Delhi High Court
Deepak Mahajan vs Director Of Enforcement And Another on 6 April, 1990
Equivalent citations: [1992]75COMPCAS514(DELHI), 1991(31)ECC104, ILR1991DELHI1
JUDGMENT Charanjit Talwar, J.
1. The petitioner herein, Deepak Mahajan, was arrested by Officers of the Enforcement Directorate for an offence punishable under the Foreign Exchange Regulation Act, 1973, on 13th March, 1989. As per the mandate of sub-section [2] of section 35 of the Foreign Exchange Regulation Act [hereinafter called "the FERA"], he was produced before the Chief Metropolitan Magistrate, New Delhi, the next day. An application under section 167[2] of the Code of Criminal Procedure (for short "the Code"] was moved by the Enforcement Officer seeking the petitioner's remand to judicial custody for 14 days mainly on the ground that it was necessary to complete the investigation. On that very day, the petitioner's application to be admitted to bail was also heard.
2. The learned Magistrate dismissed the bail application. The application on behalf of the Enforcement Officer was, however, allowed and the petitioner remanded to judicial custody for 14 days. Subsequently the remand of the petitioner was extended from time to time. The plea of the petitioner that the order of remand was without jurisdiction has been rejected by the Magistrate on the ground that a Full Bench of this court, in Criminal Writ Petition No. 116 of 1984 [Union of India v. O. P. Gupta] decided on 19th July, 1985, has held that the Magistrate is empowered under section 167[2] of the Code to remand a person produced before him in accordance with section 35[2] of the FERA. It is that order of the Magistrate which is impugned herein.
3. The petition was admitted by a Division Bench on May 10, 1989. In view of the decision of the Supreme Court holding that the powers of remand vested in a Magistrate become exercisable only after an accused is produced before him in terms of sub-section [1] of section 167 of the Code (Changanti Satyanarayana v. State of Andhra Pradesh ), the petition was referred to be heard by a larger Bench. Before the Full Bench, the contention urged by counsel for the parties was that Union of India v. O. P. Gupta [Crl. W.P. No. 116 of 1984, decided on 19th July, 1985], requires reconsideration. The matter was referred to a Bench of five judges.
4. The arguments which have been addressed before the five of us postulate that the arrested person is not being produced by the police officer under section 167[1] of the Code. The question is whether the Magistrate before taking cognizance of the offence has power to remand under section 167[2] of the Code, the arrested person produced before him in accordance with section 104[2] of the Customs Act or section 35(2) of the Foreign Exchange Regulation Act ? The related question is whether the Magistrate has implicit or implied power to do so under sub-section [1] read with sub-section (5) of section 437 of the Code.
5. Before adverting to the rival contentions, I may notice that the word "remand" does not occur either in section 167[2] or in section 437 of the Code. As far as I have been able to ascertain, this word is mentioned only in section 309 of the Code. Under that provision, the court after taking cognizance of an offence is vested with power of postponing the commencement of an inquiry or trial and also for adjourning the case from time to time. While doing so, the Magistrate is authorized by warrant to remand the accused if in custody to continue in custody [at that stage judicial custody] but not for a term exceeding 15 days at a time. This provision, in its context, means "to send a person charged with a crime back into custody by a court order" [Webster Dictionary]. The courts have also held "remand" to connote "A re-committal to custody of a person who has been brought up in custody".
6. It is apparent that the re-committal to custody, i.e., remand is to be directed by a warrant. An explicit order within the purview of the section has to be passed remanding the accused to judicial custody which order is to be executed by a warrant. At any rate this provision is not sought to be brought into play as the complainant has not been able to file the complaint. The stage of taking cognizance by the court has not yet reached. Under sub-section [2] of section 167 of the Code which is regulated by sub-section [1], a Magistrate pending investigation authorizes detention of an accused in police custody or judicial custody for a specified period subject to the maximum prescribed. The provisions of this section as a whole are to be read as supplementary to the provisions of section 57 of the Code. Under that section a person arrested without a warrant cannot be detained by the police officer arresting him for a period longer than 24 hours except under a special order of a Magistrate given under section 167[2]. To obtain it he must forward the arrested person to the nearest judicial Magistrate and also strictly comply with the conditions enumerated in its sub-section [1]. The Magistrate authorising detention in the custody of police has mandatorily to record his reasons for doing so. The period of police custody for 24 hours authorized under section 57 having lapsed, the special order authorising detention by the police cannot be said to mean "re-committal to police custody" as, earlier, there was no "order of committal" by the court. This order does not have retrospective effect. The period of limitation prescribed in the proviso to sub-section [2] of section 167 begins from the date of passing of the order and not from the day of arrest by the police officer. The order has to be sought by a competent police officer on well founded grounds to be made good from the case diary which has also to be transmitted as per the mandate while forwarding the accused. The authority given for the first time to detain in either custody passed under sub-section [2] of section 167 is commonly called a remand order. It is a misnomer but this has no bearing on this discussion.
7. My attempt is to highlight the legal position, namely, that the orders of "remand" passed by the Magistrate either before taking cognizance of the offence or afterwards are covered by two express provisions of the Code. Both of them have to be passed under the exercise of judicial discretion of the court; those have to be reasoned and are open to judicial scrutiny by the superior court.
8. It is conceded that the Magistrate could not have taken cognizance of the offences under the Foreign Exchange Regulation Act as no complaint was filed. It could not be filed as investigation into the non-cognizable offences was not complete. It is further stated that no report as contemplated under section 155 of the Code was lodged by the officer of the Enforcement Directorate with the police. It is thus conceded that if that step had been taken, the police officer after obtaining permission from the Magistrate could have started investigation of the non-cognizable offences and sought authority to detain the petitioner in custody within the purview of section 167 of the Code. It was not done advisedly, we were told. The main reason being that the said officer and for that matter the officers of the Directorate as well as the Customs Officers generally wish to keep secret the investigation/inquiry being conducted by them. But the offences being serious and non-bailable, the arrested persons during the pendency of the Investigation have to be detained in custody, it is urged. As the said officers are not police officers, the only custody permissible is judicial custody. There is no express provision in the Code enabling the Magistrate to do that, it is admitted. But with the aid of section 4[2] of the Code, the express power of "remand" to judicial custody under section 167 thereof was brought into play in the present case and consequently the petitioner was remanded under section 167[2] of the Code.
9. The argument is that if that is held to be legally not permissible, the implied power to commit to custody in the event of rejection of the bail application under section 437 of the Code is always available to the Magistrate. In any case the Magistrate on cancellation of the bails is to commit the accused to judicial custody under sub-section [5] of section 437. That power is implicit and that is the power which can be and ought to be exercised on production of an arrested person even if no application is filed by him for grant of bail.
10. I will firstly examine whether there is any power, implied or implicit vested in the Magistrate to remand or direct committal to custody of an accused or an arrested person on whose behalf an application under section 437 seeking bail for a non-bailable offence under the Indian Penal Code is filed before him. To do that, a number of situations have to be visualised in respect of a person arrested without a warrant for commission of a non-bailable offence under the Indian Penal Code. Those are :
[1] on his behalf a bail application is filed within 24 hours of his custody but he is yet to be produced.
[2] On his production as per section 57 of the Code such an application is filed. The police officer concerned also files an application under section 167[1] of the Code;
[3] On being produced, the bail application is filed but the application under section 167 on behalf of the prosecution seeking either of the custody is not filed;
[4] On being produced, he does not file a bail application. The application seeking an order under section 167[2] of the Code is filed but the case diary is not transmitted as no F.I.R. has been recorded; only a copy of a daily diary report is placed before the Magistrate in support of it;
[5] On being produced, the accused does not file a bail application. The police officer seeks an order of remand to either custody and in support of the plea, produces the case diary which does not show that any steps to investigate the alleged non-bailable offence have been taken.
11. The last three situations are rare, but have to be visualised to appreciate the contentions put forth regarding the construction of section 437 of the Code. The relevant portions of that section read :
"437. [1] When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail, but -
[i] such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment of life;
[ii] such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions, of a non-bailable and cognizable offence; ....
[4] An officer or a court releasing any person on bail under subsection [1] or sub-section (2) shall record in writing his or its reasons or special reasons for so doing.
[5] Any court which has released a person on bail under sub-section [1] or sub-section (2) may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody ..."
12. For the correct appraisal of sub-section [1] of section 437 on which reliance has been placed, the meaning of the word "remand" and the strict procedure to be complied with in obtaining it, as I have noticed above, have to be kept in view.
13. Now adverting to situation No. 1 wherein the application seeking bail has been filed on behalf of the arrested person prior to his production within 24 hours. If the Magistrate in his judicial discretion does not grant him bail, the suspected person continues to be in police custody till such time as he is produced as per the mandate of section 57. When he is produced and files an application for bail, at that stage the plea of the police officer seeking the exercise of the power vested in the Magistrate under section 167[2] is also before him (situation No. 2). After going through the case diary, if in his judicial discretion, the bail is to be allowed, he would allow the application by a speaking order. Consequently he would reject the plea of remand and pass the order in this regard complying with the provision of section 167[2]. Under this sub-section in case he is authorising detention in police custody, he is required to give his reasons for doing so as per sub-section [3] of section 167. In case the Magistrate is not the Chief Judicial Magistrate, he is to forward a copy of the special order with his reasons for making it to the Chief Judicial Magistrate as required under sub-section [4]. The rejection of the bail application by itself would not imply that either custody is being ordered.
14. The jurisdiction vested under sub-section [1] of section 437 of the Code is distinct from the jurisdiction vested in the Magistrate under section 167[2]. In the situation as portrayed in item No. 2 above, the Magistrate is bound to go through the entries in the case diary for purposes of exercising the power to pass orders under both these provisions. It is not mandatory that he should pass two separate orders but even in the composite order he is required to give reasons for dealing with both the applications. The usual practice and the correct practice of Magistrates is to first read the case diary and then hear the arguments of the prosecutor and on behalf of the accused in support of their respective pleas. If, in his judicial discretion, he authorizes the detention of the accused in either of the custody, he passes that order and consequently dismisses the bail application. As I have noticed above, for the purpose of limitation as provided in the proviso to sub-section [2] of section 167, the period of limitation in custody starts running by virtue of the order under sub-section [2] of section 167. This order is not an order of re-committal to police custody in case the police custody has been authorized; it does not have any retrospective operation [see Changanti Satyanarayana v. State of Andhra Pradesh ].
15. Now adverting to the rare situations as portrayed in situations Nos. [3], (4) and (5) above. In the event of the police officer not transmitting the diary of the case while forwarding the accused under sub-section [1] of section 167 of the Code, the Magistrate is not enabled to exercise his judicial discretion to authorize detention in either of the custody. But if the accused still insists on seeking bail, the order granting bail has to be passed. The bail application cannot be rejected as there are no grounds for keeping him in custody. It is inconceivable that the Magistrate even if he finds that there are no grounds to detain him, would reject the bail application.
16. If the remand is sought but the grounds are not well founded or the case diary has not been transmitted, the Magistrate. suo motu is not authorized to direct police custody or judicial custody. In my view while dismissing the plea of the prosecution for remand, even if made in such a case, the Magistrate in his judicial discretion ought to hold that the bail application is premature or infructuous. If no application seeking bail is filed, the question of rejecting the same does not arise. In the event of the police officer not transmitting a copy of the entries in the case diary, his grounds, if any, for believing that the accusation or information is well founded, have to be rejected by the Magistrate as being non-existent. As the custody of the accused in the last three situations cannot be authorized by him in his judicial discretion, the plea of the prosecution in law would be rejected. As I have said, ordinarily the bail application would be withdrawn but, even if pressed, it would have to be accepted.
17. Learned counsel for the respondents was, however, of the opinion that on production of the accused in compliance with the statutory provisions of section 57 of the Code, even if no application is moved by prosecution under section 167[1] nor an application is filed by the arrested person for bail under section 437, the Magistrate has the implied power to authorize his custody under sub-section [1] of that section. This proposition to my mind is startling but according to learned counsel, the production of that accused is neither meaningless nor purposeless. He has cited three cases in support of this contention. Those cases are :
[1] Nagendra Prasad v. State [1987] Crl. LJ 215 (Patna).
[2] N. H. Dave, Inspector of Customs v. Mohd. Akhtar Hussain Ibrahim Abdul Kader Amad Wagher [1984] 15 ELT 355 [Guj].
[3] Superintendent of Customs v. Ummerkutty [1983] Crl. LJ 1860; [1984] 1 ECC 217 [Ker].
18. I may at this stage note that the Supreme Court in Matabar Parida v. State of Orissa , while discussing the powers of remand in the Code, has held [page 1467] :
"It may be emphasised here that the court will have no inherent power of remand of an accused to any custody unless the power is conferred by law. In the order under appeal, the High Court without reference to section 344 of the Old Code, seems to have assumed that such a power existed. That is not correct."
19. Following that decision, a Division Bench of this court in Dalam Chand Baid v. Union of India [1982] Crl. LJ 747 held that :
"We also do not accept the contention that section 437 of the Code permits the court to put the petitioner in jail if bail is refused or not furnished. Such a view would be contrary to the observations of the Supreme Court reproduced above."
