Deepak Jain Petitioner v. The Director Of Enforcement & Anr. S

Charanjit Talwar, J. (F.B):— The petitioner herein, Deepak Mahajan, was arrested by Officers of the Enforcement Directorate for an offence punishable under the Foreign Exchange Regulation Act, 1973 on 13th March, 1989. As per the mandate of sub-section (2) of Section 35 of the Foreign Exchange Regulation Act (hereinafter called the FERA), he was produced before the Chief Metropolitan Magistrate, New Delhi, the next day. An application under Section 167(2) of Code of Criminal Procedure (for short the Code) was moved by the Enforcement Officer seeking petitioner's remand to judicial custody for 14 days mainly on the ground that it was necessary to complete the investigation. On that very day, the petitioner' application to be admitted to bail was also heard.

2. The learned Magistrate dismissed the bail application. The application on behalf of the Enforcement Officer was, however, allowed and the petitioner remanded to judicial custody for 14 days. Subsequently the remand of the petitioner was extended form time to time. The pleas of the petitioner that the order of remand was without jurisdiction has been rejected by the Magistrate on the ground that a Full Bench of this Court in Crl. Writ Petition No. 116 of 1984 (U.O.I… v. O.P Singh…), decided on 19th July, 1985 has held that the Magistrate is empowered, under Section 167(2) of the Code to remand a person produced before him in accordance with section 35(2) of fera. It is that order of the Magistrate, which is impugned herein.

3. The position was admitted by a Division Bench on 10-5-1989. In view of the decision of the Supreme Court holding that the powers of remand vested in a Magistrate become exercisable only after an accused is produced before him in terms of sub-section (1) if Section 167 of the Code in re: Chaganti Satyanarayana and others v. State of Andhra Pradesh, AIR 1986 SC 2130(1), the petition was referred to be heard by a larger bench. Before the Full Bench, the contention urged by counsel for the parties was that O.P Gupta's case (supra) requires reconsideration. The matter was referred to a Bench of five Judges.

4. The arguments which have been addressed before five of us postulate that the arrested person is no being produced by the police officer under Section 167(1) of the Code. The question is whether the Magistrate before taking cognizance of the offence has power to remand under Section 167(2) of the Code, the arrested person produced before him in accordance with Section 104(2) of the Customs Act or Section 35(2) of the FERA? The related question is whether the Magistrate has implicit or implied power to do so under sub-section (1) read with sub-section (5) of Section 437 of the Code.

5. Before adverting to the rival contentions, I may notice that the word “remand” does not occur either in Section 167(2) or in Section 437 of the Code. As far as I have been able to ascertain, this word is mentioned only in section 309 of the code. Under that provision, the Court after taking cognizance of an offence is vested with power of postponing the commencement of an inquiry or trial and also for adjourning the case from time to time. While doing so, the Magistrate is authorised by warrant to remand the accused if in custody to continue in custody (at that stage judicial custody) but not for a term exceeding 15 days at a time. This provision, in its context means “to send a person charged with a crime back into custody by a Court Order” (Webster Dictionary). The Courts have also held “remand” to connote “A re-committal to custody of a person who has been brought up in custody”.

6. It is apparent that the re-committal to custody, i.e remand is to be directed by a warrant. An explicit order with in the purview of the Section has to be passed remanding the accused to judicial which order is to be executed by a warrant. At any rate this provision is no sought to be brought into play as the complainant has not been able to file the complaint. The stage of taking cognizance by the Court has not yet reached. Under sub-section (2) of Section 167 of the Code which is regulated by sub-section (1), a Magistrate pending investigation authorises detention of an accused in police custody or judicial custody for a specified period subject to the maximum prescribed. The provisions of this Section as a whole are to be read as supplementary to the provisions of Section 57 of the Code. Under that Section a person arrested without a warrant cannot be detained by the police officer arresting him for a period longer than 24 hours except under a special order of a Magistrate given under Section 167(2). To obtain it he must forward the arrested person to the nearest judicial Magistrate and also strictly comply with the conditions enumerated in its sub-section (1). The Magistrate authorising detention in the custody of police has mandatorily to record his reasons for doing so. The period of police custody for 24 hours authorised under Section 57 having lapsed, the special order authorising detention by the police cannot be said to mean “re-committal to police custody” as earlier there was no “order of committal” by the Court. This order does not have retrospective effect. The period of limitation prescribed to proviso to sub-section (2) of Section 167 begins from passing of the order and not from the day of arrest by the police officer. The order has to be sought by a competent police officer on well founded grounds to be made good from the case diary which has also to be transmitted as per the mandate while forwarding the accused. The authority given for the first time to detain in either of the custody passed under sub-section (2) of Section 167 is commonly called a remand order. It is a misnomer but this has no bearing on this discussion.

7. My attempt is to highlight the legal position namely that the orders of ‘remand’ passed by the Magistrate either before taking cognizance of the offence or afterwards are covered by two express provisions of the Code. Both of them have to be passed under the exercise of judicial discretion of the Court; those have to be reasoned and are open to judicial scrutiny by the superior court.

8. It is conceded that the Magistrate could not have taken cognizance of the offences under the FERA as no complaint was filed. It could not be filed as investigation into the non-cognizable offences was not complete. It is further stated that no report as contemplated under section 155 of the code was lodged by the officer of the Enforcement Directorate with the police. It is thus conceded that if that step had been taken the police officer after obtaining from the Magistrate could have started investigation of non-cognizable offences and sought authority to detain the petitioner in custody within the purview of section 167 of the code. It was not done advisedly, we were told. The main reason being that the said officer and for that matter the officers of the Directorate as well as the Customs Officers generally wish to keep secret the investigation inquiry being conducted by them. But the offences being serious and non-bailable, the arrested persons during the pendency of the investigation have to be detained in custody, it is urged. As the said officers are not police officers, the only custody permissible is judicial custody. There is no express provision in the Code enabling the Magistrate to do that, it is admitted. But with the aid of Section 4(2) of the Code, the express power of ‘remand’ to judicial custody under Section 167 thereof was brought into play in the present case and consequently the petitioner was remanded under Section 167(2) of the Code.

9. The argument is that if that is held to be legally not permissible, the implied power to commit to custody in the event rejection of the bail application under Section 43 of the Code is always available to the Magistrate. In any case the Magistrate on cancellation of the bail is to commit the accused to judicial custody under sub-section (5) of Section 437. That power is implicit and that is the power which can be and ought to be exercised on production of an arrested person even no application is filed by him for grant of bail.

10. I will firstly examine whether there is any power, implied or implicit vested in the Magistrate to remand or direct committal to custody even accused or an arrested person on whose behalf an application under Section 437 seeking bail for a non-bailable offence under the Indian Penal Code is filed before him. To do that a member of situations have to be visualised in respect of a person arrested without a warrant for commission of a non-bailable offence under the Indian Penal Code. Those are:

(1) On his behalf a bail application is filed within 24 hours of his custody but he is yet to be produced.

(2) On his production as per section 57 of the code such an application is filed. The police officer concerned also files an application under Section 167(1) of the Code.

(3) On being produced, the bail application is filed but the application under Section 167 on behalf of the prosecution seeking either of the custody is not filed.

(4) On being produced, he does not file a bail application. The application seeking an order under Section 167(2) of the Code is filed but the case diary is not transmitted as no F.I.R has been recorded; only a copy of a daily diary report is placed before the Magistrate in support of it.

(5) On being produced, the accused does not file a bail application. The police officer seeks an order of remand to either of the custody and in support of the plea, produces the case diary which does not show that any steps to investigate the alleged non-bailable offence have been taken.

11. The last three situations are rare, but have to be visualised to appreciate the contentions put forth regarding the construction of section 437 of the code. The relevant portions of that Section read.

“437 (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but—

(i) such person shall not be so released if there appear reasonable grounds 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-bailabale 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-sec. (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 sub-sec. (1) or sub-sec. (2) may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

(6) … (7)…”

12. For the correct appraisal of sub-section (1) of Section 437 on which reliance has been placed, the meaning of the word ‘remand’ and the strict procedure to be complied in obtaining it, as I have noticed above have to be kept in view.

13. Now advertising to situation No. 1 wherein the application seeking bail has been filed o behalf of the arrested person prior to is production within 24 hours. If the Magistrate in his judicial discretion does not grant him bail, the suspected person continues to be in the police custody till such time his is produced as per the mandate of Section 57. When his is produced and files an application for bail, at that stage the plea of the police officer seeking the exercise at power vested in the Magistrate under Section 167(2) is also before him (Situation No. 2). After going through the case diary, if in his judicial discretion, the bail is to be allowed, he would allow the application by a speaking order. Consequently he would reject the plea of remand and pass the order in his regard complying with the provision of Section 167(2). Under this sub-section in case he is authorising detention, in police custody, he is required to give his reasons for doing so as per sub-section (3) of Section 167. In case the Magistrate is not the Chief Judicial Magistrate, he is to forward a copy of the special order with his reasons for making it to the Chief Judicial Magistrate as required under sub-section (4). The rejection of the bail application by itself would not imply that either of the custody is being ordered.

14. The jurisdiction vested under sub-section (1) of Section 437 of the Code is distinct from the jurisdiction vested in the Magistrate under Section 167(2). In the situation as portrayed in Item No. 2 above, the Magistrate is bound to go through the entries in the cases diary for purpose of exercising the power to pass order under both these provisions. It id not mandatory that he should pass two separate order but even in the composite order he is required to give reasons for dealing with both the applications. The usual practice and the correct practice of the Magistrates is to firstly read the case diary and then hear the arguments of the prosecutor and on behalf of the accused in support of their respective pleas. If in his judicial discretion, he authorises the detention of the accused in either of the custody, he passes that order and consequently dismisses the bail application. As I have noticed above, for the purpose of limitation as provided in proviso to sub-section (2) of Section 167, the period of limitation in custody starts running by virtue of the order under sub-section (2) of Section 167. This order is not an order of re-committal to police custody in case the police custody has been authorised; it does not have any retrospective operation (See Chaganti Satyanarayana and Others v. State of Andhra Pradesh, AIR 1986 SC 2130).

15. Now advertising to the rare situations as portrayed in situations Nos. (3), (4), (5) above. In the event of the police officer nor transmitting the diary of the case while forwarding the accused under sub-section (1) of Section 167 of the Code, the Magistrate is not enabled to exercise his judicial discretion to authorise detention in either of the custody. But if the accused still insists on seeking bail, the order granting bail has to be passed. The bail application cannot be rejected as there are no grounds for keeping him in custody. It is inconceivable that the magistrate even if he finds that there are no grounds to detain him, would reject the bail application.

16. I the remand is sought but the grounds are not well founded or the case diary has not been transmitted, the Magistrate suo moto is not authorised to direct police custody or judicial custody. In my view while dismissing the plea of the prosecution for remand, even if made in such a case, the Magistrate in his judicial discretion ought to hold that the bail application is pre-mature or infructuous. If no application seeking bail is filed, the question of rejecting the same does not arise. In the event of the police officer not transmitting a copy of the entries in the case diary, his grounds, if any, for believing that the accusation or information is well founded, have to be rejected by the Magistrate as being non-existent. As the custody of the accused in the last three situations cannot be authorised by him in his judicial discretion, the plea of the prosecution in law would be rejected. As I have said, ordinarily the bail application would be withdrawn but even if pressed, it would have to be accepted.

17. Learned counsel for the respondents was, however of the opinion that on production that on production of the accused in compliance with the statutory provisions of section 57of the code, even if no application is moved by the prosecution under Section 167(1) nor an application is filed by the arrested person for bail under Section 437, the Magistrate has the implied power to authorise his custody under sub-section (1) of that section. This proposition to my mind is startling but according to learned counsel, the production of that accused is neither meaningless nor purposeless. He has cited three cases in support of this contention. Those cases are:

(1) Nagendra Prasad and another v. State, 1987 Crl. L.J at page 215.

(2) N.H Dave, Inspector of Customs v. Mohd. Akhtar Hussain Ibrahim Abdul Kader, 1984 (15) Excise Law Times at page 353 (Gujarat).

(3) Superintendent of Customs, CIU, Cochin v. Ummer-kutty 1983 Cr.L.J at page 1860.

18. I may at this stage note that the Supreme Court in Matabar Parida v. State of Orissa, 1975 (2) SCC 220, (2) while discussing the powers of remand in the Code, has held:

“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. In the order under appeal, the High Court without reference to section 344 of the old code, seems to have assumed that such a power existed. That is not correct.”

19. Following that decision, a Division Bench of this Court in Dalam Chand Baid v. Union of India, reported in 1982 Cr. L.J at page 747(3) held that:

“We also do not accept the contention that section 437 of the code permits the court to put the petitioner in jail if bail is refused or not furnished. Such a view would be contrary to the observations of the Supreme Court reproduced above.”

The Full Bench of this Court in O.P Gupta's case (supra) also negatived the proposition that section 437 of the code impliedly confers the power of remand on a Magistrate.

20. I have gone through the judgments cited by Mr. Watel a number of times. It is apparent that Matabar Parida's case (supra) was not brought to the notice of the Gujarat as well as the Kerala High Court. The Patna High Court in Nagendra Prasad's case (supra) has noticed if but in my view not correctly appreciated it in paragraph 14 of Nagendra Prasad's case (supra), the learned Judges held:

“14. It deserves highlighting that S. 437 visualises the situation where the suspected person has been arrested and is brought before the Magistrate in custody. The language of sub-sec. (1) of S. 437 is, therefore, necessarily modulated to that situation. Consequently, in the opening part of sub-section (1) it provides that such a person may be released on bail and in clauses (i) and (ii) it lays down the conditions where such person shall not be so released. It is thus obvious that the person produced being already in custody, the language would not direct a double custody by re-employing the said word. All that is required in such a situation is the continuance of such an arrest and custody thereafter or a release thereform. That is why sub-sec. (1) of S. 437 repeatedly employees the word ‘release’ in contradiction to custody in which the person already is. What however, is further significant is that clauses (i) and (ii) of sub-section (1) provide in specific terms in which such a person produced in custody shall not be so released. What is the true connotation of the phrase “shall not be so released” in such a context? To my mind, it is nothing more than an express mandate that in the event of refusal of bail such a person shall be kept or continued in custody. The mandate of the law that he shall not be so released is only a negative form of couching the command that he shall be kept in custody. That being so, it is virtually explicit and in any case it is necessarily implicit in the statute that there inheres a power to remand to custody. Reading it otherwise, to my mind, would be doing plain violence to the language of the statute and equally to the purposes and the objects behind the same. It bears repetition that in the context of sub-sec. (1) the positive command or mandate to keep in custody has necessarily been couched and modulated in the reverse by the direction that he shall not be so released.

21. The situation visualised above (in Nagendra Prasad's case) in my view only deals with situation No. 1 as culled out by me. The reasoning would not apply to any other situation.

22. The Patna High Court (in Nagendra Prasad's case) agreed with the view expressed by the Gujarat High Court in N.H Dave's case (supra). It was observed therein that whether or not a person arrested by an officer under Section 104 of the Customs Act can be characterised as an accused, he would certainly fall within the ambit of the expression “suspected of the commission of any non-bailable offence” and the procedure as to bails and bonds in Chapter XXXIII would be attracted in such a case of arrested person. It was further held in paragraph 7 of the reported judgment that:

“Thus there is no doubt or dispute in regard to the proposition that Sections 436 and 437 of the Code of Criminal Procedure would be attracted by virtue of the provisions contained in sub-section (2) of Section 4 of Code.”

