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In Re: Mohmed Akhtar Hussein - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtGujarat High Court
Decided On
Case NumberMisc. Criminal Application Nos. 600 to 604 of 1983
Judge
Reported in1984(16)ELT190(Guj)
ActsCustoms Act 1962 - Sections 35, 100, 101, 102, 104, 104(2), 108, 135, 137, 138, 139 and 140
AppellantIn Re: Mohmed Akhtar Hussein
Appellant Advocate Ram Jethamalani and; M.B. Ahuja, Advs.
Respondent Advocate Haroonbhai Mehta,; J.U. Mehta, P. P. and; B.H. Vin,
Cases Referred(see Gaurishanker Jha v. State of Bihar and
Excerpt:
customs - investigation - section 35, 100, 101, 102, 104, 104 (2), 108, 135, 137, 138, 139 and 140 of customs act, 1962, section 167,309 and 437 of criminal procedure code, 1973, gold control act and arms act - whether section 167 applies to investigation made under gold control act or customs act and arms act - offences under acts non-bailable and cognizable - no police officer entitled to investigate cognizable case without an order of magistrate having power to try or commit such case to trial - provision of code proprio vigore apply to such investigations - search and seizure under act - if investigation not concluded within period then magistrate under obligation to make order stopping further investigation in interest of justice - detention beyond period specified under code.....mehta, j. 1. few facts are to be noticed in order to appreciate the relevant circumstances under which this group of misc-criminal applications has been placed before us. 2. the customs officers of ahmedabad effected seizure of gold worth rs. 1.40 crores besides miscellaneous foreign goods worth about rs. 40,000/- indian currency of rs. 72,766.00 ps. and a pistol of american made with six live cartridges and a couple of vehicles from bungalow no. 3, at shwethpark society, budharpura, in the city of ahmedabad on 15/16 april, 1982. in connection with this seizure several persons suspected to have been connected with the case were arrested and produced before the chief metropolitan magistrate, ahmedabad, from time to time. mohamad akhtar hussain, alias 'kadar ahmed vagher bhatti', applicant.....
Judgment:

Mehta, J.

1. Few facts are to be noticed in order to appreciate the relevant circumstances under which this group of Misc-Criminal Applications has been placed before us.

2. The Customs Officers of Ahmedabad effected seizure of gold worth Rs. 1.40 crores besides miscellaneous foreign goods worth about Rs. 40,000/- Indian currency of Rs. 72,766.00 ps. and a pistol of American made with six live cartridges and a couple of vehicles from bungalow No. 3, at Shwethpark Society, Budharpura, in the city of Ahmedabad on 15/16 April, 1982. In connection with this seizure several persons suspected to have been connected with the case were arrested and produced before the Chief Metropolitan Magistrate, Ahmedabad, from time to time. Mohamad Akhtar Hussain, alias 'Kadar Ahmed Vagher Bhatti', applicant herein in this group of applications who is alleged to be the chief culprit in this case was arrested at about 18.30 hrs. on April 20, 1982 by the Customs Officers as they suspected him to be guilty of the various offences under the Customs Act, 1962 and the Gold Control Act. It appears that before he should be produced by the Customs Authorities before the Chief Judicial Magistrate, he was sought to be detained at about 18.45 hours on the same day i.e. 20th April, 1982 under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, (hereinafter known as COFEPOSA) with the result that in order to comply with the provisions contained under section 104(2) an intimation was given to the Chief Metropolitan Magistrate, Ahmedabad, on April 21, 1982 that that the authorities were not capable of producing the accused before the Chief Judicial Magistrate for the above reasons. It appears further that he was formerly arrested on different dates for having been suspected to commit on offence under the Arms Act, Foreigners Act and Indian Passport Act viz. on April 26, 1982, June 16, 1982 and December 15, 1982. Five prosecutions were, therefore, launched against the applicant and other persons. The complaints have been filed by the Customs Authorities under the various aforesaid Acts. The complaint under the Gold Control Act has been filed on September 21, 1982, that under the Customs Act was filed on January 6, 1982, that under the Arms Act on August 2, 1982 that under the Foreigners Act on August 18, 1982 and under the Passport Act on January 29, 1983.

