Calcutta High Court
Bijan Halder And Anr. vs State Of West Bengal And Ors. on 14 May, 1993
Equivalent citations: 1993CRILJ3082
ORDER Gitesh Ranjan Bhattacharjee, J.
1. In this revisional application several important questions of law have been raised which will be discussed later. On 16th September, 1988 the petitioners, who were earlier arrested on the 15th September, 1988 by customs officials under Section 104 of the Customs Act, 1962, were produced before the learned Sub-Divisional Judicial Magistrate, Ranaghat, Nadia and they were remanded to jail custody after rejection of their prayer for bail. Thereafter on 30th September, 1988 the petitioners were released on bail by the learned Sub-Divisional Judicial Magistrate. Subsequently on the basis of a complaint filed by the Superintendent of Customs in respect of offence punishable under Section 135(1)(b)(ii) of the Customs Act, 1962, the learned Magistrate took cognizance.
2. The first point argued before me by Mr. Ghosh on behalf of the petitioners is that the cognizance taken by the learned Magistrate in this case is bad in law of the fact that the complaint on the basis of which the cognizance was taken was filed, on completion of investigation, after the expiry of the period prescribed in Section 167(5), Cr. P.C. as applicable to the case. This in turn raises the question whether Section 167, Cr. P.C. will be attracted to a prosecution for an offence punishable under Section 135 of the Customs Act. Section 100, Section 101, Section 105, Section 106 and Section 110 of the Customs Act provide for search and seizure by appropriate customs officials Section 107 authorises the empowered customs officer, during the course of an inquiry in connection with the smuggling of any goods, to require any person to produce or deliver any document or thing relevant to the enquiry and also to examine any person acquainted with the facts and circumstances of the case. Section 108 empowers a gazetted officer of customs to summon any person whose attendance he considers necessary either to give evidence or to produce a document or thing in any enquiry which such officer is making in connection with the smuggling of any goods. Section 106A gives power of inspection to an authorised Customs Officer. Sub-section (1) of Section 104 of the Customs Act authorises an empowered customs officer to arrest any person if such officer has reason to believe that such person has been guilty of an offence punishable under Section 135 of the Customs Act. Sub-section (2) of Section 104 requires the person so arrested to be taken to a Magistrate without unnecessary delay. Sub-section (3) of the said section provides that an officer of customs arresting any person under subsection (1) shall have the same powers and be subject to the same provisions as the officer-in-charge of a police station has and is subject to under the Code of Criminal Procedure, for the purpose of releasing such person on bail or otherwise. For better appreciation Section 104 of the Customs Act is reproduced below:
"Section 104. Power to arrest -
1) If an officer of customs empowered in this behalf by general or special order of the Collector of Customs has reason to believe that any person in India or within the Indian Customs Waters has been guilty of an offence punishable under Section 135, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.
2) Every person arrested under Sub-section (1) shall, without unnecessary delay, be taken to a Magistrate.
3) Where an officer of customs has arrested any person under Sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise have the same powers and be subject to the same provisions as the officer-in-charge of a police station has and is subject to under the Code of Criminal Procedure, 1898.
4) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence under this Act shall not be cognizable."
3. It is therefore evident that an offence under the Customs Act being non-cognizable the police, on their own authority, cannot investigate any offence under the Customs Act and also cannot arrest any person for or in connection with an offence under the said Act. It is also seen that an empowered customs officer having reason to believe that any person has been guilty of an offence punishable under Section 135 of the Customs Act may arrest such person in which case however he is required to be informed of the grounds for such arrest and is also required to be taken to a Magistrate without unnecessary delay. The officer of customs arresting a person has been given power of an officer-in-charge of poilce station as is availble under the Code of Criminal Procedure for the purpose of releasing such person either on bail or otherwise. In this connection what is significant to be noted is that the customs officials have not been given the same power as available to the officer-in-charge of a police station under the Criminal Procedure Code for the purpose of investigation Or for other purposes except for the purpose of releasing the arrested person. There are however as we have seen, independent provisions made for search, seizure, inspection; arrest, examination of persons and even inquiry under the Customs Act which can be said to create independent powers for customs officials to deal with matters coming within the ambit of the Customs Act. Section 108 of the Customs Act contains provisions for summoning any person to give evidence and produce document in any inquiry in connection With the smuggling Of any goods. Sub-section (4) of Section 108 provides that every such inquiry shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code. The Customs Act also contains provisions for confiscation of goods, etc. and imposition of penalty by the appropriate customs officials, apart from prosecution of the offenders in court for commission of offence under the Customs Act. Sub-section (1) of Section 137 of the Customs Act provides that no court shall take cognizance of an offence under Section 132, Section 133, Section 134 or Section 135, except with the previous sanction of the Collector of Customs. Section 138 provides that notwithstanding anything contained in the Code of Criminal Procedure an offence under Chapter-XVI other than an offence punishable under clause (i) of Sub-section (1) of Section 135 or under Sub-section (2) of that section may be tried summarily by a Magistrate. The word may in this connection indicates that the exercise of the power of summary trial is optional.
4. It is the contention of Mr. Ghosh on behalf of the petitioners that the proceeding before a Magistrate from the date of production of a person arrested under Section 104 of the Customs Act till a petition of complaint is filed by the appropriate customs officer before such Magistrate with necessary sanction under Section 137 of the Customs Act, will attract the provisions of Section 167 of the Criminal Procedure Code and accordingly if the petition of complaint is not filed before the learned Magistrate within the statutory period mentioned in Sub-section (5) of Section 167, Cr. P.C. reckoned from the date of production of the arrested person before the Magistrate under Section 104 of the Customs Act, the inquiry or investigation, whatever may it be, will have to be stopped and the accused discharged under Section 167(5), Cr. P.C. and any cognizance taken by the Magistrate on a petition of complaint filed before the Magistrate after the expiry of the statutory period prescribed in Section 167(5) will be bad in law and will be liable to be quashed. In this connection, it is considered necessary to reproduce certain portions of Section 167, Cr. P.C. Subsection (1) and Sub-section (2) of Section 167, Cr. P.C. run thus :-
"167. Procedure when investigation cannot be completed in twenty-four hours-
1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the. period of twenty-four hours fixed by Section 57, and there are grounds for believing that the 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;
2) The Magistrate to whom an accused is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, and if he has ho jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction;
Provided that-
a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-
i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this Sub-section shall be deemed to be so released under the provisions of Chapter-XXXIII for the purposes of that chapter;
b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
c) no Magistrate of the second class, not specially empowered in this behalf by the High Court shall authorise detention in the custody of the police;
Explanation-I. For the avoidance of doubts it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.
Explanation-II. If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention".
Sub-section (3) of Section 167, Cr. P.C. provides that a Magistrate authorising under the said section detention in the custody of the police shall record his reasons for so doing. Sub-section (5) of Section 167, Cr. P.C. as amended in West Bengal by the West Bengal Act, 24 of 1988 is also required to be closely studied in this connection and is accordingly reproduced below:
"Section 167(5) - if, in respect of-
i) any case triable by a Magistrate as a summons case, the investigation is not concluded within the period of six months, or
ii) any case exclusively triable by a Court of Session or a case under Chapter-XVIII of the Indian Penal Code (45 of 1860), the investigation is not concluded within a period of three years, or
iii) any case other than those mentioned in clauses (i) and (ii), the investigation is not concluded within a period of two years, from the date on which the accused was arrested or made his appearance, the Magistrate shall make an order stopping further investigation into the offence and shall discharge the accused unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period mentioned in this sub-section is necessary."
5. It is not difficult to see that by its own terms Section 167, Cr. P.C. applies and is attracted to investigation made by police. It may also be seen that Sub-section (2) of Section 167 applies only to cases where a person is forwarded to a judicial Magistrate under arrest by an officer-in-charge of the police station or the police officer making the invetigation. In Sub-section (2) the Magistrate is empowered to authorise the detention of the accused ordinarily for a period not exceeding fifteen days in the whole and such detention up to fifteen days may be in police custody or judicial custody, but the Magistrate may also authorise the detention of the accused in judicial custody under Section 167, for a period up to ninety days or sixty days as the case may be, depending upon the nature of the offence and on the expiry of such period the accused has to be offered bail if the investigation yet continues. It, however, should be pointed out at the same breath that Section 167, Cr. P.C. must not to be so construed as to hold that the accused has to be released on bail in all cases and in all circumstances, after the expiry of the said period of ninety days or sixty days, as the case may be. Section 167, Cr. P.C. applies for bail only during the pendency of the investigation and the period of ninety days or sixty days as mentioned in the proviso (a) to Sub-section (2) of Section 167, Cr. P.C. limits the extent of detention during investigation. The said Sub-section (2) prescribes the maximum period of detention during the pendency of the investigation. The accused has a right to bail under Section 167(2), Cr. P.C. on the expiry of ninety days or sixty days as the case may be, if the investigation is not completed within the said period. Where however the investigation is completed within the said period and charge-sheet is submitted by police within the said period of ninety days or sixty days, as the case may be, bail as a matter of right is no more available to the accused which he would have been entitled to had not the investigation been concluded within the said period. Once the charge-sheet is submitted by police under Section 173 Cr. P.C. after completion of investigation and cognizance thereon is taken by the Magistrate, Section 167, Cr. P.C. does not become any more attracted for detention of the accused. After submission of charge-sheet on completion of investigation by police and taking of cognizance thereon by court, Section 309, Cr. P.C. is however attracted if further detention of the accused becomes necessary. In this connection, we may take note of Sub-section (2) of Section 309, Cr. P.C. the material portion of which, necessary for our present purpose, is re-produced below:
"Section 309(2). If the court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any enquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody;
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time";
(Emphasis supplied).
