1982 (8) TMI 62 - HC - Customs

Summary

Issues Involved:
1. Power of Customs Officer to Arrest and Release on Bail.
2. Magistrate's Authority to Remand or Release Arrested Persons.
3. Applicability of Section 104 of the Customs Act.
4. Applicability of Sections 436 and 437 of the Code of Criminal Procedure.
5. Applicability of Section 167 of the Code of Criminal Procedure.
6. Classification of Offences under Section 135 of the Customs Act.
7. Impact of COFEPOSA Detention on Judicial Custody.

Issue-wise Detailed Analysis:

1. Power of Customs Officer to Arrest and Release on Bail:
The Customs Officer has the authority to arrest a person reasonably believed to have committed an offence under the Customs Act and, for the purpose of releasing such person on bail or otherwise, has the same powers as the officer-in-charge of a police station under the Code of Criminal Procedure (CrPC). This is articulated in Section 104(3) of the Customs Act, 1962.

2. Magistrate's Authority to Remand or Release Arrested Persons:
The Court examined the view taken by the Chief Metropolitan Magistrate that he had no power to remand the arrested person to judicial custody or require bail. The judgment clarifies that the Magistrate does possess the authority to remand the arrested person to judicial custody or to release him on bail, as per the provisions of Sections 436 and 437 of the CrPC, which apply mutatis mutandis to offences under the Customs Act.

3. Applicability of Section 104 of the Customs Act:
Section 104(2) mandates that every person arrested under Section 104(1) shall be taken to a Magistrate without unnecessary delay. However, Section 104 does not specify how the Magistrate should deal with the arrested person once produced. The judgment interprets that the Magistrate has the power to remand the person to judicial custody or release him on bail, ensuring that the provision is not rendered meaningless.

4. Applicability of Sections 436 and 437 of the Code of Criminal Procedure:
The Court held that by virtue of Section 4(2) of the CrPC, Sections 436 and 437, which pertain to bails and bonds, are applicable to offences under the Customs Act. This means that the Magistrate has the power to release the arrested person on bail or remand him to judicial custody, ensuring the efficacy of the arrest and production process under Section 104 of the Customs Act.

5. Applicability of Section 167 of the Code of Criminal Procedure:
The Court discussed the relevance of Section 167, which pertains to the procedure when investigation cannot be completed within 24 hours. Although the offence under Section 135 of the Customs Act is non-cognizable and cannot be investigated by the police, the Court acknowledged the argument that Section 167 could be invoked to a limited extent to locate the power of the Magistrate to remand the person to judicial custody. However, the Court refrained from expressing a definitive opinion on this issue, leaving it open for future consideration.

6. Classification of Offences under Section 135 of the Customs Act:
The judgment clarifies that an offence under Section 135 of the Customs Act is non-cognizable and non-bailable, regardless of the value of the goods involved. This classification is based on the provisions in Part II of the First Schedule of the CrPC, which were not considered in a previous decision by a Single Judge, rendering that decision incorrect.

7. Impact of COFEPOSA Detention on Judicial Custody:
The Court addressed the situation of respondents who were detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA). It directed that these respondents should be produced before the Chief Metropolitan Magistrate for technical compliance but continue in COFEPOSA detention. The Court also allowed for the possibility of these respondents applying for bail afresh, subject to the existing COFEPOSA orders.

Conclusion:
The High Court quashed the impugned orders of the Chief Metropolitan Magistrate and directed that fresh bail bonds be executed where necessary. The Court upheld the authority of the Magistrate to remand arrested persons to judicial custody or release them on bail, ensuring the provisions of the Customs Act and CrPC are effectively applied.