3. Two facts of some significance should be referred to at this stage. When the Customs Authorities reported their inability to produce the applicant before the Chief Metropolitan Magistrate on April 21, 1982, within 24 hours of his arrest, the learned Magistrate did not pass any order on this report. He, however, by his order on May 28, 1982 discharged all the other eight persons arrested in connection with the aforesaid offences under the Customs and Gold Control Acts holding that he had no power to send them to judicial custody. The Customs Authorities, therefore, moved this Court by a special criminal application No. 585 of 1982 for appropriate writ, order and direction to quash and set aside the said order of the learned Magistrate dated May 28, 1982. The Division Bench of this Court consisting of M.P. Thakkar, C.J. (as he then was) and R.J. Shah, J., by its order of August 20, 1982 allowed the criminal application holding that the Magistrate had the power to remand the arrested persons produced before him by the Customs Officers for having committed offences under the Customs Act to the judicial custody having regard to section 437 of the Code of Criminal Procedure and also for having committed offences under the Gold Control Act in view of the specific provisions contained in section 68 of the said Act authorising a Magistrate to detain a person produced before him to custody beyond the period of 24 hrs. The impugned order of the Chief Metropolitan Magistrate was quashed and set aside.

4. It appears that pursuant to the quashing of the aforesaid order by this Court an application was made on behalf of the Customs Authorities on September 16, 1982, that accused may not be released on bail and be kept in judicial custody. The Chief Metropolitan Magistrate did not pass any order for remanding them to custody, but only made an endorsement to the effect that since the accused has not applied for bail the Department would be heard only if and when such an application is made. Another application appears to have been made by the Customs Authorities on September 16, 1982 in the Court of Chief Metropolitan Magistrate that the jail custody. The Chief Metropolitan Magistrate directed in Yadi to be issued to the Jailor that the applicant was in the custody of his Court and in case of his release under COFEPOSA his direction should be sought before releasing him from Court Custody. As stated above the Assistant Collector (P), one Shri D.N. Anerao, filed criminal complaint against the applicant and two other persons on September 23, 1982 for daving committed offence under the Gold Control Act, 1968 being Criminal Complaint No. 1674 of 1982. Nan-bailable warrant in sum of Rs. 10 lakhs was directed to be issued so far as the applicant was concerned. On September 26, 1982, the applicant moved an application in the Court of Chief Metropolitan Magistrate for releasing him on bail which was, however, rejected by the order of October 12, 1982. Similarly, the Assistant Collector (P), Shri Anerao, filed Criminal Complaint against the applicant and 22 other persons for having committed offence under section 35 of the Customs Act read with Section 120(b) of the Indian Penal Code on January 6, 1983 in the Court of Chief Metropolitan Magistrate vide Criminal Case No. 639 of 1983. Before this complaint was filed the applicant had moved the Chief Metropolitan Magistrate for releasing him on bail from judicial custody on November, 26, 1982 which was rejected by his order of December 28, 1982. It appears that on the complaint filed for the offences under the Customs Act the learned Magistrate directed the issue of process against other persons while issued non-bailable warrant so far as the applicant was concerned.

5. Similarly the application moved by the applicant for releasing him on bail in criminal case No. 1971 of 1982 pertaining to offence under the Arms Act, criminal case No. 2150 of 1982 pertaining to offence under the Foreigners Act and criminal case No. 231 of 1982 pertaining to offence under the Passport Act were rejected by the Chief Metropolitan Magistrate by his separate orders of 10-1-1983, and 30th December, 1982 respectively. The applicant, therefore, moved this group of applications being Miscellaneous Criminal Applications Nos. 600 to 604 of 1983 before this Court for releasing him on bail in the aforesaid cases pertaining to the offences under diverse Acts, as aforesaid. One of the principal grounds urged on behalf of the applicant before the learned single Judge was that the applicant was entitled to be released on bail as a matter of right in view of the mandatory provision contained in proviso A(ii) to section 167(2) of Code of Criminal Procedure since in all the cases except under the Passport Act he has been detained for a period exceeding the prescribed statutory period of sixty days during which investigation was no completed and the charge-sheet filed before the Chief Metropolitan Magistrate and in so far as the Passport Act was concerned the offence was clearly bailable. In support of this principal contention reliance was sought to be placed before the learned Single Judge on the Full Bench decision of this Court in Babubhai Parshottamdas Patel v. State of Gujarat, 22 G.L.R. p. 1232, The learned Judge was of the opinion that this decision of the Full Bench required to be reconsidered in view of the later decision of the Supreme Court in State of U.P. v. Lakshmi Brahman and another, A.I.R. 1983 Supreme Court 439 and, he, therefore, directed the matter to be placed before the Hon'ble Acting Chief Justice for constituting a large Bench so as to decide whether the Full Bench decision required any reconsideration. It is in these circumstances that this group of applications has been placed before us.