20. A Full Bench of this court in O. P. Gupta's case also negatived the proposition that section 437 of the Code impliedly confers the power of remand on a Magistrate.
21. I have gone through the judgments cited by Mr. Watel a number of times. It is apparent that Matabar Parida's case , was not brought to the notice of the Gujarat as well as the Kerala High Court. The Patna High Court in Nagendra Prasad's case [1987] Crl. LJ 215, has noticed it but in my view has not correctly appreciated it. In paragraph 14 of Nagendra Prasad's case [1987] Crl. LJ. 215, the learned judges held :
"14. It deserves highlighting that section 437 visualises the situation where the suspected person has been arrested and is brought before the Magistrate in custody. The language of sub-section [1] of section 437 is, therefore, necessarily modulated to that situation. Consequently in the opening part of sub-section [1] it provides that such a person may be released on bail and in clauses [i] and (ii) it lays down the conditions where such person shall not be so released. It is thus obvious that the person produced being already in custody, the language would not direct a double custody by re-employing the said word. All that is required in such a situation is the continuance of such an arrest and custody thereafter or a release there from. That is why sub-section [1] of section 437 repeatedly employs the word 'release' in contradiction to custody in which the person already is. What, however, is further significant is that clauses [i] and (ii) of sub-section [1] provide in specific terms the conditions in which such a person produced in custody shall not be so released. What is the true connotation of the phrase 'shall not be so released' in such a context ? To my mind, it is nothing more than an express mandate that in the event of refusal of bail such a person shall be kept or continued in custody. The mandate of the law that he shall not be so released is only a negative form of couching the command that he shall be kept in custody. That being so, it is virtually explicit and in any case it is necessarily implicit in the statute that there inheres a power to remand to custody. Reading it otherwise, to my mind, would be doing plain violence to the language of the statute and equally to the purposes and the objects behind the same. It bears repetition that in the context of sub-section [1] the positive command or mandate to keep in custody has necessarily been couched and modulated in the reverse by the direction that he shall not be so released."
22. The situation visualised above [Nagendra Prasad's case [1987] Crl. LJ 215] in my view only deals with situation No. 1 as culled out by me. The reasoning would not apply to any other situation.
23. The Patna High Court in Nagendra Prasad's case [1987] Crl.L.J. 215, agreed with the view expressed by the Gujarat High Court in N. H. Dave, Inspector of Customs' case . It was observed therein that whether or not a person arrested by an officer under section 104 of the Customs Act can be characterised as an accused, he would certainly fall within the ambit of the expression "suspected of the commission of any non-bailable offence" and the procedure as to bails and bonds in Chapter XXXIII would be attracted in such a case of arrested person. It was further held in paragraph 7 of the reported judgment that :
"Thus there is no doubt or dispute in regard to the proposition that sections 436 and 437 of the Code of Criminal Procedure would be attracted by virtue of the provisions contained in sub-section [2] of section 4 of the Code."
24. As far 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 the custody of the Customs Officers. On production before the Magistrate, bail can be sought by him only under this provision. I may add that Mr. Bhagat's contention that such a person arrested by the Customs Officer under section 104 is not entitled to grant of bail under section 437 is wrong. His argument that such a person can only file a writ of habeas corpus under article 226 of the Constitution, is misconceived. It is evident that as the Customs Act makes no provision in regard to bails and bonds in the event of the Customs Officer granting bail under section 104[3] of the Customs Act and specially in the context of the court before whom the arrested person is to be mandatorily produced under sub-section [2] of section 104, the provisions of bails and bonds as contained in Chapter XXXIII of the Code would be attracted. With great respect, however, I differ from the conclusion of the Gujarat High Court which is to the following effect :
"8. We will now proceed to examine what the powers of the court before which such a person is brought are. An offence under section 437 is an offence which is friable by a court other than the High Court or the Court of Session. In the present case, the court being the court presided over by a Chief Metropolitan Magistrate he can be released on bail by virtue of the power conferred on him by sub-section [1] of section 437. Sub-section (3) of section 437 provides that when a person is accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years under any Act [even an Act other than the Indian Penal Code] or of an offence under certain chapters of the Indian Penal Code, the court may impose the conditions envisioned by clauses [a], (b) or (c) of sub-section (3) of section 437. It would also be incumbent on the court to record in writing the reasons for so doing as directed by sub-section [4] of section 437. What is of equal importance is the provision contained in sub-section [5] which confers on the court a power to direct that the person released on bail pursuant to its order be arrested and committed to custody if the court considers necessary to do so. Thus in respect of a person suspected of the commission of an offence under the Customs Act who has been arrested by the Officer of Customs and produced before the court, he can also be committed to custody if the court considers it necessary to do so even after he has been released by the court under sub-section [1] or sub-section (2). Thus, section 437 in terms contemplates that the court has the power to commit him to custody. Now it must be realised that since section 437 empowers the Magistrate concerned to release him on bail and also obliges him to record reasons in writing whenever clause [4] is attracted, and to impose conditions envisaged in clause [3], it follows of logical necessity that the court has the power to remand the person suspected of the commission of an offence under section 135 of the Customs Act who has been arrested and produced before the court, to judicial custody in a case where he does not consider it proper to release him on bail or where the person refused to be released on bail. If the power to release on bail of necessity includes the power to refuse to release him on bail, this, by necessary implication, confers on the Magistrate power to remand him to judicial custody. This position is made abundantly clear by sub-section [5] of section 437, to which we have made reference a short while ago, which empowers the Magistrate in terms to direct that such a person be arrested and committed to custody, that is to say, judicial custody, even after such a person has been released on bail under sub-section [1] or sub-section (2) upon considering it necessary to do so. There is, therefore, no escape from the conclusion that the Magistrate before whom the person suspected by the Officer of Customs, upon the officer concerned entertaining a reasonable belief that he has committed an offence under section 135, is produced, has the power to commit such a person to judicial custody. Unless the provision contained in section 104 of the Customs Act to arrest the person and to 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."
25.The principle enunciated above by the Gujarat High Court is mainly based on the construction of sub-section [5] of section 437. Because a court [other than the High Court and the Court of Session] which granted bail is empowered to order arrest and commit the accused to custody under that provision, therefore, it has also the power to do that under sub-section [1] thereof.
26. In my view, the reasons given are manifestly wrong. A plain reading of that provision shows that the power of the court to cancel the bail granted by it under sub-section [5] of section 437 of the Code and, thereafter to direct the arrest of that person who was granted bail and his committal to custody, comes into operation only at a stage subsequent to grant of bail. A similar power is available to the High Court and the Court of Session in sub-section [2] of section 439, which reads as under :
"A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody."
27. If the reasoning of the Gujarat High Court is correct, then under the above provision, i.e., sub-section [2] of section 439, the High Court or the Court of Session can be asked even before it has granted bail or prior to the hearing of the application to cancel bail, to commit that person to custody. By way of an illustration, a situation may be visualised. The S.H.O. grants bail in a case of non-bailable offence to a person who has been arrested without a warrant pursuant to the lodging of a First Information Report. He has the jurisdiction to do so under sub-section [2] of section 437 of the Code. During pendency of the investigation, i.e., prior to the filing of the report under section 173, the bail of that person is sought to be cancelled for sufficient reasons either on the application of the prosecution or on the application of the complainant. The order of cancellation of bail can only be passed by the High Court or the Court of Session under section 439[2]. Can it be said that even before the application is decided, that court has the jurisdiction to direct his arrest and commit him to custody on the ground that in the event of acceptance of the application, the court is bound to do so. I am assuming that at the time of hearing of the application, the accused who is on bail is present in the court. After hearing the arguments and in the event of the High Court or Court of Session deciding to cancel the bail granted by the S.H.O., it would direct the arrest of the accused. The police officer, in case he is also in attendance, would take him into custody and take further steps in accordance with law, i.e., produce him before the Magistrate under section 167[1] to seek directions for his further custody. The Magistrate would then pass appropriate orders under section 167[2] and the limitation would start running from that day. The position in law after the bail is cancelled is no different under sub-section [5] of section 437.
28. However, in Ummerkutty's case [1983] Crl. LJ 1860; [1984] 1 ECC 217 [Ker], a learned single judge of the Kerala High Court, after noticing the provisions of section 437 and section 4[2] of the Code, held in paragraph 14 of the reported judgment as follows [at page 224] :
"By virtue of sub-section [5] of section 437 in regard to a person arrested under the Customs Act and released on bail by the Magistrate, the Magistrate has the power to direct at a later stage that the person be arrested. Sub-section [5] of section 437 of the Code specifically recognises the power of the Magistrate to commit such person to custody. If the Magistrate has power to direct a person to be committed to custody after cancelling the bail granted earlier to that person, certainly the Magistrate has power to direct the person to be committed to custody even while rejecting the bail application initially. Sub-sections [1] and (5) of section 437 of the Code, read together, will clearly spell out the power vesting in the Magistrate to commit a person produced before him to custody. By virtue of section 4[2] of the Code such power could be exercised in the case of a person arrested under the Act."
29. I am unable to persuade myself to agree with this judgment for the reasons already stated above. I again emphasise that the mere fact that the arrested person was produced while in custody cannot be permitted to create a fiction that that custody, even without being validated further, is the lawful custody to which he can be re-committed on rejection of the bail application filed by him.
30. The object of producing the arrested person before a Magistrate is neither purposeless nor pointless. The object is to see that a person arrested by the police is brought before a Magistrate with the least possible delay in order to enable the latter to judge if such person has to be further kept in police custody or judicial custody as per the procedure established and also to permit such a person to make any representation he may wish to make in the matter. In my humble opinion, the Gujarat and the Patna High Courts did not keep in view the mandate of articles 21 and 22 of the Constitution while posing the question "whether such a production is purposeless or meaningless."
31. In my dissenting judgment in O. P. Gupta's case, I endeavored to highlight the constitutional object of production of an arrested person. I will advert to the mandate of the Constitution in this regard while discussing the second topic.
32. Mr. Watel, learned counsel for the respondents, next contends that on production of the arrested person by a customs officer or by an officer of the Enforcement Directorate before a Magistrate as per the mandate of section 104 of the Customs Act or section 35 of the FERA respectively, the Magistrate has the jurisdiction under section 167[2] of the Code to direct the detention of that suspect in the judicial custody. His case is that even if sub-section [1] of that section cannot be applied mutates mutants to such a case, yet by virtue of sub-section [2] thereof, the Magistrate has the jurisdiction to pass a remand order against the suspected person who according to the counsel is not yet an accused in the formal sense.
33. Mr. Watel says that the suspected person under the special Act is not a formal accused when produced under the command of section 104[2] of the Customs Act or section 35(2) of the FERA; he is an accused in the generic sense only. Yet sub-section [2] of section 167 can be brought into play to remand such an arrested person. By generic sense, what he means is that he is an accused in the general sense against whom there is no formal complaint containing accusation of commission of a specific offence but only a suspicion of having committed an offence.
34. Mr. Watel relies on the Full Bench judgment of this court in O. P. Gupta's case [Yogeshwar Dayal and Malik Sherif-ud-Din JJ.; Charanjit Talwar J. dissenting]. This judgment completely supports his contention. The question of law for the consideration of the Full Bench was :
"Whether the Magistrate has no power to remand a person produced before him in accordance with section 104 of the Customs Act and whether the decision reported in Dalam Chand Baid v. Union of India [1982] Crl. LJ 747, decided by a Division Bench of this court requires reconsideration."
35. The Full Bench [per majority] overruled Dalam Chand's case [1982] Crl. LJ 747, and held that the Magistrate has power to remand under section 167[2] of the Code a person produced before him in accordance with section 104 of the Customs Act.
36. It is to be emphasised here that over 20 years ago Hardy J. [as His Lordship then was] in Criminal Writ Petition No. 3 of 1969 : Brian Bennet v. Collector of Customs [Crl.W.P. No. 3 of 1969 - decided on 27th February, 1969], dealt with the first part of the above question. His emphatic answer was that the Magistrate has no such power. A special leave petition against that judgment was filed before the Supreme Court and though a show-cause notice had been issued, yet the petition was withdrawn. That judgment thus held the field in Delhi for over a decade.
37. Thereafter, a Division Bench of this court in Dalam Chand's case [1982] Crl. LJ 747, approved that decision. In O. P. Gupta's case, however, the contentions of Mr. Watel who appeared before that Bench also, were accepted. The Full Bench noticed the relevant provisions of the special Act and the provisions of sections 167 and 4[2] of the Code. After matching those provisions of the Customs Act and the FERA with that of the Code, it was held that the Magistrate has the power under sub-section [2] of section 167 to remand a suspected person arrested and produced by those officers before him. The reasons for holding so were :
[1] Sub-section (1) of section 167 of the Code is substituted by the provision of section 104[2] of the Customs Act and/or section 35[2] of the FERA.
[2] The customs officer is vested with the specific power of arrest under section 104[1] of the Customs Act; for holding his inquiry, he is thus enabled to exercise power of investigation as contemplated in Chapter XII of the Code by virtue of section 4[2] of the Code.