23. As far the applicability of Section 437 by virtue of Section 4(2) of the Code, there can be no dispute that it is applicable when the arrested, person in custody of the Customs Officers. On production before the Magistrate, bail can be sought by him only under this provision. I may add that Mr. Bhagat's contention that such an arrested person by the customs under Section 104 is not entitled to grant of bail under Section 437 is wrong. His argument that such a person can only file a writ of habeas corpus under Article 226 of the Constitution, is misconceived. It is evident that as the Customs Act makes no provisions in regard to bail bonds in the event of the Customs Officer granting bail under Section 104(3) of the arrested person is to be mandatorily produced under sub-section (2) of Section 104, the provisions of bails and bonds as contained in Chapter XXXIII of the Code would be attracted. With great respect, however, I differ with the conclusion of the Gujarat High Court which is to the following effect:

“8. We will now proceed to examine what the powers of the Court before which such a person is brought are. An offence Section 437 is an offence which is triable by a Court other than the High Court or the Court of session. In the present case the Court being the Court presided over by a Chief Metropolitan Magistrate he can be released on bail by virtue of the power conferred on him by sub-section (1) of Section 437. Sub-section (3) of Section 437 provides that when a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years under any Ac (Even an Act other than the Indian Penal Code) or of an offence under certain chapters of the Indian Penal Code, the court may impose the conditions envisioned by clauses (a), (b) or (c) of sub-section (3) of Section 437. It would also be incumbent on the court to record in writing the reasons for so doing as directed by sub-section (4) of Section 437. What is of equal importance is the provision contained in sub-section (5) which confers on the court a power to direct that the person released on bail pursuant to its order be arrested and committed to custody if the court considers necessary to do so. Thus in respect of a person suspected of the commission of an offence under the Customs Act who has been arrested by the officer of Customs and produced before the Court, he can also be committed to custody if the court consider it necessary to do so even after he has been released by the Court under sub-section (1) or sub-section (2). Thus, Section 437 in terms contemplates that the Court has the power to commit him to custody. Now it must by realised that since Section 437 empowers the Magistrate concerned to release him on bail and also obliges him to record reasons in writing whenever clause (4) is attracted, and to impose conditions envisaged in clause (3), it follows of logical necessity that the Court has the power to remand the person suspected of a commission of an offence under section135 of the customs act who has been arrested and produced before the Court, to judicial custody in a case where he does not consider it proper to release him on bail or where the person refused to be released on bail. If the power to release on bail of necessity includes the power to refuse to release him on bail, by necessary implication, confers on the Magistrate power to remand him to judicial custody. This position is 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 sub-section (1) or sub-section (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 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 produced him before the Magistrate is to be considered to be meaningless, purposeless and a futile exercise undertaken for no purpose and unless we shut over our eyes to Section 4(2) and Section 437, no other view is possible.”

24. The principle enunciated above by the Gujarat High Court is mainly based on the construction of sub-section (5) of Section 437, Because a Court (other than the High Court and the Court of Sessions) who granted bail is empowered to order arrest and commit the accused to custody under that provision, therefore, it has also the power to do that under sub-section (1) thereof.

25. In my view the reason given are manifestly wrong. A plain reading of that provision shows that the power of the Court to cancel the bail granted by it under sub-section (5) of Section 437 of the Code and, thereafter to direct the arrest of that person who was granted bail and his committal to custody comes into operation only at a stage subsequent to grant of bail. A similar power is available to the high Court and the Court of Sessions in sub-section (2) of Section 439, which reads as under:

“A High Court or Court of Session may direct that any person who has been released on bail under the Chapter be arrested and commit him to custody.”

26. If the reasoning of the Gujarat High Court is correct, then under the above provision, i.e, sub-section (2) of Section 439, the High Court or the Court of Sessions can be asked even before it has granted bail or prior to the hearing of the application to cancel bail, to commit that person to custody. By way of an illustration, a situation may be visualised. The SHO grants bail in a case of non-bailable offence to a person who has been arrested without a warrant pursuant to the lodging of a First Information Report. He has the jurisdiction to do so under sub-section (2) of Section 437 of the Code. During pendency of the investigation, i.e, prior to the filing of the report under Section 173, the bail of that person is sought to be can celled for sufficient reasons either on the application of the prosecution or on the application of the complainant. The order of cancellation of bail can only be passed by the High Court or the Court of Sessions under Section 439(2). Can it be said that even before the application is decided, that Court has the jurisdiction to direct his arrest and commit him to custody on the ground that in the event of acceptance of the application, the Court is bound to do so. I am assuming that at the time of hearing of the application, the accused who is on bail is present in Court. After hearing the arguments and in the even the High Court or Court of Sessions deciding to cancel the bail granted by the S.H.O, it would be direct the arrest of the accused. The police officer in case he is also in attendance, would take him into custody and take further steps in accordance with law, i.e, produce him before the magistrate under Section 167(1) to seek directions for his further custody. The Magistrate would then pass the appropriate orders under Section 167(2) and the limitation would start running from that day. The position in law after the bail is cancelled is no different under sub-section (5) of Section 437.

27. However, in Ummerkutty's case (supra), a learned Single Judge of the Kerala High Court, after noticing the provisions of Section 437 and Section 4(2) of the Code, held in paragraph 14 of the reported judgment as follows:

“By virtue of sub-section (5) of Section 437 in regard to a person arrested under the Customs Act and released on bail by the magistrate, the Magistrate has the 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-section (1) and (5) of Section 43 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.”

28. I am unable to persuade myself to agree with this judgment for the reason already stated above. I again emphasise that the mere fact that the arrested person was produced while in custody cannot be permitted to create a fiction that that custody even without being validated further, is the lawful custody to which he can be re-committed on rejection of bail application filed by him.

29. The object of producing the arrested person before a Magistrate is neither purposeless nor pointless. The object is to see that a person arrested by the police is brought before a magistrate with the lest possible delay in order to enable the latter to judge if such person has to be further kept in police custody or judicial custody as per the procedure established and also to permit such a person to make any representation he may wish to make in the matter. In any humble opinion, the Gujarat and the Patna High Courts did not keep in view the mandate of Article 21 and 22 of the Constitution while posing the question “whether such a production is purposeless or meaningless”.

30. In my dissenting judgment in O.P Gupta's case (supra) I endeavoured to highlight the constitutional object of production of an arrested person. I will advert to the mandate of the Constitution in this regard while discussing the second topic.

31. Mr. Watel, learned counsel for the respondents next contends that on production of the arrested person by a customs officer or by an officer of the Enforcement Directorate before a Magistrate as per the mandate of Section 104 of the Customs Act or Section 35 of the FERA respectively, the Magistrate has the jurisdiction under Section 167(2) of the Code to direct the detention of that suspect in the judicial custody. His case is that even if sub-section (1) of that section cannot be applied mutatis mutandis to such a case yet by virtue of sub-section (2) thereof, the Magistrate has the jurisdiction to pass a remand order against the suspected person who according to the counsel is not yet an accused in the formal sense.

32. Mr. Watel says that the suspected person under the special Act is not a formal accused when produced under the command of Section 104(2) of the Customs Act or Section 35(2) of FERA; he is an accused in the generic sense only. Yet sub-sec. (2) of Section 167 can be brought into pay to remand such an arrested person. By generic sense, what he means is that he is an accused in the general sense against whom there is no formal complaint accusation of commission of a specific offence but only a suspicion of having committed an offence.

33. Mr. Watel relies on the full bench judgment of this Court in O.P Gupta's case (supra) (Yogeshwar Dayal and Malik Sharief-Ud-Din, JJ. Charanjit Talwar, J-dissenting). This judgment completely supports his contention. The question of law for the consideration of the full bench was:

“Whether the magistrate has no power to remand a person produced before him in accordance with Section 104 of the Customs Act and whether the decision reported in Dalam Chand Baid v. Union of India, 1982 Cr. LJ at page 747 decided by a Division Bench of this Court requires re-consideration.”

34. The full bench (per majority) overruled Dalam Chand's case and held that the Magistrate has power to remand under Section 167(2) of the Code a person produced before him in accordance with Section 104 of the Customs Act.

35. It is to be emphasised here that over 20 years ago, Hardy, J (as his Lordship then was), in Crl. Writ Petition No. 3/69 in re: Brian Bennet v. The Collector of Customs and others, decided on 27-2-1967(4) dealt with the first part of the above question. His emphatic answer was that the Magistrate has no such power. A special leave petition against that judgment was filed before the Supreme Court and though a show cause notice had been issued, yet the petition was withdrawn. That Judgment thus held the field in Delhi for over a decade.

36. Thereafter a division bench of this Court in Dalam Chand's case (supra) approved that decision. In O.P Gupta's case however, the contentions of Mr. Watel who appeared before that bench also, were accepted. The full bench noticed the relevant provisions of the special Act and provisions of Section 167 and 4(2) of the Code. After matching those provisions of the customs act and the FERA with that of the code, it was held that the Magistrate has the power under sub-section (2) of Section 167 to remand a suspected person arrested and produced by those officers before him. The reasons for holding so were:

(1) sub-section (1) of Section 167 of the Code substituted by the provision of Section 104(2) of the Customs Act and/or section 35(2) of fera.

(2) The Customs Officer is vested with the specific power of arrest under Section 104(1) of the Customs Act; for holding his inquiry, he is thus enabled to exercise power of the investigation as contemplated in Chapter XII of the Code by virtue of Section 4(2) of the Code.

(3) By the application of Section 4(2) of the Code which comes into play when the arrested person is produced by the Customs Officer, under sub-section (2) of Section 167, the power vested in the Magistrate to authorise detention in judicial custody, can be exercised by him.

(4) Although the person arrested and produced by the officer concerned under the Customs Act FERA at that stage is not an accused of any offence within the meaning of Article 20(3) of the Constitution, yet under Section 167(2) of the Code, the Magistrate has the power to authorise his detention.

37. The reliance in a nut shell was on Section 4(2) of the Code for the above conclusions. That sub-section reads:

“(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, inquiring into, trying or otherwise dealing with such offences.”

I regretted my inability to agree with my brothers, I said that a Magistrate has no power to remand a custody a person taken before him in accordance with Section 104(2) of the Customs Act or Section 35(2) of the FERA. I disagreed that by virtue of Section 4(2) of the Code, either Section 167 of the Code or provision of sub-section (2) thereof become applicable in such an event.

38. We have heard the parties by great length. After going through the case law noticed in the said case of O.P Gupta and cited by Mr. Watel all over again, I have not been able to change my mind. I am reiterating my earlier view.

39. I may notice that O.P Gupta's case (supra) although made reportable, has not been reported in any law journal. Thus, it has not been noticed in Nagendra Prasad's case by the Patna High Court. However, the view of that Cour tis exactly the same as my view so far as the applicability of Section 167of the Code to a case like the present is concerned. Paragraph 6 of that judgment reads:

“6. Again it was not now in dispute at all that a Customs Officer, though he has the power of arrest and other analogous powers, is yet not a Police Officer stricto stensu. Earlier this question was not entirely free from doubt but all controversy on this aspect have been set at rest by the Constitution Bench judgment in Ramesh Chandra v. The State of West Bengal, AIR 1970 SC 940: (1970 Cr. LJ 863) (see paras 24 and 25 of the report) which, in turn, has been unhesitatingly followed thereafter in Illias v. Collector Of Customs, Madras., Madras, AIR 1970 SC 1065: (1970 Cr LJ 998). Now, once it is held that a Customs Officer is not a Police Officer it would necessarily follow that S. 167 of the Code which clearly and imperatively refers to an investigation by the Officer-in-charge of a police station or other Police Officers would not be attracted. All argument on this score is thus obviated, and both Mr. Brij Kishore Prasad, learned counsel for the petitioners, and Mr. Pandey for the State were unanimous that the provisions of the said section cannot be invoked herein.”

40. Mr Watel says that counsel for the Customs Department was ill-advised to concede to the above legal proposition before the Patna High Court. He maintains that the Customs Act and the FERA being silent on the procedure to be followed after the production of the arrested person before a Magistrate further procedure is to be regulated by the Code with the aid of sub-section (2) of Section 4 thereof. He submits that where a complete procedure is provided in any enactment for the investigation, inquiry and trial of an offence, it is that procedure which must be followed. Although, where an enactment provides special procedure only for some matters, it provisions must apply in regard to those matters, yet the provisions of the Code are to apply in view of sub-section (2) of Section 4as regards the matters on which that enactment is silent. Thus, the contention is that on production of the arrested person as contemplated under the said two Acts, the provisions relating to remand as contained in section 167 of the code are straightway attracted. The learned counsel submits that Nagendra Prasad's case (supra) does not lay the correct law.

41. I pointed out in my earlier judgment in (in O.P Gupta's case) that this very submission had been raised and rejected in a number of cases by various High Courts. According to me, the submissions put forth in that case as well as before us regarding the applicability of Section 4(2) of the Code are misconceived. The ratio of the decisions to which reference was made by me had gone unnoticed in the judgment of my learned brothers. Mr. Bhagat is relying on those judgments. Those are:

42. In re: Criminal Misc. No. 1678 of 1969 decided by a division bench of the Allahabad High Court on 12th August 1969, which decision has been approved in Dalam Chand's case, the very contention on behalf of Customs Department has been noticed by the Allahabad High Court and dealt with as follows:

“Shri Kacker further contended that the power of asking for remand to custody would also be available by virtue of sub-section (2) of Section 5 of the Code (sub-section (2) of Section 4 of the present code)”

(After analysing the said provision it was held that)

“This again raises the crucial question viz., whether the powers of arrest and production before the Magistrate provided for in the Customs Act are police powers of investigation of offences. An affirmative answer to that question would alone press into service sub-section (2) of Section 5 of the Code of Criminal Procedure. In our opinion, however, the answer to that question must clearly be in the negative on the basis of the touchstone which has been formulated by the Supreme Court, namely, “the main purpose of the giving of powers”, in the cases of Barkat Ram and Badaku Joti. It would not be proper to isolate the powers of the customs officers in regard to arrest and production before the Magistrate and compare them with the police power of investigation. The totality of the powers of the customs officers, has to be considered in the background of the object and purpose of vesting them with such powers in judging whether such powers are police, powers of investigation into offences as contemplated by sub-section (2) of Section 5 of the Code of Criminal Procedure; when so considered, the inevitable conclusion is that the arrest and production before the Magistrate by the Customs Officers are not steps in investigation envisaged by sub-section (2) of section 5. We respectfully agree with the approach of a Full Bench of the Madras High Court to this question in Collector of Customs v. Kotumal.”

43. In Collector of Customs Madras v. Kotumal Bhirumal Pihlajani and others. AIR 1967 Madras 263(5) the argument that by virtue of sub-section (2) of Section 5 of the Code, a customs officer was vested with the powers of a police officer as per Chapter XIV of the Code (Chapter XII of the present pondents in the case). In paragraph 16 of the order of reference Ramakrishnan, J. has noticed the rival contentions as follows:

“According to the learned counsel for the respondents S. 5(2) Crl.P.C states, 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 such offences, but in the Customs Act, 1962 we have a special law which amounts to a self-contained Code for the purpose of holding an enquiry under that Act and further Chapter XIV Cr.P.C where S. 162 is found, in terms refer to the procedure for investigation by an officer-in-charge of a Police Station in respect of cognizable offences. As against this, it is pointed out by the learned counsel for the petitioner, that Section 104(2) of the Customs Act 192 makes all offence under the new Act non-cognizable, thereby excluding the jurisdiction of police officers to investigate such offences and also would exclude the application of S. 162 Crl.P.C In view of my referring the other two points for decision to the Bench and since this point is closely allied to the first objection mentioned above, this objection also will be placed for decision by the Bench.”

