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TMI Blog1986 (8) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... rson before the Court of the Chief Judicial Magistrate, Patna. By his order (Annexure 2) the learned Chief Judicial Magistrate noticed that the petitioners had been produced in connection with the case under Section 135 of the Act and Section 8 of the Gold (Control) Act read with Section 13 of the Foreign Exchange Regulation Act and directed their remand to the Central Jail, Patna, till the 6th of December, 1985 awaiting prosecution report. The remand of the two petitioners was thereafter extended and on the 9th of December, 1985 an application for bail on their behalf was moved. On 23rd of December, 1985 the learned Chief Judicial Magistrate recorded a detailed order rejecting the said application. The case of the petitioners was later transferred to the Court of Mr. N.K.N. Sinha, Presiding Officer of the Special Court (Economic Offences) at Muzaffarpur for disposal. Before him another bail application was preferred which also met the same fate of rejection (vide order dated the 7th of February, 1986). The matter was thereafter carried before the Sessions Judge, Muzaffarpur who, on the 3rd of March, 1986, declined the prayer for bail as well. 3. In this criminal miscellaneous pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously, convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions, of a non-bailable and cognizable offence: Provided that .......... Provided further that .......... Provided also that .......... (2) .......... (3) .......... (4) An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall record in writing his or its reasons or special reasons for so doing. (5) Any Court which has released a person on bail under subsection (1) or sub-section (2) may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. (6) .......... (7) .......... ". 5. To clear the decks for the true appraisal of the issue, one may first notice and dispose of certain aspects on which there is no controversy and, indeed, with regard to which learned counsel for both the parties were themsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s v. State of Orissa AIR 1975 S.C 1465 that the Court will have no inherent power of remand of an accused to any custody unless the power is conferred by law, learned counsel submitted that herein both the Act and the Code were silent on the particular situation of the production of the petitioners by the Customs Officer before a Magistrate. It was the stand that under the present Code under Section 309(2) (unlike the corresponding provisions of the earlier Section 344 of the old Code) the power to remand an accused by warrant to custody is conferred only after taking cognizance. Since in the present case as yet no complaint had been and, indeed, even now has been filed, no cognizance has been or could possibly be taken and, therefore, it was submitted that the Magistrate was denuded of any power to remand the petitioners to custody even after rejecting the application for bail. As a matter of fact, learned counsel had to go to the logical extreme of contending that even though the Magistrate under Section 437 may expressly reject the prayer for bail on behalf or the accused persons, yet he must set the persons accused at liberty forthwith thereafter because of the want of any prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve of revenue of the State, Section 104 confers a wide ranging power on an Officer of Customs to arrest any person whom he has reason to believe to have been guilty of an offence punishable under Section 135. Once that is done, sub-section (2) mandates that every such person shall, without unnecessary delay, be produced before a Magistrate. Apart from the Act, this is even otherwise imperatively provided by the Code and Article 22(2) of the Constitution itself. The core of the issue, therefore, is whether the Magistrate before whom such a person is produced has power to refuse bail to the suspected offender and in that event remand him to custody? Or, whether it is a pointless and purposeless exercise wherein a Magistrate has no choice but to forthwith set such person at liberty even after holding that there is no adequate reason to grant bail and rejecting the application. 10. The Customs Act does not itself prescribe any procedure whatsoever for the grant or refusal of bail to persons accused of offences under Section 135 thereof or for their subsequent custody or trial thereafter. Undoubtedly in that situation sub-section (2) of Section 4- of the Code would be attracted and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s employed that such a power can be read into the provision. 13. The aforesaid contention, despite the ingenuity with which it is sought to be advanced, has only to be noticed and rejected. Plainly enough the words "custody" and "liberty" are stark antonyms. A Magistrate cannot possibly first reject the prayer for bail of the person produced and also at the same time forthwith set him at liberty without restraint. That, in my humble opinion, would be a logical absurdity. It needs no great erudition to hold that the refusal to grant bail is the imposition or continuance of custody. If there is an express power to refuse bail, there is necessarily a power to retain or place a person in custody as a consequence of that refusal. To hold that a Magistrate has the discretion to decline bail but has no power to remand to custody would thus be a contradiction in terms. 14. It deserves highlighting that Section 437 visualises the situation where the suspected person has been arrested and is brought before the Magistrate in custody. The language of sub-section (1) of Section 437 is, therefore, necessarily modulated to that situation. Consequently in the opening part of sub-section (1) it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se on bail, as of necessity, includes the power to deny bail, then by necessary implication it confers on the Magistrate a power to remand him to judicial custody. This position is made abundantly clear by sub-section (5) of Section 437. This confers on the Court a power to direct that any person earlier released on bail by it under sub-section (1) or sub-section (2) be arrested and committed forthwith to custody if it considers it necessary to do so. This power would be equally in respect of a person suspected of an offence under the Act who has been arrested by the Officer of Customs (and) produced before the Court. Thus, sub-section (5) of Section 437 in terms contemplates that the Court has power to commit such a person to custody. The mere fact that such language in terms has not been employed in sub-section (1) of Section 437 appears to be of little significance. It is a settled canon of construction that all the sub-sections of a section are to be construed harmoniously and not in isolation from each other. Sub-section (1) therefore is not to be narrowly construed as hermetically sealed in itself but along with other sub-sections including sub-section (5), all of which have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n these terms :- "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 entertaining 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." Yet again with regard to the broad approach to the issue, he opened his judgment with the following colourful observation :- "Purposeless and pointless' is a phrase the existentialist philosophers may unhesitatingly employ in connection with their views on 'life'. But a Court of Law would be extremely reluctant to employ such a phrase in the context of a provision of law enacted by the Parliament in its wisdom. Considerations regarding respect for the law-makers apart, the Court itself would be understandably anxious to interpret a provision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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