It is therefore evident that remand under Section 309, Cr. P.C. is not available before cognizance of the offence is taken by the court. Now in a police report case the question of taking cognizance does not arise till the police submit charge-sheet after completion of investigation. Under the old Criminal Procedure Code of 1898, since repealed by the new Criminal Procedure Code of 1973, in Section 344 containing provisions corresponding to Section 309 of the new Code, the words 'after taking cognizance of an offence, or commencement of trial", were not there as a result of which remand under Section 344 of the old Code was available even during the continuance of the police investigation. In Section 167 of the old Code, corresponding to Section 167 of the new Code the maximum period of detention (permissible under the said section of the old Code) was prescribed as fifteen days and therefore if further detention beyond the period of fifteen days was necessary during police investigation in any particular case such detention could be made by taking recourse to Section 344 of the old Code. In Section 167 of the new Code the permissible period of detention however has been enlarged up to ninety days or sixty days depending upon the nature of the offence, but at the same time this is also to be noticed that the applicability of Section 309 of the new Code is attracted only subsequent to the taking of cognizance of an offence or commencement of trial, and not to any earlier stage, say, during police investigation unlike what was possible under Section 344 of the old Code.
6. The question whether the Magistrate before whom a person arrested under Section 104 of the Customs Act is produced can exercise the power of remand in respect of such person and whether Section 167, Cr. P.C. is attracted to such a case, as has been raised in this criminal revision, has been considered earlier by different High Courts on different occasions, but there has been a sharp divergence of opinion in this matter as a result of which the judicial decisions on this point are not uniform. In the present case before me it has been argued by Mr. Ghosh that apart from Section 167, Cr. P.C. the Magistrate has no other power, far less any inherent power to exercise the power of remand in respect of a person arrested and produced before him under Section 104 of the Customs Act and therefore whenever a person is produced under arrest before a Magistrate under the said section and his prayer for bail is rejected he can be remanded to judicial custody, as is very often done, by exercising the power under Section 167(2), Cr. P.C. and therefore Section 167, Cr. P.C. or for that matter Sub-section (5) of that section also is attracted to a proceeding covered by the Customs Act. In this connection, Mr. Ghosh also referred to Sub-section (2) of Section 4 of the Code of Criminal Procedure which runs thus:
"Section 4(2). Trial of offences under the Indian Penal Code and other laws.-
1) All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.
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."
It has been argued by Mr. Ghosh that since the Customs Act is silent as to how a person arrested and produced before the Magistrate under Section 104 of the Customs Act is to be dealt with by the Magistrate, Sub-section (2) of Section 4, Cr. P.C. will come into play as a result of which Section 167(2), Cr. P.C. will be attracted and if Sub-section (2) of Section 167, Cr. P.C. is attracted Sub-section (5) of Section 167 will also be attracted as a necessary corollary. As I have already mentioned the question as to whether the Magistrate has any power to direct for remand of a person arrested and produced under Section 104, Customs Act and whether Section 167, Cr. P.C. is attracted in such a case has been considered by different High Courts on different occasions which I shall presently refer to.
7. The Gujarat High Court in N.H. Dave, Inspector of Customs v. Md. Akhtar Hossain (Criminal Application No. 585 of 1982), dealt with the question whether the Magistrate has the power of remand under Section 437, Cr. P.C. in respect of a person produced before him under arrest under Section 104 of the Customs Act. A relevant portion of the said decision of the Gujarat High Court has been re-produced in paragraph-16 of the decision of the Kerala High Court in Superintendent, Customs, CIU, Cochin v. P. K. Ummerkutty, 1983 Cri LJ 1860 (at page 1866). The Gujarat High Court in the said decision in N. H. Dave came to the conclusion on analysis of the relevant provisions of law that the Magistrate before whom a person is produced under arrest under Section 104 of the Customs Act has the power to commit such person to judicial custody. In this connection, the Gujarat High Court made the following observation:
"Unless the provision contained in Section 104 of the Customs Act to arrest the person and to produce him before the Magistrate is to be considered to be meaningless, purposeless and a futile exercise undertaken for no purpose and unless we shut our eyes to Section 4(2) and Section 437, no other view is possible".
The Patna High Court in Nagendra Prasad v. State, 1987 Cri LJ 215 also took a similar view as held by the Gujarat High Court about the power of the Magistrate to direct for remand under Section 437, Cr. P.C. in respect of a person arrested and produced before him under Section 104 of the Customs Act. It was also 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 observed 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 the Code".
It however seems that the Patna High Court in Nagendra Prasad held that Section 167 of the Code of Criminal Procedure was not applicable to a case where a person is arrested and produced before a Magistrate under Section 104 of the Customs Act.
8. Then we have two decisions of the Kerala High Court on the matter. Both are the decisions of the same learned single Judge, namely U. L. Bhat, J. The first of these two decisions is Superintendent, Customs CIU, Cochin v. P.K. Ummerkutty reported in 1983 Cri LJ 1860. In the said decision the learned Judge of the Kerala High Court agreeing with the decision of the Division Bench of the Gujarat High Court in N.H. Dave v. Md. Akhtar Hussain (1982(2) 23 Guj LR 792) (supra) held that by virtue of Section 4(2) of the Code of Criminal Procedure, the person arrested by a competent customs officer in regard to an offence under the Customs Act and produced before the Magistrate under Section 104(2) of the said Act has to be dealt with according to Section 437 of the Code of Criminal Procedure and the Magistrate dealing with such person arrested and produced Under Section 104 of the Customs Act has power to commit him to custody. The Kerala High Court in that decision however disagreed with the decision of the Delhi High Court in Dalam Chand Baid v. Union of India, 1982 Cri LJ 747 which I shall discuss later. The second decision of the Kerala High Court is M.K. Ayoob v. Superintendent, Customs, CIU, Cochin, 1984 Cri LJ 949. In that decision it was held that the provisions in Sub-sections (2) and (3) of Section 167 of the Code of Criminal Procedure would apply to persons arrested under Section 104(1) of the Customs Act and produced before a Magistrate under Section 104(2) of the said Act and the benefit of the proviso to Section 167(2) of the Code was available to them and in that view of the matter, held further that after the expiry of the period mentioned in Section 167(2), Cr. P.C. the concerned persons under detention were entitled to be released on bail if no complaint under the Customs Act had been filed against them in the meantime. In the said decision of the Kerala High Court it was also held by the learned Judge in paragraph-7 that in respect of a person arrested and produced under Section 104 of the Customs Act, the power to order remand and detention in such custody as the Magistrate would deem fit was implicit in Section 437 of the Code, but the said section did not lay down any procedure or guideline for passing an order of remand. In paragraph-8 thereof the learned Judge observed that the controls, fetters and guidelines of the provisions of Section 167(2) and (3) must be read into the framework of Section 437 of the Code. In the light of Sub-section (2) of Section 4 of the Code of Criminal Procedure it was held in that decision of the Kerala High Court that in the absence of any provisions of the Customs Act touching any such matter as mentioned in Section 4(2) of the Code, the provisions of the Code would apply and that remand or detention of an arrested person, not being provided by the provisions of the Customs Act, must be governed by the provisions of the Code and it would therefore follow that the provisions of Sub-sections (2) and (3) of Section 167 of the Code must apply in the case of a person arrested under the Customs Act and produced before a Magistrate (vide, para-10, ibid). It was further observed by the learned Judge, in para-11 of the said decision in N. K. Ayoob (1984 Cri LJ 949) (supra) that in relation to a person arrested under the Customs Act, the provisions of Section 167 of the Code of Criminal Procedure must be read suitably, that is, reference to the 'officer-in-charge of a police station' must be read as 'customs officer' and that this view is strengthened by the provision in Sub-section (3) of Section 104 of the Customs Act also. As we have already noticed, Sub-section (3) of Section 104 of the said Act only provides that the officer of customs arresting a person shall have the same powers and be subject to the same provisions as the officer-in-charge of a police station has and is subject to under the Code, for the purpose of releasing such person either on bail or otherwise. When subsection (3) of Section 104 specifically confers only the limited power of releasing an arrested person as an officer-in-charge of a police station can do under the Criminal Procedure Code, it is very difficult to agree with the observation of the Kerala High Court that Sub-section (3) of Section 104 of the Customs Act strengthens the view that 'customs officer' must be read in place of 'officer-in-charge of a police station' as occurring in Section 167 of the Code. On the contrary the specific power given to a customs officer under Sub-section (3) of Section 104 of the Act for the purpose of releasing a person on bail or otherwise by expressly referring to the power of the officer-in-charge of a police station under the Code as a measure of the power of the customs officer in respect of the matter, rather clearly indicates that other powers and exercises available under the Code to an officer-in-charge of a police station including those referable under Section 167, Cr. P.C. are not available to a customs officer as a matter of course.
