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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.