44. The points which were referred for decision were:

“Are statements recorded by enquiring officers of the Customs department under Section 107(108) of the Customs Act, 1962 inadmissible in evidence in a criminal trial by reason of the bar under (1) Section 25 of the Indian Evidence Act. (2) Section 162 Cr.P.C and (3) Art. 20(3) of the Constitution.”

45. The Full Bench compared the provision of the Sea Customs Act, 1878 with that of the Customs Act and after analysing the case law on the subject, held:

“In view of the foregoing, we are of opinion that the statements in the present case do not become inadmissible by reason of Section 25 of the Evidence Act. It consequently follows that they are not hit by Section 162 Cr.P.C”

46. This decision has been approved by the Supreme Court in Ramesh Chandra Mehta. State of West Bengal, AIR 1970 Supreme Court 940(6). The principle enunciated by the full bench that “the bar under Article 20(3) of the Constitution will not be available to the statements in the case, since it is not in dispute that they have been recorded only during an investigation undertaken by the Customs Officer under Section 107 and 108 of the Customs Act of 1962 and at a time when the deponents did not stand in the position of accused in the light of the principles stated in the decision cited above”, has been upheld.

47. The appeal preferred from the Madras High Court judgment by one of the respondents is reported in Illias v. The Collector of Customs, Madras, AIR 1970 Supreme Court 1065(7). The Bench of five judges which decide Ramesh Chandra's case, also decided that appeal. In the appeal, after noticing the questions referred to the full bench. It has been observed that the full bench answered all the three questions against the accused persons and that only one out of them, Illias, had appealed. However, the second point which had been raised before the Madras High Court, namely, that by virute of Section 5(2) of the Code, offences under the Customs Act were to be investigated as per Chapter XIV of the Code and, therefore, the statements recorded during investigations were hit by section 162 of the code, was not pressed before their Lordships, but as noticed above, in Ramesh Chandra's case the judgment of the Full Bench has been approved.

48. A similar question, namely, that by reason of provisions of Section 5(2) of the Code, an enquiry by the Customs officer becomes an enquiry under Chapter XII of the Code, was also raised before the Bombay High Court in Pukhraj Pannalal Shah and others v. K.K Ganguly and another AIR 1968 Bombay 433(8). The main argument urged on behalf of the petitioner was that the statement recorded by the empowered customs officer during an enquiry under the Customs Act was hit by Section 25 of the Evidence Act. It was urged that under Section 104(3) of that Act, a customs officer having been given the powers to release an arrested person on bail or otherwise is automatically vested with the powers of Officer-in-charge of a police station and, therefore, enquiry conducted by him becomes an investigation under Chapter XIV of the Code, hence the statements recorded by him would not be admissible under Section 162 of the Code. A Division Bench of the Bombay High Court rejected this plea. It agreed with the view taken by Madras High Court in Collector of Customs v. Kotumal (supra) and inter alia, held:

“Section 5(2) of Criminal Procedure Code which provides that offences under other laws shall be investigated under the Code, is subject to the qualification subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring info, trying or otherwise dealing with such offences.' In our view the Act of 1962 is such an enactment which has provided its own procedure for investigating into offences committed under it and the provisions of Chapter XIV, Cr.P.C, therefore, would not apply to such investigations. Apart from this, the offence under the Act of 1962 are non-cognizable. In any event. Section 162, Cr.P.C would not apply to such cases as customs officers are not police officers.”

49. In an earlier part of this judgment it has been observed that Section 104(3) of the Customs Act of 1962 read in its context does not give any ascendancy whatsoever to the officer over a citizen merely because the power of granting bail has been given to him.

50. In view of the above decisions, can it be said that powers of investigation contained in Chapter XII of the Code are conferred on the customs officer by virtue of Section 4(2) of the Code simply because that officer has the power to arrest a person for infringement of Section 135 of the Customs Act? It is true that he is authorised to make an arrest to complete his inquiry which inquiry may be termed as investigation. But would that “investigation” be deemed to be investigation under Chapter XII of the Code. The answer has to be in the negative.

51. It is not Mr. Watel's case before us that an authorised customs officer or an officer of the Enforcement Directorate is a police officer. His case is that it is only that officer who can investigate the non-cognizable offences committed under the respective Act and further it is only that officer who can without permission of the Magistrate arrest a person under reasonable belief that he is suspected of having committed an offence under either of the Acts. And it being incumbent upon him to produce the arrested person before a Magistrate, it is axiomatic according to Mr. Watel, that on such an officer's asking, the Magistrate must be deemed to have been empowered to remand the person arrested to judicial custody during investigation (actually an inquiry under the Customs Act) being conducted by that officer.

52. It is further submitted that in this context Section 104(2) of the Customs Act is substituted in place of Section 167(1) of the Code and thus a Magistrate before whom the person arrested is produced is consequently authorised to act under the sub-section (2) of that Section.

53. Mr. Watel concedes that there is no doubt that the arrested person is not an accused within the meaning of Article 20(3) of the Constitution, yet in his character of ‘arrested person’ he is liable to be remanded under Section 167(2) of the Code, he urges.

54. In O.P Gupta's case (supra), this Court has held that the law as laid by the Supreme Court does not prohibit the Magistrate to remand such a person. Before I revert to the case referred to, i.e, Ramesh Mehta's case (supra), let me notice the accepted meaning of the words “accused” and “suspected person” and whether the word “accused” denotes some one other than “formal accused”, the term used by the learned counsel.

55. A person after his arrest by the police without a warrant under the provisions of Chapter 5 of the Code is termed as “arrested person” till his production under Section 167(1) of the Code. Before his arrest under section 157 of the code, the word used for him is “offender”. The word “accused” is used for the first time in Section 167. In this Section and Sections 169, 170 and 173, this word denotes the supposed ‘offender’ who is mandatorily produced before the Court by virtue of section 57 of the code. In Karam Ilahi v. Emperor, reported in AIR 1947 Lahore at page 92(9), a division bench of that Court brought out the differences as follows:

“It is important to note that the word used S. 157 is “offender” and that the word “accused” is used for the first time in the Chapter in S. 167. At the time S. 157 come into operation, there is only a report and a suspicion that a cognizable offence has been committed while S. 167 come into play after the police officers entrusted with the investigation has taken necessary steps to arrest the person who is alleged or suspected to have the committed the offence. This make me think that according to the provisions of the Criminal Procedure Code a person becomes an accused person immediately after he has been arrested by the police for an offence which form the subject matter of investigation by them.”

56. It is obvious that the alleged offender who is remanded to custody vide Section 167(2) of the Code has the same character as that of a supposed offender who is remanded to custody after taking cognizance of the offender under section 309 of the code. He is the accused. Mr. Watel says that even so, he is not a formal accused. For this contention Mr. Watel's reliance is on L. Choraria and others v. State of Maharashtra AIR 1968 SC 938 (10) Therein, the testimony of one of the air stewardesses by the name of Ethyl Wong in a case of criminal conspiracy to smuggle gold into India was sought to be challenged on the ground that being a self-confessed co-conspirator, her evidence had to be excluded from consideration. As she was accused, no oath or affirmation could be made by her. In support of the contention that she was an accused, it was argued that the word ‘accused’ occurring in the Code of trial and sometimes a person against whom there is an accusation but he is not yet put on trial.

57. While dealing with this contention, the Supreme Court in paragraph 10 of the reported judgment held that:

“10. There is no need to refer to the sections of the Code of Criminal Procedure because it may safely be assumed that the word ‘accused’ bears these different meanings according to the context. This does not solve the problem of interpretation of the same word in the Code for there it may have been used in one of the two senses or both…”

58. Based on the above, Mr. Watel's submission is that the word ‘accused’ appearing in the Code has different meaning and, therefore, the arrested person produced before a Magistrate by virtue of Section 104(2) of the Custom Act is an accused in the sense of the word implied in section 309 of the code.

59. I find that Mr. Watel has overlooked the dicta that the word bears different meanings according to the context. The offender on arrest is termed as suspected person and remains so till such time he comes under the cognizance (as distinct from cognizance of the offence) of a Magistrate or an officer other than the police officer. A reading of the judgment in Choraria's case (supra) shows that Ethyl Wong was not named as an accused in the complaint; she was not so name as sanction to prosecute her was not accorded by the competent authority. Therefore, even after cognizance of the offence was taken, she could not be tried as an accused. There was no question of application of sections 169 and 170 of the code because the investigation conducted was not by police officer but by customs officer under the Sea Customs Act. This is clear from the judgment. Paragraphs 5 and 6 of this reported case show that she was not even produced before a Magistrate for seeking remand prior to the filing of the complaint. Those paragraphs which clarify the position are as follow:

“5. The offence were non-cognizable and were not investigated by the police. The investigation was by customs officers under the Sea Customs Act and not by the police under Chapter XIV of the Code. Therefore, no question of the application of Ss. 169 and 170 arose. Ethyl Wong's statements were obtained under S. 171-A of the Sea Customs Act. The persons were placed for trial on the complaint of the Assistant Collector of Customs under the authority of the Chief Customs, Officer, Bombay. Although the Magistrate was taking cognizance of offences are not of offender it was no part of his duty to find offenders in view of the bar of S. 187-A if the complaint did not name a particular offender. All that the Magistrate could do was to take a bond from Ethy Wong for her appearance in court if required. At the time of Ethyl Wong's examination the appellants had raised the question that she should be tried. The Magistrate said that he would later consider the matter. Then it appears to have been forgotten. Nor did the appellants raise the question again. Apparently they only wanted that Ethyl Wong should be tried jointly with them so that her testimony might not be available against them but were not interested in her separate trial.

6. In so far as the customs authorities are concerned, it is clear that they had some reason to think that Ethyl Wong might be one of the carriers as her visiting cared was found with 26 other such cards in Yau Mockchi's possession. But it was not certain that she was one of the carriers until she was questioned or there was some other evidences against her. The complaint was filed in court on April 6, 1960 and the case was to commence on January 2, 1961. On December 27, 1960 Ethyl Wong landed at the Bombay air terminal. Two customs officers were waiting for her and questioned her. It was then that Ethyl Wong made her first statement (Ex. 1) admitting her own share in the smuggling racket set up by Yan Mockchi. On December 29, 1960, she gave a second statement (Ex. 2) and corrected certain inaccuracies in her first statement. On January 2, 1961 she was examined as the first prosecution witness.”

60. There can be no manner of doubt that the suspected person. On being produced before the Magistrate for the purchase of obtaining directions for his further custody is an accused within the contemplation of the Code. In Ramesh Mehta's case (supra), the Supreme Court has held in no uncertain terms than the person arrested by the customs officer does not stand in that character viz., that of an accused. It was held:

“Normally a person stands in the character of an accused when a First Information Report is lodged against him in respect of an offence before an officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trial of the offence. Where a customs officer arrests a person and informs that person of the grounds of his arrest (which he is bound to Article 22(1) of the Constitution) for the purpose of holding an enquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place there is no normal accusation of an offence. In the case of an offence by infringement of the Sea Customs Act and punishable at the trial before a Magistrate there is an accusation when a complaint is lodged by an officer competent in that behalf before the Magistrate”.

61. Mr. Watel, however, submits that the above observation has to be read in the context in which the problem was being dealt by that Court. The only question according to him before the Supreme Court was whether the customs officers under the Sea Customs Act is a police officer for the purpose of Section 25 of the Indian Evidence Act. It is his plea that the observations in Ramesh Mehta's case (supra) as well as in Illias's case ought not to be read to imply that such a suspected person cannot be proceeded under Section 167(2) of the Code for the purpose of remand, on production by officers empowered to arrest him though admittedly they are not vested with police powers. He has relied on the dicta of the Supreme Court in M/s. Amar Nath Om Prakash and others v. State of Punjab and others, AIR 1985 SC 218(11) wherein it has been observed that:

“The judgments of courts are not be construed as Acts of Parliament. Nor can we read a judgement on a particular aspect of a question as a Holy Book covering all aspects of every question whether such questions of facets of such question arose for consideration or not in that case.”

62. Therefore, the argument is that though cognizance of the offence and consequently of the offender has not been taken by the Magistrate under Section 309, yet in his character of an arrested suspect, on production he can be remanded by a Magistrate irrespective of the law paid in Ramesh Mehta's case. I have not been able to follow this reasoning. The purpose of arrest of the suspected person under the Customs Act has been amply clarified by the Supreme Court. Their Lordships have held that the customs officer not being a police officer, is neither empowered nor he is to investigate into commission of offences triable by a Magistrate under the provisions of the Code. That suspected person in not an accused under the Code, neither under Section 309 nor under Section 167.

63. The duty imposed on the customs officer under Section 104(2) of the Customs Act to produce the arrested person before the Magistrate is similar to the duty case on the police officer under sections 56 & 57 of the code. While producing the accused as per the mandate of the Code, the officer-in-charge of the police station, however, is authorised to make use of it as a step in aid of investigation namely to obtain a special order for keeping the accused in police custody. The customs officer, even if he is ready with the complaint, produce the arrested person within the prescribed limit under Section 104(2) of the Customs Act so that further proceedings as per S. 309 of the Code are commenced. His duty, however, is in accordance with the constitutional mandate under sub-Article (2) of Article 22 and is equivalent to the duty cast upon the police officer to produce arrested person before the Magistrate.

64. But the questions raised are:

What is the purpose of production of such a suspected person? Is such a production pointless? Can no action be taken by the Magistrate to keep him in custody?

The answers are provided in the Constitution.

Article 22 of the Constitution of India lay down that every person arrested and detained in custody shall be produced before the Magistrate within the time prescribed therein and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. Article 21 of the Constitution lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law. It is now well settled that before a person can be deprived of his personal liberty, all the requirements of the Constitution and of any law that may be applicable to the case must be strictly complied with (See A.K Gopalan v. State Of Madras., AIR 1950, SC 271.(12) However, it is evident that Article 22 of the Constitution by itself does not lay down any procedure which the Magistrate has to follow in exercising his authority to order detention of any person. But in view Article 21 of the Constitution which has to be construed and harmonised to be read with Article 22, there has to be a procedure established by law which must be adhered to before the Magistrate could exercise his authority to order detention of any person of his fundamental right of personal liberty.

65. To be fair to Mr. Watel during arguments he did not suggest that a procedure unknown to law so as to authorise further custody to the suspected person produced by the Customs officer be adopted. His contention is that Section 104(2) of the Customs Act be substituted for Section 167(1) of the Code. He says substitution of one express provision by another express provision in a case like the present is permissible. In that event the power of the Magistrate to authorise detention under Section 167(2) would automatically be regulated by Section 104(2) of the Customs Act. Alternatively he says that necessary changes in sub-section (1) of Section (1) of Section 167 of the Code with the aid of doctrine of mutatis mutandis be made. Looked at any angle, he submits the procedure adopted generally which has been approved by the full bench is the procedure established by law. He urges that his procedure was the one in contemplation of the Select Committee while recommending enactment of Section 104 of the Customs Act in its present form.

66. Learned counsel has relied heavily on that report in view of the fact that the full bench (per majority) in O.P Gupta's case (supra) has taken cognizance of the report and read it in support of its finding that Section 167(2) comes into play on production of an arrested person by the customs officer. The “Objects and Reasons” have been reproduced in that judgment. It is advantageous to quote sub-clause (3) of Section 104 as initially suggested in the Bill:

“(iii) in addition to the power to commit an arrested person to jail or order him to be kept in police custody, the Magistrate is being empowered to order the arrested person to be kept in such other custody as he deems fit.”