[3] By the application of section 4[2] of the Code, which comes into play when the arrested person is produced by the customs officer, under sub-section [2] of section 167 the power vested in the Magistrate to authorize detention in judicial custody can be exercised by him.
[4] Although the person arrested and produced by the officer concerned under the Customs Act/FERA at that stage is not an accused of any offence within the meaning of article 20[3] of the Constitution, yet, under section 167[2] of the Code, the Magistrate has the power to authorize his detention.
38. The reliance in a nut shell was on section 4[2] of the Code for the above conclusions. That sub-section reads :
"[2] All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
39. I regretted my inability to agree with my brothers. I said that a Magistrate has no power to remand to custody a person taken before him in accordance with section 104[2] of the Customs Act or section 35[2] of the FERA. I disagreed that by virtue of section 4[2] of the Code, either section 167 of the Code or provision of sub-section [2] thereof become applicable in such an event.
40. We have heard the parties at great length. After going through the case-law noticed in the said case of O. P. Gupta and cited by Mr. Watel all over again, I have not been able to change my mind. I am reiterating my earlier view.
41. I may notice that O. P. Gupta's case although made reportable, has not been reported in any law journal. Thus it has not been noticed in Nagendra Prasad's case [1987] Crl. LJ 215, by the Patna High Court. However, the view of that court is exactly the same as my view so far as the applicability of section 167 of the Code to a case like the present is concerned. Paragraph 6 of that judgment reads :
"6. Again it was not now in dispute at all that a Customs Officer, though he has the power of arrest and other analogous powers, is yet not a police officer stricto sensu. Earlier this question was not entirely free from doubt but all controversy on this aspect has been set at rest by the Constitution Bench judgment in Ramesh Chandra Mehta v. State of West Bengal which, in turn, has been unhesitatingly followed thereafter in Illias v. Collector of Customs . Now, once it is held that a customs officer is not a police officer it would necessarily follow that section 167 of the Code which clearly and imperatively refers to an investigation by the officer-in-charge of a police station or other police officers would not be attracted. All argument on this score is thus obviated, and both Mr. Braj Kishore Prasad, learned counsel for the petitioners, and Mr. Pandey for the State were unanimous that the provisions of the said section cannot be invoked herein."
42. Mr. Watel says that counsel for the Customs Department was ill-advised to concede the above legal proposition before the Patna High Court. He maintains that the Customs Act and the FERA being silent on the procedure to be followed after the production of the arrested person before a Magistrate, further procedure is to be regulated by the Code with the aid of sub-section [2] of section 4 thereof. He submits that where a complete procedure is provided in any enactment for the investigation, inquiry and trial of an offence, it is that procedure which must be followed. Although, where an enactment provides special procedure only for some matters, its provisions must apply in regard to those matters, yet the provisions of the Code are to apply in view of sub-section [2] of section 4 as regards the matters on which that enactment is silent. Thus, the contention is that on production of the arrested person as contemplated under the said two Acts, the provisions relating to remand as contained in section 167 of the Code are straightaway attracted. Learned counsel submits that Nagendra Prasad's Case [1987] Crl. LJ 215 [Patna] does not lay down the correct law.
43. I pointed out in my earlier judgment [in O. P. Gupta's case], that this very submission had been raised and rejected in a number of cases by various High Courts. According to me, the submissions put forth in that case as well as before us regarding the applicability of section 4[2] of the Code are misconceived. The ratio of the decisions to which reference was made by me had gone unnoticed in the judgment of my learned brothers. Mr. Bhagat is relying on those judgments. Those are :
Criminal Miscellaneous No. 1678 of 1969 decided by a Division Bench of the Allahabad High Court on 12th August, 1969, which decision has been approved in Dalam Chand's case [1982] Crl. LJ 747 [Delhi], the very contention on behalf of the Customs Department has been noticed by the Allahabad High Court and dealt with as follows :
"Shri Kacher further contended that the power of asking for remand to custody would also be available by virtue of sub-section [2] of section 5 of the Code (sub-section (2) of section 4 of the present Code]".
44. After analysing the said provision, it was held that :
"This again raises the crucial question, viz., whether the powers of arrest and production before the Magistrate provided for in the Customs Act are police powers of investigation of offences. An affirmative answer to that question would alone press into service sub-section [2] of section 5 of the Code of Criminal Procedure. In our opinion, however, the answer to that question must clearly be in the negative on the basis of the touchstone which has been formulated by the Supreme Court, namely, 'the main purpose of the giving of powers', in the cases of Parkat Ram and Badaku Joti. It would not be proper to isolate the powers of the customs officers in regard to arrest and production before the Magistrate and compare them with the police powers of investigation. The totality of the powers of the customs officers has to be considered in the background of the object and purpose of vesting them with such powers in judging whether such powers are police powers of investigation into offences as contemplated by sub-section [2] of section 5 of the Code of Criminal Procedure; when so considered, the inevitable conclusion is that the arrest and production before the Magistrate by the customs officers are not steps in investigation envisaged by sub-section [2] of section 5. We respectfully agree with the approach of a Full Bench of the Madras High Court to this question in Collector of Customs v. Kotumal Bhirumal Pihlajani
45. In Collector of Customs v. Kotumal Bhirumal Pihlajani , the argument that by virtue of sub-section (2) of section 5 of the Code, a customs officer was vested with the powers of the police officer as per Chapter XIV of the Code (Chapter XII of the present Code), had been raised on behalf of the arrested persons (respondents in the case). In paragraph 16 of the order of reference, Ramakrishnan J. has noticed the rival contentions as follows (page 269) :
"According to learned counsel for the respondents section 5(2) of the Criminal Procedure Code states that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences, but in the Customs Act, 1962, we have a special law which amounts to a self-contained Code for the purpose of holding an enquiry under that Act and further Chapter XIV of the Criminal Procedure Code where section 162 is found, in terms refers to the procedure for investigation by an officer in charge of a police station in respect of cognizable offences. As against this, it is pointed out by the learned counsel for the petitioner, that section 104(4) of the Customs Act, 1962, makes all offences under the new Act non-cognizable, thereby excluding the jurisdiction of police officers to investigate such offences and also would exclude the application of section 162, Criminal Procedure Code. In view of my referring the other two points for decision to the Bench and since this point is closely allied to the first objection mentioned above, this objection also will be placed for decision by the Bench."
46. The points which were referred for decision were (at page 269) :
"Are statements recorded by enquiring officers of the customs department under section 107(108) of the Customs Act, 1962, inadmissible in evidence in a criminal trial by reason of the bar under : (1) section 25 of the Indian Evidence Act; (2) section 162 of the Criminal Procedure Code; and (3) article 20(3) of the Constitution."
47. The Full Bench compared the provisions of the Sea Customs Act, 1878, with those of the Customs Act and after analysing the case-law on the subject, held (page 273) :
"In view of the foregoing, we are of opinion that the statements in the present case do not become inadmissible by reason of section 25 of the Evidence Act. It consequently follows that they are not hit by section 162 of the Criminal Procedure Code."
48. This decision has been approved by the Supreme Court in Ramesh Chandra Mehta v. State of West Bengal . The principle enunciated by the Full Bench that (p. 275) "the bar under article 20(3) of the Constitution will not be available to the statements in the case, since it is not in dispute that they have been recorded only during an investigation undertaken by the customs officer under sections 107 and 108 of the Customs Act of 1962 and at a time when the deponents did not stand in the position of accused in the light of the principles stated in the decisions cited above", has been upheld.
49. The appeal preferred from the Madras High Court judgment by one of the respondents is reported in Illias v. Collector of Customs . The Bench of five judges which decided Ramesh Chandra Mehta's case , also decided that appeal. In the appeal, after noticing the questions referred to the Full Bench, it has been observed that the Full Bench answered all the three questions against the accused persons and that only one out of them, Illias, had appealed. However, the second point which had been raised before the Madras High Court, namely, that by virtue of section 5(2) of the Code, offences under the Customs Act were to be investigated as per Chapter XIV of the Code and, therefore, the statements recorded during investigations were hit by section 162 of the Code, was not pressed before their Lordships. But, as noticed above, in Ramesh Chandra Mehta's case , the judgment of the Full Bench has been approved.
50. A similar question, namely, whether by reason of the provisions of section 5(2) of the Code, an enquiry by the customs officer becomes an enquiry under Chapter XII of the Code, was also raised before the Bombay High Court in Pukhraj Pannalal Shah v. K. K. Ganguly . The main argument urged on behalf of the petitioner was that the statement recorded by the empowered customs officer during an enquiry under the Customs Act was hit by section 25 of the Evidence Act. It was urged that under section 104(3) of that Act, a customs officer having been given the power to release an arrested person on bail or otherwise is automatically vested with the powers of officer-in-charge of a police station and, therefore, enquiry conducted by him becomes an investigation under Chapter XIV of the Code; hence, the statements recorded by him would not be admissible under section 162 of the Code. A Division Bench of the Bombay High Court rejected this plea. It agreed with the view taken by the Madras High Court in Collector of Customs v. Kotumal Bhirumal Pihlajani and, inter alia, held (p. 439) :
"Section 5(2) of the Criminal Procedure Code which provides that offences under other laws shall be investigated under the Code, is subject to the qualification 'subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.' In our view, the Act of 1962 is such an enactment which has provided its own procedure for investigating into offences committed under it and the provisions of Chapter XIV, Criminal Procedure Code, therefore, would not apply to such investigations. Apart from this, the offences under the Act of 1962 are non-cognizable. In any event, section 162, Criminal Procedure Code would not apply to such cases as customs officers are not police officers."
51. In an earlier part of this judgment, it has been observed that section 104(3) of the Customs Act, 1962, read in its context does not give any ascendancy whatsoever to the officer over a citizen merely because the power of granting bail has been given to him.
52. In view of the above decisions, can it be said that powers of investigation contained in Chapter XII of the Code are conferred on the customs officer by virtue of section 4(2) of the Code simply because that officer has the power to arrest a person for infringement of section 135 of the Customs Act ? It is true that he is authorized to make an arrest to complete his inquiry which inquiry may be termed an investigation. But would that "investigation" be deemed to be an investigation under Chapter XII of the Code. The answer has to be in the negative.
53. It is not Mr. Watel's case before us that an authorized customs officer or an officer of the Enforcement Directorate is a police officer. His case is that it is only that officer who can investigate the non-cognizable offences committed under the respective Act and further it is only that officer who can without permission of the Magistrate arrest a person under a reasonable belief that he is suspected of having committed an offence under either of the Acts. And it being incumbent upon him to produce the arrested person before a Magistrate, it is axiomatic according to Mr. Watel, that on such an officer's asking, the Magistrate must be deemed to have been empowered to remand the person arrested to judicial custody during investigation (actually an inquiry under the Customs Act) being conducted by that officer.
54. It is further submitted that in this context section 104(2) of the Customs Act is substituted in place of section 167(1) of the Code and thus a Magistrate before whom the person arrested is produced is consequently authorized to act under sub-section (2) of that section.
55. Mr. Watel concedes that there is no doubt that the arrested person is not an accused within the meaning of article 20(3) of the Constitution, yet in his character as "arrested person" he is liable to be remanded under section 167(2) of the Code, he urges.
56. In O. P. Gupta's case, this court has held that the law as laid down by the Supreme Court does not prohibit the Magistrate from remanding such a person. Before I revert to the case referred to, i.e., Ramesh Chandra Mehta's case , let me notice the accepted meaning of the words "accused" and "suspected person" and whether the word "accused" denotes some one other than the "formal accused", the term used by learned counsel.
57. A person after his arrest by the police without a warrant under the provisions of Chapter 5 of the Code is termed an "arrested person" till his production under section 167(1) of the Code. Before his arrest under section 157 of the Code, the word used for him is "offender". The word "accused" is used for the first time in section 167. In this section and sections 169, 170 and 178, this word denotes the supposed "offender" who is mandatorily produced before the court by virtue of section 57 of the Code. In Karam Ilahi v. Emperor AIR 1947 Lahore 92, a Division Bench of that court brought out the differences as follows (p. 96) :
"It is important to note that the word used in section 157 is 'offender' and the word 'accused' is used for the first time in the Chapter in section 167. At the time section 157 comes into operation, there is only a report and a suspicion that a cognizable offence has been committed while section 167 comes into play after the police officer entrusted with the investigation has taken necessary steps to arrest the person who is alleged or suspected to have committed the offence. This makes me think that according to the provisions of the Criminal Procedure Code a person becomes an accused person immediately after he has been arrested by the police for an offence which forms the subject-matter of investigation by them."
58. It is obvious that the alleged offender who is remanded to custody, vide section 167(2) of the Code has the same character as that of a supposed offender who is remanded to custody after taking cognizance of the offence under section 309 of the Code. He is the accused. Mr. Watel says that even so, he is not a formal accused. For this contention Mr. Watel's reliance is on L. Choraria v. State of Maharashtra . Therein, the testimony of one of the air stewardesses by the name of Ethyl Wong in a case of criminal conspiracy to smuggle gold into India was sought to be challenged on the ground that being a self-confessed co-conspirator, her evidence has to be excluded from consideration. As she was an accused, no oath or affirmation could be made by her. In support of the contention that she was an accused, it was argued that the word "accused" occurring in the Code of Criminal Procedure is sometimes implied to denote a person on trial and sometimes a person against whom there is an accusation but he is not yet put on trial.