6. Two questions arise for our determination. In the first place whether the full Bench decision of this Court in Babulal Parsottamdas' case requires reconsideration in view of the later decision of the Supreme Court in Lakshmi Brahman's case (supra). It should be recalled that since the Division Bench of this Court consisting of M.P. Thakkar, J. (as he then was) and R.C. Mankad, J. felt that the earlier decision of Division Bench of A.D. Desai & J.B. Mehta, JJ, in Umedsinh Vakmatji Janeja and others v. State of Gujarat, 16. G.L.R. p. 572 which had ruled that the provisions of section 167(2) and the provisions of section 437 of the Criminal Procedure Code, 1973, operate in different fields and the power under section 167(2) to release an accused person on bail can be exercised only during the pendency of investigation and it will not be competent for Magistrate to exercise that power once the stage of investigation was over, required reconsideration. The Full Bench, therefore, was formed where one of us (B.K. Mehta, J.) was a member of the Bench. The Division Bench held following three decisions of the Supreme Court, namely, Gauri Shankar Jha v. State of Bihar and others, A.I.R. 1972 Supreme Court 711; Bashir and others v. State of Haryana, A.I.R. 1978 Supreme Court p. 55; and Natabar Parida and others v. State of Orissa, A.I.R. 1975 Supreme Court 1465, that the decision of the the Division Bench in Umedsinh's case was underlying good law and once the period of 90 or 60 days is over the accused person has got to be released on bail by virtue of the command of the legislature if he is prepared to and does furnish bail, and further held that no Magistrate is authorised to retain any accused in jail custody beyond the statutory period, which once it was over the Magistrate's power to remand the accused to jail custody came to an end an order on the bail application must be passed without any delay to enlarge such accused person on bail. The Full Bench further held that this right of the accused to be released on bail as a matter of right is absolutely clear since the purposes underlying section 167 is that the investigation should be completed as early as possible and it is with a view to prevent their abuse of power to carry on investigation that this right or entitlement was conferred on the accused to be released on bail after this statutory period was over, subject of course to the cancellation of the bail if the requirements of section 437(5) are satisfied. The power of the Magistrate under section 309(2) of Code of Criminal Procedure on taking cognizance of the office to remand the accused to custody has to be read in the light of the accused to be released on bail. The power under section 309 on remanding the accused on custody when the Magistrate take cognisance of the offence in a case exclusively triable by Court of Sessions is also subject to provisions of Code relating to bail which clearly means that subject to this right of the accused to be released as a matter of under section 167(2).

7. The learned single Judge appears to be of the opinion that having regard to the later decision of the Supreme Court in Lakshmi Brahman's case where D.A. Desai, J., speaking for the Court observed in paragraph 9 that section 267 envisages a stage when a suspect in arrested and the investigation is not completed within the prescribed period. The investigation would come to an end the moment charge sheet is submitted as required under section 170 unless the Magistrate directs further investigation. The ration of the Full Bench decision is diluted and, therefore, the matter require to be reconsidered since the principal contention urged before him on behalf of the applicant herein was that he was entitled as a matter of right to be released on bail. We have to give anxious consideration to the rival contention urged in support of and in opposition to the opinion of the learned single Judge. On behalf of the applicant it has been urged that the decision of the Supreme Court in Lakshmi Brahman's case is altogether in different context and the observation made by the Supreme Court should be read in the light of the question with which the Court was concerned namely, whether the High Court was right in holding that the 'Magistrate had no jurisdiction to remand the accused to jail custody, after the accused was brought before him and before he made an order committing the accused to Court of Sessions in a case instituted upon a police report exclusively triable by the Court of Sessions, and the Magistrate must release him on bail. In other words the Supreme Court was concerned with the correctness of interpretation placed by the High Court of Section 207 and 309 of Code of Criminal Procedure since it had introduced stage of compulsory grant of bail to persons accused of serious offences by the Court and who would not be otherwise entitled to discretionary release on bail. It was further urged on behalf of the applicant that the Full Bench decision of this Court in Babulal Parsottamdas' case (supra) followed three earlier decisions of the Supreme Court as stated above and assuming that there is some justification for the view of the learned single Judge the ultimate question is as to which of the decisions out of the three earlier decision of the Supreme Court and the last decision in Lakshmi Brahman's should be preferred. It cannot be said that the Full Bench decision is, therefore, incorrect. On the other hand it was contended on behalf of the Customs Authorities that the force of the ruling of the Full Bench is eroded in view of the decision of the Supreme Court in Lakshmi Brahman's case. In any case Section 167 of Criminal Procedure Code is applicable only to cognisable offences and not applicable to non-cognisable offences and particularly in the context of the Gold Control Act and the Customs Act which prescribe the special manner of investigation.