67. However, this clause was omitted on the recommendation of the Committee on the ground quoted in Volume 15 AIR Manual (4th Edition) that:

“The Committee feel that sub-clause (3) being merely a repetition of the provisions of the Criminal Procedure Code, 1898, should be omitted. The Committee are also of the opinion that the offences under this Act should be non-cognizable as at present although the maximum punishment in respect of certain offences is being enhanced to five years imprisonment”.

68. The view of the full bench was that the said clause was omitted palpably as the Committee was aware that the provision of remand under section 167 of the code existed and, therefore there was no need to repeat the same in the Customs Act to enable the Magistrate to authorise remand of a suspected person.

69. In my view this assumption is not correct. Let me recaptulate that in the year 1962 when the Customs Act was enacted, there were two provisions of the Code which empowered the Magistrate to pass a remand order even before taking cognizance of the offence. Those Sections were 167 and 344. Most of the High Courts with the exception of Orissa High Court had opined that a Magistrate having jurisdiction to try the case could remand the accused to judicial custody from time to time during the pendency of the investigation in exercise of the powers under Section 344. That was the reason for the Selection Committee to hold that the suggested sub-clause (3) quoted above was a repition. Anyhow the opinion of the Selection Committee in either interpreting the provisions of Section 104 of the Customs Act or for omitting sub-clause (3) of the Bill cannot be gone into as there is no ambiguity whatsoever in the enacted provisions. The resort can be had to the opinion of a Select Committee for interpreting any provision of a statute only in case there appears any ambiguity in the statute or where the language of the statute is likely to lead to two interpretations.

70. As far the language of the relevant provisions of the Code of Criminal Procedure and the Customs Act is concerned, same appears to be quite clear. There is no provision made in the Customs Act laying down the procedure which may be followed for obtaining the order of the Magistrate for detaining such an arrested person in any of the custody. The Committee only opined that the powers already existed in the Code for directing the custody of such an arrested person under the Customs Act. There is no dispute about this opinion that the Code, particularly Section 167 during investigation of a case and Section 309 during the trial empower the Magistrate to order detention of an arrested person in custody. It is evident that before the Magistrate could exercise his power to detain a person curtailing his personal liberty, the Magistrate has to see that the procedure prescribed by the statute [in this case Section 167(1) and Section 309 of the Code] is strictly complied with. It is the clear legislative intent. This interpretation of the provisions of the Code and Section 104(2) of the Customs Act does not give rise to any absurdity (as suggested by Mr Watel). Simply because a customs officer who has been held to be a revenue officer is not willing to lodge a report as per section 155 of the code, the Court is being asked to mis-match the provisions of the Code and the Customs Act and the FERA. Otherwise, we are told the plain reading of the provisions results in absurdity by producing a suspect only for the purpose of being let off by the Magistrate.

71. Mr. Watel on this aspect further contends that at any rate, if provision of sub-section (2) of Section 167 cannot be read in isolation and is held to be regulated by sub-section (1) of Section 167 and not by Section 104(2) of the Customs Act, then applying the doctrine of mutatis mutandis, sub-section (1) can be brought into play. In support of his submission that Section 167(1) of the Code can be read suitably so that reference to “officer in charge of Police Station” be read as a “customs officer”, learned counsel relied on M.K Ayoob and others v. Superintendent, Customs Intelligence Unit, reported in 1984 Cr.L.J 949 (13). This was one of the cases which found favour with the full bench in O.P Gupta's case (supra).

72. The question arose in an application filed by persons who had been arrested by the customs department and remanded to judicial custody. They had been in custody for over 60 days. On expiry of that period, it was pleaded on their behalf that complaints not having been filed by the Collector of Customs, they were entitled to grant of bail under proviso (a)(ii) of Section 167(2) of the Code. The argument in opposition to the application (noticed in paragraph 11 of the reported judgement) was that the provisions of section 167 do not apply to persons arrested under the customs act by the customs act by the customs officer. It was urged that sub-section (1) of Section 167 specifically refers to a person arrested and detained in custody by a police officer. As customs officers are not officers-in-charge of a police station or police officers, making investigation, therefore sub-section (1) of Section 167 is not applicable, it was urged on behalf of the Customs department. Therefore, sub-section (2) of that Section, which refers to an accused person who has been forwarded under Section 167 is not applicable. In a nutshell, the argument of the Government counsel was that the provisions of sub-section (2) of Section 167 apply to persons arrested by police officers under the provisions of the Code. This is exactly the argument of Mr. Bhagat before us on behalf of the petitioner. Mr Watel counsel for the respondents, however, maintains that the arguments on behalf of the Customs department before the Kerala High Court as well as in Nagendra Prasad's case (supra) before the Patna High Court were entirely misconceived. The learned single Judge of the Kerala High Court hearing the application, rejected the plea of the department. He held that:

“In relation to matters of investigation, inquiry, trial or other matter not covered by the provisions of the Act (Customs Act), the parallel provisions of the Code must necessarily be applied. That is the clear effect of the operation S. 4(2) of the Code. Such operation cannot be negatived merely because a section in the Code uses expressions which are compatible with an offence under Penal Code or with investigation being conducted by a police officer. In relation to a person arrested under the act the provision of s. 167of the code must be read suitably, that is, reference to “officer in charge of a Police Station” must be read as “Customs Officer”. This view is strengthened by the provision in sub-sec. (3) of Section 104 of the Act also.

73. Thus the doctrine of mutatis mutandis though not referred to in the judgment was applied by necessary or suitable changes as it was found that inquiry by the customs officer under the Customs Act was compatible with investigation by the police officer under the parallel provision of Chapter XII of the Code. With respect the very basis for suitably changing an expression in the Code for the one in the Customs Act by the Kerala High Court is wrong in view of the decision of the Supreme Court in Ramesh Mehta's case (supra). The law of the land is that a customs officer is not a police officer; his status is that of a revenue officer. He is not authorised to investigate commission of an offence triable by a Magistrate; he holds an inquiry into the infringement of provisions of the customs act. It seems that Ramesh Mehta's case was not brought to the notice of the Kerala High Court just as it was not brought to the notice of the Gujarat High Court in N.H Dave's case (supra). The latter found the submission regarding the applicability of section 167 of the code to a case like the present rather attractive but left it at that and proceeded to decide the proposition of implied power of remand vested in a Magistrate.

74. In the present case, it seems to me, Mr. Watel is pleading that strict procedure established by law be strictly not made applicable. I am of the view that it is possible to substitute provision of Section 104(2) in place of Section 57 of the Code. But thereafter the pre-requisites of sub-section (i) of section 167 empowering the Magistrate to authorise detention under Section 167(2) just cannot be glossed over.

75. One of the important requisites of the procedure given in Section 167(1) of the Code is submission of a case diary while forwarding the arrested person before the Magistrate. There is no provision in the Customs Act at all which requires submission of any case diary or any other material or facts collected by the customs officer implicating the arrested person. In case the Parliament so intended it could have easily provided in Section 104 itself that the customs officer while producing the arrested person before the Magistrate shall transmit to the Magistrate the evidence and the material collected by the customs officer. We were told that in practice a customs officer does produce such material before the Magistrate to satisfy the Magistrate that he has legally arrested a particular person but the statute does not make it incumbent on the customs officer to transmit such material to the Magistrate. So, it cannot be said that one of the important requisites provided in Section 167(1) of production of case diary stands replaced by a similar requirement which stands incorporated in any of the provisions of the customs act.

76. Assuming for the sake of arguments that (1) the person so arrested by the customs officer achieves the character of an accused when being produced before the Magistrate for purposes of section 167 of the code and (2) that the customs officer is investigating into the offence and is not in a position to complete the investigation within 24 hour, yet all the requirements of Section 167(1) would not stand satisfied unless and until there has been any provision made in special statute making it incumbent upon the Customs Officer to submit the necessary material and facts collected by him during the investigation while forwarding such arrested person to the Magistrate.

77. In my considered opinion the respondents are in fact seeking a declaration from this Court that the powers of investigation into a criminal offence are conferred by law on customs officers and officers of the Directorate of Enforcement and consequently it be recognised that provisions of Section 167 of the Code are attracted when they produce the arrested person before a Magistrate. The position of such a person vis-à-vis an officer of Customs has been clearly described by the Supreme Court in the case of Ramesh Chander Mehta (supra). It has been settled that the person arrested at that stage by the customs officer is not an accused within the purview of the Code and that the officer concerned is not an accused within the purview of the Code and that the officer concerned is not investigating into commission of an offence triable by a Magistrate. I may note that under some enactments such a power has been granted to public servants who are strictly speaking not police officers in the broader sense. For instance an Excise officer under the Central Excise Salt Act and an officer of the Railway Protection Force under the Railway Property (Unlawful Possession) Act 1966 have been given limited powers of a Station House Officer to investigate an offence. The power has been conferred by law and those officers investigate offence under Chapter XII of the Code of Criminal Procedure. The customs officers and enforcement officers have advisedly not been given that power under Section 104 of the Customs Act or under Section 35 of the FERA as they are not to investigate into commission of offences triable by a Magistrate, though they have been given a limited power of the officer-in-charge of a Police Station to grant bail or not to grant bail and nothing more. The arrest and detention by them is only for the purpose of holding an effective inquiry under the Customs Act or the FERA. Thus the position summed up by the Supreme Court is:

“At that stage there is no question of the offender against the Customs Act being charged before a Magistrate. Ordinarily, after adjudging penalty and confiscation of goods or without doing so if the Customs officer forms an opinion that the offender should be prosecuted he may prefer a complaint in the manner provided under Section 137 with the sanction of the Collector of Customs and until a complaint is so filed the person against whom an inquiry is commenced under the Customs Act does not stand in the character of a person accused of an offence under Section 135.”

78. I reject the arguments of Mr. Watel. I do not find any anomaly or absurdity in applying the express provisions of the Code in a case like the present. Mr. Watel's reliance on a judgment of the Supreme Court in Union of India v. Mr. Filip Tiago De Gama (Civil Appeal No. 4802 of 1889, decided on 30th November, 1989) (14) is misconceived.

79. With great deference I am of the view that the law laid in U.O.I… v. O.P Singh… and others (Crl. Writs Nos. 116 and 104 of 1984, decided by this Court on 19th July, 1985) in so far as it was held (per majority) therein that the Magistrate has power to remand a person produced before him in accordance with Section 104 of the Customs Act or Section 35 of the FERA, is incorrect. In my view that case requires to be over-ruled.

I hold that the impugned order is liable to be set aside. I order accordingly and make the Rule absolute.

PER MALIK, J.

As noticed by my brother Talwar, J. the main question on which the five Judges' Bench was addressed is whether the Magistrate before taking cognizance of the offence has power to remand under Section 167(2) of the Code, the arrested person produced before him in accordance with Section 104(2) of the Customs Act or Section 35(2) of the Foreign Exchange Regulations Act. The related question is whether the Magistrate has implicit or implied power to do so under sub-section (1) read with sub-section (5) of Section 437 of the Code of Criminal Procedure.

81. I have carefully gone through the order of my learned brother Talwar, J. and I am in complete agreement with him on the scope of Section 437 and I agree with him that there is no power to commit to custody under sub-section (1) to Section 437, Section 437 in fact, is a provision which deals with the grant of bail and the cancellation thereof. I may, however, add that the mandate of Article 22 of the Constitution is that a person arrested or detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, and no such person shall be detained in custody beyond and the said period without the authority of a Magistrate. Reference to the authority of the Magistrate is to the powers which the Magistrate is invested with by the Code of Criminal Procedure. The further custody after 24 hour of the arrest of a person which the Magistrate authorities is always in accordance with the procedure laid down by law. In my view, when the reference is made to the procedure, it envisages a procedure which must be definite, certain, express, known and clear. The power to commit to custody is a very serious matter and has the capacity of deprive a person of his liberty. By its very nature, the power has to be expressly conferred. Power to commit to custody can neither be inherent nor can it be carved out by implication neither be inherent nor can it be carved out by implication. The proposition of implicit power to commit to custody is a dangerous one. I would, therefore, express my complete agreement with my brother Talwar, J., that there is no implied power authorising a Magistrate to commit to custody under sub-section (1) of Section 437.

82. If an arrested person were to seek bail at the stage when cognizance of the offence was taken by the Court, there is no difficulty to commit to custody should the Court in the circumstances of a particular case refuse to grant bail. The power is expressly conferred by Section 309 Cr.P.C But the bail is sought during the investigation under Section 437 the Magistrate may either allow it or reject to grant the same. In case it is rejected it is for the investigating officer to ask for the committal of the accused to custody of whatsoever nature he is entitled to seek. If an accused person is produced before the Magistrate in terms of sub-section (1) to Section 437 of the Code before the Magistrate, he does so, because he is wanted by an investigating agency and there is, in fact, some sort of restraint on his liberty. In respect of such a person if bail is refused, the Magistrate may either arrest him and hand over to the agency wanting him over to the agency wanting him to be further dealt with in accordance with law or he may do nothing more than decline to grant bail in which event the agency wanting the accused will take care of him, that is, arrest him and then deal with him in accordance with the provision of section 167 Cr.P.C It was in this context that the Full Bench in Criminal Writ No. 116 of 1984 and Criminal Writ No. 104 of 1984 decided on 19th July 1985 U.O.I… v. O.P Singh… and others, (15) to which both Talwar, J. and myself were also parties took the view that Section 437 is a provision empowering the Magistrate to grant bail and also to cancel it. It is clear from various provisions of the Code that wherever the legislature wanted to confer the power to commit to custody it has expressly said so in the Code. Reference in this regard may be made to sub-section (1) to Section 44, sub-section (2) of Section 167, Section 309, sub-section (5) of Section 437 and sub-section (2) of Section 439 of the Code of Criminal Procedure. In my view, the only provision in the Code that entitles the Magistrate to commit to custody during the investigation is Section 167 and the power to commit to custody after taking cognizance is spelt out by Section 309 Cr.P.C

83. As far as the application of Section 167 of the Code of Criminal Procedure is concerned, the Full Bench of this Court to which I was a party by its majority judgment has settled the issue and held that Section 167 is applicable to the arrested persons produced before a Magistrate in accordance with Section 104(2) of the Customs Act and Section 35(2) of the Foreign Exchange Regulations Act. In that Bench, brother Talwar, J. who was a party disagreed with the majority and held that Section 167 is not applicable in such situations. The majority judgment, in fact, was written by Yogeshwar Dayal, J. (as his Lordship then was) and I on my part wrote a separate order concurring with the reasonging advanced by Yogeshwar Dayal, J. in support of the view. I wrote the order only with a view to supplement the reasoning. There is hardly any need for me to repeat the reasons in support of that view and for the same and similar reasons as given in the Full Bench judgment of O.P Gupta's case (supra) I hold that the Magistrate can legitimately exercise the powers under section 167 Cr.P.C in such situations.

Criminal Writ Petition No. 316/89

BHANDARE, J.

The following important question of law of far reaching consequence is referred to this special Bench for consideration:

“Whether a Magistrate has power to remand a person produced before him in accordance with Section 104 of the Customs Act and Section 35 of the Foreign Exchange Regulations Act either under Section 167 or Section 437 of the Code of Criminal Procedure with the aid of Section 4(2) of the Code of Criminal Procedure.”