59. While dealing with this contention, the Supreme Court in paragraph 10 of the reported judgment held that (p. 943) :
"10. There is no need to refer to the sections of the Code of Criminal Procedure because it may safely be assumed that the word 'accused' bears these different meanings according to the context. That does not solve the problem of interpretation of the same word in the Code for there it may have been used in one of the two senses or both ..."
60. Based on the above, Mr. Watel's submission is that the word "accused" appearing in the Code has different meanings and, therefore, the arrested person produced before a Magistrate by virtue of section 104(2) of the Customs Act is not an accused in the sense of the word implied in section 309 of the Code.
61. I find that Mr. Watel has overlooked the dicta that the word bears different meanings according to the context. The offender on arrest is termed a suspected person and remains so till such time he comes under the cognizance (as distinct from cognizance of the offence) of a Magistrate or an officer other than the police officer. A reading of the judgment in L. Choraria's case , shows that Ethyl Wong was not named as an accused in the complaint; she was not so named as sanction to prosecute her was not accorded by the competent authority. Therefore, even after cognizance of the offence was taken, she could not be tried as an accused. There was no question of application of section 169 and 170 of the Code because the investigation conducted was not by a police officer but by the customs officer under the Sea Customs Act. This is clear from the judgment. Paragraphs 5 and 6 of this reported case show that she was not even produced before a Magistrate for seeking remand prior to the filing of the complaint. Those paragraphs which clarify the position are as follows (p. 941) :
"5. The offences were non-cognizable and were not investigated by the police. The investigation was by customs officers under the Sea Customs Act and not by the police under Chapter XIV of the Code. Therefore, no question of the application of sections 169 and 170 arose. Ethyl Wong's statements were obtained under section 171-A of the Sea Customs Act. The persons were placed for trial on the complaint of the Assistant Collector of Customs under the authority of the Chief Customs Officer, Bombay. Although the Magistrate was taking cognizance of offences and not of offenders it was no part of his duty to find offenders in view of the bar of section 187-A if the complaint did not name a particular offender. All that the Magistrate could do was to take a bond from Ethyl Wong for her appearance in court if required. At the time of Ethyl Wong's examination, the appellants had raised the question that she should be tried. The Magistrate said that he would later consider the matter. Then it appears to have been forgotten. Nor did the appellants raise the question again. Apparently they only wanted that Ethyl Wong should be tried jointly with them so that her testimony might not be available against them but were not interested in her separate trial.
62. In so far as the customs authorities are concerned, it is clear that they had some reason to think that Ethyl Wong might be one of the carriers as her visiting card was found with 26 other such cards in Yau Mockchi's possession. But it was not certain that she was one of the carriers until she was questioned or there was some other evidence against her. The complaint was filed in court on April 6, 1960, and the case was to commence on January 2, 1961. On December 27, 1960, Ethyl Wong landed at the Bombay air terminal. Two customs officers were waiting for her and questioned her. It was then that Ethyl Wong made her first statement (exhibit 1) admitting her own share in the smuggling racket set up by Yau Mockchi. On December 29, 1960, she gave a second statement (exhibit 2) and corrected certain inaccuracies in her first statement. On January 2, 1961, she was examined as the first prosecution witness."
63. There can be no manner of doubt that the suspected person, on being produced before the Magistrate for the purpose of obtaining directions for his further custody is an accused within the contemplation of the Code. In Ramesh Chandra Mehta's case , the Supreme Court has held in no uncertain terms that the person arrested by the customs officer does not stand in that character, viz., that of an accused. It was held (p. 946) :
"Normally a person stands in the character of an accused when a First Information Report is lodged against him in respect of an offence before an officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trial of the offence. Where a customs officer arrests a person and informs that person of the grounds of his arrest (which he is bound to do under article 22(1) of the Constitution) for the purpose of holding an enquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence. In the case of an offence by infringement of the Sea Customs Act and punishable at the trial before a Magistrate there is an accusation when a complaint is lodged by an officer competent in that behalf before the Magistrate."
64. Mr. Watel, however, submits that the above observation has to be read in the context in which the problem was being dealt with by that court. The only question according to him before the Supreme Court was whether the customs officer under the Sea Customs Act is a police officer for the purpose of section 25 of the Indian Evidence Act. It is his plea that the observations in Ramesh Chandra Mehta's case , as well as in Illias's case , ought not to be read to imply that such a suspected person cannot be proceeded against under section 167(2) of the Code for the purpose of remand, on production by officers empowered to arrest him though admittedly they are not vested with police powers. He has relied on the dicta of the Supreme Court in Amar Nath Om Prakash v. State of Punjab , wherein it has been observed that :
"The judgments of courts are not to be construed as Acts of Parliament. Nor can we read a judgment on a particular aspect of a question as a Holy Book covering all aspects of every question whether such question and facets of such question arose for consideration or not in that case."
65. Therefore, the argument is that though cognizance of the offence and consequently of the offender has not been taken by the Magistrate under section 309, yet in his character as an arrested suspect, on production he can be remanded by a Magistrate irrespective of the law laid down in Ramesh Chandra Mehta's case . I have not been able to follow this reasoning. The purpose of arrest of the suspected person under the Customs Act has been amply clarified by the Supreme Court. Their Lordships have held that the customs officer not being a police officer, is neither empowered nor is he to investigate into commission of offences friable by a Magistrate under the provisions of the Code. That suspected person is not an accused under the Code, neither under section 309 nor under section 167.
66. The duty imposed on the customs officer under section 104(2) of the Customs Act to produce the arrested person before the Magistrate is similar to the duty cast on the police officer under sections 56 and 57 of the Code. While producing the accused as per the mandate of the Code, the officer-in-charge of the police station, however, is authorized to make use of it as a step in aid of investigation, namely, to obtain a special order for keeping the accused in police custody. The customs officer, even if he is ready with the complaint, produces the arrested person within the prescribed time limit under section 104(2) of the Customs Act so that further proceedings as per section 309 of the Code are commenced. His duty, however, is in accord with the constitutional mandate under sub-article (2) of article 22 and is equivalent to the duty cast upon the police officer to produce the arrested person before the Magistrate.
67. But the questions raised are :
68. What is the purpose of production of such a suspected person ? Is such a production pointless ? Can no action be taken by the Magistrate to keep him in custody ?
69. The answers are provided in the Constitution.
70. Article 22 of the Constitution of India lays down that every person arrested and detained in custody shall be produced before the Magistrate within the time prescribed therein and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. Article 21 of the Constitution lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law. It is now well settled that before a person can be deprived of his personal liberty, all the requirements of the Constitution and of any law that may be applicable to the case must be strictly complied with (see A. K. Gopalan v. State of Madras AIR 1950 SC 271). However, it is evident that article 22 of the Constitution by itself does not lay down any procedure which the Magistrate has to follow in exercising his authority to order detention of any person. But in view of article 21 of the Constitution which has to be construed and harmonised to be read with article 22, there has to be a procedure established by law which must be adhered to before the Magistrate could exercise his authority to order detention of any person so as to have the effect of depriving the said person of his fundamental right of personal liberty.
71. To be fair to Mr. Watel, during arguments he did not suggest that a procedure unknown to law so as to authorize further custody of the suspected person produced by the customs officer be adopted. His contention is that section 104(2) of the Customs Act be substituted for section 167(1) of the Code. He says that substitution of one express provision by another express provision in a case like the present is permissible. In that event, the power of the Magistrate to authorize detention under section 167(2) would automatically be regulated by section 104(2) of the Customs Act. Alternatively he says that necessary changes in sub-section (1) of section 167 of the Code with the aid of the doctrine of mutates mutants be made. Looked at from any angle, he submits that the procedure adopted generally which has been approved by the Full Bench is the procedure established by law. He urges that this procedure was the one in the contemplation of the Select Committee while recommending enactment of section 104 of the Customs Act in its present form.
72. Learned counsel has relied heavily on that report in view of the fact that the Full Bench (per majority) in O. P. Gupta's case has taken cognizance of the report and read it in support of its finding that section 167(2) comes into play on production of an arrested person by the customs officer. The "Objects and Reasons" have been reproduced in that judgment. It is advantageous to quote sub-clause (3) of section 104 as initially suggested in the Bill :
"(iii) in addition to the power to commit an arrested person to jail or order him to be kept in police custody, the Magistrate is being empowered to order the arrested person to be kept in such other custody as he deems fit."
73. However, this clause was omitted on the recommendation of the Committee on the ground (quoted in volume 15 AIR Manual (4th edition) that :
"The Committee feel that sub-clause (3) being merely a repetition of the provisions of the Criminal Procedure Code, 1898, should be omitted. The Committee are also of the opinion that the offences under this Act should be non-cognizable as at present although the maximum punishment in respect of certain offences is being enhanced to five years imprisonment."
74. The view of the Full Bench was that the said clause was omitted palpably as the Committee was aware that the provision of remand under section 167 of the Code existed and, therefore, there was no need to repeat the same in the Customs Act to enable the Magistrate to authorize remand of a suspected person.
75. In my view this assumption is not correct. Let me recapitulate that in the year 1962 when the Customs Act was enacted, there were two provisions of the Code which empowered the Magistrate to pass a remand order even before taking cognizance of the offence. Those sections were 167 and 344. Most of the High Courts with the exception of the Orissa High Court had opined that a Magistrate having jurisdiction to try the case, could remand the accused to judicial custody from time to time during the pendency of the investigation in exercise of his powers under section 344. That was the reason for the Select Committee to hold that the suggested sub-clause (3) quoted above was a repetition. 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. 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.
76. As far as the language of the relevant provisions of the Code of Criminal Procedure and the Customs Act is concerned, the same appears to be quite clear. There is no provision made in the Customs Act laying down the procedure which may be followed for obtaining the order of the Magistrate for detaining such an arrested person in any of the custody. The Committee only opined that the powers already existed in the Code for directing the custody of such an arrested person under the Customs Act. There is no dispute about this opinion that the Code, particularly section 167 during investigation of a case and section 309 during the trial, empower the Magistrate to order detention of an arrested person in custody. It is evident that before the Magistrate could exercise his power to detain a person curtailing his personal liberty, the Magistrate has to see that the procedure prescribed by the statute (in this case section 167(1) and section 309 of the Code) is strictly complied with. It is the clear legislative intent. This interpretation of the provisions of the Code and of section 104(2) of the Customs Act does not give rise to any absurdity as suggested by Mr. Watel. Simply because a customs officer who has been held to be a revenue officer is not willing to lodge a report as per section 155 of the Code, the court is being asked to mismatch the provisions of the Code and the Customs Act and the FERA. Otherwise, we are told that a plain reading of the provisions results in absurdity by producing a suspect only for the purpose of being let off by the Magistrate.
77. Mr. Watel on this aspect further contends that at any rate, if provision of sub-section (2) of section 167 cannot be read in isolation and is held to be regulated by sub-section (1) of section 167 and not by section 104(2) of the Customs Act, then applying the doctrine of mutates mutants, sub-section (1) can be brought into play. In support of his submission that section 167(1) of the Code can be read suitably so that reference to the "officer in charge of a police station" be read as a "customs officer", learned counsel relies on M. K. Ayoob v. Superintendent, Customs Intelligence Unit [1984] Crl. LJ 949; [1984] KLT 215. This was one of the cases which found favor with the Full Bench in O. P. Gupta's case.
78. The question arose in an application filed by persons who had been arrested by the customs department and remanded to judicial custody. They had been in custody for over 60 days. On expiry of that period, it was pleaded on their behalf that complaints not having been filed by the Collector of Customs, they were entitled to grant of bail under proviso (a)(ii) to section 167(2) of the Code. The argument in opposition to the application (noticed in paragraph 11 of the reported judgment) was that the provisions of section 167 do not apply to persons arrested under the Customs Act by the customs officer. It was urged that sub-section (1) of section 167 specifically refers to a person arrested and detained in custody by a police officer. As customs officers are not officers-in-charge of a police station or police officers making investigation, sub-section (1) of section 167 is not applicable, it was urged on behalf of the Customs department. Therefore, sub-section (2) of that section, which refers to an accused person who has been forwarded under section 167, is not applicable. In a nutshell, the argument of the Government counsel was that the provisions of sub-section (2) of section 167 apply to persons arrested by police officers under the provisions of the Code. This is exactly the argument of Mr. Bhagat before us on behalf of the petitioner, Mr. Watel, counsel for the respondents, however, maintains that the arguments on behalf of the Customs department before the Kerala High Court as well as in Nagendra Prasad's case [1987] Crl. LJ 215 before the Patna High Court were entirely misconceived. The learned single judge of the Kerala High Court hearing the application rejected the plea of the department. He held that (p. 220 of [1984] KLT) :
"In relation to matters of investigation, inquiry, trial or other matter not covered by the provisions of the Act (Customs Act), the parallel provisions of the Code must necessarily be applied. That is the clear effect of the operation of section 4(2) of the Code. Such operation cannot be negatived merely because a section in the Code uses expressions which are compatible with an offence under the Penal Code or with investigation being conducted by a police officer. In relation to a person arrested under the Act the provisions of section 167 of the Code must be read suitably, that is, reference to 'officer in charge of a police station' must be read as 'customs officer'. This view is strengthened by the provision in sub-section (3) of section 104 of the Act also."