8. We are of the opinion that the crux of the problem in the present group of applications is whether section 167 of Criminal Procedure Code would apply in terms in respect of the prosecutions launched for offences under the Gold Control Act and the Customs Act and other two Acts namely, the Arms Act and Foreigners Act and because the investigation has been completed within the specified period so far as the offence under the Passport Act was concerned. We do not, therefore, think it necessary to go into the larger question as to whether the Full Bench decision in Babulal Parsottamdas' case requires reconsideration since it deals with the investigation of the cognizable offences by the police under the Criminal Procedure Code for offence punishable with death or transportation of life and other offences under Indian Penal Code, though we do see a great force in the submission made on behalf of the applicant that in the ultimate analysis the Full Bench decision rests on the three earlier decisions of the Supreme Court and, therefore, assuming that Lakshmi Brahman's case strikes a note of dissent it is a question of preferring and following the other line of decisions in the earlier three cases of the Supreme Court followed by the Full Bench. We must add, however, that we are not expressing any final opinion over this contention urged on behalf of the applicant.

9. The next question, therefore, which arises is whether section 167 of Code of Criminal Procedure applies in terms to the investigation made under the Gold Control Act or Customs Act or the other two Acts, merely, the Foreigners Act or the Arms Act. Section 4(2) of the Criminal Procedure Code provides that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with each offences. Provisions of Code of Criminal Procedure pertaining to investigation including search and seizure would not apply to the investigation under the Foreign Exchange Regulation Act since it provides under section 19(a) for necessary investigation into alleged suspected commission of offence under the Act by the Director of Enforcement (see Nilratan Sircar v. Lakshi Narayan Ram Niwas - A.I.R. 1965 Supreme Court 1). Section 167 is part of Chapter 12 of 1973 Code providing for information to the Police and their powers to investigate. The Police officer's power to investigate cognizable case is provided in Section 156 of the Code, while that of a non-cognizable case is provided in section 155. Section 167 provides for the procedure where investigation cannot be completed in 24 hors. If a person is arrested and detained in custody and the investigation is likely to take more than 24 hours and there are grounds for believing that the accusation or information to the Police officer is well founded the officer in charge of the police station has to forthwith transmit to the nearest Magistrate the copy of the entries relating the acquisition in his diary and at the same time forward the accused to such Magistrate. The competent Magistrate having jurisdiction to try the case before whom the accused is produced to authorise the detention of the accused in the police custody for a term not exceeding 15 days in the whole. The Magistrate is further authorised to detain the accused person in jail custody beyond the period of 15 days if he satisfies about the justification of such course of action, but in no case the Magistrate is authorised to detain an accused person in custody for a total period exceeding 90 days in case of investigation relating to an offence punishable with death or imprisonment for life or of a term not less than ten years and in cases of other offences exceeding sixty days. In other words the power under proviso to sub-section (2) of section 167 is to be exercised by the Magistrate only after an accused person is forwarded by the officer in charge of the police station along with a copy of the entries in his diary under sub-section (1). In case of non-cognisable offences the officer in-charge of the police station has to enter or cause to be entered the substance of the information in the book to be kept by such officer and refer the information to be Magistrate. No police officer is entitled to investigate cognisable case without an order of the Magistrate having power to try such case or commit such case to trial. On receipt of such an order a police officer is entitled to exercise the same powers in respect of investigation except the power to arrest without warrant as an officer in charge of the police station may exercise in cognisable case. It is the settled position in law that the Customs Officer, though he has been invested with many powers under the Customs Act, 1962 which are akin to the powers of a Police Officer, he cannot be regarded as 'police officer' within the meaning of Section 25 of the Evidence Act (see Illies v. The Collector of Customs, Madras, A.I.R. 1970 Supreme Court 1065) and State of Punjab v. Barket Ram, A.I.R. 1962 Supreme Court 276. If the scheme of investigation under the Special Act is materially different from the scheme of the Code of Criminal Procedure, there is another intrinsic evidence in the Act itself to show that the provision of the Code proprio vigore apply to such investigations and each and every provision of the Code cannot be superimposed into the Special Act which would prevail over the Code if on any matter there is inconsistency between the two. Vide State of U.P. v. Durga Prasad, 1975, 3, See 210 where the Supreme Court ruled that an officer conducting an enquiry under section 8(1) of the Railway Property (Unlawful Possession) Act, 1966, did not possess all the attributes of an officer in charge of police station investigating case under Chapter 14 of the Code though he possessed a part of these attributes which were limited for the purposes of holding the enquiry and, therefore, the statements made during such inquiry under section 8(1) of the Act wherein on a bare statement made during the course of an investigation under the Code, section 162 of the Code would not apply with full force on the enquiry proceedings and in taking signature of witnesses on the statements made by them the enquiry officer had not committed any flagrant violation of section 162 of the Code, This Court (per B.K. Mehta, J.) had an occasion to consider a somewhat similar question in context of the attributes of Customs Authorities which are somewhat akin to those of a police officer in charge of a police station and whether on account of such attributes he could be deemed to be a police officer in charge of police station and, therefore, subject to the power and provisions of the Magistrate for remanding the accused to the police custody. In Criminal Revision Application No. 380 of 1976 the Inspector of Customs (P) Ahmedabad city challenged the order or learned Chief Metropolitan Magistrate, Ahmedabad, rejecting the application praying for remand to the custody of the Customs authorities of the accused. A neat question of law was raised as to what is the power of the Criminal Court when a person arrested under Section 135 of the Customs Act was brought before the court and whether the Customs Officer conducting enquiry under the Customs Act possess all the attributes of an officer in charge of the police station investigating a case under Chapter 14 of the Code of Criminal Procedure and, therefore, entitled to ask for remand of the accused to his custody.