9. We have also a decision of a Division Bench of this Court in Sankarlal v. State of West Bengal, 1986 Cri LR 19. In the said decision the decisions of Delhi High Court in Dalam Chand Baid (1982 Cri LJ 747) (supra), of the Kerala High Court in Ummerkutty (1983 Cri LJ 1860) (supra) and M. K. Ayoob (1984 Cri LJ 949) (supra) as well as of the Gujarat High Court in N. H. Dave (1982 (2) 23 Guj LR 792) (supra) were referred to, and then the Division Bench of this court in the said decision in Sankarlal (supra) observed that considering the various decisions and the provisions of Section 104 of the Customs Act the Court was convinced that whenever a Magistrate was expressly authorised to grant bail to an accused he had by necessary implications the right to refuse bail and to order him to be taken into custody. We have also a decision of a Single Bench of the Madras High Court in Senior Intelligence Officer, D.O.R.I., Madras v. M. K. S. Abu Bucker, 1990 Cri LJ 704. In that decision it has been held that the Magistrate has the power to remand a person produced before him in accordance with the Section 104 of the Customs Act by virtue of the powers of remand under Section 167(2) and (3) of the Code and could further exercise the powers under Section 437 of the Code. Regarding the power of remand by a Magistrate in a customs case, the learned Judge also recorded in paragraph-28 of the decision that his Lordship was in respectful agreement with the views expressed by the High Courts of Kerala and Gujarat and the Full Bench decision of the Delhi High Court in Union of India v. O.P. Gupta.
10. We will now take notice of the decisions of the Delhi High Court. The first decision of the Delhi High Court in the matter is the decision of a Division Bench of that court in Dalam Chand Baid v. Union of India, 1982 Cri LJ 747. There a person by name Dalam Chand Baid was suspected to have committed an offence punishable under the Foreign Exchange Regulation Act, 1973. He was arrested and produced before the Magistrate and his bail application was rejected and he was remanded to judicial custody repeatedly. It may be mentioned here that the provisions of Section 35 of the Foreign Exchange Regulation Act, 1973 are similar to those under Section 104 of the Customs Act. The court in that decision noticed that there was no provision in the Foreign Exchange Regulation Act or the Code conferring power to pass an order of remand on a Magistrate in such a case and came to the conclusion that the Magistrate had no power to remand. At the same time, the Court also took the view that Section 437 of the Code would not imply a power to order remand. This decision of the Division Bench of the Delhi High Court in Dalam Chand was however subsequently overruled by a majority decision of a Full Bench of the same court in Union of India v. O.P. Gupta (Criminal Writ Nos. 116 and 104 of 1984, judgment dated 19-7-1985, unreported). The majority decision in the case of O. P. Gupta was the decision of Jogeshwar Dayal and Malik Sharief-Ud-Din, JJ. Charanjit Talwar, J. dissenting. The majority decision in O. P. Gupta held that Section 437, Cr. P.C. did not confer on the Magistrate any implied power of remand but held that by the application of Section 4(2) of the Code the Magistrate had power under Section 167(2) of the Code to authorise detention of a person produced under arrest under Section 104 of the Customs Act and /or Section 35 of the Foreign Exchange Regulation Act. But in the latest judgment of a larger Bench of 5 Judges in Deepak Mahajan v. Director of Enforcement, 1991 Cri LJ 1124 the majority view held by the Delhi High Court is that Section 437 of the Code of Criminal Procedure does not confer implied power of remand on a Magistrate and that the Magistrate has also no power under Section 167(2) of the Code of Criminal Procedure to commit to custody a person produced before him under Section 104 of the Customs Act. It may be mentioned that Charanjit Talwar and Malik Sharief-Ud-Din, JJ. who were members of the earlier Full Bench deciding O. P. Gupta were also members of the later Full Bench deciding Deepak Mahajan.
11. Charanjit Talwar, J. in Deepak Mahajan (supra) rightly noticed in para-graph-5 of the said decision that the word 'remand' does not occur either in Section 167(2) or in Section 437 of the Code and that the said word is mentioned only in Section 309 of the Code. The learned Judge also took note of the meaning of the word 'remand' which according Webster Dictionary is 'to send a person charged with a crime back into custody by a court order'. The learned Judge also recorded in the said paragraph-5 of the decision that the courts have also held 'remand' to connote re-committal to custody of a person who has been brought up in custody. In paragraph-24 of the said decision Charanjit Talwar, J. observed that as far as the applicability of Section 437 by virtue of Section 4(2) of the Code is concerned, there can be no dispute that it is applicable when the arrested person is in custody of the customs officers and on production before the Magistrate, bail can be sought by him only under this provision. The learned Judge, it seems, however, did not agree with the view expressed by the Gujarat, Patna and Kerala High Courts regarding the power of remand. As regards the observation in the decision of the Kerala High Court that in relation to a person arrested under the Customs Act the provisions of Section 167 of the Code must be read suitably, i.e., reference to 'officer-in-charge of a police station' must be read as 'customs officer'. Charanjit Talwar, J. in paragraph-75 of the decision in Deepak Mahajan observed as follows:
"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 (1970 Cri LJ 863) (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 suit as it was not brought to the notice of the Gujarat High Court in N. H. Dave's case (supra)".
In paragraph-79 of the said decision in Deepak Mahajan, Charanjit Talwar, J. also made the following observation :
"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 recgonized 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-a-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 of the customs officer 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 broader sense. For instance an Excise Officer under the Central Excises and 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 offences 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 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 learned Judge has conceded that a person produced before a Magistrate under Section 104 of the Customs Act comes within the applicability of Section 437 of the Code regarding grant or refusal of bail by virtue of Section 4(2) of the Code, but at the same time has refused to concede for reasons discussed by his Lordship that the Magistrate has any power of remand either under Section 437 or under Section 167, Cr. P.C. This leads to, I must say with great respect, a very queer situation. In the event bail is refused by the Magistrate under Section 437, Cr. P.C. to a person produced under arrest under Section 104 of the Customs Act the Magistrate has, of necessity, to pass some order regarding the custody of the person whose bail he refuses. After refusal of the bail the Magistrate certainly cannot say that he does not know as to where the person whose prayer for bail is rejected by him is to be kept detained or sent. The very purpose of producing the arrested person before the Magistrate will be totally frustrated leading to a chaotic situation if it is to be held, as it seems to have been held by Charanjit Talwar, J., that the Magistrate cannot pass any order regarding the custody or detention of the person concerned after refusal of bail. This is an impractical proposition and the court must not interpret the law in such a way as to bring about an impractical and chaotic situation or a deadlock. Charanjit Talwar, J. did not try to answer the question or to suggest any practical solution as to what is to be done with the person whose prayer for bail is rejected by the Magistrate if the Magistrate has no power anywhere under law to direct for the custody or detention of such person.
12. Another Learned Judge, Sunanda Bhandare, J. tried to meet this situation by observing in paragraph 120 in Deepak Mahajan (1991 Cri LJ 1124) (Delhi) (FB) (supra) that 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. Since the power of remand under Section 309 of the Code applies only after cognizance is taken, the question still remains as to what is to happen when a person produced before a Magistrate under Section 104 of the Customs Act is refused bail before any complaint is filed and the Magistrate is denied the power of remand under Section 437 or Section 167 of the Code. Sunanda Bhandare, J. also could not or did not offer any solution for the practical problem arising in such a situation.
13. P. K. Bahri, J. who was also a party to the decision in Deepak Mahajan (1991 Cri LJ 1124) (Delhi) (FB) (supra) was also fully conscious of the problem and the solution offered by the learned Judge is that in case for one reason or another the customs officers are not in a position to obtain necessary sanction or prepare the complaint before the expiry of 24 hours after the arrest of the concerned person the customs officers can in that event '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'. The procedure suggested by the learned Judge, I must say with great respect, is wholly impractical. First, it is almost absurd to expect that the customs officers will be in a position to complete the necessary inquiries, prepare complaint, obtain necessary sanction and submit the complaint before the appropriate court within 24 hours of the arrest of the person concerned. The reason as to why it will be an impossible task to complete the process involving multi-stage activities within such a short time of 24 hours needs no elaboration. The learned Judge was, it seems, fully aware of the difficulties of presenting a petition of complaint after obtaining necessary sanction on completion of inquiry, all within 24 hours, from the time of arrest. The learned Judge was also fully aware that the police cannot investigate any such case because an offence under the Customs Act is non-cognizable. A non-cognizable offence can be investigated by the police only after obtaining necessary permission in that behalf from the Magistrate. The learned Judge has suggested therefore that in case the customs officers cannot file a complaint with necessary sanction within 24 hours of arrest, they may report the matter to the police station and then the officer of the police station may obtain necessary permission from the Magistrate for making an investigation in a non-cognizable case and then can obtain an order of remand of the arrested person from the Magistrate because in that case the police under Section 167, Cr.P.C. would be entitled-to pray for remand. This, I must say with respect, is quite an unworkable suggestion, because apart from anything else all these things, namely, reporting to the police station and then obtaining of the magisterial permission by the police to investigate the case and then obtaining a remand order from the Magistrate under Section 167, Cr.P.C, all within only 24 hours will be an impossibility and at any rate, a practically unworkable procedure. Moreover this procedure apart from being unworkably circuitous and impracticable will be contrary to the intent and mandate of the legislature that an offence under the Customs Act should not be investigated by the police as it has been expressly made non-cognizable.
