9911796707
TMI Blog1983 (6) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... s case was arrested at about 18.30 hrs. on April 20, 1982 by the Customs Officers as they suspected him to be guilty of the various offences under the Customs Act, 1962 and the Gold Control Act. It appears that before he should be produced by the Customs Authorities before the Chief Judicial Magistrate, he was sought to be detained at about 18.45 hours on the same day i.e. 20th April, 1982 under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, (hereinafter known as COFEPOSA) with the result that in order to comply with the provisions contained under Section 104(2) and intimation was given to the Chief Metropolitan Magistrate, Ahmedabad, on April 21, 1982 that that the authorities were not capable of producing the accused before the Chief Judicial Magistrate for the above reasons. It appears further that he was formerly arrested on different dates for having been suspected to commit an offence under the Arms Act, Foreigners Act and Indian Passport Act viz. on April 26, 1982, June 16, 1982 and December 15, 1982. Five prosecutions were, therefore, launched against the applicant and other persons. The complaints have been filed by the Customs Authorities und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptember 16, 1982 in the Court of Chief Metropolitan Magistrate that the jail register does not contain any entry to show that the accused were in jail custody. The Chief Metropolitan Magistrate directed in Yadi to be issued to the Jailor that the applicant was in the custody of his Court and in case of his release under COFEPOSA his direction should be sought before releasing him from Court Custody. As stated above the Assistant Collector (P), one Shri D.N. Anerao, filed criminal complaint against the applicant and two other persons on September 23, 1982 for having committed offence under the Gold Control Act, 1968 being Criminal Complaint No. 1674 of 1982. Non-bailable warrant in sum of Rs. 10 lakhs was directed to be issued so far as the applicant was concerned. On September 26, 1982, the applicant moved an application in the Court of Chief Metropolitan Magistrate for releasing him on bail which was, however, rejected by the order of October 12, 1982. Similarly, the Assistant Collector (P), Shri Anerao, filed Criminal Complaint against the applicant and 22 other persons for having committed offence under Section 35 of the Customs Act read with Section 120(b) of the Indian Penal C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for constituting a Larger Bench so as to decide whether the Full Bench decision required any reconsideration. It is in these circumstances that this group of applications has been placed before us. 6. Two questions arise for our determination. In the first place whether the full Bench decision of this Court in Babulal Parsottamdas' case requires reconsideration n view of the latter decision of the Supreme Court in Lakshmi Brahman's case (supra). It should be recalled that since the Division Bench of this Court consisting of M.P. Thakkar, J. (as he then was) and R.C. Mankad, J. felt that the earlier decision of Division Bench of A.D. Desai J.B. Mehta, JJ, in Umedsinh Vakmatji Janeja and others v. State of Gujarat, 16 G.L.R. p. 572 which had ruled that the provisions of Section 167(2) and the provisions of Section 437 of the Criminal Procedure Code, 1973, operate in different fields and the power under Section 167(2) to release an accused person on bail can be exercised only during the pendency of investigation and it will not be competent for Magistrate to exercise that power once the stage of investigation was over, required reconsideration. The Full Bench, therefore, was form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation would come to an end the moment charge sheet is submitted as required under Section 170 unless the Magistrate directs further investigation. The ratio of the Full Bench decision is diluted and, therefore, the matter require to be reconsidered since the principal contention urged before him on behalf of the applicant herein was that he was entitled as a matter of right to be released on bail. We have to give anxious consideration to the rival contention urged in support of and in opposition to the opinion of the learned single Judge. On behalf of the applicant it has been urged that the decision of the Supreme Court in Lakshmi Brahman's case is altogether in different context and the observation made by the Supreme Court should be read in the light of the question with which the Court was concerned namely, whether the High Court was right in holding that the "Magistrate had no jurisdiction to remand the accused to jail custody, after the accused was brought before him and before he made an order committing the accused to Court of Sessions in a case instituted upon a police report exclusively triable by the Court of Sessions, and the Magistrate must release him on bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, assuming that Lakshmi Brahman's case strikes a note of dissent it is a question of preferring and following the other line of decisions in the earlier three cases of the Supreme Court followed by the Full Bench. We must add, however, that we are not expressing any final opinion over this contention urged on behalf of the applicant. 9. The next question, therefore, which arises is whether Section 167 of Code of Criminal Procedure applies in terms to the investigation made under the Gold Control Act or Customs Act or the other two Acts, merely, the Foreigners Act or the Arms Act. Section 4(2) of the Criminal Procedure Code provides that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with each offences. Provisions of Code of Criminal Procedure pertaining to investigation including search and seizure would not apply to the investigation under the Foreign Exchange Regulation Act since it provides under Section 19(a) for necessary investigatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same power in respect of investigation except the power to arrest without warrants as an officer in charge of the police station may exercise in cognisable case. It is the settled position in law that the Customs Officer, though he has been invested with many powers under the Customs Act, 1962 which are akin to the powers of a Police Officer, he cannot be regarded as `police officer' within the meaning of Section 25 of the Evidence Act (see Illies v. The Collector of Customs, Madras, A.I.R. 1970 Supreme Court 1065) and State of Punjab v. Barket Ram, A.I.R. 1962 Supreme Court 276. If the scheme of investigation under the Special Act is materially different from the scheme of the Code of Criminal Procedure, there is another intrinsic evidence in the Act itself to show that the provision of the Code proprio vigore apply to such investigations and each and every provision of the Code cannot be superimposed into the Special Act which would prevail over the Code if on any matter there is inconsistancy between the two. Vide State of U.P. v. Durga Prasad, 1975, 3, See 210 where the Supreme Court ruled that an officer conducting an enquiry under Section 8(1) of the Railway Property (Unlawfu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with facts and circumstances of the case and Section 108 