10. Having examined the scheme of the Customs Act particularly sections 100, 101 and 102 pertaining to search and seizure by the Customs Officer, section 104 pertaining to the power to arrest a person without warrant or order of Magistrate, who, he has reason to believe to be guilty of an offence punishable under section 135 of the Act and has power to release him on bail, 107 pertaining to the production of documents and examination of any person acquainted with facts and circumstances of the case and section 108 pertaining to his power to summon any person to give evidence or to produce a document and the bunch of sections 137 to 140(a), dealing with offences and prosecutions, it was held by this Court that all the provisions of the Code of Criminal Procedure would not apply priorio vigore to the enquiries made by the Customs Officer under the Customs Act following the aforesaid decision of the Supreme Court in Durga Prasad case (supra). The relevant part of the said decision reads as under :-

'It cannot, therefore, be said that the provisions contained in Section 167 of the Code of Criminal Procedure would apply to the enquiries conducted connection with the Customs Officer under the Customs Act. The learned Public Prosecutor made an attempt to persuade me by urging that since there is no provision in the Customs Act contrary to the provisions contained in section 167 of the Code of Criminal Procedure, the said section will apply even to the inquiries in connection with the Custom Offences under the Customs Act. I am afraid, this is too broad a proposition to be easily acceded to. As I have pointed out above, the inquiry contemplated under the Customs Act cannot be equated for all intents and purposes with the investigation conducted by a police officer under Chapter XIV of the Code of Criminal Procedure and the officer making arrest and/or conducting the inquiry under the Customs Act cannot be said to possess all the attributes of an officer in charge of the police station investigating a case under Chapter XIV of the Code. Sub-section (2) where he has been invested with all the powers of a police officer in charge of the police station is for limited purposes of releasing the person on bail or otherwise only. Any attempt to enlarge these powers must be clearly discouraged also in view of the decision of the Supreme Court in the case of Illias (supra).'

11. The Customs Authorities had carried this matter in Supreme Court by seeking special leave to file as appeal against the said order vide Special Leave petition No. 847 of 1977. The Supreme Court has refused to grant special leave as prayed for and dismissed the S.L.P. by non-speaking order vide its order dated 31-8-1977. We are told that this decision of this Court was pointed out to the Division Bench of this Court consisting of M.P. Thakkar, C.J. (as he then was) and R.J. Shah, J, which was concerned with a similar question, N.H. Dave v. Mohmed Akhtar Hussain alias Kadar Amad Wagher (Bhatti) & others, 1982 G.L.R. Vol. XXIII(2) p. 792 where the Customs Authorities have moved this Court by special Criminal Application for appropriate write to quash and set aside the order or Chief Metropolitan Magistrate releasing this very applicant before us and other persons arrested by the Customs Authorities, for this very offence under the Gold Control Act and Customs Act and produce before the Magistrate within 24 hours as required under section 104 of the Customs Act, since the learned Magistrate found that he has no power to remand them to custody. Before the Division Bench of this Court the position taken by the five parties ins in utter variance with the position taken by them before us. On behalf of the Customs Authorities it was urged inter alia that the Magistrate had the power to remand the persons arrested under the Customs Act to custody while on behalf of the arrested persons it was contended that section 167 was not at all applicable to the offences under the Customs Act. This contention has been set out precisely as under by the Division Bench speaking through M.P. Thakkar, C.J. :

