Part II, S. 2 Ext. p. 334. 139.The Select Committee expressed its view on the proposed amendment as follows :- "The Committee are of the view that an Officer of Customs arresting a person under the clause should have the power to release the arrested person on bail or otherwise similar to the power conferred on the Officer in charge of a police station under the Code of Criminal Procedure, 1898 so as to obviate the necessity of detaining an arrested person till he can be taken to a Magistrate. The Committee feel that sub-clause (3) being merely a repetition of the provisions of the Criminal Procedure Code, 1898 should be omitted." 140.The view of the Committee expressed above can be taken as a guide in understanding the import of Section 35 of FERA. 141.The submission that as there is no investigation within the terms of the Code in the field of FERA or Customs Act, Section 4(2) of the Code can have no part to play, has to be rejected for the reasons given by us while disposing of the contention "What investigation means and is" in the preceding part o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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