79. Thus the doctrine of mutates mutants 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 Chandra Mehta's case . 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 authorized to investigate commission of an offence friable by a Magistrate; he holds an inquiry into the infringement of provisions of the Customs Act. It seems that Ramesh Chandra Mehta's case, , was not brought to the notice of the Kerala High Court just as it was not brought to the notice of the Gujarat High Court in N. H. Dave's case . The latter found the submission regarding the applicability of section 167 of the Code to a case like the present rather attractive but left it at that and proceeded to decide the proposition of implied power of remand vested in a Magistrate.
80. In the present case, it seems to me that Mr. Watel is pleading that strict procedure established by law be strictly not made applicable. I am of the view that it is possible to substitute provision of section 104(2) in place of section 57 of the Code. But thereafter the prerequisites of sub-section (1) of section 167 empowering the Magistrate to authorize detention under section 167(2) just cannot be glossed over.
81. One of the important requisites of the procedure given in section 167(1) of the Code is submission of a case diary while forwarding the arrested person before the Magistrate. There is no provision in the Customs Act at all which requires submission of any case diary or any other material or facts collected by the customs officer implicating the arrested person. In case Parliament so intended, it could have easily provided in section 104 itself that the customs officer while producing the arrested person before the Magistrate shall transmit to the Magistrate the evidence and the material collected by the customs officer. We were told that in practice a customs officer does produce such material before the Magistrate to satisfy the Magistrate that he has legally arrested a particular person but the statute does not make it incumbent on the customs officer to transmit such material to the Magistrate. So, it cannot be said that one of the important requisites provided in section 167(1) of production of case diary stands replaced by a similar requirement which stands incorporated in any of the provisions of the Customs Act.
82. Assuming for the sake of argument that (1) the person so arrested by the customs officer acquires the character of an accused when being produced before the Magistrate for purposes of section 167 of the Code; and (2) that the customs officer is investigating into the offence and is not in a position to complete the investigation within 24 hours, yet all the requirements of section 167(1) would not stand satisfied unless and until there has been any provision made in the special statute making it incumbent upon the customs officer to submit the necessary material and facts collected by him during the investigation while forwarding such arrested person to the Magistrate.
83. 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 recognized that the 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 Chandra Mehta . It has been settled that the person arrested at that stage by the customs officer is not an accused within the purview of the Code and that the officer concerned is not investigating into commission of an offence friable by a Magistrate. I may note that under some enactments such a power has been granted to public servants who are strictly speaking not police officers in the broader sense. For instance, an Excise Officer under the Central 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. This 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 into commission of offences friable by a Magistrate, though they have been given a limited power of the officer-in-charge of a police station to grant bail or not to grant bail and nothing more. The arrest and detention by them is only for the purpose of holding an effective inquiry under the Customs Act or the FERA. Thus, the position summed up by the Supreme Court is (at p. 951 of 1970 AIR) :
"At that stage there is no question of the offender against the Customs Act being charged before a Magistrate. Ordinarily, after adjudging penalty and confiscation of goods or without doing so, if the customs officer forms an opinion that the offender should be prosecuted he may prefer a complaint in the manner provided under section 137 with the sanction of the Collector of Customs and until a complaint is so filed the person against whom an inquiry is commenced under the Customs Act does not stand in the character of a person accused of an offence under section 135."
84. I reject the arguments of Mr. Watel. I do not find any anomaly or absurdity in applying the express provisions of the Code in a case like the present. Mr. Watel's reliance on a judgment of the Supreme Court in Union of India v. Filip Tiago De Gama is misconceived.
85. With great deference, I am of the view that the law laid down in Union of India v. O. P. Gupta (Criminal Writs Nos. 116 and 104 of 1984, decided by this Court on 19th July, 1985) in so far as it was held (per majority) therein that the Magistrate has power to remand a person produced before him in accordance with section 104 of the Customs Act or section 35 of the FERA, is incorrect. In my view that case requires to be overruled.
86. I hold that the impugned order is liable to be set aside. I order accordingly and make the rule absolute.
Malik Sherif-Ud-Din J.
87. As noticed by my brother Talwar J. the main question on which the five-judge Bench was addressed is whether the Magistrate before taking cognizance of the offence has power to remand, under section 167(2) of the Code, the arrested person produced before him in accordance with section 104(2) of the Customs Act or section 35(2) of the Foreign Exchange Regulation Act. The related question is whether the Magistrate has implicit or implied power to do so under sub-section (1) read with sub-section (5) of section 437 of the Code of Criminal Procedure.
88. I have carefully gone through the order of my learned brother Talwar J. and I am in complete agreement with him on the scope of section 437 and I agree with him that there is no power to commit to custody under sub-section (1) of section 437. Section 437, in fact, is a provision which deals with the grant of bail and the cancellation thereof. I may, however, add that the mandate of article 22 of the Constitution is that a person arrested or detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. Reference to the authority of the Magistrate is to the powers which the Magistrate is invested with by the Code of Criminal Procedure. The further custody after 24 hours of the arrest of a person which the Magistrate authorizes is always in accordance with the procedure laid down by law. In my view, when reference is made to the procedure, it envisages a procedure which must be definite, certain, express, known and clear. The power to commit to custody is a very serious matter and has the capacity to deprive a person of his liberty. By its very nature, the power has to be expressly conferred. Power to commit to custody can neither be inherent nor can it be carved out by implication. The proposition of implicit power to commit to custody is a dangerous one. I would, therefore, express my complete agreement with my brother Talwar J., that there is no implied power authorising a Magistrate to commit to custody under sub-section (1) of section 437.
89. If an accused person were to seek bail at the stage when cognizance of the offence was taken by the court, there is no difficulty to commit to custody should the court in the circumstances of a particular case refuse to grant bail. This power is expressly conferred by section 309 of the Criminal Procedure Code. But if the bail is sought during the investigation under section 437 the Magistrate may either allow it or refuse to grant the same. In case it is rejected it is for the investigating officer to ask for the committal of the accused to custody of whatsoever nature he is entitled to seek. If an accused person is produced before the Magistrate in terms of sub-section (1) of section 437, the investigating officer, if he wants the accused to be committed to custody will have to ask for the same. But if a person appears in terms of sub-section (1) of section 437 of the Code before the Magistrate, he does so, because he is wanted by an investigating agency and there is, in fact, some sort of restraint on his liberty. In respect of such a person if bail is refused, the Magistrate may either arrest him and hand him over to the agency wanting him to be further dealt with in accordance with law or he may do nothing more than decline to grant bail in which event the agency wanting the accused will take care of him, that is, arrest him and then deal with him in accordance with the provisions of section 167 of the Criminal Procedure Code. It was in this context that the Full Bench in Criminal Writ No. 116 of 1984 and Criminal Writ No. 104 of 1984 decided on 19th July, 1985 Union of India v. O. P. Gupta, to which both Talwar J. and myself were also parties took the view that section 437 is a provision empowering the Magistrate to grant bail and also to cancel it. It is clear from the various provisions of the Code that wherever the Legislature wanted to confer the power to commit to custody it has expressly said so in the Code. Reference in this regard may be made to sub-section (1) of section 44, sub-section (2) of section 167, section 309, sub-section (5) of section 437 and sub-section (2) of section 439 of the Code of Criminal Procedure. In my view, the only provision in the Code that entitles the Magistrate to commit to custody during the investigation is section 167 and the power to commit to custody after taking cognizance is spelt out by section 309 of the Criminal Procedure Code.
90. As far as the application of section 167 of the Code of Criminal Procedure is concerned, the Full Bench of this court to which I was a party by its majority judgment has settled the issue and held that section 167 is applicable to the arrested persons produced before a Magistrate in accordance with section 104(2) of the Customs Act and section 35(2) of the Foreign Exchange Regulations Act. In that Bench, brother Talwar J. who was a party disagreed with the majority and held that section 167 is not applicable in such situations. The majority judgment, in fact, was written by Yogeshwar Dayal J. (as his Lordship then was) and I on my part wrote a separate order concurring with the reasoning advanced by Yogeshwar Dayal J. in support of his view. I wrote the order only with a view to supplement his reasoning. There is hardly any need for me to repeat the reasons in support of that view and for the same and similar reasons as given in the Full Bench judgment of O. P. Gupta's case I hold that the Magistrate can legitimately exercise the powers under section 167 of the Criminal Procedure Code in such situations.
Mrs. Sunanda Bhandare, J.
91. The following important question of law of far reaching consequence is referred to this Special Bench for consideration :
"Whether a Magistrate has power to remand a person produced before him in accordance with section 104 of the Customs Act and section 35 of the Foreign Exchange Regulation Act either under section 167 or section 437 of the Code of Criminal Procedure with the aid of section 4(2) of the Code of Criminal Procedure ?"
92. The Full Bench of this court by its majority judgment dated July 19, 1985, in Criminal Writ No. 116 of 1984 and Criminal Writ No. 104 of 1984 in Union of India v. O. P. Gupta overruled the Division Bench judgment in Dalam Chand Baid v. Union of India [1982] Crl. LJ 747, and held that since there is no provision in the Customs Act and the Foreign Exchange Regulation Act (hereinafter referred to as "the FERA") as to how a person produced before the Magistrate under section 104 of the Customs Act and section 35 of the FERA should be dealt with, section 4(2) of the Code of Criminal Procedure (hereinafter referred to as "the Code") comes into play and consequently section 167(2) of the Code is applicable and the power of remand is available to the Magistrate.
93. The Full Bench, however, unanimously held that section 437 of the Code only gives power to admit or cancel the bail but does not confer the power of remand. The Full Bench came to this conclusion in view of the decision of the Supreme Court in Matabar Parida v. State of Orissa .
94. Both these questions were referred to a larger Bench of five judges because of a subsequent judgment of the Supreme Court in Changanti Satyanarayana v. State of Andhra Pradesh .
95. I have had the benefit of going through the judgments prepared by my learned brothers, Talwar J. and Malik J. I am in complete agreement with the reasons and conclusion arrived at by Talwar J. that the Magistrate does not have power under section 167 of the Code to remand to custody a person produced before him in accordance with section 104(2) of the Customs Act or section 35(2) of the FERA. Consequently, I do not agree with the view expressed by Malik J. that the power under sub-section (2) of section 167 of the Code is an independent power and not controlled by section 167(1) of the Code and by virtue of sub-section (2) of section 4 of the Code, can be available for the investigation of offences by agencies investigating offences under special Acts and thus the Magistrate can remand a person produced before him in accordance with section 104 of the Customs Act and section 35 of the FERA.
96. I agree with both my learned brothers that there is no implicit or implied power to remand under section 437 of the Code. However, I would like to supplement my reasons.
97. At the outset, it will be useful to reproduce the relevant provisions of the Customs Act and the FERA.
98. Section 104 of the Customs Act reads as under :
"Power to arrest. - (1) If an officer of customs empowered in this behalf by general or special order of the Collector of Customs has reason to believe that any person in India or within the Indian customs waters has been guilty of an offence punishable under section 135, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.
(2) Every person arrested under sub-section (1) shall, without unnecessary delay, be taken to a Magistrate.
(3) Where an officer of customs has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise have the same powers and be subject to the same provisions as the officer-in-charge of a police station has and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898).
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence under this Act, shall not be cognizable."
99. Section 35 of the Foreign Exchange Regulation Act reads as under :
"Power to arrest. - (1) If any Officer of Enforcement authorized in this behalf by the Central Government, by general or special order, has reason to believe that any person in India or within the Indian customs waters has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.
(2) Every person arrested under sub-section (1) shall, without unnecessary delay, be taken to a Magistrate.
(3) Where any Officer of Enforcement has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police station has, and is subject to, under the Code of Criminal Procedure, 1898 (5 of 1898)"
100. The provisions of section 104 of the Customs Act and section 35 of the FERA are similar and for the sake of convenience and brevity while discussing these provisions, I will refer only to the provisions of the Customs Act.
101. Under sub-section (1) of section 104 of the Customs Act, a Customs Officer is empowered to arrest a person if he has reason to believe that the person has been guilty of an offence punishable under section 135 of the Customs Act. He is, of course, bound to give the person so arrested, grounds for the arrest at the earliest. Sub-section (2) of section 104 of the Customs Act provides that a person arrested by the Customs Officer shall be taken to a Magistrate without unnecessary delay. This provision is in conformity with the constitutional mandate and thus a person must be produced before a Magistrate within a period of 24 hours of such arrest as provided in article 22 of the Constitution of India.
102. Article 21 of the Constitution of India guarantees protection of personal life and liberty and provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. To ensure that no person is deprived of his personal liberty but is arrested in accordance with law, article 22(2) provides the important safeguard that an independent authority exercising judicial powers applies its judicial mind to the case. It is for this reason that article 22(2) provides that a person arrested and detained in custody be produced before a Magistrate within a period of 24 hours of such arrest.