14. As regards the contention that the principle of mutatis mutandis should be invoked by taking recourse to provisions of Section 4(2) of the Code and that the 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 of the Customs Act, 1962 or Section 35 of FERA. Bahri, J. in Deepak Mahajan (1991 Cri LJ 1124) (Delhi) (FB) (supra) observed in paragraph 124 that the doctrine of mutatis mutandis could be invoked only if a particular statute or rule provides for the same and that Section 4(2) of the Code or provisions of the said special statutes do not anywhere lay down that any provisions of the Code are to be invoked mutatis mutandis while construing any provisions of the speical statutes. The learned Judge observed in paragraph 126 (ibid) that 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' collected by such officers while holding inquiry under the provisions of the said special statutes. Mr. Ghosh heavily relied on the judgement of R. L. Gupta, J. recording the minority view in Deepak Mahajan (supra). R. L. Gupta, J. was of the opinion that there was 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 the Foreign Exchange Regulation Act. The learned Judge took note of the fact that in the 'objects and reasons' for enacting Section 104 of the Customs Act there was a proposal in clause (iii) which runs thus :
"(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".
The learned Judge also noticed that in regard to the said clause the Select Committee recommended that it being merely a repetition of the provisions of Criminal Procedure Code, 1898 (the old Code) the same should be omitted. The learned Judge drew the conclusion that the recommended clause (iii) was omitted ultimately from the enactment because the provisions were found to be redundant in view of the express provisions of the old Code. This according to the learned Judge gives out the clear legislative intention that Section 167 of the Code would be applicable also to a person produced before a Magistrate under arrest under Section 104 of the Customs Act. This aspect of reading played a significant role in leading R. L. Gupta, J. to persuade himself that Section 167 of the Code is also attracted to an accused produced before a Magistrate under Section 104 of the Customs Act. The learned Judge also took note of the fact that under Section 344 of the old Code an accused could be remanded to custody even during the continuance of the investigation unlike under Section 309 of the new Code, but even then his Lordships construed that what was in the contemplation of the Select Committee was Section 167 of the Code only and not Section 344. Incidentally, it may be mentioned here that when the Select Committee prepared that report and when the Customs Act, 1962 was enacted the Criminal Procedure Code, 1898 was in force and the new Code, namely, the Criminal Procedure Code, 1973 was nowhere there in the picture. Charanjit Talwar, J. however, viewed the matter from a different angle regarding the report of the Select Committee. The learned Judge, by way of recapitulation in paragraph 71 in Deepak Mahajan (supra) took note of the fact that in 1962 when the Customs Act was enacted there were two provisions of the Code, namely, Sections 167 and 344 of the old Code which empowered the Magistrate to pass a remand order even before taking cognizance of the offence. The learned Judge was of the opinion that Section 167 and Section 344 of the old Code were the reason for the Select Committee to hold that the suggested sub-clause (iii) was a repetition. In other words, according to the learned Judge, Section 167 of the old Code was not the sole provision under which the Magistrate could pass remand order under the old Code and Section 344 was also available for remand during investigation and on considering both the sections the Select Committee felt that there would be repetition by enacting the provisions of the proposed sub-clause (iii).
15. Charanjit Talwar, J. also observed in that connection thus in paragraph 71 (ibid):
"Anyhow the opinion of the Select 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".
With respect I am in full agreement with the above observation of the learned Judge. In the present case, as I will discuss later, there is no ambiguity as to whether Section 167 is attracted on the production of a person under arrest before a Magistrate under Section 104 of the Customs Act and that being so there is no question of referring to the report or opinion of the Select Committee. In interpreting any statutory provision reference to extrinsic materials cannot be made where there is no ambiguity in the concerned provisions or where the ordinary meaning of the words and expressions used leads to no absurdity or inconsistency. Moreover, as we have seen, the opinion of the Select Committee in the matter is also not very exact or definite as to what were the existing provisions of the Code which the Select Committee had in view while forming the opinion. As we have seen, the two learned Judges had difference of opinion as to what was or were the exact provisions of the Code that prompted the Select Committee to express the concerned opinion. In that view of the matter one has to be very careful in applying the opinion of the Select Committee in the matter of interpretation of a statutory provision where the opinion of the Select Committee itself requires interpretation or is capable of different interpretations. However, as I have already mentioned, in the present matter practically there is no ambiguity or uncertainty so far as the provisions of the Code and the Act are concerned and therefore there is no occasion to look to the opinion of the Select Committee. The learned Judge, R. L. Gupta, J. was conscious that the proposed application of Section 167(2), Cr.P.C. to a case where a person was produced under arrest before a Magistrate under the Customs Act was not free from difficulties and that is why the learned Judge in paragraph 151 in Deepak Mahajan (1991 Cri LJ 1124)( Delhi) (FB) (supra) had to observe thus in search of an alternative approach :
"Let us presume now for the sake of argument that there is some lacuna in these Acts vis-a-vis Section 167(2) of the Code about the powers of the Magistrate to permit such custody as he deems fit".
16. In paragraph 154 at page 1166 of Deepak Mahajan (supra) R. L. Gupta, J. observed that the Magistrate's powers under Section 437 are not limited or controlled by Section 167 and that 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 Acts and not of offences under the Indian Penal Code. The learned Judge there observed further:
"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".
In paragraph 155 in Deepak Mahajan (1991 Cri LJ 1124) (Delhi) (FB) (supra) R. L. Gupta, J. also observed that implied power is not the same thing as the inherent power. There is no doubt that a Magistrate has no inherent power of remand as laid down by the Supreme Court in Natabar Parida v. State of Orissa, (1975) 2 SCC 220: (1975 Cri LJ 1212), but absence of inherent power does not necessarily mean absence of implied power. In paragraph 156 (ibid) R. L. Gupta, J. finally observed:
"Therefore, taking into consideration the total perspective of this case, I am of the opinion 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 the Foreign Exchange Regulation Act".
17. On behalf of the petitioner reliance has been placed in the observation made by Sarkaria, J. in para 22 of the decision in Balkishan v. State of Maharashtra, AIR 1981 SC 379 : (1980 Cri LJ 1424) to the effect that the legislature's main purpose for passing the Railway Property (Unlawful Possession) Act, 1966, was to invest powers of investigation and prosecution for offences relating to railway property in the Railway Protection Force in the same manner as in Excise and Customs. In my opinion the said observation does not necessarily lead to the conclusion that the customs officer has the same power of investigating a customs offence by following the same procedures of the Criminal Procedure Code which a police officer has in investigating a cognizable offence under the provisions of the Criminal Procedure Code. Incidentally, it may be mentioned here that Section 8(2) of the Railway Property (Unlawful Possession) Act, 1966 expressly provides that in proceeding to enquire into the charge against a person arrested by an officer of the Railway Protection Force for an offence punishable under the R. P. (U. P.) Act, the officer of the Force may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure when investigating a cognizable case. As we have seen, no such general provision for applying the provisions of the Code of Criminal Procedure relating to investigation by the officer-in-charge of a police station has been enacted in the Customs Act, 1962 unlike the R. P. (U.P.) Act. Even then the Supreme Court felt that an RPF Officer making an inquiry relating to an offence under the Act cannot be equated with a police officer making an investigation under the Code. True, the Madras High Court in Senior Intelligence Officer, D.O.R.I. Madras (1990 Cri LJ 704) (supra) quoted with emphasis in paragraph 23 the observation of Sarkaria, J. made in Balkishan v. State of Maharashtra, AIR 1981 SC 379: (1980 Cri LJ 1424) that the main purpose of passing the Railway Property (Unlawful Possession) Act, 1966, was to invest powers of investigation and prosecution of offences relating to Railway Property in the Railway Protection Force in the same manner as in Excise and Customs. Read in isolation such observation however is susceptible to misinterpretation. But a reading of the decision in Balkishan as a whole will clearly bring out the import of the said observation in its proper perspective. In paragraph 56 of the said decision in Balkishan it has been observed that in the 'objects and reasons' of the Bill (which was later enacted as 1966 Act i.e. R.P. (U.P.) Act, 1966) it is stated that this measure invests 'powers of investigation and prosecution of offences relating to Railway property in the Railway Protection Force in the same manner as in Excise and Customs' and the 1966 Act thus brings the status of officers of the RPF in the matter of inquiry, investigation and prosecution of offences under the Act substantially at par with that of an Excise Officer under the Central Act 1 of 1944 and that of a Customs Officer under the Customs Act, 1962 and further that the ratio of all the earlier decisions as discussed in Balkishan therefore would apply in full force to the case of an officer of the RPF making an inquiry into an offence under the 1966 Act. In Balkishan in paragraph 58 it has been clearly observed that an officer of the RPF conducting an inquiry under Section 8(1) of the 1966 Act has not been invested with all the powers of an officer-in-charge of a police station making an investigation under Chapter XIV of the Code (i.e. old Code) and that particularly, he has no power to initiate prosecution by filing a charge-sheet before the Magistrate concerned under Section 173 of the Code which has been held to be the clinching attribute of an investigating 'police officer'. It has been further observed that judged by the test laid down in Badaku Jyoti Savant's case, AIR 1966 SC 1746, which has been consistently adopted in the subsequent decisions the Inspector of the RPF could not be deemed to be a 'police officer' within the meaning of Section 25 of the Evidence Act. It will thus be seen that in Balkishan the Supreme Court virtually refused to accept the proposition that an RPF officer conducting an inquiry under Section 8(1) of the R.P. (U.P.) Act can be equated with a 'police officer' making an investigation into an offence under the Criminal Procedure Code or to hold that such RPF officer had been invested with all the powers of an officer-in-charge of a police station making an investigation under the Code although Section 8(2) of the R.P. (U.P.) Act provides that the RPF officer making such inquiry may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure. The position of the RPF officer was not equivalent to the position of a police officer and there was difference in the power of a police officer making an investigation under the Code on the one hand and the RPF officer, Excise Officer and Customs Officer making inquiries under the respective Acts on the other hand, and that is the import of the relevant observation made in the judgment in Balkishan as quoted in the decision of the Madras High Court in Senior Intelligence Officer, D.O.R.I. Madras.
