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TMI Blog1983 (10) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... 16th September, 1983. They organised a Customs party and kept the coast/line under watch. They found lorry KLN 4936 moving from the Tellicherry beach (opposite to the District Court premises) to the main road. The lorry was driven by the second respondent herein. Respondents 3 to 5 were in the lorry. The lorry was stopped and the articles in the lorry were checked. The articles were found to be contraband articles consisting of electronic and textile goods, etc. The lorry contained 104 bundles in gunny bags valued at over Rs. 56,00,000. The Customs party received information that the first respondent was also involved in the transport of these goods. Tracks of another lorry were found on the beach. The Customs party had reason to believe that another lorry loaded with contraband goods had already left the beach. The garages in the town were kept under watch and ultimately lorry No. MYG 8229 was found on 16th September, 1983, in the garage attached to "Subaida Manzil". The lorry was found to contain 78 bundles of contraband goods valued at over Rs. 50,00,000. Information was received that respondents 6 and 7 herein were also involved with these goods. On questioning the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before that High Court that the Magistrate has no power to remand a person facing an accusation for violation of the provisions of the Foreign Exchange Regulation Act. The provisions of Section 35 of the Foreign Exchange Regulation Act, 1973, are similar to those under Section 104 of the Customs Act. Under Section 35 of the former Act an authorised officer has power to arrest a person believed to be guilty of an offence punishable under that Act, the arrested person has to be taken to a Magistrate without unnecessary delay; the officer has the same power for releasing the arrested person on bail or otherwise as are available to an officer incharge of a police station. The offence is not a cognizable one. The Foreign Exchange Regulation Act does not contain any provision stating what the Magistrate should do when a person accused of an offence under that Act is produced before him. The High Court took the view that though the power conferred on the authorised officer under Section 35 of that Act is analogous to the power vested in an officer in-charge of a police station under the Code in the matter of bail, thereby the authorised officer cannot be treated as an officer in-charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s entitled to submit "a complaint of facts which constitute an offence" contemplated under Section 190(1)(a) of the Code. It has to be noticed that by virtue of Section 104(4) of the Act, an offence under the Act is a non-cognizable one, though an officer concerned acting under the Act has power to arrest without a warrant subject to the limitation that the person so arrested shall without unnecessary delay be taken to a Magistrate. Under sub-section (3) of Section 104 of the Act, an officer arresting a person has, for the purpose of releasing the arrested person on bail or otherwise, same powers and be subject to the same provisions as the officer in-charge of a police station has and is subject to under the Code. I may also notice that before laying a complaint under Section 191(1)(a) of the Code before a competent Magistrate, the complaint has to obtain the sanction as contemplated under Section 137 of the Act. Under Section 135 of the Act a sentence of rigorous imprisonment up to three years or up to seven years, as the case may be, can be imposed. Therefore, the offence is a non-bailable one. 7. Under the provisions of the Code a person lawfully arrested has to be produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out anything more.'' 9. Obviously, when such a person is produced before a Magistrate, the Magistrate is not immediately to let him go or release him without anything more. If the person arrested prays for bail the Magistrate has to apply his judicial mind to the matter and decide whether bail is to be granted or not. But, then, the Act does not contain any provision empowering the Magistrate to take any such decision. Obviously, the repository of the Magisterial power in this behalf is Section 437 of the Code. There is nothing in Section 104 of the Act to indicate that in a case of a person arrested under the provisions of the Customs Act and produced before the Magistrate, the Magistrate can have recourse to Section 437 of the Code. It is in this context that Section 4(2) of the Code becomes relevant. 10. Section 4(2) of the Code reads thus : "4. Trial of offences under the Indian Penal Code and other laws.-(I).. .....;. (2) 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, inquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the Magistrate directs such custody. The other possible alternative is to direct him to be retained in judicial custody. 12. Sub-section (1) of Section 437 of the Code deals with the power of Court other than the High Court or a Court of Sessions in the case of person accused or suspected of the commission of any non-bailable offence arrested or detained without warrant by a police officer or a person, who appears or is brought before such Court. Subject to the qualification regarding the offence punishable with death or imprisonment for life, the Court has discretion to grant bail. It is unnecessary to refer to the provisos to sub-section (1). Sub/section (2) deals with cases where even though reasonable grounds for believing that the accused has committed a non-bailable offence are made out, but there are grounds for further enquiry, he could be released on bail. Sub-section (3) authorises the Court to impose conditions contemplated therein in the case of persons accused or suspected of the commission of offence punishable with imprisonment extending up to 7 years or more or the other offences specified therein. Sub-section (4) requires reasons to be recorded in writing in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail by the Magistrate, the Magistrate has power to direct at a later stage that the person be arrested. Sub-section (5) of Section 437 of the Code specifically recognises the power of the Magistrate to commit such person to custody. If the Magistrate has power to direct a person to be committed to custody after cancelling the bail granted earlier to that person, certainly the Magistrate has power to direct the person to be committed to custody even while rejecting the bail application initially. Sub-sections (1) and (5) of Section 437 of the Code read together, will clearly spell out the power vesting in the Magistrate to commit a person produced before him to custody. By virtue of Section 4(2) of the Code such power could be exercised in the case of a person arrested under the Act. 15. Thus, even apart from the provisions of Sections 167 and 309 of the Code, the power to commit a person to custody is implicit in the provisions of Section 4(2) of the Code. The Act does not contain any provision laying down in what way a Magistrate has to proceed in the case of a person produced before him by a Customs Officer in pursuance of Section 104(2) of the Act. Therefore, by virtue of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made abundantly clear by sub-section (5) of Section 437 to which we have made reference a short while ago, which empowers the Magistrate in terms to direct that such a person be arrested and committed to custody, that is to say, judicial custody even after such a person has been released on bail under subsection (1) or (2) upon considering it necessary to do so. There is, therefore, no escape from the conclusion that the Magistrate before whom the person suspected by the officer of customs, upon the officer concerned enteraining a reasonable belief that he has committed an offence under Section 135 is produced, has the power to commit such a person to judicial custody. Unless the provision contained in Section 104 of the Customs Act to arrest the person and to produce him before the Magistrate is to be considered to be meaningless, purposeless and a futile exercise undertaken for no purpose and unless we shut our eyes to Section 4(2) and Section 437, no other view is possible." 17. The question which next arises for consideration is whether the order of release on bail passed by the learned Magistrate in this case is liable to be cancelled. It is true that an order of release on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormation. The learned Magistrate was in serious error in looking at the offence involved in this case as if it is a minor property offence. 19. A case more or less. similar in nature and of similar dimensions came to be considered by the Supreme Court in State of Maharashtra v. Nainmal Punjaji Shah-4 (1969) 3 S.C.C. 904. The case related to illegal transactions in smuggled goods such as gold, textile, watches, etc. After several remand extensions the Magistrate concerned directed release on bail of the persons involved and imposed stringent conditions also. The High Court, while confirming the order passed by the Magistrate directed that the order shall operate after the expiry of two months from the date of the High Court's order and in the meantime directed the prosecution to approach the Magistrate concerned for remand from time to time as required by law. The High Court also made it clear that even after the expiry of two months, it would be open to the Magistrate to consider if the exigencies of investigation or any other important circumstance justifies the grant of further remand. The State was not satisfied with these directions and sought outright rejection of the reque ..... X X X X Extracts X X X X X X X X Extracts X X X X
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