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TMI Blog1989 (4) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... son, Madras before this Court in order to decide the issue of the legality of the arrest of the petitioner by the respondent in F.No. VIII/48/65/88-DRI and R.R. No. 174/88 on the file of the Court of the Additional Chief Metropolitan Magistrate (E.O.I.) Egmore, Madras pending the said Crl. M.P. No. 254/89 on the file of this Court. [Order]. - These petitions coming on for hearing on Monday, 30th day of January, 1989, Wednesday, the 1st Monday, the 6th Thursday, the 9th Wednesday, the 15th March the 20th day of February, 1989, Thursday, the 16th day of March, 1989 and on this day, upon perusing the petitions and the affidavit filed in support of Crl. M.P. No. 11117/88 and common counter affidavit filed with Crl. M.P. Nos. 254 and 407 of 1989 and upon hearing the arguments of Mr. P. Rajamanickam, Central Government Public Prosecutor on behalf of the petitioner in Crl. M.P. No. 11117/88 and for the respondent in Crl. M.P. Nos. 254 and 407 of 1989 and of Mr. M.R.M. Abdul Kareem for Mr. M. Abdul Nazeer, Advocate for the respondent in Crl. M.P. No. 11117/88 and for the petitioner in Crl. M.P. Nos. 254 and 407 of 1989, the Court made the following Order :- Crl. M.P. No. 11117 of 1988 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose of the same to one Sharma of Delhi. It is also the case of the respondent that two cars bearing Registration Nos. DAQ 1894 and TMG 4652 were to be used for this nefarious purpose. One batch of the Revenue Intelligence Directorate was keeping track of the three Kerala Muslims, while another batch was keeping surveillance on the roads leading into the city and its exits, on information that the three Kerala Muslims were staying in Hotel New Woodlands, Madras. They found one of them, later ascertained to be M.V. Khader, proceeding towards Valluvar Kottam, where the petitioner met the said Khader and another person. The car bearing Registration No. DAQ 1894 was also found. The three persons were seen talking together, which was unobtrusively watched by the respondent officials. Some time later, the petitioner Abu Bucker left the place in his car and soon thereafter, the car DAQ 1894 also left the scene. This car was followed by the Intelligence Unit Officials and its destination was No. 10 Vandikkaran Street, Maduvankarai, Guindy, Madras. The Officials rushed to the said house but to their dismay found some persons running out of the house and escaping into darkness. However, the h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contend that even at the pre-trial stage, the illegality of the arrest and remand can be questioned and in this process, he commented about the non-furnishing of the remand report in writing which would indisputably indicate that the basic facts and the grounds of arrest had not been made known to the petitioner at the earlier stages. He would also comment about the right of the petitioner to the services of a lawyer even at that stage. It was also submitted that the statement said to have been made by the petitioner was barred under Section 138B of the Customs Act. The last ground of attack was that the Magistrate had no power to remand a person produced before him in accordance with Sec. 104 of the Customs Act. 10. Mr. P. Rajamanickam, learned counsel for the respondent/Department, countered all these submissions and both the counsel have placed before me several decisions of the Supreme Court and the other High Courts, drawing support for their respective contentions. These petitions were heard on several dates and elaborate arguments were advanced by either side. However, ultimately, Mr. Abdul Karim did not press any of his arguments except the one relating to the power of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a person accused of an offence punishable under the Act on the ground that the Court will have no inherent power of remand of an accused to any custody, unless the power had been conferred by law. The Delhi High Court placed reliance on Natabar Parida and Others v. State of Orissa (AIR 1975 S.C. 1465) wherein the Supreme Court had made the following observation : "It may be emphasised here that the Court will have no inherent power of remand of an accused to any custody, unless the power is conferred by law." Mr. Adbul Karim also referred to N.H. Dave v. Mohamed Akhtar [1984 (15) E.L.T. 353] wherein a Division Bench of the Gujarat High Court had taken the view that the provision of produce an arrested person before the Magistrate under Section 104 of the Customs Act would be meaningless and futile, if the Magistrate did not have power of remand and directing release of such person on bail. 14. Mr. Rajamanickam brought to my notice that the decision of the Division Bench in Dalam Chand Baid's case had been overruled by a Full Bench of the same Court in Union of India v. O.P. Gupta and Others (Crl.Writ Nos.116 and 104 of 1984 dated 19-7-1985). He has also brought to my notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- "POWER TO ARREST - (1) If an officer of customs empowered in this behalf by general or special order of the Collector of Customs has reason to believe that any person in India or within the Indian customs waters has been guilty of an offence punishable under Section 135, he may arrest such person and shall, as soon as may be inform him of the grounds for such arrest. (2) Every person arrested under sub-section (1) shall, without unnecessary delay, be taken to a Magistrate. (3) Where an officer of customs has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the 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 of Criminal Procedure, 1898 (5 of 1898). (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence under this Act shall not be cognizable." It is seen that an empowered Officer of Customs, if he has reason to believe that any person was guilty of an offence punishable under Section 135 of the Act, he may arrest such person and shall inform him the grounds of arrest, as soon as ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, - (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and on the expiry of the said period of ninety days, or sixty days, as the case may be the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; ……..