85. The Full Bench of this Court by its majority judgment dated July 19, 1985 in Criminal Writ No. 116 of 1984 and Criminal Writ No. 104 of 1984 of U.O.I… v. O.P Singh… & others overruled the Division Bench judgment in Dalam Chand Baid v. Union of India & Others, 1982 Crl. L. J. 747 and held that since there is no provision in the Customs Act and the Foreign Exchange Regulation Act. (hereinafter referred to as ‘FERA’) as to how a person produced before the Magistrate under Section 104 of the Customs Act and Section 35 of the FERA should be dealt with, Section 4(2) of the Code of Criminal Procedure, (hereinafter referred to as the ‘Code’) comes into play and consequently Section 167(2) of the Code is applicable and the power of remand is available to the Magistrate.

86. The Full Bench however unanimously held that section 437 of the code only gives power to admit or cancel the bail but does not confer the power of remand. The Full Bench came to this conclusion in view of the decision of the Supreme Court in Natabar Parida & Others v. State of Orissa AIR 1975 SC 1465.(16)

87. Both these questions were referred to a larger Bench of five Judges because of a subsequent judgment of the Supreme Court in Chaganti Satanaryana & Others v. State of Andhra Pradesh, AIR 1986 SC 2130.

88. I have had the benefit of going through the judgments prepared by my learned brothers; Talwar, J. and Malik, J. I am in complete agreement with the reasons and conclusion arrived at by Talwar, J. that the Magistrate does not have power under section 167 of the code to remand to custody a person produced before him in accordance with Section 104(2) of the Customs Act or Section 35(2) of the FERA consequently, I do not agree with the view expressed by Malik, J. that the power under sub-section (2) of Section 167 of the Code is an independent power and not controlled by Section 167(1) of the Code and by virtue of sub-sec. (2) of Section 167(1) of the Code and by virtue of sub-sec. (2) of Section 4 of the Code, can be available for the investigation of offences by agencies investigating offences under special Act and thus the Magistrate can remand a person produced before him in accordance with Section 104 of the Customs Act and Section 35 of the FERA.

89. I agree with both my learned brothers that there is no implicit or implied power to remand under section 437 of the code. However, I would like to supplement my reasons.

90. It the outset it will be useful to re-produce the relevant provisions of the customs act and the FERA.

Section 104 of the Customs Act reads as under:

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 15, 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 purpose of releasing such person on bail or otherwise have the same powers and be subject to the same provisions as the officer-incharge 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, 1898 an offence under this Act, shall not be cognizable.

Section 35 of the FERA reads as under:—

“Power to arrest—(1) If any officer of Enforcement authorised in this behalf by the Central Government, be general or special order, has reason to believe that any person in India or within the Indian customs waters has been guilty of an offence punishable under this Act, 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 any officer of Enforcement has arrested any person under sub-section (1), he shall, for he purpose of releasing such person on bail or otherwise, have the same powers and be subject to for 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).”

91. Provisions of Section 104 of the Customs Act and Section 35 of the FERA are similar and for the sake of convenience and brevity while discussing these provisions I will refer only to the provisions of Customs Act.

92. Under sub-section (1) of Section 104 of the Customs Act, a Customs Officer is empowered to arrest a person if he has reason to believe that the person has been guilty of an offence punishable under Section 135 of the Customs Act. He is, of course, bound to give the person so arrested, grounds for the arrest at the earliest. Sub-section (2) of Section 104 of the Customs Act provides that a person arrested by the Customs Officer shall be taken to a Magistrate without unnecessary delay. This provision is in confirmity with the constitutional mandate and thus a person must be produced before a Magistrate within a period of 24 hours of such arrest as provided in Article 22(2) of the Constitution of India.

93. Article 21 of the Constitution of India guarantees protection of personal life and liberty and provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. To ensure that no person is deprived of his personal liberty and is arrested in accordance with law, Article 22(2) provides the important safeguard that an independent authority exercising judicial powers applies its judicial mind to the case. It is for this reason that Article 22(2) provides that a person arrested and detained in custody be produced before a Magistrate within a period of 24 hours of such arrest.

94. When a person is produced before a Magistrate for an offence punishable under the Code he is required to apply his judicial mind and after consideration may: (a) if the arrest is legal authorise continuation of the person in custody as provided by the Act; (b) if the person so produced before him seeks bail he may grant or refuse bail; and (c) if the arrest is not in accordance with law, order immediate release.

95. The Customs Act is silent on what the Magistrate required to do when a person is produced before him by a Customs Officer. Therefore, by reference to Section 4(2) of the Code the provisions in the Code dealing with such matters are to be applied. Under the Code, express powers to commit to custody are given to a Magistrate under Sections 44(1), 167(2), 309 and 437(5).

96. Section 44(1) empowers the Magistrate to arrest an order any person to arrest the offender who commits an offence in his presence and thereupon subject to the provisions contained as to bail commit the offender to custody.

97. Section 167(2) gives power to a Magistrate to authorise the continuation of an accused in such custody as the Magistrate thinks fit when an accused person is forwarded to him under sub-sec. (1) of Section 167 of the Code. Under this section, the Magistrate is given power to authorise continuation of the accused in custody for 15 days. The proviso to sub-section (2) of Sec. 167 specifies the period for which the custody can be extended.

98. Section 309 gives power to the Magistrate to continue the remand of an accused person in custody after taking cognizance of an offence for a term not exceeding 15 days at a time. Section 437(5) gives power to the Magistrate to cancel a bail given under Section 437(1) and direct that such person be arrested and commit him to custody.

99. It is not the case of any of the parties that a person produced before a Magistrate by a Customs Officer as provided under Sec. 104(2) of the Customs Act can be remanded either under Sec. 44(1) or under Sec. 437(5). It is also admitted by the petitioner that the Magistrate has power to remand a person arrested by a Customs Officer under section 309 of the code after taking cognizance.

100. Learned counsel for the respondent, therefore, submitted that if it is held that a Magistrate has no power to remand a person produced before him by a Customs Officer, under Sec. 167(2) of the Code, implied power of remand will have to be read in Section 437(1) of the Code to enable a Magistrate to permit remand before taking cognizance of the offence. Learned counsel submitted that this implied power is to be inferred from Section 437(5) of the Code. A similar argument was advanced by the learned counsel before the Full Bench in U.O.I… v. O.P Singh… and others and it has been observed in that case that in view of the observations of the Supreme Court in Natabar Parida & others (supra) it cannot be held that Sec. 437 of the Code is the provision which confers power of remand. Mr. Watel submitted that the Supreme Court has not dealt with the question whether there is implied power to remand under Section 437(1) of the Code and it is open to this Court to consider this question.

101. The Supreme Court in Natabar Parida & Others (supra) has observed as follows:

“It may be emphasised that the court will have no inherent power of remand of an accused to any custody unless the power is conferred by law. In the order under appeal the High Court without reference to section 344 of the old code seems to have assumed that such a power existed, that is to correct.”

102. On perusal of the judgment of the Supreme Court find that the observations re-produced hereinabove were made by the Supreme Court while considering whether saving clause (a) of sub-sec. (2) of Section 484 gave inherent power to the court to remand an accused to custody even beyond the period of 15 days, though sub-section (2) of Section 167 of the new Code gives the power to the Magistrate to remand an accused to police custody for a term not exceeding fifteen days in the whole. Thus, the Supreme Court has only dealt with the inherent power of the court under saving clause (a) of sub-sec. (2) of Section 484 and not implied power of remand under any section in the Code.

103. Undoubtedly, inherent power of the court is different than implied power given under a Statute. Inherent power is in additional to and complimentary to the provisions conferred under the Code. In other words, implied power is bestowed or inferred from another power whereas inherent power abides in a person. Black's Legal Dictionary, 4th Edition page 1334 defines implied powers thus:—

“Implied powers are such as are necessary to make available and carry into effect those powers which are expressly granted or conferred and which must therefore be presumed to have been within the intention of the constitutional or legislative grant.”

Thus, Mr. Watel is quite justified in urging that the Supreme Court has not dealt with the question of implied power raised by him.

104. The scope and ambit of Section 437(1) has, therefore, to be considered to ascertain whether there is any such implied under this section. section 437 of the code reads as follows:—

(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but—

(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment.

(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 the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick of infirm:

Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation hall not be sufficient ground for refusing to grant bail if he is other wise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall subject to the provisions of Sec. 446A and pending such inquiry, be released on bail or, at the discretion of such officer of Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3) When a person accused or suspected of commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any offence, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary—

(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or

(c) otherwise in the interest of justice.

(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 sub-section (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) …..

105. On a plain reading of this section, it is clear that under this section the Magistrate, is given discretionary power to either grant or refuse bail. If the Magistrate after considering the facts and circumstances of the case and after applying his judicial mind comes to the conclusion that he cannot grant bail to a person accused or suspected of a non-cognizable offence he passes an order refusing bail. There is no mention in the section regarding remand or committing to custody. What happens to the person after bail is declined, is no concern of the Magistrate under this section. In my view, after the Magistrate declines bail, the other sections in the Code take care of that situation. Thus, if a person is already under arrest and bail is refused, remand can be sought as expressly provided under sections 167(2) and 309 of the code or if the offence is committed in the presence of the Magistrate, remand can be ordered as provided under Section 44(1). If the person appears on his own and seeks bail which is declined, and the Magistrate does not consider it a fit case for passing orders under Section 44(2) the person shall remain at liberty. Sub-section (5) of Section 137 talks of re-arrest and committal to custody thereafter. Section 167(2) and Section 309 also provide for the period of remand. If implied power of remand is read in Section 437(1) it would also mean that a person can be remanded for unlimited period because the section does not specify any period of remand. This would mean that after seeking remand from the Magistrate, the Customs Officer can take his own time to complete the investigation and file the complaint at his leisure. Certainly, this cannot be the intention of the legislature. An interpretation which will permit remand for unlimited period would, in my view, grossly invade on the right of personal liberty of a person. No doubt, sub-section (5) sub-section (5) of Section 437 confers on the Magistrate to commit a person to custody and this sub-section also does not specify the period for which the accused will be kept in custody after his re-arrest but it deals with a totally different situation. It is a power of cancellation of bail which is more drastic because it deals with a person who has once been released under sub-section (1) of Sec. 437 and has due to his own conduct lost his valuable right to freedom. It will, therefore, no be correct to refer to sub-section (5) of Sec. 437 in order to read implied power under sub-section (1) of Sec. 437.

106. It was submitted by Mr. Watel, learned counsel for the respondent that the object of remand is two-fold; (i) to facilitate investigation; and (ii) to secure that the accused does not flee scot free before bail. Thus, if it is held that the Magistrate has no power to remand a person to custody before taking cognizance, the whole object of asking remand will be defeated.

107. Undoubtedly, the Magistrate orders remand in order to facilitate investigation. However, there can be no two opinions that by way of a remand order the personal liberty of a man is restricted. The right to personal liberty is the most precious of the fundamental rights. It touches the core of a human-being. If liberty goes, on other right survives. Thus if this right has to be in any manner curtailed or restricted, it can be done only by an express provision enacted by the appropriate legislative authority. In my view, since the words used in Sec. 437(1) are clear and unambiguous it is not open to the court to read into the section what is not there. In matters of liberty of a citizen the doctrine of implication for purpose of depriving him of his liberty has little application.

108. It was next argued by Mr. Watel that is impracticable to file a complaint or an F.I.R in Customs and FERA cases. The object of the legislation is to prevent and eradicate smuggling and unauthorised dealings in foreign exchange which affects the financial health of the country. It is practically impossible to file a complaint within 24 hours because sanction has to be obtained under Section 137(1) of the Customs Act and since the activity transcends the border of the State it is not possible to obtain sanction immediately. Learned counsel submitted that secrecy has also to be maintained which cannot be done complaint is to be filed. Thus, accordingly to the learned counsel there ought to be some power of remand with the Magistrate apart from section 309 of the code. Learned counsel submitted that since the cases related to offences which destabilises the economy of the country, implied power of remand must be read in section 437(1) read with sec. 437(5) so that the Magistrate is not faced with a farcical situation where he finds that the person cannot be released on bail because of the seriousness of the offence and yet he cannot be remanded to custody.

109. Though I found the argument at first sight very impressive, on having given serious thought to it I find it difficult to accept. The Legislature has thought it fir to give a drastic power to the Customs Officer to arrest a person, who in his opinion, is guilty of an offence under Section 135 of the Customs Act. Yet knowingly the Legislature has not prescribed any procedure in the Customs Act for remand. The offence is also made non-cognizable. Now, even if some difficulties are found by the Customs Officer in filing a complaint or an F.I.R it is not open to the court to remand an implied power in a provision simply to over-come these difficulties. Section 4(2) of the Code provides that all offences under any other law, shall be investigated, inquired into tried and otherwise dealt with according to the provisions in the Code subject to the specific provision in the Act. Thus the procedure prescribed under the Code for dealing with non-cognizable offences has to be followed in Customs and FERA cases as well.

110. The Supreme Court as far back as in 1953 in Ram Narain Singh v. The State of Delhi & Others, 1953 SCR 652(17) has observed as follows:

“Those who feel called upon to deprive other persons of their personal liberty, in discharge of what they consider to be their duty, must strictly and scrupulously observe the norms and rules of the law?”

111. In my opinion, the questions of reading an implied power in Section 437(1) could arise only if there was no express or specific power given in the Code. It may happen that in a particular case it is not possible for the Customs Officer to file a complaint within 24 hours and in the process some person guilty of very serious violation of Customs law or FERA cannot be remanded to custody but then it is for the legislature to take care of such a ## on as observed by the Supreme Court in Natabar Parida's case (supra) itself:—

“Such a law may be a paradise for the criminals, but surely it would not be so, as sometimes it is supposed to be because of the courts. It would be so under the command of the Legislature.”

I find it difficult to remand an implied power of remand in this section particularly because a specific provision under Section 167(2) and Sec. 309 for remand during investigation, inquiry and trial is already on the Statute Book.

112. It was contended by Mr. Bhagat, learned counsel for the petitioner that the Magistrate does not have power under section 437 of the code to restrict the liberty of a person arrested under Section 104(1) of the Customs Act by the Customs Officer in terms of a bail order because the consequence of a bail order is that a person is required to give a bail bond with or without conditions and that can be asked for only from a person who is accused of an offence. It was submitted that only a person accused of an offence can be directed to be released on bail when an investigation, inquiry or trial is pending against him. Since the person arrested under Section 104 of the Customs Act is an accused, his liberty cannot be curtailed by a bail order.

113. I find it difficult to accept this contention of Mr. Bhagat as well. What Mr. Bhagat has contended indirectly means that the Magistrate has no power to grant bail to a person arrested by a Customs Officer under the Customs Act. Now, undoubtedly the arrest by a Customs Officer of a person whom he thinks is guilty of an offence punishable under Section 135 of the Customs Act for a period of 24 hours is legal even without production before a Magistrate. However, this does not preclude or restrict the right of a person so, arrested, to move the court for grant of bail even within these 24 hours. If the contention of Mr. Bhagat is accepted, then the person so arrested by the Customs Officer will be left without any remedy and will not be able to obtain bail even if he so wishes during this period. Of course, Mr. Bhagat contended that the only remedy open to him at that stage is by filing a petition under Articles 226 and 227 of the Constitution of India seeking unconditional release and or seeking a writ of habeas corpus. The argument, in my view, is not only impracticable but also self-contradictory.

114. Thus, in conclusion, in my opinion, when a person is produced before the Magistrate by a Customs Officer in accordance with Section 104(2) of the Customs Act, his continuation in custody will be in accordance with law only when the Magistrate passes an order of remand under section 309 of the code after taking cognizance of the offence.

BAHRI, J.