18. Now to recapitulate. The Gujarat High Court in N. H. Dave, (1982 (2) 23 Guj LR 792) the Patna High Court in Nagendra Prasad (1987 Cri LJ 215) the Calcutta High Court in Sankarlal (1986 Cri LR (Cal) 19) the Kerala High Court in Ummerkutty (1983 Cri LJ 1860) and the Madras High Court in Senior Intelligence Officer (1990 Cri LJ 704) are of the view that in respect of a person produced under arrest before a Magistrate under Section 104 of the Customs Act, the Magistrate can exercise the power of remand under Section 437, Cr.P.C. The Delhi High Court in Dalam Chand, (1982 Cri LJ 747) in O.P. Gupta (Majority view) and in Deepak Mahajan (1991 Cri LJ 1124) (FB) (majority view) held that in such a situation the power of remand was not available to a Magistrate under Section 437, Cr.P.C. The Patna High Court in Nagenda Prasad however held that Section 167, Cr.P.C. was not attracted to a case where the person is arrested and produced before a Magistrate under Section 104 of the Customs Act. The Delhi High Court in O.P. Gupta (majority view) however held that Section 167 CrP.C. would be attracted for remand in such a case. The Kerala High Court in N. K. Ayoob (1984 Cri LJ 949) and the Madras High Court in Senior Intelligence Officer also held that Section 167, Cr.P.C. would be attracted in such a case for the purpose of remand of the person arrested and produced under Section 104 of the Customs Act. The latest decision of the Delhi High Court in Deepak Mahajan however held by a majority view that neither Section 437, Cr.P.C. nor Section 167, Cr.P.C. would be available to the Magistrate for exercising the power of remand in respect of a person produced under arrest before him under Section 104 of the Customs Act. As we have already seen, the Full Bench deciding Deepak Mahajan was a Bench of five learned Judges. Of the five learned Judges, three namely, C. Talwar, S. Bhandare and P. K. Bahri, JJ. are of the view that in such a case neither Section 437 nor Section 167, Cr.P.C. is attracted for the exercise of the power of remand. Malik Sharief-Ud-Din, J. is of the view that Section 437 will not be attracted but Section 167, Cr.P.C. will be attracted for the exercise of the power of remand. R. L. Gupta, J. in Deepak Mahajan is of the view that the express power under Section 167(2) or alternatively implied power under Section 437 of the Code will be available to the Magistrate for exercising the power of remand in such a case. We have thus seen that there is a divergence of opinion on the point not only amongst the different High Courts but also amongst the learned Judges of Delhi High Court. It is also to be mentioned here that in a good number of those judgments the divergent views obtaining in the matter have been considered, discussed and either agreed or disagreed with for reasons given for the same. I have, in this judgment, projected glimpses of the different views of the learned Judges. Now that I have summarised the conflicting judicial views I will embark upon formulating my own opinion in the matter.
19. The point that is required to be decided in this case is whether Section 167(5), Cr.P.C. is attracted to a case where a person is arrested and produced before a Magistrate under Section 104 of the Customs Act. In that connection it has been the argument of Mr. Ghosh that in respect of a person produced under arrest before a Magistrate under Section 104 of the Customs Act the only power of remad available to the Magistrate is under Section 167, Cr.P.C. and that being so Section 167 applies to such a case in view of Section 4(2), Cr.P.C. and consequently subsection (5) of Section 167 is also attracted. An offence under clause (i) of Section 135(1) of the Customs Act, 1962 is punishable with imprisonment which may extend to 7 years with fine and an offence under clause (ii) thereof is punishable with imprisonment which may extend to 3 years or with fine or both. As we have already seen, an offence under the Customs Act is not cognizable. In view of the provisions of Part II relating to classification of offences against other laws, i.e., laws other than the Indian Penal Code in the First Schedule to the Code of Criminal Procedure, an offence under Section 135 of the Customs Act is non-bailable. Under Section 104(1) of the Customs Act if an empowered officer of customs has reason to believe that any person has been guilty of an offence punishable under Section 135, he may arrest such person. Under Sub-section (2) of Section 104 the arrested person is required to be taken to a Magistrate without unnecessary delay. Thereafter the Act does not say as to what is to be done with respect to the person so produced before the Magistrate under Section 104(2) of the Customs Act. Here then will come into the picture Section 4(2), Cr.P.C. and the provisions of Section 437, Cr.P.C. will be attracted. The question whether a person arrested and produced under Section 104 of the Customs Act is an 'accused' either for the purpose of Section 437 or for the purpose of Section 167 need not be adverted to in this context because Section 437(1) also envisages a person suspected of the commission of any non-bailable offence who appears or is brought before the Court. Under Section 104, Customs Act the empowered customs officer can arrest a person only if he has reason to believe that such person has been guilty of an offence punishable under Section 135 of the Customs Act. Such an arrested person therefore answers the description of a person 'suspected of the commission of any non-bailable offence' as referred to in Section 437, Cr.P.C. As soon as such an arrested person is brought before the Court of a Magistrate under Section 104(2) of the Customs Act such a person comes within the category of a person 'suspected of the commission of any non-bailable offence' who is brought before a court other than the High Court or Court of Session' as mentioned in Section 437, Cr.P.C. Since the Customs Act is silent as to what is to happen to a person who is produced under arrest before a Magistrate under Section 104(2) of the said Act Section 437, Cr.P.C, without requiring any modification or adjustment of the language and phraseology used therein or without requiring the application of the principle of mutatis mutandis will be at once attracted by its own terms by virtue of Section 4(2) of the Code.
20. At that stage the learned Magistrate will consider, if bail is prayed for, whether bail should be granted to the person arrested and produced before him and the learned Magistrate, if he so thinks fit in his judicial discretion may release the person on bail under Section 437(1), Cr.P.C. The said section also contains a rider as to in which cases the learned Magistrate shall not release the person produced before him on bail, as for example, clause (i)of Sub-section (1) of Section 437 provides that such a person shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life but even in such a case also the Magistrate may release the person on bail if such a person is below 16 years or is a woman or is sick or infirm. Then again, where an offence is cognizable and the person concerned has been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for 7 years or more or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence, the Magistrate cannot release such person on bail in view of the provision of clause (ii) of Sub-section (1) of Section 437, but even in such a case again the Magistrate has been given a discretion to release the person on bail if he is below 16 years or is a woman or is sick or infirm or if the Magistrate is satisfied that it is just and proper so to do for any other special reason. The second proviso to Sub-section (1) of Section 437 provides that pendency of test identification parade in course of the investigation will not be a sufficient ground for refusing bail if the person under detention is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such direction as may be given by the court. Sub-section (2) of Section 437 provides inter alia that even during the investigation the court may release a person on bail if it appears to the court that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt. Sub-section (3) of Section 437 enumerates certain kinds of offences where the court can impose conditions while releasing the concerned person on bail. Sub-section (4) of Section 437 expressly requires the court to record in writing reasons or special reasons for releasing any person on bail under Sub-sections (l)and (2). Sub-section (5) empowers the court to direct that the person released on bail by such court be arrested and the court may commit him to custody. Sub-sections (6) and (7) of Section 437 also make provisions authorising release on bail or bond during the pendency of the trial or before delivery of judgment, as the case may be, in certain circumstances as mentioned therein. Regarding the exercise of judicial discretion as to under what circumstances bail should or should not be granted, apart from the express provisions of Section 437, there are well-defined settled principles laid down by authoritative judicial pronouncements for the guidance of the subordinate courts and Magistrates. Therefore if after production of a person under arrest before a Magistrate a prayer for bail is made under Section 437 the Magistrate has to consider the same in accordance with law following the guidelines laid down by the authoritative judicial pronouncements in the matter, apart from the statutory guidelines of Section 437. If the Magistrate however does not consider it a fit case for releasing the person produced before him on bail he will necessarily have to make an order regarding the custody and detention of the person concerned. This is not only an implied power of the Magistrate under Section 437 but this also falls within his judicial responsibility to see that the person concerned who is not released on bail is kept detained in proper custody and to pass necessary order accordingly, otherwise there cannot be any further detention of the concerned person in view of the express requirement of Article 22(2) of the Constitution that no arrested person can be detained in custody beyond the initial period of 24 hours and the journey period except under the authority of a Magistrate. Therefore on production, if the Magistrate does not release the arrested person on bail or does not consider that he should be forthwith discharged or released for any other good reason, there must be an order of the Magistrate for detention of such person in proper custody. The question whether a person should be released on bail is only an inseparable aspect of the same question whether the arrested person should suffer further detention in custody which the Magistrate can authorise under the mandate of Article 22(2). The integrated process of dealing with such questions forms an integral part of the procedure of law through which the personal liberty of an arrested person can be curtailed by detention in proper custody under judicial responsibility. This highlights the imperative necessity of reading Section 437 Cr.P.C. in the light of Articles 21 and 22(2) of the Constitution so that the operational amplitude of Section 437, Cr.P.C. can be correctly appreciated in its true perspective.
