1986 (1) TMI 105 - HC - Central Excise

Summary

Issues:
1. Interpretation of the provisions of the Foreign Exchange Regulation Act, 1973 regarding remanding a respondent to judicial custody.
2. Comparison of the powers of a Magistrate under the Customs Act, 1962 and the Foreign Exchange Regulation Act, 1973.

Analysis:

Issue 1:
The judgment involves a petition filed under Section 482 of the Code of Criminal Procedure against the refusal of the learned Additional Chief Judicial Magistrate to remand the respondent to judicial custody. The respondent was arrested by the Enforcement Officer under Section 35 of the Foreign Exchange Regulation Act, 1973, for possessing foreign currency in contravention of the Act. The Magistrate declined to remand the respondent, citing a Division Bench judgment of the Delhi High Court, which held that the Magistrate had no power to remand the accused under the Act. The petitioner challenged this order before the High Court, arguing that the Magistrate did have the power to remand the accused to judicial custody. The High Court analyzed a similar case from the Gujarat High Court, which held that the Magistrate did have the power to remand arrested persons. The High Court agreed with the Gujarat High Court's interpretation, setting aside the Magistrate's order and allowing the petition.

Issue 2:
The judgment also delves into a comparison between the powers of a Magistrate under the Customs Act, 1962, and the Foreign Exchange Regulation Act, 1973. The Gujarat High Court's judgment highlighted that while the Customs Act empowers an officer to effect an arrest and obliges him to take the arrested person before a Magistrate, it does not specify how the Magistrate should deal with the arrested person. In contrast, the Foreign Exchange Regulation Act, 1973, was found to be silent on the Magistrate's powers regarding custody. The Gujarat High Court's dissent with the Delhi High Court's judgment emphasized the importance of Magistrates having the power to remand arrested persons to ensure the efficacy of the law. The High Court agreed with the Gujarat High Court's reasoning, emphasizing that the Magistrate should have the authority to decide on the custody of the arrested person brought before them. This comparison underscores the need for clarity in the legal provisions regarding the Magistrate's powers under different statutes.

This judgment clarifies the interpretation of the provisions of the Foreign Exchange Regulation Act, 1973 concerning the remand of a respondent to judicial custody and highlights the importance of Magistrates having the authority to decide on custody issues to ensure the effectiveness of the law.