103. When a person is produced before a Magistrate for an offence punishable under the Code he is required to apply his judicial mind and after consideration may; (a) if the arrest is legal, authorize continuation of the person in custody as provided by the Act; (b) if the person so produced before him seeks bail he may grant or refuse bail; and (c) if the arrest is not in accordance with law, order immediate release.
104. The Customs Act is silent on what the Magistrate is required to do when a person is produced before him by a Customs Officer. Therefore, by reference to section 4(2) of the Code the provisions in the Code dealing with such matters are to be applied. Under the Code, express powers to commit to custody are given to a Magistrate under sections 44(1), 167(2), 309 and 437(5).
105. Section 44(1) empowers the Magistrate to arrest or order any person to arrest the offender who commits an offence in his presence and thereupon, subject to the provisions contained as to bail, commit the offender to custody.
106. Section 167(2) gives power to a Magistrate to authorize the continuation of an accused in such custody as the Magistrate thinks fit when an accused person is forwarded to him under sub-section (1) of section 167 of the Code. Under this section, the Magistrate is given power to authorize continuation of the accused in custody for 15 days. The proviso to sub-section (2) of section 167 specifies the period for which the custody can be extended.
107. Section 309 gives power to the Magistrate to continue the remand of an accused person in custody after taking cognizance of an offence for a term not exceeding 15 days at a time. Section 437(5) gives power to the Magistrate to cancel a bail given under section 437(1) and direct that such person be arrested and commit him to custody.
108. It is not the case of any of the parties that a person produced before a Magistrate by a Customs Officer as provided under section 104(2) of the Customs Act can be remanded either under section 44(1) or under section 437(5). It is also admitted by the petitioner that the Magistrate has power to remand a person arrested by a Customs Officer under section 309 of the Code after taking cognizance.
109. Learned counsel for the respondent, therefore, submitted that if it is held that a Magistrate has no power to remand a person produced before him by a Customs Officer, under section 167(2) of the Code, an implied power of remand will have to be read in section 437(1) of the Code to enable a Magistrate to permit remand before taking cognizance of the offence. Learned counsel submitted that this implied power is to be inferred from section 437(5) of the Code. A similar argument was advanced by learned counsel before the Full Bench in Union of India v. O. P. Gupta and it has been observed in that case that in view of the observations of the Supreme Court in Matabar Parida v. State of Orissa , it cannot be held that section 437 of the Code is the provision which confers a power of remand. Mr. Watel submitted that the Supreme Court has not dealt with the question whether there is implied power of remand under section 437(1) of the Code and it is open to this court to consider this question.
110. The Supreme Court in Matabar Parida's case has observed as follows :
"It may be emphasised that the court will have no inherent power of remand of an accused to any custody unless the power is conferred by law. In the order under appeal the High Court without reference to section 344 of the old Code seems to have assumed that such a power existed, that is not correct."
111. On a perusal of the judgment of the Supreme Court, I find that the observations reproduced hereinabove were made by the Supreme Court while considering whether the saving clause (a) of sub-section (2) of section 484 gave inherent power to the court to remand an accused to custody even beyond the period of 15 days, though sub-section (2) of section 167 of the new Code gives the power to the Magistrate to remand an accused to police custody for a term not exceeding fifteen days on the whole. Thus, the Supreme Court has only dealt with the inherent power of the court under saving clause (a) of sub-section (2) of section 484 and not the implied power of remand under any section in the Code.
112. Undoubtedly, the inherent power of the court is different from the implied power given under a statute. Inherent power is in addition to and complimentary to the powers conferred under the Code. In other words, implied power is bestowed or inferred from another power whereas inherent power abides in a person. Black's Legal Dictionary, 4th edition, page 1334, defines implied powers thus :
"Implied powers are such as are necessary to make available and carry into effect those powers which are expressly granted or conferred and which must, therefore, be presumed to have been within the intention of the constitutional or legislative grant."
113. Thus, Mr. Watel is quite justified in urging that the Supreme Court has not dealt with the question of implied power raised by him.
114. The scope and ambit of section 437(1) has, therefore, to be considered to ascertain whether there is any such implied power under this section. Section 437 of the Code reads as follows :
"(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail, but -
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence :
Provided that the court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm :
Provided further that the court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason :
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the court.
(2) If it appears to such officer or court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail or, at the discretion of such officer or court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the court may impose any condition which the court considers necessary -
(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or
(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or
(c) otherwise in the interests of justice.
(4) An officer or a court releasing any person on bail under sub-section (1) or sub-section (2), shall record in writing his or its reasons or special reasons for so doing.
(5) Any court which has released a person on bail under sub-section (1) or sub-section (2) may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. .."
115. On a plain reading of this section, it is clear that under this section the Magistrate is given discretionary power to either grant or refuse bail. If the Magistrate after considering the facts and circumstances of the case and after applying his judicial mind comes to the conclusion that he cannot grant bail to a person accused or suspected of a non-cognizable offence he passes an order refusing bail. There is no mention in the section regarding remand or committing to custody. What happens to the person after bail is declined, is no concern of the Magistrate under this section. In my view, after the Magistrate declines bail, the other sections in the Code take care of that situation. Thus, if a person is already under arrest and bail is refused, remand can be sought as expressly provided under sections 167(2) and 309 of the Code or if the offence is committed in the presence of the Magistrate, remand can be ordered as provided under section 44(1). If the person appears on his own and seeks bail which is declined, and the Magistrate does not consider it a fit case for passing orders under section 44(2) the person shall remain at liberty. Sub-section (5) of section 437 talks of rearrest and committal to custody thereafter. Section 167(2) and section 309 also provide for the period of remand. If implied power of remand is read in section 437(1) it would also mean that a person can be remanded for an unlimited period because the section does not specify any period of remand. This would mean that after seeking remand from the Magistrate, the Customs Officer can take his own time to complete the investigation and file the complaint at his leisure. Certainly, this cannot be the intention of the Legislature. An interpretation which will permit remand for an unlimited period would, in my view, grossly invade on the right of personal liberty of a person. No doubt, sub-section (5) of section 437 confers a power on the Magistrate to commit a person to custody and this sub-section also does not specify the period for which the accused will be kept in custody after his rearrest but it deals with a totally different situation. It is a power of cancellation of bail which is more drastic because it deals with a person who has once been released under sub-section (1) of section 437 and has due to his own conduct lost his valuable right to freedom. It will, therefore, not be correct to refer to sub-section (5) of section 437 in order to read implied power under sub-section (1) of section 437.
116. It was submitted by Mr. Watel, learned counsel for the respondent that the object of remand is two-fold : (i) to facilitate investigation; and (ii) to secure that the accused does not free scot free before trial. Thus, if it is held that the Magistrate has no power to remand a person to custody before taking cognizance, the whole object of asking remand will be defeated.
117. Undoubtedly, the Magistrate orders remand in order to facilitate investigation. However, there can be no two opinions that by way of a remand order the personal liberty of a man is restricted. The right to personal liberty is the most precious of the fundamental rights. It touches the core of a human being. If liberty goes, no other right survives. Thus, if this right has to be in any manner curtailed or restricted, it can be done only by an express provision enacted by the appropriate legislative authority. In my view, since the words used in section 437(1) are clear and unambiguous it is not open to the court to read into the section what is not there. In matters of liberty of a citizen the doctrine of implication for purposes of depriving him of his liberty has little application.
118. It was next argued by Mr. Watel that it is impracticable to file a complaint or an F.I.R. in Customs and FERA cases. The object of the legislation is to prevent and eradicate smuggling and unauthorized dealings in foreign exchange which affect the financial health of the country. It is practically impossible to file a complaint within 24 hours because sanction has to be obtained under section 137(1) of the Customs Act and since the activity transcends the borders of the state it is not possible to obtain sanction immediately. Learned counsel submitted that secrecy has also to be maintained which cannot be done if a complaint is to be filed. Thus, according to learned counsel, there ought to be some power of remand with the Magistrate apart from section 309 of the Code. Learned counsel submitted that since the cases relate to offences which destabilize the economy of the country, an implied power of remand in section 437(1) must be read with section 437(5) so that the Magistrate is not faced with a farcical situation where he finds that the person cannot be released on bail because of the seriousness of the offence and yet he cannot be remanded to custody.
119. Though I found the argument at first sight very impressive, on having given serious thought to it, I find it difficult to accept it. The Legislature has thought it fit to give a drastic power to the Customs officer to arrest a person, who in his opinion, is guilty of an offence under section 135 of the Customs Act. Yet knowingly the Legislature has not prescribed any procedure in the Customs Act for remand. The offence is also made non-cognizable. Now, even if some difficulties are found by the Customs Officer in filing a complaint or an F.I.R., it is not open to the court to read an implied power in a provision simply to overcome these difficulties. Section 4(2) of the Code provides that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the provisions in the Code subject to the specific provision in the Act. Thus, the procedure prescribed under the Code for dealing with non-cognizable offences has to be followed in Customs and FERA cases as well.
120. The Supreme Court as far back as in 1953 in Ram Narain Singh v. State of Delhi [1953] SCR 652, has observed as follows (headnote) :
"Those who feel called upon to deprive other persons of their personal liberty, in discharge of what they consider to be their duty, must strictly and scrupulously observe the norms and rules of the law."
121. In my opinion, the question of reading an implied power in section 437(1) could arise only if there was no express or specific power given in the Code. It may happen that in a particular case it is not possible for the Customs Officer to file a complaint within 24 hours and in the process some person guilty of very serious violation of Customs law or FERA cannot be remanded to custody but then it is for the Legislature to take care of such a situation as observed by the Supreme Court in Matabar Parida's case :
"Such a law may be a paradise for the criminals, but surely it would not be so, as sometimes it is supposed to be because of the courts. It would be so under the command of the Legislature."
122. I find it difficult to read an implied power of remand in this section particularly because a specific provision under section 167(2) and section 309 for remand during investigations, inquiry and trial is already on the statute book.
123. It was contended by Mr. Bhagat, learned counsel for the petitioner, that the Magistrate does not have power under section 437 of the Code to restrict the liberty of a person arrested under section 104(1) of the Customs Act by the Customs Officer in terms of a bail order because the consequence of a bail order is that a person is required to give a bail bond with or without conditions and that can be asked for only for a person who is accused of an offence. It was submitted that only a person accused of an offence can be directed to be released on bail when an investigation, inquiry or trial is pending against him. Since the person arrested under section 104 of the Customs Act is an accused, his liberty cannot be curtailed by a bail order.
124. I find it difficult to accept this contention of Mr. Bhagat as well. What Mr. Bhagat has contended indirectly means that the Magistrate has no power to grant bail to a person arrested by a Customs Officer under the Customs Act. Now, undoubtedly, the arrest by a Customs Officer of a person who he thinks is guilty of an offence punishable under section 135 of the Customs Act for a period of 24 hours is legal even without production before a Magistrate. However, this does not preclude or restrict the right of a person so arrested to move the court for grant of bail even within these 24 hours. If the contention of Mr. Bhagat is accepted, then the person so arrested by the Customs Officer will be left without any remedy and will not be able to obtain bail even if he so wishes during this period. Of course, Mr. Bhagat contended that the only remedy open to him at that stage is by filing a petition under articles 226 and 227 of the Constitution of India seeking unconditional release and/or seeking a writ of habeas corpus. This argument, in my view, is not only impracticable but also self-contradictory.
125. Thus, in conclusion, in my opinion, when a person is produced before the Magistrate by a Customs Officer in accordance with section 104(2) of the Customs Act, his continuation in custody will be in accordance with law only when the Magistrate passes an order of remand under section 309 of the Code after taking cognizance of the offence.
P.K. Bahri J.
126. I have carefully perused the judgments being written by my learned colleagues. I entirely agree with the reasons and the ratio laid down in the judgments of Talwar J. and Mrs. Sunanda Bhandare J. I also agree with the opinion expressed by Malik Sherif-ud-Din J. with regard to interpretation of section 437 of the Code of Criminal Procedure (hereinafter referred to as "the Code"). I am with respect unable to agree with the reasons and opinions expressed by my learned brother Malik Sherif-ud-Din J. with regard to interpretation of section 167 of the Code. I also express my inability to agree with the reasons and conclusions given in the judgment of my learned brother R. L. Gupta J. However, I would like to add a few words.