I have carefully perused the judgments being written by my learned colleagues. I entirely agree with the reasons and the ration laid down in the judgments of Talwar J. and Sunanda Bhandare J. I also agree with the opinion expressed by Malik Sharief-Ud-Din J. with regard to interpretation of Sec. 437 of the Code of Criminal Procedure (hereafter referred to as ‘the Code’) I am with respect unable to agree with the reasons and opinion expressed by my learned brother Malik Sharief-Ud-Din, J. with in regard to interpretation of section 167 of the code. I also express my liability to agree with the reasons and conclusions given in the judgment of my learned brother R.L Gupta, J. However, I would like to add a few words.

116. Mr. Watel in his elaborate arguments wanted us to hold the intention of the Legislature in giving the power of arrest to the officers under the special Act should not be rendered obtuse and worthless if the arrested person are to be just let off by the Magistrate on being produced before him in accordance with the mandate of the Constitution which also stands incorporated in the said statues. He has argued that the Legislature has made the offence under the special statutes as non-bailable offences and also non-cognizable and thus, the Legislature intended that the police should not normally investigate into such offences and so the Court should give interpretation to the provisions of the statutes read with Section 4(2) of the Code to advance the intention of the Legislature that the person who are arrested on the belief that they are guilty of offences under the said statutes are not easily released and are kept in custody under the orders of the Magistrate till their trials over or till they get the bail from the Court. These contentions on first blush appear to have a lot of persuasive value but on deeper examination these contentions lose all importance. Firstly, as in the Code, so also under the provisions of the said statutes the Legislature intended that the investigation in such offences normally should be completed within 24 hours and it is only in those cases where investigation for one reason or another cannot be completed that the question of obtaining an order from the Magistrate for keeping such a person in detention arises. In the special statutes the power of arrest has been conferred on the officers only when such officers reach a reasonable belief that the person whom they are arresting guilty of an offence. They cannot make an arrest under the provisions of the said statutes on mere suspicion. Could not it be said that the Legislature intended that as soon as such a person is arrested on such a belief that he is guilty of an offence and is required to be produced before the Magistrate on expiry of 24 hours that the offices under the Act should come forward with a complaint so that the procedure contained in section 309 of the code becomes applicable and the Magistrate is in a position to examine the matter after taking cognizance as to whether he should exercise his judicial discretion of either directing the release of such a person on bail or directing him to be detained in custody? Normally the officers acting under the said statutes should be in a position to obtain the necessary sanction for filing the complaints within the period of 24 hours as they would be deemed to have collected sufficient evidence and material on the basis of which they are supposed to form the necessary believe that a particular person has been guilty of an offence. In case that for one reason or another the officers under the said Special Acts are not in a position to obtain necessary sanction or prepare the complaint before the expiry of 24 hours they can easily make a report to the Police Station concerned and request the police to obtain necessary permission of the Magistrate for investigating such an offence and remand of such an arrested person can be obtained by the police.

117. It need not be repeated that liberty of a person can be only curtailed by strictly following the procedure laid down in law and that procedure has been expressly laid down in section 167 of the code during the investigation and section 309 of the code during the trial.

118. A contention was also raised by Mr. Watel that the principle of mutatis mutandis should be invoked by taking resort to provisions of Section 4(2) of the Code and provisions of Section 167(1) of the Code should be read with such modifications as are necessary keeping in view the provisions of Section 104(2) of the Customs Act, 1962 or Section 35 of the Foreign Exchange Regulation Act, 1973. The doctrine of mutatis mutandis, in my view, can be invoked only if a particular statute or rule provides for the same. Section 4(2) of the Code or provisions of the said special statutes do not anywhere lay down any provisions of the Code are to be invoked mutatis mutandis while constructing any provisions of the special statutes.

119. The literal meaning of the expression “mutatis mutandis” as per Dictionary of Law by Earl Jowitt is “with the necessary changes in points of detail”. In Law Lexicon and Legal Maxims by Venkataramaiya, it has been mention that the principle of mutatis mutandis applies when a law directs that a provision made for a certain type of case shall apply mutatis mutandis in another type of case, it means that it shall apply with such changes as may be necessary, but not that even if no change have not been able to understand how the principle of mutatis mutandis could be invoked for interpreting the provisions of the said two special statutes read with the provisins of Section 4(2) of the Code.

120. So, it is not possible to countenance the contention that in place of ‘police officer’ mentioned in Section 167(1) of the Code we should read the words ‘Customs Officer’ or ‘enforcement officer’ and in place of ‘diaries’ which the police is legally bound to maintain while investigating into the offences under Chapter XII of the Code we should read the words ‘the evidence or material’ being collected be such officer while holding in inquiry under the provisions of the aforesaid special statutes, I am of the view that such a principle cannot be invoked while interpreting the provisions of the said statute and read with Section 4(2) of the Code. It is, no doubt, evident that the offences under the special statutes which have been made non-bailable are quite serious and grave offences affecting the economy of this country and the persons committing such offences need to be dealt with severally built it goes without saying that such person have to e dealt with in accordance with law. The rule of law premeates every fibre of our social and legal system. I do not see any lacuna in law, rather the provisions of the Code by virtue of Section 4(2) are applicable completely to all the offences under different statutes. If the Legislature wanted that any other procedure should be applicable for the purpose of investigation, inquiry, trial or for dealing with such offences in any other manner the Legislature could provide for the same in the special statutes. The offences under the said two special statutes are governed by the provisions of the Code. There is no provision made in the said two Acts authorising the Magistrate to direct detention in custody of persons arrest for committing the offences under the said Acts. The provisions of the Code have to be invoked and the power of the Magistrate has to be exercised in accordance with the procedure laid down in the particular provisions of the Code. Hence, it cannot be said that a person arrested for commission of grave and serious offence is liable to be released and is being produced before the Magistrate for just being released. The Magistrate has to act in accordance with the procedure laid down in the Code before directing the detention in custody of such an arrested person brought before him. I need not say more as detailed reasons have been given in the judgments of Talwar, J. Sunanda Bhandare, J.

R.L GUPTA, J.

The Division Bench comprising Charanjit Talwar and V.B Bansal, JJ. on a submission made by Mr. K.G Bhagat, Senior Advocate was of the view that in the case of Chaganti Satyanarayana and others v. State of Andhra Pradesh, AIR 1986 SC 2130, the Hon'ble Supreme Court held,

“In fact the powers of remand given to a Magistrate become exercisable only after an accused is produced before him in terms of sub-section (1) of Section 167”.

122. But since the Full Bench in Criminal Writ Petitions Nos. 116/84 and 104/84 decided on July 19, 1985 held it, otherwise, the law laid down by the Full Bench was no longer good. Therefore, the Division Bench vide order dated 12th May, 1989 was of the view that the Criminal Writ No. 316/89 raising the same contention should be heard by a larger Bench. Hon'ble the Chief Justice then constituted a Full Bench comprising of Charanjit Talwar, G.C Jain and V. B. Bansal, JJ. After hearing the counsel for some time on 8th September 1989, the Hon'ble Judges were of the view that this case heard and decided by a Bench of five Judges because the judgment of the Full Bench in Criminal Writ Petition Nos. 116 and 104 of 1984 namely U.O.I… v. O.P Singh… & othrs. decided on 19th July, 1985 was sought to be reconsidered. That is how the reference came before us.

123. For detailed facts on this case, reference may be made to the judgement of Charanjit Talwar, J. The question sought to be reconsidered in this petition is naturally the same which was considered by the earlier Full Bench of this Court and which unfortunately was not reported in spite of specific directions. The question of law, therefore is as follows:—

“Whether the Magistrate has no power to remand person produced before him in accordance with Section 104 of the Customs Act and whether the decision reported in Daulam Chand Baid v. UOI & others, 1982 Crl. Law Journal, 747 decided by a Division Bench of this Court requires reconsideration.?”

We may note down the relevant provisions of Section 104 of the Customs Act (hereinafter called the Act) and Code of Criminal Procedure (hereinafter called the Code) at this stage.

“104. (1) If an officer of customs empowered in this half by general or special order of the Collector 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 purpose of releasing such person in bail or otherwise, have the same powers and be subject to the same provisions as the officer-incharge 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.”

Section 4 of Code of Criminal Procedure

“(1) All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provision hereinafter contained.

(2) All offences under an other laws 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 such offences.”

124. Mr. Bhagat, learned counsel for the petitioner took use through a number of provisions of the Code of Criminal Procedure to show that the inquiry contemplated by the Act is not an investigation as defined by the Code in Section 2(h). Since the inquiry conducted by the Customs Officer cannot be equated with the term investigation as used in the Code, production by the Customs Officer before the Magistrate under Section 104(2) of the Act cannot be equivalent to production of an accused person under Section 167(1) of the Code. Moreover, the learned counsel argues, according to the decisions of the Supreme Court in Ramesh Chandra Mehta v. State of West Bengal, AIR 1970, SC 940 and Illias v. Collector Of Customs, Madras., Madras AIR 1970 SC 1065, the person arrested by a Customs Officer is neither an accused nor such a concerned officer is a Police Officer as contemplated by Section 167(1) of the Code. According to Section 167(1) of the Code, whenever any person is arrested and detained in custody and it appears that investigation cannot be completed within a period of twenty four hours fixed by Section 57 and there are grounds for believing that accusation or information is well founded, the Officer-in-charge of the Police Station or the Police officer making the investigation, if he is not below the rank of Sub-Inspector shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time forward the accused to such Magistrate.

125. Learned counsel for the petitioner emphasises that unless all the conditions as laid down in Section 167(1) are satisfied there is no scope for the application of sub-section (2) of Section 167. According to the learned counsel, the person arrested by a Customs Officer and produced before the Magistrate does not become an accused unless simultaneously with the production of the accused the Customs Officer also files a complaint against him under the panel provisions of the Act. Before the filing of the complaint such a person is neither an accused nor a Customs Officer is a Police Officer as laid down by Hon'ble the Supreme Court in the aforesaid two authorities. Secondly, the learned counsel argues, the inquiry conducted by the Customs Officer is not an investigation and thirdly a Customs Officer does not maintain diaries which a police officer has to maintain for carrying out the day-to-day investigation and in the absence of such case diaries being maintained by a Customs Officer, there is no material at all before the Magistrate upon the basis of which remand can be ordered by the Magistrate. In short, since none of the ingredients contemplated by Section 167(1) of the Code is applicable in the case of a Customs Officer, the magistrate has no jurisdiction to exercise the power of remand under Section 167(2) of the Code.

126. As against this argument, learned counsel, Mr S.L Watel, on behalf of the respondent has argued that the interpretation sought to be put by Mr. Bhagat on the rulings laid down by the Supreme Court is not correct because in those cases, the Supreme Court was interpreting a Customs Officer vis-à-vis a Police Officer with reference to the power of the Customs Officers in recording the statements of an accused under Sections 107 and 108 of the Act. The Supreme Court held in those cases that a Customs Officer is not a Police Officer with reference to the provisions of Section 25 of the Indian Evidence Act and Article 20(3) of the Constitution of India. It will be necessary to refer to brief facts of those two cases.

127. In Ramesh Chandra Mehta's case (supra) the complainant, the Assistant Collector of Customs, tendered in evidence at the trial certain confessional statements which he claimed were made before the Customs Authorities in an inquiry under Section 171-A of the Sea Customs Act, 1878 (hereinafter called the old Code) against Ramesh Chandra Mehta and the other persons accused. The counsel for the accused objected to the admissibility of that evidence but the objection was over-ruled by the trial Magistrate. The High Court rejected a petition invoking its revisional jurisdiction. At the hearing of the special leave petition, counsel for Ramesh Chandra Mehta raised three contentions.

“1. That the statements tendered in evidence by the Customs Officer must be deemed by virtue of Section 160 of the Act to be recorded under the provisions of that Act and their admissibility may be adjudged in the light of that Act alone.

2. That an Officer of Customs is a police officer within the meaning of Section 25 of the Indian Evidence Act and a confessional statement made before him is inadmissible in evidence at the trial of the appellant.

3. That the statements made before the Customs Officer were otherwise inadmissible, because Mehta and others being persons accused of an offence were compelled by the provisions of section 171a of the old code to be witnesses against themselves within the meaning of Article 20(3) of the Constitution.

128. The first contention was completely rejected regarding the second contention, the Hon'ble Supreme Court made the following distinctions between the powers of a Customs and a Police Officer (Para 5):—

“He is not a member of the police force. He is not entrusted with the duty to maintain law and order. He is entrusted with powers which specifically relate to the collection of customs dues and prevention of smuggling. He does not exercise powers of investigation which a Police Officer may investigating the commission of an offence. He is invested with the powers to inquire into infringements of the Act, primarily for the purpose of adjudicating forfeiture and penalty. He has no power to investigate an offence triable by Magistrate nor has be the power to submit a report under Section 173 of the Code. He can only make complaint in writing before a competent Magistrate. He also has no power to submit a report under Section 173 of the Code.”

Finally in para 10 at page 945 of the court held:

“But the basis for determining whether an Officer of customs is to be deemed a police officer is whether he is invested with all the powers of a police officer qua the investigation of an offence, including the power to submit a report under Section 173 of the Code.”

In short the Court held that,

“a Customs Officer is not a police officer within the meaning of Section 25 of the Indian Evidence Act and therefore, any statement made to him by a person arrested by him will not be inadmissible in evidence”.

129. On the third contention the Supreme Court agreed with the finding of the High Court that the statements made by Ramesh Chandra Mehta and the other persons accused before the Additional District Magistrate were not inadmissible in evidence because of the protection guaranteed under Article 20(3) may be claimed by a person, it has to be established that where he made the statement sought to be tendered in evidence by a Customs Officer on suspicion that he is concerned in smuggling, when called upon by the Customs Officer to make a smuggling, when called upon by the Customs Officer to make a statement or to produce a documents or thing, he is to a person accused of an offence within the meaning of Article 20(3). Para 11. Ultimately after answering all the question against Ramesh Chandra Mehta, it held in para 26.

“Section 104(1) only prescribes he conditions in which the power of arrest may be exercised. The officer must have reason to believe that a person has been guilty of an offence punishable under Section 135, otherwise he cannot arrest such person. But by informing such person of the grounds of his arrest, the Customs Officer does not formally accuse him with the commission of an offence. Arrests and detentions are only for the purpose of holding effectively an inquiry under Sections 107 and 108 with a view to adjudge confiscation of dutiable or prohibited goods and penalty. At that stage there is no question of the offender against the Customs Act being charged before a Magistrate. Ordinarily after adjudging penalty and confiscation of goods or without doing so, if the Customs Officer confirms an opinion hat the offender should be prosecuted, he may prefer a complaint in the manner provided under Section 137 with the sanction of the Collector of Customs and until a complaint is so filed, the person against whom an inquiry is commenced under the Customs Act, does not stand in the character of a person accused of an offence under Section 135.”