'Sub-section (2) of section 4 of the Code of Criminal Procedure which in effect provides that the provisions of the said Code would apply mutatis mutandis in respect of proceedings instituted in the context of offences under any law other than Indian Penal Code read with Secs. 436 and 437 contained in Chapter XXXIII of the Code pertaining to the provisions as to bails and bonds confers the power to remand the arrested person produced before the Magistrate by the officer of Customs to judicial custody or to grant him bail or refuse to grant bail or to direct that the said person be released on executing a personal bond : Section 4(2) read with section 167 of the Code also empowers the Magistrate to do so.'

The Division Bench set aside the order of the learned Magistrate on the ground that the provisions contained in sections 436 and 437 of the Code of Criminal Procedure, pertaining to the bails and bonds confers the power to remand the arrested person produced before the Magistrate by the officer of the Customs to judicial custody or to grant him bail or to refuse to grant bail, since the said provisions of the Code would apply mutatis mutandis in than Indian Penal Code. The Division Bench, therefore, found it necessary to dwell at length on the submission urged in the context of section 4(2) read with section 167 of the Code. After setting out the sections the Division Bench referred to the decisions of Supreme Court in Illias case (supra) and felt no doubt that an officer of Customs cannot be said to be an officer in charge of a police station or a police officer. The observation made by the Division Bench at page 803 is instructive so far as the present controversy before us is concerned. The observation reads as under :-

'There is not the slightest doubt that an officer of customs cannot be said to be an officer-in-charge of police station or a police officer. That however does not mean that section 167 cannot be drawn upon in order to ascertain whether the Magistrate before whom an arrested person is brought has the power to remand him to judicial custody. (emphasis applied)'.

The Division Bench did not think it fit to consider whether a person arrested and brought before a Magistrate can be said to be an accused person, nor did it think it necessary to find out whether the enquiry envisaged under the Customs Act is within the terms of investigation as defined under the Code. Though the definition of term 'investigation' being an inclusive definition the ordinary connotation of expression 'investigation' cannot be overlooked. The observation thereafter is again instructive. It reads as under :

'An 'investigation' means search for material and facts in order to find out whether or not an offence has been committed. It does not matter whether it is made by police officer or a customs officer who intends to lodge a complaint.'