21. Article 22(2) of the Constitution of India provides that every person arrested and detained in custody shall be produced before the nearest Magistrate within 24 hours of such arrest excluding the time necessary for the journey and that 'no such person shall be detained in custody beyond the said period without the authority of a Magistrate' (emphasis supplied). In view of such express provision of the Constitution there is no scope for holding that the Magistrae lacks jurisdiction or power to authorise detention in custody of a person produced under arrest before him under Section 104(2) of the Customs Act. Rather it is the constitutional responsibility of the Magistrate to consider the question as to whether any person produced before him under arrest is required to be detained in custody and if so, to direct and authorise detention in proper custody. The very purpose of making provision in the Constitution that any person arrested and detained, obviously by or under the authority of State functionary has to be produced before a Magistrate is to afford such person an opportunity to make representation, if he so chooses, to the Magistrate before whom he is produced regarding the questions of legality, propriety and necessity, etc. of his detention so that the Magistrate may consider the same, and even then if the detention of the arrested person is considered necessary and permissible in accordance with law the Magistrate is empowered by the Constitution to authorise detention of such person in custody. Therefore it will be only a vain and empty effort to contend that the Magistrate has no power to authorise detention in custody of an arrested person produced before him under Section 104 of the Customs Act. A study of the provisions of Section 437 of the Code independently as well as in the light of the constitutional provisions contained in Article 22(2), must inevitably lead to the conclusion that when a person is produced under arrest before a Magistrate, the Magistrate may release him on bail in a fit case, but in case he is not released the Magistrate must authorise his detention in proper custody as a rational mechanism of the judicial process implicit in Section 437, Cr.P.C. Where however such a person is produced under arrest by police in connection with an investigation under the Code the provisions of Section 167, Cr.P.C. will also be attracted. But even in that case the purpose of applying Section 167 of the Code is different. Sub-section (1) of Section 167, it may be noticed, speaks of forwarding of an accused by police to a Magistrate. But pursuant to such forwarding when an accused is produced before a Magistrate Section 437 (or Section 436 if the offence is bailable) at once comes into play. If the offence is bailable the accused will be entitled to be released on bail or may be released on bond even. If the offence is non-bailable the accused will have the right and opportunity to apply for bail before the Magistrate under Section 437 and the Magistrate will have to decide at that stage whether the accused should be released on bail or he should be detained in custody. The basic decision as to whether the accused is to be released on bail or to be detained in custody is taken by the Magistrate at that stage under Section 437. If the Magistrate decides that the accused should not be released and should be detained in custody in a police investigation proceeding, then and then only Sub-section (2) of Section 167 comes into play or the purpose of deciding whether further detention should be in police custody or judicial custody. The subsection (2) also prescribes the maximum periods for which the accused can be detained in such custody and also mandates release of accused on bail on the expiry of certain period if the police investigation is not completed in the meantime. We thus see that even in a police investigation proceeding the transit route from Sub-section (1) to Sub-section (2) of Section 167 is through Section 437 and the basic decision whether further detention of the accused in custody is warranted and necessary is taken under Section 437 in the perspective of the implied power available under the said Section 437 to authorise detention in custody.
22. That Section 437 of the Code confers power on a Magistrate to authorise detention in custody will also be evident if we consider a situation where in a non-bailable case started on the basis of a complaint before a Magistrate an accused surrenders or appears before the Magistrate and either does not pray for bail or his prayer for bail is rejected by the Magistrate. Since the Magistrate in such a case has taken cognizance on the basis of a complaint under Section 190(l)(a) of the Code there is no scope for arguing that in such a case the provisions of Section 167 may be attracted for the purpose of detention of the accused in custody. Again, although it is true that Section 309 of the Code comes into play after cognizance has been taken yet the power to authorize detention under Section 309 is circumscribed by the expression 'and may by a warrant remand the accused if in custody' as used in Sub-section (2) of Section 309 (emphasis supplied). The word used in subsection (2) of Section 309 is 'remand' which as we have already seen means committal back to custody which means that the accused must have been in custody earlier and he would be sent back by remand to custody again. The words 'if in custody' as used in Sub-section (2) of Section 309 also make it clear that the question of remand will arise only if the accused is produced from custody. But where in a complaint case, after the Magistrate has taken cognizance, an accused appears or surrenders before a court in that case obviously he is not coming from custody and therefore Section 309 will not be attracted for authorising his detention in custody in case he does not pray for bail or his prayer for bail is rejected. Does that mean that there is no provision in the Code under which such person can be detained in custody even after rejection of his prayer for bail? Any such proposition will be an absurd proposition. Obviously in such case Section 437 will be attracted and the Magistrate on rejection of bail of the person surrendering or appearing before him in a complaint case is required to authorise his detention in judicial custody by exercising his implied power under Section 437. If Section 437 is so interpreted as to exclude any implied power of the Magistrate to authorise detention in custody on the assumption that Section 167 will take care of all cases where an accused is produced under arrest either by any police officer or an officer of any other department, like, customs, etc. and on the further ground that after taking of cognizance Section 309 will afford necessary opportunity of authorising detention in custody by way of 'remand' in case of a person produced from custody, in that case even we will find that there will be no provision in the Code or elsewhere for authorising detention of a person who appears or surrenders in court in a complaint case after cognizance has been taken unless Section 437 is interpreted to empower, by implication, the Magistrate to authorise detention in custody. Therefore agreeing with the views of the Gujarat, Patna, Kerala and Madras High Courts on the matter pro tanto and following the Division Bench decision of this court in Sankarlal (1986 C Cri LR (Cal) 19) (supra) I hold that the Magistrate before whom an accused is produced under Section 104 of the Customs Act under arrest has the power to authorise his detention in custody in case his bail is refused and this power is available to the Magistrate under Section 437, Cr.P.C. itself.