127. Mr. Watel in his elaborate arguments wanted us to hold that the intention of the Legislature in giving the power of arrest to the officers under the special Act should not be rendered otiose and worthless if the arrested persons are to be just let off by the Magistrate on being produced before him in accordance with the mandate of the Constitution which also stands incorporated in the said special statutes. He has argued that the Legislature has made the offences under the special statutes as non-bailable offences and also non-cognizable and thus, the Legislature intended that the police should not normally investigate into such offences and so the court should give an interpretation to the provisions of the statutes read with section 4(2) of the Code to advance the intention of the Legislature that the persons, who are arrested in the belief that they are guilty of offences under the said statutes, are not easily released and are kept in custody under the orders of the Magistrate till their trial is over or till they get bail from the court. These contentions at first blush appear to have a lot of persuasive value but on deeper examination these contentions lose all importance. Firstly, as in the Code, so also under the provisions of the said statutes the Legislature intended that the investigation in such offences normally should be completed within 24 hours and it is only in those cases where investigation for one reason or another cannot be completed that the question of obtaining an order from the Magistrate for keeping such a person in detention arises. In the special statutes the power of arrest has been conferred on the officers only when such officers reach a reasonable belief that the person whom they are arresting is guilty of an offence. They cannot make an arrest under the provisions of the said statutes on mere suspicion. Could it not be said that the Legislature intended that as soon as such a person is arrested on such belief that he is guilty of an offence and is required to be produced before the Magistrate on expiry of 24 hours that the officers under the Act should come forward with a complaint so that the procedure contained in section 309 of the Code becomes applicable and the Magistrate is in a position to examine the matter after taking cognizance as to whether he should exercise his judicial discretion of either directing the release of such a person on bail or directing him to be detained in custody ? Normally the officers acting under the said statutes should be in a position to obtain the necessary sanction for filing the complaints within the period of 24 hours as they would be deemed to have collected sufficient evidence and material on the basis of which they are supposed to form the necessary belief that a particular person has been guilty of an offence. In case for one reason or another the officers under the said special Acts are not in a position to obtain necessary sanction or prepare the complaint before the expiry of 24 hours, they can easily make a report to the police station concerned and request the police to obtain necessary permission of the Magistrate for investigating such an offence and remand of such an arrested person can be obtained by the police.
128. It need not be repeated that the liberty of a person can be only curtailed by strictly following the procedure laid down in law and that procedure has been expressly laid down in section 167 of the Code during the investigation and section 309 of the Code during the trial.
129. A contention was also raised by Mr. Watel that the principle of mutates mutants should be invoked by taking resort to the provisions of section 4(2) of the Code and 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(2) of the Customs Act, 1962, or section 35 of the Foreign Exchange Regulation Act, 1973. The doctrine of mutates mutants, in my view, can be invoked only if a particular statute or rule provides for the same. Section 4(2) of the Code or the provisions of the said special statutes do not anywhere lay down that any provisions of the Code are to be invoked mutates mutants while construing any provisions of the special statutes.
130. The literal meaning of the expression "mutates mutants" as per Dictionary of English Law by Earl Jowitt is "with the necessary changes in points of detail". In Law Lexicon and Legal Maxims by Venkataramaiya, it has been mentioned that the principle of mutates mutants applies when a law directs that a provision made for a certain type of case shall apply mutates mutants in another type of case, it means that it shall apply with such changes as may be necessary, but not that even if no change be necessary, some change shall nevertheless be made. So, I have not been able to understand how the principle of mutates mutants could be invoked for interpreting the provisions of the said two special statutes read with the provisions of section 4(2) of the Code.
131. So, it is not possible to countenance the contention that in place of "police officer" mentioned in section 167(1) of the Code we should read the words "Customs Officer" or "Enforcement Officer" and in place of "diaries" which the police is legally bound to maintain while investigating into the offences under Chapter XII of the Code we should read the words "the evidence or material" being collected by such officers while holding inquiry under the provisions of the aforesaid special statutes. I am of the view that such a principle cannot be invoked while interpreting the provisions of the said statute read with section 4(2) of the Code. It is, no doubt, evident that the offences under the special statutes which have been made non-bailable are quite serious and grave offences affecting the economy of this country and the persons committing such offences need to be dealt with severely but it goes without saying that such persons have to be dealt with in accordance with law. The rule of law permeates every fibre of our social and legal system. I do not see any lacuna in law, rather the provisions of the Code by virtue of section 4(2) are applicable completely to all the offences under different statutes.
132. If the Legislature wanted that any other procedure should be applicable for the purpose of investigation, inquiry, trial or for dealing with such offences in any other manner, the Legislature could provide for the same in the special statutes. The offences under the said two special statutes are governed by the provisions of the Code. There is no provision made in the said two Acts authorising the Magistrate to direct detention in custody of persons arrested for committing the offences under the said Acts. The provisions of the Code have to be invoked and the power of the Magistrate has to be exercised in accordance with the procedure laid down in the particular provisions of the Code. Hence, it cannot be said that a person arrested for commission of a grave and serious offence is liable to be released and is being produced before the Magistrate just for being released. The Magistrate has to act in accordance with the procedure laid down in the Code before directing the detention in custody of such an arrested person brought before him. I need not say more as detailed reasons have been given in the judgments of Talwar J. and Sunanda Bhandare J.
R.L. Gupta J.
133. The Division Bench, comprising Charanjit Talwar and V. B. Bansal JJ., on a submission made by Mr. K. G. Bhagat, Senior Advocate, was of the view that in the case of Changanti Satyanarayana v. State of Andhra Pradesh , the Hon'ble Supreme Court held, "in fact the powers of remand given to a Magistrate become exercisable only after an accused is produced before him in terms of sub-section (1) of section 167".
134. But, since the Full Bench in Criminal Writ Petitions Nos. 116 of 1984 and 104 of 1984 decided on July 19, 1985, held otherwise, the law laid down by the Full Bench was no longer good. Therefore, the Division Bench, vide order dated 12th May, 1989, was of the view that the Criminal Writ No. 316 of 1989, raising the same contention should be heard by a larger Bench. The Hon'ble Chief Justice then constituted a Full Bench comprising Charanjit Talwar, G. C. Jain and V. B. Bansal JJ. After hearing counsel for some time on 8th September, 1989, the Hon'ble Judges were of the view that this case be heard and decided by a Bench of five Judges because the judgment of the Full Bench in Criminal Writ Petitions Nos. 116 and 104 of 1984, namely, Union of India v. O. P. Gupta decided on 19th July, 1985, was sought to be reconsidered. That is how the reference came before us.
135. For detailed facts of this case, reference may be made to the judgment of Charanjit Talwar J. The question sought to be reconsidered in this petition is naturally the same which was considered by the earlier Full Bench of this court and which unfortunately was not reported in spite of specific directions. The question of law, therefore, is as follows :
"Whether the Magistrate has no power to remand a person produced before him in accordance with section 104 of the Customs Act and whether the decision reported in Dalam Chand Baid v. Union of India [1982] Crl. LJ 747, decided by a Division Bench of this court requires reconsideration ?"
136. We may note down the relevant provisions of section 104 of the Customs Act (hereinafter called "the Act") and the Code of Criminal Procedure (hereinafter called "the Code") at this stage.
"104. (1) If an Officer of Customs empowered in this behalf by general or special order of the Collector of Customs has reason to believe that any person in India or within the Indian customs waters has been guilty of an offence punishable under section 135, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.
(2) Every person arrested under sub-section (1) shall, without unnecessary delay, be taken to a Magistrate.
(3) Where an Officer of Customs has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police station has and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898).
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence under this Act shall not be cognizable."
137. Section 4 of the Code of Criminal Procedure :
"(1) All offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the 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."
138. Mr. Bhagat, learned counsel for the petitioner, took us through a number of provisions of the Code of Criminal Procedure to show that the inquiry contemplated by the Act is not an investigation as defined by the Code in section 2(h). Since the inquiry conducted by the Customs Officer cannot be equated with the term investigation as used in the Code, production by the Customs Officer before the Magistrate under section 104(2) of the Act cannot be equivalent to production of an accused person under section 167(1) of the Code. Moreover, learned counsel argues, according to the decisions of the Supreme Court in Ramesh Chandra Mehta v. State of West Bengal, and Illias v. Collector of Customs, , the person arrested by a Customs Officer is neither an accused nor is such concerned officer a police officer as contemplated by section 167(1) of the Code. According to section 167(1) of the Code, whenever any person is arrested and detained in custody and it appears that investigation cannot be completed within a period of twenty four hours fixed by section 57, and there are grounds for believing that 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 prescribed relating to the case and shall at the same time forward the accused to such Magistrate.
139. Learned counsel for the petitioner emphasizes that unless all the conditions as laid down in section 167(1) are satisfied there is no scope for the application of sub-section (2) of section 167. According to learned counsel, the person arrested by a customs officer and produced before the Magistrate does not become an accused unless simultaneously with the production of the accused the customs officer also files a complaint against him under the penal provisions of the Act. Before the filing of the complaint, neither is such a person an accused nor is a customs officer a police officer as laid down by the Hon'ble Supreme Court in the aforesaid two authorities. Secondly, learned counsel argues, the inquiry conducted by the customs officer is not an investigation and, thirdly, a customs officer does not maintain diaries which a police officer has to maintain for carrying out the day-to-day investigation and in the absence of such case diaries being maintained by a customs officer, there is no material at all before the Magistrate upon the basis of which remand can be ordered by the Magistrate. In short, since none of the ingredients contemplated by section 167(1) of the Code is applicable in the case of a customs officer, the Magistrate has no jurisdiction to exercise the power of remand under section 167(2) of the Code.
140. As against this argument, learned counsel, Mr. S. L. Watel, on behalf of the respondent, has argued that the interpretation sought to be put by Mr. Bhagat on the rulings laid down by the Supreme Court is not correct because in those cases, the Supreme Court was interpreting a customs officer vis-a-vis a police officer with reference to the powers of the customs officers in recording the statements of an accused under sections 107 and 108 of the Act. The Supreme Court held in those cases that a customs officer is not a police officer with reference to the provisions of section 25 of the Indian Evidence Act and article 20(3) of the Constitution of India. It will be necessary to refer to brief facts of those two cases.
141. In Ramesh Chandra Mehta's case , the complainant, the Assistant Collector of Customs, tendered in evidence at the trial certain confessional statements which he claimed were made before the Customs authorities in an inquiry under section 171-A of the Sea Customs Act, 1878 (hereinafter called "the old Code"), against Ramesh Chandra Mehta and the other persons accused. Counsel for the accused objected to the admissibility of that evidence but the objection was overruled by the trial Magistrate. The High Court rejected a petition invoking its revisional jurisdiction. At the hearing of the special leave petition, counsel for Ramesh Chandra Mehta raised three contentions (at page 943) :
"1. That the statements tendered in evidence by the customs officer must be deemed by virtue of section 160 of the Act to be recorded under the provisions of that Act and their admissibility may be adjudged in the light of that Act alone.
2. That an officer of customs is a police officer within the meaning of section 25 of the Indian Evidence Act and a confessional statement made before him is inadmissible in evidence at the trial of the appellant.
3. That the statements made before the customs officer were otherwise inadmissible, because Mehta and others being persons accused of an offence were compelled by the provisions of section 171A of the old Code to be witnesses against themselves within the meaning of article 20(3) of the Constitution."
142. The first contention was completely rejected. Regarding the second contention, the Hon'ble Supreme Court made the following distinctions between the powers of a customs officer and a police officer (para 5) :
"He is not a member of the police force. He is not entrusted with the duty to maintain law and order. He is entrusted with powers which specifically relate to the collection of customs duties and prevention of smuggling. He does not exercise powers of investigation which a police officer may exercise in investigating the commission of an offence. He is invested with the powers to inquire into infringements of the Act, primarily for the purpose of adjudicating forfeiture and penalty. He has no power to investigate an offence friable by a Magistrate nor has he the power to submit a report under section 173 of the Code. He can only make a complaint in writing before a competent Magistrate.
He also has no power to submit a report under section 173 of the Code."
143. Finally, in para 10 at page 945, the court held, "But the basis for determining whether an officer of customs is to be deemed a police officer is whether he is invested with all the powers of a police officer qua the investigation of an offence, including the power to submit a report under section 173 of the Code."
144. In short, the court held that, "a customs officer is not a police officer within the meaning of section 25 of the Indian Evidence Act and, therefore, any statement made to him by a person arrested by him will not be inadmissible in evidence."
145. On the third contention, the Supreme Court agreed with the finding of the High Court that the statements made by Ramesh Chandra Mehta and the other persons accused before the Additional District Magistrate were not inadmissible in evidence because of the protection guaranteed under article 20(3) of the Constitution of India. In order that the guarantee against testimonial compulsion incorporated in article 20(3) may be claimed by a person, it has to be established that when he made the statement sought to be tendered in evidence against him, he was a person accused of an offence. On arrest by a customs officer on suspicion that he is concerned in smuggling, when called upon by the customs officer to make a statement or to produce a document or thing, he is not a person accused of an offence within the meaning of article 20(3) (para 11). Ultimately, after answering all the questions against Ramesh Chandra Mehta, it held (in para 26 at p. 945) :
"Section 104(1) only prescribes the conditions in which the power of arrest may be exercised. The officer must have reason to believe that a person has been guilty of an offence punishable under section 135, otherwise he cannot arrest such person. But by informing such person of the grounds of his arrest, the customs officer does not formally accuse him of the commission of an offence. Arrests and detentions are only for the purpose of holding effectively an inquiry under sections 107 and 108 with a view to adjudge confiscation of dutiable or prohibited goods and penalty. At that stage there is no question of the offender against the Customs Act being charged before a Magistrate. Ordinarily after adjudging penalty and confiscation of goods or without doing so, if the customs officer forms an opinion that the offender should be prosecuted, he may prefer a complaint in the manner provided under section 137 with the sanction of the Collector of Customs and until a complaint is so filed, the person against whom an inquiry is commenced under the Customs Act, does not stand in the character of a person accused of an offence under section 135."