130. From a perusal of he above authority, therefore, it is very clear that the words ‘Customs Officer’ being not a ‘Police Officer’, were construed by the Supreme Court for the limited purpose of seeing whether the Customs Officer enjoys all the powers of a Police Officer under the Code. Since he did not enjoy all such powers like the filing of a charge-sheet under Section 173 of the Code, it concluded that a statement made by an arrested person in inquiry under Sections 107 and 108 did not fall within the definition of a confession made to a police officer. Similarly, since by that time a complaint was not filed under the Customs Act, after obtaining sanction of the Collector of Customs, Mehta did not stand in the character of a person accused of an offence. It will be noted that as to what is the character of a person arrested by a Customs Officer at that stage, was not in question vis-à-vis, the provisions of Section 167 of the Code for obtaining a remand under the Code. It is clearly stated in this authority that a Customs Officer can confirm his opinion for the prosecution of such a person either adjudging penalty and confiscation or without doing so. The arrest of the person at that stage is to effectively hold an inquiry under Sections 107 and 108. But that arrest will not be legal if the Customs Officer at that stage has no reason to believe that he has been guilty of an offence punishable under Section 135. Therefore, the arrest and detention is primarily for holding an inquiry under Sections 107 and 108 of the Act and the officer has yet to reach a conclusion in the inquiry being conducted by him whether he should finally file a complaint against such a person for his prosecution under Section 135 or not. We would like to give one example here. Let us suppose that a person has been arrested by a Customs Officer has gold it could definitely be said that the Customs Officer has reason to believe that such a person is guilty of an offence under Section 135. But at that stage the Officer has yet to conduce an enquiry under Sections 107 & 108. During the course of that enquiry, it is very well possible that such a person may only be found to be an innocent carrier at the behest of some other person indulging in the smuggling of gold, as was the case of Air stewardess Ethyl Wong in the case of L. Choraria and others v. Sate of Maharashtra AIR 1968 SC 938 (she was not prosecuted and was only examined as a witness during trial). Therefore, during the course of that inquiry, a Customs Officer will also have to go into further ramifications of the apparent smuggling of gold with a view to find out if some more persons are also invoked as conspirators or principal offenders. It is a matter of common knowledge that upon interrogation of such a person if sufficient information is collected by Customs Officer about the smuggling activities of other persons, it is probable that many more persons are arrested and recoveries made of the smuggled articles. Thus, it will be too much to expect from a Customs Officer that at the stage of the production of such a person before a Magistrate under Section 104(2) he should also file a complaint simultaneously to formally accuse him in order to enable the Customs Officer to obtain remand of such a person. Ultimately, the person initially arrested may not be found an accused at all. He may be only an innocent carrier. But on the basis of information supplied by him some other person really involved in smuggling may be arrested and ultimately prosecuted. In fact, the concept of remand as the word is used in Section 309 of the at that stage may not be applicable to such a person. Mr. Learned brother Talwar, J. has referred to the Webster's dictionary meaning of the word “remand” in his judgement as follows:

“Remand means to send a person charged with a crime back into custody by a Court order”

Talwar J. has also referred observations of Courts in respect of the word ‘remand’ in the following words,

“The Courts have also held ‘remand’ to connote recommittal to custody of a person who has been brought up in custody.”

131. The non use of the word ‘remand’ in Section 167, therefore, assumes significance. For seeking a remand under Section 167 for the first time, the person is brought before a Magistrate from police custody. So if the Magistrate orders judicial custody at that time, it is not re-committal to judicial custody because the person did not come from judicial custody at that time. So the Legislature in its wisdom by using the words in Section 167(2), “the Magistrate may authorise the detention in such custody as such Magistrate thinks fit” was clearly conscious of the fact that the use of the word ‘remand’ in Section 167 will not be appropriate because it was not necessary for the Magistrate at that stage to recommit the person to police custody and rather the Magistrate may think that such a person should be actually sent to judicial custody. Therefore, the use of the word, “remand” in Section 167 would not otherwise have been appropriate. We can visualise another situation also to reach the same conclusion. For example, a Magistrate grants 4 days' remand of police custody in respect of a person produced before him under Section 167(1) and, therefore, remands him to judicial custody. But later on, police gets hold of some other important piece of evidence in relation to which it again applies to Magistrate for police custody. The Magistrate, if satisfied, can again grant police custody for a few days. So in this situation, it is not a re-committal to the same custody. Therefore, the use of the word ‘remand’ in Section 167(2) would, in fact, have narrowed down the scope of this provision and that is why the Legislature in its wisdom did not use that word in it.

132. I may now like to deal with the reasons given by the earlier Full Bench of this Court in U.O.I… v. O.P Singh… and others (supra) for coming to a conclusion that a Magistrate before whom a person after arrest is produced by Customs Officer or by an Enforcement Officer, has the power to remand him to custody under Section 167(2) of the Code. I would do no better than quote from that judgment which reads as under:—

“It was also submitted that provisions of Section 175 of the Sea Customs Act, 1878 did contain provisions for temporary remand whereas this provision has been omitted from the Customs Act, 1962.

This very point is noticed in the report of the Select Committee on the proposed section in the Bill and the “Objects and Reasons” enacting Section 104 in the present form in the Customs Act which may be adverted to at page 150 of Velunie 15 AIR Mannual (4th Edition) as under:—

“Clause 104 replaced the existing Sections 173, 174 and 175 with the following amendments:—

(i) Under the existing Section 173, any person suspected to be guilty of any offence under the Customs Act may be arrested. Under the proposed clause, persons suspected to be guilty of an offence of smuggling only shall be liable to be arrested. Since arrest deprives a person of this personal liberty it will be confined only to those cases where smuggling is involved.

(ii) Only such officers of Customs who have been empowered in this behalf by general or special order of a Collector of Customs will have the power to arrest persons. This is intended to prevent the abuse of this power.

(iii) In addition to the power to commit an arrested person to jail or order him to be kept in police custody, the Magistrate is being empowered to order the arrested person to be kept in such other custody as he deemed fit;

(iv) Under the new provision the power to detain a person accused of an offence, unless he offers bail, can be exercised pending investigation of the offence by Officers of Customs”—

S.O.R ‘Gaz. Of India, 1962, Part II, S-2 Ext. page 334.

‘Clause 104.—The Committee are of the view that an officer of Customs arresting a person under the clause should have the power to release the arrested person on bail or otherwise similar to the power conferred on the officer in charge of a police station under the Code of Criminal Procedure, 1898, so as to obviate the necessity of detaining an arrested person till he can be taken to a Magistrate.

The Committee feel that sub-clause 93) being merely a repetition of the provisions of the Criminal Procedure Code, 1898 should be omitted. The committee are also of the opinion that the offences under this Act should be non-cognizable as at present although the maximum punishment in respect of certain offences is being enhanced to five years imprisonment.”—S.C.R

Surely when report of Select Committee on the Bill itself says,

“that sub-clause (3) being merely a repetition of the provisions of the Criminal Procedure Code, 1898, should be omitted, can the court say at this stage that this is a lacuna for not providing power of remand? it is well known that Legislature is always concise and precise and does not relish repetition. Clause (iii) of the Bill has provided that a Magistrate being empowered to order the arrested person to be kept in such other custody as he deems fit, but the Select Committee felt that it is already provided in the Criminal Procedure Code. It will be incorrect for the Court to depart from the legislative wisdom by saying that provisions of Section 167(2) are not available for dealing with persons arrested under Customs Act or Foreign Exchange Regulation Act. It will be too much for us to say either Section 167(2) of the Code does not apply or is not applicable.”

Section 175 of the Sea Customs Act had merely provided as under:—

“175. Persons taken before Magistrate may be detained or admitted to bail—

When any such person is taken before a magistrate such Magistrate may, if he thinks fit, either commit him to goal or order him to be kept in the custody of the police for such time as is necessary to enable such Magistrate to communicate with the proper officers of Customs.

This power of remand was very limited duration to enable the Magistrate to communicate with proper customs officer and the proposed clause (iii) in the Bill had suggested expressly to confer this power on the Magistrate to be kept in such other custody as he deems fit. But the Select Committee ultimately decided to drop sub-clause (3) because it was unnecessary as the provision already existed in the Code, namely, Section 167(2) and Section 309 of the Code, Section 309 of the Code would not be applicable for seeking remand till the cognizance is taken but that does not mean that Section 167(2) could also not be resorted to be cause it mentions the word, “accused”. The word accused is to be construed in its widest connotations. It means the one who is arrested and detained. He may even be a person suspected of having committed an offence. Supreme Court for the purposes of Article 20(3) of the Constitution took the view that a person who is arrested by the Customs Officer is not an accused person. Another way of looking at the meaning of the word “accused” is that the Code contemplates that even a person can be arrested against whom even a reasonable suspicion exists of having been so concerned in any offence. A person is arrested by the Customs Officer under Section 35(1) of the Foreign Exchange Regulation Act only on reasonable belief that they have committed offence under Section 35 of the Customs Act or violation of the Foreign Exchange Regulation Act only on reasonable belief that they accused for the purposes of Section 167(2) of the Code. It is not a case of lacuna in legislative enactment Legislature very well knew the position as is clear from the report of the Select Committee noticed by us earlier. Select Committee was very much concerned with the question as to what will happen to the person who is arrested and produced by the Custom Officer before the Magistrate and found that it was not necessary to provide for it in view of the provisions of Criminal Procedure Code. The Legislature really was not oblivious of the problem. Therefore, it cannot be said to be a case of legislative lacuna.”

133. The very fact that there was no discussion upon the recommendations of the Select Committee at the time of adopting the Customs Act, 1962 in Parliament would rather go to show that not an iota of doubt was present in the mind of the legislature at that time about the recommendations of the Select Committee. Therefore, the non-discussion of the recommendations of the Select Committee would rather attach more weight to those recommendations. Even otherwise these recommendations would be entitled to great weight and respect. It was held in he case of K.P Vargese v. Income Tax Officer, Ernakulam and another, AIR 1981 SC 1922 (18),

“The rule of construction by reference to contemporanea expsitio is a well established rule for interpreting a statute by reference to the exposition it has received from contemporary authority, thought it must give way where the language of the statute is plain and unambiguous. Therefore, where the Central Board of Direct Taxes has issued circulars by way of explaining the amended provisions of Section 55(2), apart from their binding nature in view of S. 119 of the I.T Ac, they are clearly in the nature of contemporanea expositio furnishing legitimate aid in the construction of sub-section (2).”

Their Lordships also approved of the rule of construction of a statute established in England a far back as 1584 when Hydon's case (5184) 2 Co. ReP-7a was decided. That decision referred in para 8 of the judgment was to the following effect:—

“For the sure and true interpretation of all statutes in general…..four things are to be discerned and considered.

(i) What was the common law before the making of the Act.

(ii) What was the mischief and defect for which the common law did not provide.

(iii) What remedy the Parliament has resolved and appointed to cure the disease of the Commonwealth.

(iv) The true reason of the remedy, and then office of all the Judges is always to make such construction as shall suppress the mischief and advance the remedy.

134. In fact the speeches made by the Members of the Legislature on the floor of the house when a Bill for enacting a statutory provision is being debated are inadmissible for the purpose of interpreting the statutory provision. Therefore even it there had been a discussion in the Parliament as suggested by learned counsel for the petitioner, the speeches made by various members of the Parliament would not have been admissible for the purpose of interpreting the recommendations of the Select Committee for the omission of sub-clause (3) in view of the fact that the powers of remand were already prescribed under the Code of Criminal Procedure. Rather, absence of such discussions, I am of the view, would more strongly reinforce the integrated wisdom of the Legislature in adopting the Act of 1962 completely in the light of recommendation made by the Select Committee. What we may, therefore say is that the absence of discussions, instead of detracting from the weight of the recommendations, would rather add higher statute to such recommendations and these recommendations would therefore, clearly be very relevant as contemporanea expositio for understanding the reason for non-inclusion of clause 3 in the main Act.

135. Coming to the other argument that the Select Committee in fact was thinking of the provisions of remand available under Section 344 of the Code of Criminal Procedure, 1893 at that time because it was that Code which was in force in 1962 and not the present Code of 1973 which permits the detention of a person arrested and produced before the Magistrate beyond a period of 15 days, it is urged that under section 167 of the old code a Magistrate could not order the detention of a person beyond a period of 15 days and, therefore, only Section 344 which permitted remand during investigation before taking cognizance of offence by a Magistrate beyond 15 days was in the contemplation of the Select Committee. This argument in the first flush may seem to be quite attractive. But on close look it appears untenable. Clause III may be extracted once again to test the argument,

“In addition to the power to commit an arrested person to jail or order him to be kept in police custody, the Magistrate is being empowered to order the arrested person to be kept in such other custody as he deems fit.”

136. It may be noted that section 344 of the old code did not empower the Magistrate to transfer on arrested person “from jail to police custody” and vice versa because besides other situations it was also meant to cover a situation where the Magistrate was inclined to postpone the commencement of the trial in the light of the explanation of the police that sufficient evidence had already been obtained and further evidence could be obtained by remand of the accused. Moreover, Section 344(1A) empowered the Magistrate to remand the accused to custody, only if he was already in custody. It did not empower the Magistrate to re-arrest the accused and commit him to custody, if he was already on bail. And then the most important clue to rule out the presence of Section 344 in the mind of the select committee is provided by the words, “Order the arrested person to be kept in such other custody as he deems fit” in this sub-clause. These words did not appear in Section 344, and were contained only in Section 167(2) with minor variations as follows:—

“authorise the detention of the accused in such custody as such Magistrate thinks fit.”

137. A careful comparison of the words in the sub-clause sought to be introduced and Section 167(2) of the Old Code would, therefore, clearly go to show that while saying that the incorporation of the sub-clause would merely be a repetition of the provisions of the Criminal Procedure Code, 1898, the Select Committee had in mind only Section 167 and not Section 344.

138. provisions of section 167 as it stands nor are the same as were contained in old Code except to the extent that section 167 of the old code gave power to the Magistrate to authorise the detention in custody for a total period of 15 days, whereas proviso to Section 167(2) of the new Code enables the Magistrate to authorise the detention of an accused person otherwise than in the custody of the police upto a period of 90 days in case of offences punishable with imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence. We do not have to fall upon the explanation to Section 309 now for testing the powers of the Magistrate for grant of custody beyond the period of 15 days.

139. Therefore, I am of the view that it cannot be said that Select Committee had in mind provisions of Section 344 of the old Code while making their recommendations for omission of sub-clause III in the Bill.

140. Section 4(2) of the Code clearly shows that the provisions of this very Code will apply to investigations, inquiries and trials etc. But exception has been made of the application of the Code in these matters where the enactment provides for regulating the manner or place of investigating, enquiry into trying or otherwise dealing with such offences. Both these Acts i.e the Customs Act and the Foreign Exchange Regulations Act give power to an empowered officer to arrest a person about whom they have reason to believe that he has been guilty of offence under those Acts. Thereafter they are required under Section 104(2) of the Customs Act and Section 35(2) of the Foreign Exchange Regulation Act to produce such an arrested person without unnecessary delay before a Magistrate. Since there is no provision as to in what manner such an arrested person will be tired after a complaint is filed before the Magistrate under Section 137 of the Customs Act and Section 56 of the Foreign Exchange Regulation Act. There is also no provision that the Magistrate can permit the release of such a person after he is produced by an empowered officer before him. If, therefore, I was to hold that the Magistrate has no powers under Section 167(2) of the Code I may also have to say that he has no power even to try an accused person under these Acts when a complaint is filed before him. He also has no power to release such a person after his production in Court because no such power is given to the Magistrate in these Acts. In fact, it is only such types of situation which are sought to be covered by Section 4(2) of the Code. The matters in respect of which these Acts are silent will obviously be taken over by bringing into play Section 4(2) of the Code. It is only in that situation that it can be said that the Magistrate has the power to try him in accordance with procedure prescribed under the Code for the various offences against him. It is only with the aid of Section 4(2) of the Act that we would be able to say that if the Magistrate thinks fit that such a person should not be sent to judicial custody, that he will be able to exercise the power of release or discharge of such a person.

141. There is no provision in these Acts which may require such officer to prepare case diaries like those prepared by the police in the investigation of offences under the Indian Penal Code. Therefore, such an Officer cannot be expected to maintain any such diary and produce it alongwith the arrested person before a Magistrate. These officers carry on the inquiries under these Act basically to come to a conclusion whether such persons involved in any smuggling and with a view to adjudge penalty and confiscation. If during the course of that inquiry such an officer makes up hi mind that besides adjudging penalty and confiscation such a person should also be prosecuted for the commission of offences under those Acts, he is empowered to file a complaint also before a competent Magistrate.

