1981 (12) TMI 177 - HC - FEMA

Summary

Issues Involved:
1. Legality of the petitioner's detention and remand to judicial custody.
2. Allegations of manhandling and improper recording of statements.
3. Applicability of Section 167 of the Criminal Procedure Code (CrPC) to the Enforcement Officer.
4. Interpretation of Sections 104 of the Customs Act, 1962 and 35 of the Foreign Exchange Regulation Act, 1973.
5. Legislative lacuna in the Criminal Procedure Code regarding remand powers.

Detailed Analysis:

1. Legality of the Petitioner's Detention and Remand to Judicial Custody:
The petitioner was arrested and produced before the Additional Chief Metropolitan Magistrate, New Delhi, for an offence under the Foreign Exchange Regulation Act, 1973. The petitioner's bail applications were rejected, and he was remanded to judicial custody. The petitioner contended that he was not an accused until a complaint was filed and, therefore, could not be remanded to judicial custody. The court examined the applicability of Section 167 of the CrPC, which deals with the power of an officer-in-charge of a police station to seek remand when the investigation cannot be completed within 24 hours. The court held that the Enforcement Officer could not be treated as a police officer for the purposes of Section 167, as per the Supreme Court's interpretation in Illias v. The Collector of Customs, Madras. Consequently, the remand to judicial custody was deemed unlawful.

2. Allegations of Manhandling and Improper Recording of Statements:
The petitioner claimed that he was manhandled by the Enforcement Directorate and that his statements were recorded under torture, duress, and mal-treatment, in violation of Articles 20(3) and 21 of the Constitution. However, this issue was not the primary focus of the court's judgment, which centered on the legality of the detention and remand procedures.

3. Applicability of Section 167 of the Criminal Procedure Code to the Enforcement Officer:
The court addressed whether Section 167 of the CrPC could be applied to the Enforcement Officer. It was concluded that the Enforcement Officer could not be treated as a police officer within the meaning of Section 167. The statutory power of the Enforcement Officer to act as an officer-in-charge of a police station is limited to the purpose of granting or refusing bail, not for seeking remand under Section 167. This interpretation was consistent with the Supreme Court's ruling in Illias v. The Collector of Customs, Madras.

4. Interpretation of Sections 104 of the Customs Act, 1962 and 35 of the Foreign Exchange Regulation Act, 1973:
The court examined the provisions of Section 104 of the Customs Act, 1962, and Section 35 of the Foreign Exchange Regulation Act, 1973, which are practically identical. Both sections empower specially authorized officers to arrest individuals believed to be guilty of an offence and to take them to a Magistrate without unnecessary delay. The court noted that neither Act specifies what the Magistrate should do after the arrested person is produced before him. The court concluded that the statutory framework does not provide for remand to judicial custody under these provisions.

5. Legislative Lacuna in the Criminal Procedure Code Regarding Remand Powers:
The court identified a legislative lacuna in the CrPC, as the power to remand an accused person to custody is not explicitly provided for in cases arising under the Customs Act or the Foreign Exchange Regulation Act. The court noted that the power to remand under Section 309 of the CrPC is only available after the Magistrate takes cognizance of an offence, which is barred by Section 61 of the Foreign Exchange Regulation Act, 1973, unless a complaint is made by the Director of Enforcement or a specially authorized officer. The court emphasized that this lacuna needs to be addressed by the Legislature.

Conclusion:
The court concluded that the remand to judicial custody was not valid and that the petitioner was being detained without authority of law. The court granted the writ of habeas corpus and ordered the petitioner's immediate release. The court highlighted the need for legislative action to address the identified lacuna in the CrPC regarding remand powers in cases under the Customs Act and the Foreign Exchange Regulation Act.