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TMI Blog1994 (8) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... o controversy that if the answer to this question is in the affirmative, then the petitioner before us has to be released on bail without entering into the merits of the case. 2. Mr. Mukherjee, the learned Counsel appearing for the petitioner has urged that the provisions of Section 167(2) in its entirety apply squarely to a person arrested under Section 104 of the Customs Act and he has relied heavily upon the decision of the Supreme Court in the Directorate of Enforcement v. Deepak Mahajan & Anr., 1994 (70) E.L.T. 12 (S.C.) = JT (1994)1 SC 290. In answer to this contention, Mr. Roy the learned counsel for the Collector of Customs has contended that Section 167 of the Code is not attracted to any enquiry made by the Customs Officers relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e position was that the Magistrate had no power to remand a person produced before him in accordance with the Section 35 (2) of FERA or for that matter under Section 104 of the Customs Act. Against this decision, there was an appeal before the Supreme Court by special leave upon which reliance has been placed by the learned Counsel for the petitioner. After a very thorough and exhaustive consideration of all the relevant laws, the Supreme Court set aside the judgment of Full Bench of Delhi High Court and restored the law enunciated in O.P.. Gupta's case (supra). In other words, according to the Supreme Court, a Magistrate has got enough jurisdiction under section 167 of the Code of Criminal Procedure to authorise detention of a person arres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code. In this connection, our attention was also drawn to certain observations made by the learned Judges of the Supreme Court in Deepak Mahajan's case (supra) in paragraph 45 of the judgment wherein Their Lordships had stated that a doubtful question might arise as to whether the Magistrate could detain the accused person for further period beyond the prescribed period of 90 or 60 days if the accused was not prepared to and did not furnish bail. In the case before us, we are not concerned with the question whether the petitioner can be detained if he is not prepared to and does not furnish bail and indeed, if the provisions of Section 167(2) apply in its entirety, this doubt is immediately cleared by Explanation I of Section 167(2) express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Magistrate to remand to custody under Section 167 of the Code or the entitlement of an accused person to be released on bail after suffering detention for the period prescribed in the proviso to Section 167(2) of the Code are co-existent with the power of investigation by the police and this section occurs in the chapter on information to the police and their powers to investigate. The words of Section 4(2) of the Code are of wide amplitude and take within its fold, the provisions of Section 167(2) of the Code including the proviso thereto. In other words, this section in its entirety will apply in case of offences under the Customs Act unless any contrary provision is found in this Act. There is undoubtedly no provision anywhere in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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