pertaining to his power to summon any person to give evidence or to produce a document and the bunch of Sections 137 to 140(a), dealing with offences and prosecutions, it was held by this Court that all the provisions of the Code of Criminal Procedure would not apply priorio vigore to the enquiries made by the Customs Officer under the Customs Act following the aforesaid decision of the Supreme Court in Durga Prasad case (supra). The relevant part of the said decision reads as under :- "It cannot, therefore, be said that the provisions contained in Section 167 of the Code of Criminal Procedure would apply to the enquiries conducted connection with the Customs offence under the Customs Act. The learned Public Prosecutor made an attempt to persuade me by urging that since there is no provision in the Customs Act contrary to the provisions contained in Section 167 of the Code of Criminal Procedure, the said section will apply even to the inquiries in connection with the Custom Offences under the Customs Act. I am afraid, this is too broad a proposition to be easily acceded to. As I have pointed out above, the inquiry contempl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Division Bench speaking through M.P. Thakkar, C.J. : "Sub-section (2) of Section 4 of the Code of Criminal Procedure which in effect provides that the provisions of the said Code would apply mutatis mutandis in respect of proceedings instituted in the context of offences under any law other than Indian Penal Code read with Sections 436 and 437 contained in Chapter XXXIII of the Code pertaining to the provisions as to bails and bonds confers the power to remand the arrested person produced before the Magistrate by the officer of Customs to judicial custody or to grant him bail or refuse to grant bail or to direct that the said person be released on executing a personal bond : Section 4(2) read with Section 167 of the Code also empowers the Magistrate to do so." The Division Bench set aside the order of the learned Magistrate on the ground that the provisions contained in Sections 436 and 437 of the Code of Criminal Procedure, pertaining to the bails and bonds confers the power to remand the arrested person produced before the Magistrate by the officer of the Customs to judicial custody or to grant him bail or to refuse to grant bail, since the said provisions of the Code w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1962 S.C. 167. The Division Bench was of the opinion that this contention deserved serious consideration though it did not wish to express its considered opinion on this question. Since the Division Bench was inclined to hold that the Magistrate has a power to remand a person to custody a necessary concomitant of its power to grant or to refuse bail under Sections 437 and 438 of the Code which apply to the offence under the Customs Act in view of Section 4(2) of the Criminal Procedure Code. Unfortunately, however, the Division Bench has not thought it fit to consider the decision in Criminal Revision Application No. 380 of 1976 referred to hereinabove though we are told that it was pointed out by the parties to the court. It is not clear from the record or otherwise whether it was also pointed out to the Division Bench that the decision in the Criminal Revision Application No. 380/76 was confirmed by the Supreme Court. It is no doubt true that the Supreme Court has not made any speaking order while rejecting the special leave petition. It is not necessary to go into the larger question as to what is the effect of such an order where the petition is dismissed by the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontext and construe as an independent provision. If that is so we find it difficult that section 167(ii) together with the proviso would apply in terms to the cases of persons brought before the Magistrate after their arrest for having committed offence under the Customs Act. In spite of our difficulty in accepting the contention urged on behalf of the applicant herein about his entitlement to be released on bail in view of the detention exceeding the specified period as prescribed in the aforesaid proviso we cannot afford to disregard the object of this provision, which is wholesome in principle since they have been envisaged to ensure that the persons arrested by the police and brought before the Magistrate with the least possible delay in order to enable the latter to judge if such person has to be further kept in police custody and also to enable such persons to make representation if he wished to (see Gaurishanker Jha v. State of Bihar and others, A.I.R. 1972 S.C. 711). In Hussainara Khatoon and others v. Home Secretary, State of Bihar, A.I.R. 1979, S.C. 1377 three Judges Bench of the Supreme Court speaking through Bhagwati, J., ruled that undertrial prisoners in detention for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 437(6) is also instructive. Sub-section (6) of Section 437 of the Code provides that in any case triabal by the Magistrate the trial of the person accused of a non-bailable offence is not concluded within 60 days from the first date fixed for taking evidence in the case such person shall, if he is in the custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate unless for reasons to be recorded in writing the Magistrate otherwise directs. The intention underlying these sub-sections is apparent that the investigation as well as trial of a criminal case should be concluded as expeditiously as possible and not beyond the period specified in the said sub-sections. If, therefore, the detention beyond the specified period virtually amounts to the violation of the fundamental right of liberty under Article 21 of the Constitution, we are of the opinion that the principle underlying these provisions should be invoked and applied even in cases of persons arrested for having committed offences under the Customs Act or the Gold Control Act. 13. At this stage it is necessary to remind ourselves that the offences under the Customs Act is non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions while exercising their powers to remand persons accused or suspected of having committed offences under these Acts and brought before them either under the Special Act or under the Code of Criminal Procedure and exercise their powers to release them on bail or otherwise according to the correct legal principle. We do not mean to say that the courts in context of these special Acts must mechanically apply a straight jacket formula as to prescribed periods without relevant considerations such as gravity of offence, the complexity of investigation, the modus operandi of the person involved in such nefarious activities, the dilatory tactics adopted by such persons and the other relevant and attendant circumstances and other special grounds prima facie established by the officer making the investigation and the courts should pass appropriate orders in that behalf if the special reasons and the interests of justice required detention or the continuation of trial beyond the specified period as prescribed in the aforesaid provisions of the Code. It appears from the statement of chronology of evidence filed on behalf of the Customs authorities that in all the criminal cases except Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