The Division Bench thereafter referred to the contention urged on behalf of the Customs Authorities that to a very limited extent the power to remand or commit the arrested person brought before the Judicial Magistrate to judicial Custody under Section 167 of the Code can be invoked when a person is arrested by Customs Authorities for an offence under the Customs Act and produced before the Magistrate. Reliance was placed on behalf of the Customs Authorities on the decision of the Supreme Court in Paresh Chandra Chaterjee v. The State of Assam and Another - A.I.R. 1962 S.C. 167. The Division Bench was of the opinion that this contention deserved serious consideration though it did not wish to express its considered opinion on this question. Since the Division Bench was inclined to hold that the Magistrate has a power to remand a person to custody a necessary concomitant of its power to grant or to refuse bail under secs. 437 and 438 of the Code which apply to the offence under the Customs Act in view of section 4(2) of the Criminal Procedure Code. Unfortunately, however, the Division Bench has not thought it fit to consider the decision in Criminal Revision Application No. 380 of 1976 referred to hereinabove though we are told that it was pointed out by the parties to the court. It is not clear from the record or otherwise whether it was also pointed out to the Division Bench that the decision in the Criminal Revision Application No. 380/76 was confirmed by the Supreme Court. It is no doubt true that the Supreme Court has not made any speaking order while rejecting the special leave petition. It is not necessary to go into the larger question as to what is the effect of such an order where the petition is dismissed by the Supreme Court by one-word order of dismissal without assigning any detailed reasons, in support thereof. A non-speaking order of dismissal may indicate that the Court did not find any substances in the petition, vide Daryao & Others v. State of U.P. and others, A.I.R. 1961 S.C. 1467. Any way, though the Division Bench has not expressed its considered opinion on the question as to whether provision contained in Section 167 can be invoked in context of the offence under the Customs Act, the observations made by the Division Bench indicates that section 167 can be drawn upon in order to ascertain whether the Magistrate before whom an arrested person is brought has the power to remand him to judicial custody. In other words the Division Bench has not thought it fit to apply section 167 in terms to the Customs Offence. The question therefore, remains as to whether the person arrested for offence under the Customs Act or the Gold Control Act is entitled to be released on bail if the investigation is not completed within the statutory period as prescribed under sub-clause (ii) to Clause A of the proviso to Section 167(2) of the Code. It should recalled that the main enactment of sub-section (ii) invests the power in the Magistrate to authorise the detention of the accused persons beyond the period of 15 days in jail custody if he satisfied about the adequacy of the ground in that behalf, but this authority does not empower him to detain beyond the specified period as prescribed in clauses (i) and (ii) to proviso A. It is axiomatic to say that the proviso is generally in the nature of exception to the main enactment. However, on principle and authority it has been recognised that a proviso may amount to substantial provision in a given case. Indeed it was sought to be urged on behalf of the applicant that the proviso to section 167(ii) is a nature of an independent provision and not in nature of an exception. We are not impressed by this contention for the obvious reasons, that the enactment as well as the proviso is an integrated scheme of period during which a person accused of an offence can be detained in the police or jail custody pending the completion of investigation. It is, therefore, difficult to read the proviso out of context and construe as an independent provision. If that is so we find it difficult that section 167(ii) together with the proviso would apply in terms to the cases of persons brought before the Magistrate after their arrest for having committed offence under the Customs Act. In spite of our difficulty in accepting the contention urged on behalf of the applicant herein about his entitlement to be released on bail in view of his detention exceeding the specified period as prescribed in the aforesaid proviso we cannot afford to disregard the object of this provision, which is wholesome in principle since they have been envisaged to ensure that the persons arrested by the police and brought before the Magistrate with the least possible delay in order to enable the later to judge if such person has to be further kept in police custody and also to enable such persons to make representation if he wished to (see Gaurishanker Jha v. State of Bihar and others, A.I.R. 1972 S.C. 711). In Hussainara Khatoon and others v. Home Secretary, State of Bihar, A.I.R. 1979 S.C. 1377 three Judges Bench of the Supreme Court speaking through Bhagwati, J., ruled that undertrial prisoners in detention for period longer than maximum term as prescribed in section 167(2) of the proviso violates Article 21 of the Constitution. The ratio of the decision appears to be that if undertrial prisoners remain in all for a period longer than the maximum term as prescribed in proviso to section 167(2) of Criminal Procedure Code without the trial having been commenced their continued detention would clearly be illegal and in violation of the fundamental right under Article 21 of the Constitution. Bhagwati, J., inter alia observed in his decision as under which is instructive on the point :

'We are also very doubtful whether on the expiry of 90 days or 60 days, as the case may be, from the date of arrest, the attention of the undertrial prisoners was drawn to the fact that they were entitled to be released on bail under proviso (a) of sub-section (2) of Section 167. When an undertrial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days, as the case may be, the Magistrate must, before making an order of further remand to judicial custody, point out to the undertrial prisoner that he is entitled to be released on bail.'

12. In Nimeon Sangma and others v. Home Secretary, Govt. of Meghalaya and others - A.I.R. 1979 Supreme Court. 1518 the three Judges Bench of the Supreme Court observed that it was pathetic that there should have been considerable delay in investigation by the police in utter disregard of the fact that a person has been deprived of his freedom on the ground that he is accused of the offence and it did not approve of the practice of detention for considerable period without commencement of trial since it would amount to the breach of the rule of law, inasmuch as the rights guaranteed under Article 21 of the Constitution are violated. We should also remind ourselves of the provision made in section 167(2) in the Code. If the investigation is not concluded within a period of six months from the date of the arrest of the accused in any case triable my Magistrate as summons case the Magistrate is under obligation to make an order stopping further investigation into the offence unless for special reasons and in the interest of justice he is satisfied at the instance of the officer investigating the offence that the continuation of the investigation is necessary beyond a period of six months. In this connection reference to section 437(6) is also instructive. Sub-section (6) of Section 437 of the Code provides that in any case triable by the Magistrate the trial of the person accused of a non-bailable offence is not concluded within 60 days from the first date fixed for taking evidence in the case such person shall, if he is in the custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate unless for reasons to be recorded in writing the Magistrate otherwise directs. The intention underlying these sub-sections is apparent that the investigation as well as trial of a criminal case should be concluded as expeditiously as possible and not beyond the period specified in the said sub-sections. If, therefore, the detention beyond the specified period virtually amounts to the violation of the fundamental right of liberty under Article 21 of the Constitution, we are of the opinion that the principle underlying these provisions should be invoked and applied even in cases of persons arrested for having committed offences under the Customs Act or the Gold Control Act.