23. Now coming to the question whether Section 167, Cr.P.C. is attracted where a person is produced under arrest before a Magistrate under Section 104 of the Customs Act, it is to be stated that Section 167 by its own term applies where an accused is forwarded to the Magistrate by the officer-in-charge of a police station or the police officer making an investigation about the commission of an offence. Section 4(2) of the Code does not speak of application of the provision of the Code mutatis mutandis to any other case which is not otherwise covered by the provisions of the Code. In the matter of dealing with any offence under any enactment other than the Indian Penal Code the provisions of the Code of Criminal Procedure may apply subject to the provisions of such enactment, if the provisions of the Code can be applied without making any change in the language, or without importing the principle of mutatis mutandis unless there is any specific provision in such enactment or in the Code for applying the said principle in any particular area. As we have seen Section 437, by its own terms, is applicable to a person produced under arrest before a Magistrate under Section 104 of the Customs Act without any change of language or phraseology in the section. The Customs Act does not anywhere say that for prosecuting an offender in respect of an offence under the Act a complaint has to be filed but then the scheme of the Act is such that the prosecution for an offence under the Act has to be initiated by filing a complaint inasmuch as police has been excluded in such case by making the offence under the Act non-cognizable. Now, if we are to read 'customs officer' in place of 'officer-in-charge of a police station or the police officer making the investigation' in Section 167 of the Code in that case that will be a change of words and expressions mutatis mutandis although the law nowhere authorises application of the principle of mutatis mutandis in this matter. Again, why confine such change only in Section 167? Once we make a change in Section 167 in the above manner, logically we cannot stop there and we will have to make such change also in the other relevant sections including Sections 172 and 173 of the Code. In that case 'customs officer' will have to be read in place of 'police officer' in Section 172, Cr.P.C. and in that case the customs officers will also have to maintain case diary as the police officers do under Section 172. Then, we have to read 'customs officer' in place of 'officer-in-charge of a police station' in Section 173 and in that case the customs officer making any investigation or inquiry into a customs offence under the Act will also have to submit a report to the Magistrate under Section 173 of the Code. Such report in that case, instead of being termed as 'police report', will have to be termed as 'report of customs officer' by fictionally applying the principle of mutatis mutandis. But even then we cannot stop there. Of necessity, we will have to read 'report of customs officer' in place of 'police report' in clause (b) of subsection (1) of Section 190 of the Code which section prescribes the modes of taking cognizance by a Magistrate. In that case, therefore, the Magistrate will take cognizance by applying the principle of mutatis mutandis under Section 190(1)(b) and thereafter by applying the same principle further proceedings including the trial also will have to be held by following the procedure applicable to a case where cognizance is taken on a police report and not by following the procedure prescribed for cases where cognizance is taken on complaint, although it is inquired by the customs officer. Such an interpretation and application, or I should say misinterpretation and misapplication of the principle of mutatis mutandis will not only be a logical fallacy but will also be flagrantly contrary to a catena of decisions of the Supreme Court where the Supreme Court on exhaustive analysis on repeated occasions clearly held that a customs officer making inquiry into customs offence does not have all the powers of a police officer in investigating an offence and he also cannot file a charge-sheet under Section 173, Cr.P.C. and therefore such an officer cannot be equated to a police officer within the meaning of Section 25, Evidence Act or Section 162 Cr.P.C. (see State of Punjab v. Barkatram, AIR 1962 SC 276 : (1962 (1) Cri LJ 217); Badku Jyoti Savant v. State of Mysore, AIR 1966 SC 1746 : (1966 Cri LJ 1353) Ramesh Chander Mehta v. State of West Bengal, AIR 1970 SC 940: (1970 Cri LJ 863), Illias v. Collector of Customs, AIR 1970 SC 1065 : (1970 Cri LJ 998). Also see, State of U.P. v. Durga Prasad, AIR 1974 SC 2136 : (1974 Cri LJ 1465); Balkishan v. State of Maharashtra, AIR 1981 SC 379 : (1980 Cri LJ 1424), etc.). In view of the chain of decisions of the Supreme Court on the point as mentioned above as well as by independent logical analysis as done by me, I must hold that there is no scope of reading 'customs officer' in place of 'officer-in-charge of the police station or the police officer making the investigation' in Section 167 and if that cannot be done any part of Section 167, Cr.P.C. cannot be applied to any inquiry or proceeding in connection with any offence under the Customs Act. Therefore the conclusion is inescapable that Section 167, Cr.P.C. is not attracted to any inquiry made by customs officer relating to an offence under the Customs Act. On this point I rather agree with the view of the Patna High Court and the majority view of the Delhi High Court in Deepak Mahajan and hold that Section 167, Cr.P.C. is not applicable where a person is arrested and produced before a Magistrate under Section 104 of the Customs Act.
24. Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. It will be a misconceived argument to say that whenever any person is arrested either by police or by an officer of any other Government department authorised to make arrest his detention which obviously must amount to deprivation of personal liberty must be dealt with only under Section 167, Cr. P. C. as the said section prescribes a procedure for detention. It is needless to mention however that Section 167, Cr. P.C. is not the only procedure of detention. Article 22(2) itself requires that a person arrested and detained in custody will have to be produced before the nearest Magistrate within 24 hours of his arrest excluding the journey period. By way of giving protection to the substantive legal right of an individual as well as by way of providing procedural safeguard Article 22(2) itself requires that any detention in custody beyond the aforesaid period must be authorised by a Magistrate. Then again, when a person under arrest is produced before a Magistrate under Section 437, Cr. P.C. such person may pray to the Magistrate for being released on bail and this is a procedural safeguard available to the arrested person against arbitrary or unwarranted detention. If the Magistrate considers that the arrested person should be released on bail he shall direct accordingly. But if the Magistrate considers it to be not a fit case for release of the person at that stage he will refuse bail under Section 437, Cr. P.C. and authorise detention of the arrested person in proper custody in which case he may again apply to the Magistrate for bail at a later stage or may apply before the Sessions Judge or the High Court for being released on bail under Section 439, Cr. P.C. The grounds on which bail may be granted or refused at any particular stage of a proceeding in exercise of the judicial discretion of the court have, by now, been settled by plethora of authoritative judicial pronouncements during a period nearly covering a century. Therefore it cannot be said that where a Magistrate authorises the detention of a person in custody by exercising his power under Section 437, Cr. P.C. after refusal of bail, such detention is not in accordance with the procedure of law although Section 167, Cr. P.C. may not be attracted to the case. Even if Section 167, Cr. P.C. is not attracted to a case of detention yet the person detained has a right to approach the Magistrate for being released on bail on the ground of long pendency of proceeding before filing of complaint in a case cropping up from the Customs Act and the Magistrate may, although he might have refused bail at the initial stage, grant bail at a later or subsequent stage of the proceeding if having regard to the facts and circumstances of any particular case he considers it proper to do so in exercise of his sound judicial discretion. The opportunity of the detained person to approach the Magistrate for bail at any stage of the proceeding or even the higher courts is a part of the procedure of law relating to detention in custody which a Magistrate may authorise in exercise of his power under Section 437, Cr. P.C. In a fit and right case a person detained for an unduly long period or suffering the brunt of pendency of a proceeding for an unduly long time can approach the High Court for quashing the proceeding for violation of the right to speedy trial flowing from Article 21. Even if in a police investigation case where charge-sheet has been submitted within the period prescribed under Section 167, Cr. P.C. the accused, if detained in custody and not entitled to bail as a matter of right, may still approach the Magistrate or the court for bail during the pendency of the proceeding or trial and may even approach the High Court for quashing the proceeding for violation of Article 21 due to long pendency of the proceeding. In what circumstances long pendency of proceeding may warrant grant of bail or quashing of the same is however a question which has been settled by various decisions of the Apex Court. On circumspection of all relevant aspects, I am however clearly of the opinion that non-application of Section 167, Cr. P.C. to a criminal proceeding cropping up from the Customs Act does not bring in any deadlock nor deprives the arrested and detained person of the procedural safeguards of law. Therefore there is also no circumstantial compulsion to import Section 167, Cr. P.C. to a proceeding in respect of an offence under the Customs Act. Accordingly I hold that Section 167, Cr. P.C. is not attracted to a proceeding in respect of an offence under the Customs Act or in respect of a person produced under arrest before a Magistrate under Section 104 of the Customs Act.
25. The next point argued by Mr. Ghosh on behalf of the petitioners is that the cognizance taken in the case by the learned Magistrate is bad in law for want of proper sanction under Section 137(1) of the Customs Act. Section 137(1) of the Customs Act provides that 'no court shall take cognizance of any offence' under any of the Sections 132, 133, 134 and 135' except with the previous sanction of the Collector of Customs'. Annexure-A to the revisional application purports to be a sanction under Section 137(1) of the Customs Act accorded by the Collector of Customs (Preventive) West Bengal, Calcutta. Mr. Ghosh argued that the purported sanction is wholly bad in law and therefore the cognizance taken on the basis of such sanction is also bad and consequently the proceeding is liable to be quashed on that ground alone. The sanction is described at the very beginning 'as sanction for prosecution under Section 137(1) of the Customs Act, 1962'. It is argued that this is only a sanction for prosecution and not for taking cognizance as required under Section 137(1) of the Customs Act and as such this sanction is of no avail. It is further argued that the sanction is not addressed to any court or Magistrate and as such this is bad again on that ground. The paragraph-1 of the sanction indicates perusal of the case record by the Collector of Customs and on the basis of such perusal it is recorded in paragraph-2 thereof that there are sufficient cogent grounds for prosecuting the present petitioners in accordance with law in the competent court and thereafter in the last paragraph it is stated that sanction is accorded to prosecute the said persons for offence punishable under Section 135(1)(b)(ii) of the Customs Act, 1962. It is further stated therein that accordingly the complaint be filed in the competent court for taking cognizance of the same. It is submitted by Mr. Ghosh that this is at best a sanction for prosecution and not a sanction for taking cognizance and moreover this is not addressed to the court. In this connection, Mr. Ghosh refers to the decision of Supreme Court in Ramkumar v. State of Haryana, AIR 1987 SC 735 : (1987 Cri LJ 703). It seems that in the said case there was a sanction of the State Government under Section 132 of the Code of Criminal Procedure for prosecuting a member of the Armed Force. There was no separate sanction under Section 197(2) of the Code. The High Court, it seems, took the view that inasmuch as the State Government itself had accorded sanction to prosecute the appellant in exercise of powers under Section 132, Cr. P.C. the same can be treated as a sanction under Section 197(3) as well. The Supreme Court however did not agree with that view and held that the two sanctions namely, the one under Section 132 and the other under Section 197, Cr. P.C. were different in scope, purpose and character and therefore a sanction under Section 132 was no substitute for a sanction under Section 197. The Supreme Court also noted six significant points of difference between the two sanctions. The first point of difference has been noted by the Supreme Court thus :
"(1). The two sanctions are addressed to altogether different persons. While sanction under Section 132 is addressed to the intending complainant, sanction under Section 197 is addressed to the Magistrate presiding over a court."