142. Learned counsel for the petitioner has cited the case of Chaganti Satyanaryana and others v. State of Andhra Pradesh, AIR 1986 SC 2130 for the proposition that Section 167(2) of the Code is applicable only when an accused is produced under Section 167(1). He particularly relies on the observations of the Supreme Court in para 11 wherein it has been held as follows:—

“In fact the powers of remand given to a Magistrate become exercisable only after an accused is, produced before him in terms of sub-section (1) of Section 167.”

Learned counsel has developed this argument b saying that for attracting section 167(2), the requirements of section 167(1) should first be complied with. Those requirements are that the arrest and production should be by a police officer, the arrested person should be an accused and that the case diaries prepared by the police officer should also be produced. Unless all these conditions are satisfied Section 167(1) will not come into play and, therefore, Section 167(2) also cannot be applied. I am not unable to accept these arguments. The question involved in the case of Chaganti Satyanaryana and others (supra) was as to form which date the period of remand of 90/60 days should be reckoned. On the one hand the argument was that the period should be counted from the date of initial arrest of the accused while on the other hand it was argued that it should be counted from the date of his production before the Magistrate. It is well known that earlier the police did not file the charge sheet for very long periods so that the citizens used to languish in jail for indefinite periods. The Legislature, therefore, provided the maximum period of detention in custody so that there is an obligation on the police to person the charge sheet within a specified period. No question was involved before the Supreme Court about the interpretation of section 167 of the code vis-à-vis other Acts and whether Section 167(2) could be invoked with the aid of Section 4(2) vis-à-vis the other Acts. Therefore, we are of the view that this authority does not at all overrule the dictum of the Full Bench in U.O.I… v. O.P Singh… & others (supra).

143. As stated earlier the Customs Act and Foreign Exchange Regulation Act are silent about the manner of dealing with a person produced before the Magistrate by a duly empowered officer. Immediately, therefore, with the aid of Section 4(2) of the Code the provisions of Section 167(2) will become applicable. In our opinion it is not necessary at that stage that the Magistrate could exercise his powers under Section 167(2) only if simultaneously with the production of the arrested person a formal complaint is also filed against him.

144. At this stage I may notice the case of State of Maharashtra v. Nainmal Punjaji Shaj and another 1970 SCC (cr.) 170(19) decided by a Division Bench comprising of Hon'ble Mr. Justice G.K Mitter. This case was decided on 31-10-1969 while the cases of Ramesh Chandra Mehta and Illias (supra) were disposed of on 18-10-1968 and 31-10-1968 respectively. The case of Nainmal Punjaji Shah (Supra) was therefore, disposed of after about a year of decision of the aforesaid two cases. Hon'ble Mr. Justice G.K Mitter was one of five Judges in the cases of both Ramesh Chander Mehta and Illias (supra). In the case of Nainmal (supra) the business premises of the firm of which he was a partner was searched on 13-4-1969. Three silver bars were recovered along with some incriminating documents. 71 silver bars were found in the godown of the firm. A cursory scrutiny of the documents revealed that Nainmal was concerned in illegal transactions in foreign writs watches, textiles metallic yarn, gold etc. running into about Rs. 100 crores. He was arrested on the following day i.e 14-4-1969. He offered even bribe to one Officer of the Revenue Intelligence. This fact was, however, not mentioned in the remand application filed on 14-4-1969. He was remanded to custody by the learned Addl. Chief Presidency Magistrate till 28-4-1969. On 22-4-1969 Nainmal applied for bail. The application was rejected. His remand was further extended on 28-4-1969. Bail application moved by him was rejected on 6-5-1969. Another remand application was moved on 12-5-1969. But the application was dismissed and bail granted. This order of bail was not to be effective till 21-5-1969. In the meantime the Investigating Agency was able to locate some more co-conspirators who were arrested on 17-5-1969. The order to bail was challenged by a revision petition in the High Court which was set aside and the High Court remanded him to custody. The consideration for setting aside the bail order was that at that stage of the investigation it was necessary to detain him. Ultimately the High Court granted bail vide order dated 1-8-1969 subject to the direction that the order of confirmation of bail shall operate after expiry of two months. An undertaking was also given before the High Court on behalf of the Customs that the complaint would be filed within six months. The Supreme Court ultimately held that the accused persons should be kept in custody for six months from the date of the order of the High Court dated August 1, 1969. Thus it will be seen that Nainmal was kept in custody from the date of his arrest on 14-4-1969 till end of January, 1970. Few facts emerge quire clearly. No complaint against Nainmal and others was filed at least upto the end of January, 1970 from the date of his arrest on 14-4-1969. He and his other conspirators were kept in custody under remand orders which must have been passed by the Addl. Chief Presidency Magistrate. The case against him and others was under the Customs Act. One of the Hon'ble Judges deciding the cases of Ramesh Chandra Mehta and Illias (supra) was member of the Supreme Court bench in the case of Nainmal. If actually the provisions of remand under Section 167(2) (then covered by Section 344 of the old Code) of the Code did not apply in a case under the Customs Act, it was not possible for the Supreme Court in that case to permit the remand of Nainmal and others for such a long period without filing a complaint. In the case of Ramesh Chandra Mehta (supra) it was conceded by his counsel in para 10 that a Customs Officer had the power to detain, to arrest to produce the person arrested before a Magistrate, and to obtain an order for remand and keep him his custody with a view to examine the person so arrested and other persons to collect evidence. On the basis of these concessions also it can be said that the powers of the Customs Officer to apply for remand and those of the Magistrate to grant remand was not at all challenged. If such a power to grant remand was not vest in the Magistrate, the Supreme Court would have made it clear in that very authority and since such an arrested person is not an accused, the Magistrate had no power to remand him to such custody as he deemed fit. But no such observation was made by Hon'ble the Supreme Court. Therefore, in view of Nainmal's case (supra) as well as the concession in the case of Ramesh Chandra Mehta (supra) we are unable to hold that a Magistrate has no power to remand a person produced before him by a Customs Officer to Enforcement Officer to such custody as he deemed fit unless he files a complaint simultaneously with his production before the Magistrate.

145. Let us presume now for the sake of argument that there is some lacuna in these Act vis-à-vis Section 167(2) of the Code about the powers of the Magistrate to permit such custody as he deems fit. As approved by the Supreme Court in the case of K.P Varghese (supra) that the office of all Judges is always to take such construction as shall suppress the mischief and advance the remedy, we should keep in mind effect such an interpretation upon the economy of our country. There is no doubt that by placing such a strict interpretation, we will be jeopardising the detection of such economic offences committed by sophisticated people in a very planned manner. It may generally not be possible for the concerned officers to obtain complete information from the arrested persons about the complicity of various other persons in smuggling activities in a short period of 24 hours. It is only on receipt of such information that other contraband consumer articles, foreign exchange, gold etc. can be unearthed by the empowered officers. These Act have been brought have been brought on the Statute Book because of the large scale smuggling of silver out of the country and of various consumer articles and gold etc. into the country, so that the smuggled goods and attempts at smuggling can be effectively and expeditiously dealt with. If no restraint is put on the liberty of such a person for a reasonable time many such socio-economic crimes would go undetected which is likely to imperil and shatter the economy of our country. At the cost of too much emphasis on the liberty of an individual, the larger interests of the country and, therefore, of the whole nation cannot be sacrificed. Article 19(2) of our Constitution empowers the State to impose reasonable restrictions on the freedom of an individual in the interest of the State or of public order etc. In the backdrop of such facts. I am of the view that we should interpret Section 167 in a manner which shall help the empowered Officers to effectively discharge their functions of weeding out smuggling activities and thus prevent the mischief instead of encouraging it.

146. A Constitutional Bench of the Supreme Court spoke thus in the case of Mohinder Singh v. Chief Election Commissioner, AIR 1978 SC 851(20) in para 87,

“Law transcends legalism when life is baffled by surprise situations, In this target view and in accordance with the well-established doctrine of implied powers we think the court can—and if justified, shall—do, by its command, all that is necessary to repair the injury and make the remedy realistic. Courts are not luminous angels beating their golden wings in the void but operational authority sanctioning everything to fulfil the trust of the rule of law. That the less is the inarticulate part of the larger is the jurisprudence of power.

The Hon'ble Court quoted with approval the doctrine of implied power from Black's Law Dictionary who explained the proposition thus:

“Implied powers are such as are necessary to make available and carry into effect those powers which are expressly granted or conferred, and which must therefore be presumed to have been within the intention of the constitutional or legislative grant.”

In para 89 of the judgement in the case of Mohinder Singh (supra) the Court quoted Frank E. Horack on the doctrine of implied powers.

“Necessary implications: where a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included by implication. Thus it has been stated.

“An express statutory grant of power or the imposition of a define duty carries with it by implication in the absence of a limitation, authority employ all the means that are usually employed and that are necessary to the exercise of the powers or the performance of the duty…..That which is clearly implied is as such a part of a law as that which is expressed.”

The Court then further said,

“The rule whereby a statute, is by necessary implication extended has been most frequently applied in the construction of laws delegating powers to publish officers and administrative agencies. The powers thus granted involve a multitude of function that are discoverable only through practical experience.”

147. I may also mention that I am also in respectful agreement with the reasoning of Gujarat High Court in N.H Dave, Inspector of Customs v. Mohd. Aktar Hussain Ibrahim Abdul Kader, 1984(15), Excise Law Times page 353(21) of the Kerala High Court in Supdt. of Customs, CIU, Cochin v. Ummerkuthy, 1983 Cr.LJ 1860(22) and of the Patna High Court in Nagendra Prasad and another v. State 1987 Cr.L.J 215(23) for holding that a Magistrate has implied powers of remand under section 437 of the code when he refuses to release him on bail. Since our High Court in O.P Gupta's case (supra) was of the firm view that the Magistrate has the power to remand a person arrested by a Customs Officer under section 167 of the code and it could not be said to be case of legislative lacuna, it did not go deeply into the doctrine of implied power writ large in section 437 of the code.

148. I am also not in respectful agreement with the view of Talwar, J. that the decision of Patna High Court only covers situation no. 1 as spelled out in his judgment at page 6. So far as offences under Indian Penal Code are concerned, there are express powers vested in the Magistrate for remand of a accused person under Section 167(2). The various situations presumed by Talwar J. will be dealt with by the Magistrate only under Section 167(2). It never happens in actual practice that prosecution will not file an application under Section 167. By the mandate of Section 167(1), the prosecution has to file an application under this provision while forwarding the accused in custody. Therefore, with respect the assumption of situation no. 3 is simply hypothetical. Similarly, situation no. 4 also never arises. Section 157 occurs earlier than Section 167 in the Code. Under Section 157, it is obligatory on the part of the police to transmit a copy of the FIR to the Area Magistrate. If the police is guilty of violating the mandatory provisions of law, the Magistrate is not bound to remand the accused to custody. Similarly, in situation no. 4, if the case diaries are not produced by the police the Magistrate will be entitled to raise a presumption that the case diaries, if produced, would not have supported the prosecution case and so the Magistrate may order his release on bail or release him even otherwise. In situation no. 5 if the prosecution offers some justifiable reason for not being able to commence the investigation, I do not see any reason why the Magistrate should not be able to grant police or remand in the facts and circumstances of a particular case. In fact, Section 437 itself visualises many situations where the Magistrate will not release an accused on bail. This section even covers those situations where the accused merely appears which would clearly mean a situation that the police as yet is not aware of the appearance of the accused before the Magistrate. It also covers situations where the accused is only suspected of the commission of a non-bailable offence. If we interpret the provisions of this section in a natural manner, we can definitely say that in such a situation also, the Magistrate is entitled to take him in custody and give a notice to the prosecution to find out what are the specific charges against him and whether his continuance in judicial custody will be justified. If after taking into consideration an over-all view of all the circumstances, the Magistrate is satisfied one way or the other, he is authorised to pass an order accordingly. His powers under Section 437 are not limited or controlled by Section 167. Implied powers of the Magistrate under Section 437 to remand an accused to custody are to be seen only by keeping aside the provisions of section 167 and that too, in case of offences under the other Act and not of offences under the Penal Code. So far as the offences under the Penal Code are concerned, there are specific powers of the Magistrate to remand an accused to custody under Section 167. It is entirely a different question, whether in the facts and circumstances of a particular case, the Magistrate should exercise those powers or not. In all situations, he is to be guided by his judicial discretion and by no other consideration for remanding or not remanding an accused. I may further clarify with respect in al the three cases 1987 Cr.L.J 215, 1984 (15) ELT 353 and 1983 Cr.L.J 1860 cited Mr. Watel, there was an application for remand of the accused. Mr. Watel never advanced the argument that the Magistrate would be justified in remanding the accused to custody under Section 437 even if there was no application for remand. Question of there being no such application and testing the implied powers under Section 437, therefore, does not arise.

149. Implied power is not the same thing as the inherent power. There is no doubt that a Magistrate has no inherent power as laid down by the Supreme Court in Natabar Parida v. State of Orissa, 1975 (2) SCC 220. But at the same time Court is not to lose sight of the tact that the offence is non-bailable. The Customs Act or FERA do not prescribe any such procedure for grant or refusal of bail. We have to visualise a procedure for grant or refusal of bail. We have to visualise a situation under section 437 of the code wherein a person suspected of the commission of a non-bailable offence either appears or is brought before a Court other than the High Court or Court of Session. If a Magistrate under Section 437 has the power to release such a person on bail, it goes without saying that in a certain situation he also has the power to refuse bail. If the Magistrate refuses to grant bail, can it ever be said that he is helpless to restrict the movement of such a suspect by taking him in Judicial Custody. This situation has been logically met in the case of Nagendra Prasad (supra) in para 13 at page 97 as follows:—

“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.”

Then again in para 14, while explaining true connotation of the phrase “shall not be so released” in Section 437(1) of the Code the High Court held,

“To my mind, it is nothing more than an express mandate that in the event of refusal of bail such a person shall be kept or continued in custody. The mandate of the law that he shall not be so released is only a negative form of couching the command that he shall be kept in custody. That being so, it is virtually explicit and in any case it is necessarily implicit in the statute that there inheres a power to remand to custody.”

150. Therefore, taking into consideration the total perspective of this case, I am of the view that firstly there is an express power under Section 167(2) of the Code, or alternatively, an implied or implicit power under section 437 of the code vested in the Magistrate to remand a person to judicial custody, when such a person is produced before him either under the Customs Act or under Foreign Exchange Regulation Act by duly empowered officers under those Acts and O.P Gupta's case (supra) lays down the law correctly. Any other interpretation having the effect of denuding the Magistrate of such powers would, in my opinion, be in violation of the rule of interpretation spelled out by Hon'ble Supreme Court in the cases of K.P Vargese and Mohinder Singh (suptra)

Cr. Writ No. 316/89

ORDER

151. In view of the majority decision, we uphold the conclusion in U.O.I… v. O.P Singh… and others (Cri. Writ Petitions Nos. 116 and 104 of 1984, decided on 19th July, 1985) that Section 437 of the Code of Criminal Procedure does not confer implied power of remand on a Magistrate.

152. However, the view expressed in that case regarding the power available to a Magistrate under Section 167(2) of the Code of Criminal Procedure to commit to custody a person produced before him by a Customs Officer under Section 104 of the Customs Act is incorrect and thus over-ruled.

The petition is allowed and the Rule mad absolute.

MBL Ordered accordingly.