… ……..…. ……….… ……… 20. So far as the Code of Criminal Procedure is concerned, the person arrested and detained in custody ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to be construed that the power of remand will not be available under Section 167(2) Cr.P.C. for a person arrested and produced by a Customs Officer before a Magistrate, then there is bound to be a vacuum. In that case, the Magistrate will have to necessarily release the person arrested in a Customs case, on his production, which cannot be the intendment of the legislature, when we take into consideration that the offence is non-bailable and the offence under the Act can effect the economy of the nation. Naturally, therefore, the powers of the Magistrate under Section 437 Cr.P.C. will include the non-release of such a person on bail which necessarily leads to the corollary of remanding the person to such custody as the Magistrate may judicially deem fit. It is in this context, that the applicability of the provision of Sec. 167 (2) Cr.P.C. may have to be considered. 21. Before embarking on such consideration, it is relevant to quote at this stage the observations of the Supreme Court in ANTULAY's case, while dealing with Section 4 Cr.P.C. "In the absence of specific provision made in the statute indicating that officer will have to be investigated, inquired into, tried and ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Code can pose no difficulty, except the consideration of the words "accused person" used in that sub-section. 22. It should be noticed that Section 167(2) Cr.P.C. does not mention of the officer-in-charge of the police station or the police officer. The power of the Court under Section 167(2) Cr.P.C. is not dependent on a person being produced by a police officer. 23. The Supreme Court, while considering the position and character of a person arrested under the Sea Customs Act or Customs Act vis-a-vis Article 20 (3) of the Constitution and the questions whether a Customs Officer was a police officer for the purpose of Section 25 of the Indian Evidence Act and whether any person making a statement to a Customs Officer under Sections 107 and 108 of the Customs Officer under Sections 107 and 108 of Customs Act can be said to be a person "accused of any offence" within the meaning of the said article, held that a person so arrested was not an accused within the meaning of Article 20(3) of the Constitution and the Customs Officer acting under the Customs Act was not a police officer for the purpose of Sec. 25 of the Indian Evidence Act, vide Illias v. The Collector of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secution of offences relating to railway property in the Railway Protection Force in the same manner as in Excise and Customs (Underlining mine). Therefore, it is patent that the observations may have to be read in the context of the facts and it cannot be stated that the Customs Officers have no power whatsoever to investigate into the offences under the Customs Act when they are the only persons competent to file the complaint before the Magistrates. 24. In this background, if we construe the words "an accused person" in Section 167(2) of the Code, it will be clear that the words would take in, the person who is arrested or detained in custody by the Customs Officer who had reason to believe that such person was guilty of an offence punishable under Section 135 of the Act. It is at this stage, the provision under Section 4(2) of the Code steps in and the expression "an accused person" would then surely refer to a person arrested and detained under the Customs Act. It appears to my mind that the word 'accused' in Section 167(2) of the Code must be taken in the background of a person suspected of having committed an offence and not in the sense of an accused person under the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... background of Section 4 (2) of the Code. 27. As stated earlier, if the Customs Officer has the power to release a person on bail, it implies that he has the power to refuse bail as well, which requires the Customs Officer to produce the detained person before the Magistrate and then could it be said, if the Magistrate decides to refuse bail, the person will have to be left in the lurch? The power of bail, refusal of bail and remand are automatically attracted in view of the provisions of Section 4(2) of the Code, the parent Act, which steps in the area not provided for under the Customs Act. A look at the provisions under Section 437 Crl. P.C. clearly visualises the possibility of not only a person accused of an offence, but also a person suspected of the commission of any non-bailable offence being brought before the Court and the powers of the Court to release such person on bail. It cannot also be overlooked that Section 437 Criminal Procedure Code takes in its sweep release on bail of a person accused of or suspected of the commission of any non-cognizable offence who is arrested or detained without a warrant and is brought before the Court other than the High Court or Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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