Mr. Ghosh very forcefully argued that the Supreme Court thereby laid down that the sanction on the basis of which the Magistrate could take cognizance must be specifically addressed to the Magistrate which had not been done in the present case. He also attracted my attention to the observation of the Supreme Court in paragraph-3 of the said decision in Ramkumar (supra) that in the said case 'admittedly, there is no such previous sanction authorising any court to take 'cognizance' of the offence against the appellant'. He also relied on the observation of the Supreme Court in the said decision that while one sanction was an authority to an individual to 'prosecute' the alleged offender, the other was an authority to 'try' the alleged offender. I have carefully gone through the decision of the Supreme Court, but I cannot agree with Mr. Ghosh that the Supreme Court therein laid down that the sanction authorising taking of cognizance must be specifically addressed to the concerned Magistrate in the same manner as one addresses a letter or an envelope addressed to any particular person. A plain reading of the decision of the Supreme Court would show that in the point No. 1 of the difference between the two sections as noted in paragraph-3 of the said decision the Supreme Court did not use the word 'addressed to' in the sense of addressing a letter or envelope to a person. As we have seen, as a matter of fact in the said case there was only one sanction, namely, sanction under Section 132 but there was no separate sanction under Section 197. Therefore when the Supreme Court in that connection used the expression that 'the two sanctions are addressed to altogether different persons', there were no two sanction papers before the court for consideration for the purpose of seeing whether those two letters were formally addressed to the concerned persons. Obviously the court by referring to 'two sanctions' were not referring to any tangible documents lying before the court for scrutiny but were referring to the provisions of Sections 132 and 197 of the Code for bringing out their import. Neither Section 132 nor Section 197 says that the sanction is required to be addressed to the particular persons in a formal manner. Obviously therefore when the Supreme Court used the words 'addressed to' in that context what was meant was 'intended for' so that the difference between the two sanctions could be clearly brought out in the sense that one sanction must be intended for the complainant and the other must be intended or meant for the Magistrate. In this connection Mr. Talukar appearing for the respondents referred to the decision of a Division Bench of this Court in Syed Md. Hussan v. K. C. Das, 1991 Cr LR (Cal) 99, wherein the Division Bench upheld a sanction as valid under Section 137 of the Customs Act although the said sanction purported to be a sanction for prosecution. The said Division Bench decision of this Court took into consideration the decision of the two-Judges Bench of the Supreme Court in Ramkumar (1987 Cri LJ 703) (supra) and observed that in that decision it had not been indicated as to in what form a sanction under Section 197, Cr. P. C. would be issued. On the other hand, the Division Bench of this Court in Syed Md. Hussan (supra) relying upon a decision of three-Judge Bench of the Supreme Court in Biswabhusan Nayak v. State of Orissa, AIR 1954 SC 359 : (1954 Cri LJ 1002) held that it was not necessary that the sanction should be in any particular form and that what was necessary for the court to decide as to whether a proper sanction was given or not as required under the law, was to see as to whether either from the order of sanction or from any other materials produced the facts in respect of which it was given had been set out or not and that it was only necessary that there should be a sanction stating the facts in respect of which it was given and the court on the basis of the said sanction had to take cognizance and further that the particular language used in the order of sanction was not material. Mr. Ghosh however submitted that Syed Md. Hussan (supra) was not correctly decided by the Division Bench of this Court and he also further submitted that the decision of the Supreme Court in Ramkumar (supra) was not properly appreciated by the said Division Bench of this Court. He also referred to two decisions of the Supreme Court in Narinder Singh v. Surjit Singh, AIR 1984 SC 1359 and G. K. Dudani v. S. D. Sharma, AIR 1986 SC 1455 in support of his contention that it is the duty of the High Court to obey Supreme Court order without finding fault with it and that a Division Bench of the High Court cannot sit in appeal over a decision of the Supreme Court and the High Court should take the words in the judgment of the Supreme Court in the sense in which they were used and apply to the facts before it. There is no doubt that the High Court must obey the order of the Supreme Court and also must take the words in the judgment of the Supreme Court in the sense in which they were used. It is therefore also incumbent upon the High Court to understand properly in what sense any particular words have been used by the apex Court in any judgment and then to apply the same to the facts before it. It is needless to mention that the Supreme Court in Ramkumar (supra) was considering the question whether one sanction could be a substitute for the other where two sanctions were necessary under two different provisions of law. In our present case however only one sanction is necessary, that is, sanction under Section 137(1) of the Customs Act. We also have before us the sanction accorded by the Collector of Customs which has been clearly described in the sanction itself as a sanction accorded in exercise of the power conferred under Section 137(1) of the Customs Act, 1962. It is true that the sanction has been described as a sanction for prosecution, but in my opinion for that reason alone the sanction cannot be thrown away overboard. The sanction must be read as a whole. It is not only stated expressly to be a sanction under Section 137(1) of the Customs Act but it is also stated therein that the sanction was accorded so that the complaint could be filed in the competent court for taking cognizance of the same. It is therefore evident that the sanction is indeed addressed to in the sense of being intended for the competent court thereby authorising it to take cognizance of the offence. The court which is otherwise competent to entertain the complaint and take cognizance thereon but cannot do so in the absence of the necessary sanction under Section 137(1) of the Customs Act gets jurisdiction to take cognizance on the basis of the sanction accorded in this case. I therefore find that the sanction in the present case is quite consistent with law and there is nothing in it which may be stated to be inconsistent with the decision of the Supreme Court in Ramkumar (1987 Cri LJ 703) (SC). The sanction also is valid in the light of the decisions of the Division Bench of this Court in Syed Md. Hussan (1991 C Cri LR (Cal) 99) (supra) and of the Supreme Court in Biswa-bhusan (1954 Cri LJ 1002) (supra). The contention raised on behalf of the petitioners that the sanction as well as the cognizance is bad in law cannot therefore be sustained.
26. The last point argued before me by Mr. Ghosh is that the petitioners are entitled to be discharged under Sub-section (3) of Section 245 of the Code of Criminal Procedure as it stands amended by the Code of Criminal Procedure (West Bengal Amendment) Act, 1988, since no witness for the prosecution has yet been examined although a period of more than 4 years has elapsed since the date of arrest of the petitioners in September, 1988. Section 244, Cr. P. C. applies to a prosecution started on the basis of a complaint in respect of an offence triable under the warrant procedure. The said Section 244 requires that when in any warrant case instituted otherwise than on a police report, the accused appears or is brought before the Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Section 245 inter alia provides that if upon taken all the evidence referred to in Section 244 the Magistrate considers that no case against the accused has been made out he shall discharge the accused. Sub-section (3) of Section 245 as introduced by the Criminal Procedure (West Bengal Amendment) Act, 1988 runs thus:
"Sub-section (3). If all evidence referred to in Section 244 are not produced in support of the prosecution within 4 years from the date of appearance of the accused, the Magistrate shall discharge the accused unless the prosecution satisfies the Magistrate that upon the evidence already produced and for special reasons there is ground for presuming that it shall not be in the interests of justice to discharge the accused."
It is evident that Sub-section (3) of Section 254 is attracted in a case which was instituted by filing a complaint. Section 245(3) expressly refers to Section 244 and requires the evidence to be produced in support of the prosecution within 4 years from the date of appearance of the accused. Obviously the date of appearance of the accused mentioned in Section 245(3) refers to the date of appearance of the accused under Section 244, Cr. P. C. and Section 244, Cr. P.C. applies after a complaint is filed and the cognizance is taken thereon by the Magistrate. In reckoning the period of 4 years mentioned in Section 245(3), Cr. P. C. the starting point of calculation is the date on which the accused appears after the complaint is filed and cognizance is taken by the Magistrate when Section 244 will be attracted and not to any earlier stage of the proceeding. In the present case the complaint was filed on 2nd April, 1992 and cognizance was taken on that date and 3rd August, 1992 was fixed for appearance of the accused persons after taking of cognizance and the petitioners-accused persons appeared on 3rd August, 1992 when only Section 244, Cr. P. C. was attracted and therefore the period of 4 years mentioned in Section 245(3) must be reckoned from that date and consequently it cannot be said that Section 245(3) is attracted in this case at this stage.
27. It may be mentioned here that Mr. Ghosh argued that during the continuance of the proceeding before the filing of a complaint the Customs Officer inquiring or investigating into the matter filed application before the court praying for time for completion of investigation and that would show that this is an investigation which would attract Section 167, Cr. P. C. It is also submitted that such prayer was made through the officer-in-charge of the P.S. concerned. This in my opinion is wholly irrelevant for our consideration as to whether Section 167 is at all attracted to the case. The point is required to be decided as a point of law and in view of the provisions of law and not on the basis of what a Customs Officer inquiring or investigating into the case may describe it to be. Again, it should also be pointed out that if Section 167, Cr. P. C. is attracted by importing the principle of mutatis mutandis, in that case one will have to read 'report of Customs Officer' in place of 'police report' in Section 244(1), Cr. P.C. in which case Section 245(3) will not be at all attracted in this case. That however is not the position in law as already discussed. I have already held that Section 167, Cr. P. C. is not attracted in this case and time is not yet ripe for application of Sub-section (3) of Section 245, Cr. P. C. although the said section may be attracted to the case at the appropriate stage, it being a prosecution on the basis of a complaint. Considering each and every aspect of the contentions raised before me on behalf of the petitioners I find that the petition must fail for reasons elaborately discussed by me. The revisional application is therefore dismissed.