13. At this stage it is necessary to remind ourselves that the offences under the Customs Act is non-bailable and non-cognizable. The court is not entitled to take congnizance of any of the offences under sections 132 to 135 except with the previous sanction of the Collector and notwithstanding anything contained in Code of Criminal Procedure an offence under Chapter XVI other than punishable under section 135(1)(i) where the value of goods in respect of which the offence is committed exceeds Rs. 1 lakh or where a person to be tried for the offence is already once convicted is to be tried summarily. In the present case, therefore, since the value of the goods involved in the offence exceeds Rs. 1 lakh cannot be tried summarily. In respect of an offence under the Gold Control Act it is non-cognizable and non-bailable and the Court can take congizance of the offence only on a complaint in writing made by the Gold Control Officer not below the rank of Collector of Central Excise or Customs or any person authorised by him. The offences except those under section 85(1)(a) and (2) of the Act are to be tried summarily. The excepted offences are in regard to the value of the goods exceeding Rs. 1 lakh or having regard to the fact of the previous conviction of the accused concerned.

14. The offence under the Arms Act, 1959 is non-bailable and is cognizable. All the arrests and searches under the Arms Act or the Rules under the Act are to be carried out in accordance with the provisions of the Code of Criminal Procedure relating respectively to arrest and searches. Provision of Criminal Procedure Code would, therefore, apply mutatis mutandis to the investigation, inquiry and trial of the offences under the Arms Act. The offences under the Forginers Act is also non-bailable. All the provisions of the Code will also apply to the investigation, inquiry and trial of the offences under the Arms Act.

15. In view of the nature of the offences as well relevant nature of the procedure to be followed in the trial thereof the courts cannot afford to brush aside the principle underlying these provisions namely 167 and 437 of the Code of Criminal Procedure pertaining to the right of the accused to be released on bail and the power of the detention of the courts of such persons. These powers of detention have to be exercised consistent with the constitutional mandate as well as the principle underlying these provisions. The Courts must bear in mind perspective of these provisions while exercising their powers to remand persons accused or suspected of having committed offences under these Acts and brought before them either under the Special Act or under the Code of Criminal Procedure and exercise their powers to release them on bail or otherwise according to the correct legal principle. We do not mean to say that the courts in context of these special Acts must mechanically apply a straight jacket formula as to prescribed periods without relevant considerations such as gravity of offence, the complexity of investigation, the modus operandi of the persons involved in such nefarious activities, the dilatory tactics adopted by such persons and the other relevant an attendant circumstances and other special ground prima facie established by the officer making the investigation and the courts should pass appropriate orders in that behalf if the special reasons and the interests of justice required detention or the continuation of trial beyond the specified period as prescribed in the aforesaid provisions of the Code. It appears from the statement of chronology of evidence filed on behalf of the Customs authorities that in all the criminal cases except Passport Act the investigations were not completed and consequently the applicant was detained beyond the specified period as prescribed in proviso A to section 167(2). It is also reveled from this statement that in respect of the prosecution under the Gold Control Act the trial has not been completed within sixty days from the first date fixed for taking evidence in the case, as required under sub-section (6) of Section 437. The learned single Judge has not considered the problem from these angles. We are of the opinion that since this requires a number of aspects to be considered as indicated above before exercise of the power to grant or to refuse the bail and to authorise the detention of the applicant in custody, the matter should be considered afresh by the single Judge in the light of the facts that may be brought out by the applicant as well as by the Customs Authorities and exercise the powers to grant or to refuse bail according to the correct legal principles and as pointed out in this order. The matters shall have to be placed before the learned single Judge who will decide the bail applications in accordance with law.

16. Mr. Mehta for the Customs Authorities prays that the implementation of this order be stayed for a period of four weeks so as to enable the Union Government to consider as to whether the matter should be carried to the Supreme Court, if it is so advised. The implementation of this order is, therefore, stayed for a period of four weeks so as to enable the Union Government to take appropriate decision in the matter.


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