146. From a perusal of the above authority, therefore, it is very clear that the words "customs officer" being not a "police officer" were construed by the Supreme Court for the limited purpose of seeing whether a customs officer enjoys all the powers of a police officer under the Code. Since he did not enjoy all such powers like the filing of a charge-sheet under section 173 of the Code, it concluded that a statement made by an arrested person in inquiry under sections 107 and 108 did not fall within the definition of a confession made to a police officer. Similarly, since by that time a complaint was not filed under the Customs Act, after obtaining sanction of the Collector of Customs, Mehta did not stand in the character of a person accused of an offence. It will be noted that as to what is the character of a person arrested by a customs officer at that stage, was not in question vis-a-vis, the provisions of section 167 of the Code for obtaining a remand under the Code. It is clearly stated in this authority that a customs officer can confirm his opinion for the prosecution of such a person either after adjudging penalty and confiscation or without doing so. The arrest of the person at that stage is to effectively hold an inquiry under sections 107 and 108. But that arrest will not be legal if the customs officer at that stage has no reason to believe that he has been guilty of an offence punishable under section 135. Therefore, the arrest and detention is primarily for holding an inquiry under sections 107 and 108 of the Act and the officer has yet to reach a conclusion in the inquiry being conducted by him whether he should finally file a complaint against such a person for his prosecution under section 135 or not. We would like to give one example here. Let us suppose a person has been arrested by a customs officer for being found in possession of ten kgs. of gold. By the recovery of gold, it could definitely be said that the customs officer has reason to believe that such a person is guilty of an offence under section 135. But at that stage the officer has yet to conduct an inquiry under sections 107 and 108. During the course of that inquiry, it is very well possible that such a person may only be found to be an innocent carrier at the behest of some other person indulging in the smuggling of gold, as was the case of air stewardess Ethyl Wong in the case of L. Choraria v. State of Maharashtra, (she was not prosecuted and was only examined as a witness during trial). Therefore, during the course of that inquiry, a customs officer will also have to go into the further ramifications of the apparent smuggling of gold with a view to find out if some more persons are also involved as conspirators or principal offenders. It is a matter of common knowledge that upon interrogation of such a person if sufficient information is collected by a Customs Officer about the smuggling activities of other persons, it is probable that many more persons are arrested and recoveries made of the smuggled articles. Thus, it will be too much to expect from a customs officer that at the stage of the production of such a person before a Magistrate under section 104(2) he should also file a complaint simultaneously to formally accuse him to order to enable the Customs Officer to obtain remand of such a person. Ultimately the person initially arrested may not be found to be an accused at all. He may be only an innocent carrier. But on the basis of information supplied by him some other person really involved in smuggling may be arrested and ultimately prosecuted. In fact, the concept of remand as the word is used in section 309 of the Code at that stage may not be applicable to such a person. My learned brother Talwar J., has referred to the Webster's Dictionary meaning of the word, "remand" in his judgment as follows :
"Remand means, to send a person charged with a crime back into custody by a court order".
147. Talwar J. has also referred to the observations of courts in respect of the word "remand" in the following words :
"The courts have also held 'remand' to connote re-committal to custody of a person who has been brought up in custody."
148. The non-use of the word "remand" in section 167, therefore, assumes significance. For seeking a remand under section 167 for the first time, the person is brought before a Magistrate from police custody. So if the Magistrate orders judicial custody at that time, it is not recommitted to judicial custody because the person did not come from judicial custody at that time. So the Legislature in its wisdom by using the words in section 167(2), "the Magistrate may authorize the detention in such custody as such Magistrate thinks fit" was clearly conscious of the fact that the use of the word "remand" in section 167 will not be appropriate because it was not necessary for the Magistrate at that stage to recommit the person to police custody and rather the Magistrate may think that such a person should be actually sent to judicial custody. Therefore, the use of the word, "remand" in section 167 would not otherwise have been appropriate. We can visualise another situation also to reach the same conclusion. For example, a Magistrate grants four days' remand to police custody in respect of a person produced before him under section 167(1) and, therefore, remands him to judicial custody. But later on the police get hold of some other important piece of evidence in relation to which they again apply to the Magistrate for police custody. The Magistrate, if satisfied, can again grant police custody for a few days. So in this situation, it is not a recommitted to the same custody. Therefore, the use of the word "remand" in section 167(2) would, in fact, have narrowed down the scope of this provision and that is why the Legislature in its wisdom did not use that word in it.
149. I may now like to deal with the reasons given by the earlier Full Bench of this court in Union of India v. O. P. Gupta for coming to the conclusion that a Magistrate before whom a person after arrest is produced by a Customs Officer or by an enforcement officer has the power to remand him to custody under section 167(2) of the Code. I could do no better than quote from that judgment which reads as under :
"It was also submitted that provisions of section 175 of the Sea Customs Act, 1878, did contain provisions for temporary remand whereas this provision has been omitted from the Customs Act, 1962."
150. This very point is noticed in the report of the Select Committee on the proposed section in the Bill and the "Objects and Reasons" enacting section 104 in the present form in the Customs Act which may be adverted to at page 150 of volume 15, AIR Manual, fourth edition, as under.
"Clause 104 replaces the existing sections 173, 174 and 175 with the following amendments :
(i) Under the existing section 173, any person suspected to be guilty of any offence under the Customs Act may be arrested. Under the proposed clause, persons suspected to be guilty of an offence of smuggling only shall be liable to be arrested. Since arrest deprives a person of his personal liberty, it will be confined only to those cases where smuggling is involved.
(ii) Only such officers of customs who have been empowered in this behalf by general or special order of a Collector of Customs will have the power to arrest persons. This is intended to prevent the abuse of this power;
(iii) In addition to the power to commit an arrested person to jail or order him to be kept in police custody, the Magistrate is being empowered to order the arrested person to be kept in such other custody as he deems fit;
(iv) Under the new provision, the power to detain a person accused of an offence, unless he offers bail, can be exercised pending investigation of the offence by officers of customs".
151. S.O.R. Gaz. of India, 1962, Part II, s. 2 Ext. page 334.
"Clause 104. - The Committee are of the view that an Officer of Customs arresting a person under the clause should have the power to release the arrested person on bail or otherwise similar to the power conferred on the officer in charge of a police station under the Code of Criminal Procedure, 1898, so as to obviate the necessity of detaining an arrested person till he can be taken to a Magistrate.
The Committee feel that sub-clause (3), being merely a repetition of the provisions of the Criminal Procedure Code, 1898, should be omitted. The Committee are also of the opinion that the offences under this Act should be non-cognizable as at present although the maximum punishment in respect of certain offences is being enhanced to five years imprisonment."
152. Surely when the report of the Select Committee on the Bill itself says, "that sub-clause (3) being merely a repetition of the provisions of the Criminal Procedure Code, 1898, should be omitted", can the court say at this stage that this is a lacuna for not providing power of remand ? It is well known that the Legislature is always concise and precise and does not relish repetition. Clause (iii) of the Bill has provided that a Magistrate being empowered to order the arrested person to be kept in such other custody as he deems fit, but the Select Committee felt that it is already provided in the Criminal Procedure Code. It will be incorrect for the court to depart from the legislative wisdom by saying that provisions of section 167(2) are not available for dealing with persons arrested under the Customs Act or the Foreign Exchange Regulation Act. It will be too much for us to say either section 167(2) of the Code does not apply or is not applicable."
153. Section 175 of the Sea Customs Act had merely provided as under :
"175. Persons taken before Magistrate may be detained or admitted to bail. - When any such person is taken before a Magistrate such Magistrate may, if he thinks fit, either commit him to gaol or order him to be kept in the custody of the police for such time as is necessary to enable such Magistrate to communicate with the proper Officers of Customs."
154. This power of remand was for a very limited duration to enable the Magistrate to communicate with the proper Customs officer and the proposed clause (iii) in the Bill has suggested expressly to confer this power on the Magistrate to order the person to be kept in such other custody as he deems fit. But the Select Committee ultimately decided to drop sub-clause (3) because it was unnecessary as the provision already existed in the Code, namely, section 167(2) and section 309 of the Code. Section 309 of the Code would not be applicable for seeking remand till cognizance is taken but that does not mean that section 167(2) could also not be resorted to because it mentions the word, "accused". The word accused is to be construed in its widest connotations. It means the one who is arrested and detained. He may even be a person suspected of having committed an offence. The Supreme Court for the purpose of article 20(3) of the Constitution took the view that a person who is arrested by the customs officer is not an accused person. Another way of looking at the meaning of the word "accused" is that the Code contemplates that even a person against whom even a reasonable suspicion exists of having been so concerned in any offence can be arrested. A person is arrested by the customs officer under section 35(1) of the Foreign Exchange Regulation Act only on reasonable belief that he has committed an offence under section 35 of the Customs Act (sic) or violation of the Foreign Exchange Regulation Act. Such a person would surely be an accused for the purposes of section 167(2) of the Code. It is not a case of a lacuna in legislative enactment. The Legislature very well knew the position as is clear from the report of the Select Committee noticed by us earlier. The Select Committee was very much concerned with the question as to what will happen to the person who is arrested and produced by the customs officer before the Magistrate and found that it was not necessary to provide for it in view of the provisions of the Criminal Procedure Code. The Legislature really was not oblivious of the problem. Therefore, it cannot be said to be a case of legislative lacuna."
155. The very fact that there was no discussion on the recommendations of the Select Committee at the time of adopting the Customs Act, 1962, in Parliament would rather go to show that not an iota of doubt was present in the mind of the Legislature at that time about the recommendations of the Select Committee. Therefore, the non-discussion of the recommendations of the Select Committee would rather attach more weight to those recommendations. Even otherwise these recommendations would be entitled to great weight and respect. It was held in the case of K. P. Varghese v. ITO .
"The rule of construction by reference to contemporanea expositio is a well established rule for interpreting a statute by reference to the exposition it has received from contemporary authority, though it must give way where the language of the statute is plain and unambiguous. Therefore, where the Central Board of Direct Taxes has issued circulars by way of explaining the amended provisions of section 52(2), apart from their binding nature in view of section 119 of the Income-tax Act, they are clearly in the nature of contemporanea expositio furnishing legitimate aid in the construction of sub-section (2)."
156. Their Lordships also approved of the rule of construction of a statute established in England as far back as 1584 when Heydon's case [1584] 2 Co. Rep 7a was decided. That decision referred to in para 8 of the judgment was to the following effect :
"For the sure and true interpretation of all statutes in general ... four things are to be discerned and considered.
(i) What was the common law before the making of the Act.
(ii) What was the mischief and defect for which the common law did not provide.
(iii) What remedy Parliament has resolved and appointed to cure the disease of the Commonwealth.
(iv) The true reason of the remedy, and the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy."
157. In fact the speeches made by the Members of the Legislature on the floor of the house when a Bill for enacting a statutory provision is being debated are inadmissible for the purpose of interpreting the statutory provision. Therefore, even if there had been a discussion in Parliament as suggested by learned counsel for the petitioner, the speeches made by various members of Parliament would not have been admissible for the purpose of interpreting the recommendations of the Select Committee for the omission of sub-clause (3) in view of the fact that the powers of remand were already prescribed under the Code of Criminal Procedure. Rather, absence of such discussions, I am of the view, would more strongly reinforce the integrated wisdom of the Legislature in adopting the Act of 1962 completely in the light of recommendations made by the Select Committee. What we may, therefore, say is that the absence of discussions, instead of detracting from the weight of the recommendations, would rather add a higher stature to such recommendations and these recommendations would, therefore, clearly be very relevant as contemporanea expositio for understanding the reason for non-inclusion of clause 3 in the main Act.
158. Coming to the other argument that the Select Committee in fact was thinking of the provisions of remand available under section 344 of the Code of Criminal Procedure, 1898, at that time because it was that Code which was in force in 1962 and not the present Code of 1973 which permits the detention of a person arrested and produced before the Magistrate beyond a period of 15 days. It is urged that under section 167 of the old Code a Magistrate could not order the detention of a person beyond a period of 15 days and, therefore, only section 344 which permitted remand during investigation before taking cognizance of an offence by a Magistrate beyond 15 days was in the contemplation of the select committee. This argument in the first blush may seem to be quite attractive. But on close look, it appears untenable. Clause III may be extracted once again to test the argument.
"In addition to the power to commit an arrested person to jail or order him to be kept in police custody, the Magistrate is being empowered to order the arrested person to be kept in such other custody as he deems fit."
159. It may be noted that section 344 of the old Code did not empower the Magistrate to transfer an arrested person "from jail to police custody" and vice versa because besides other situations it was also meant to cover a situation where the Magistrate was inclined to postpone the commencement of the trial in the light of the explanation of the police that sufficient evidence had already been obtained and further evidence could be obtained by remand of the accused. Moreover, section 344(1A) empowered the Magistrate to remand the accused to custody, only if he was already in custody. It did not empower the Magistrate to rearrest the accused and commit him to custody, if he was already on bail. And then the most important clue to rule out the presence of section 344 in the mind of the Select Committee is provided by the words "order the arrested person to be kept in such other custody as he deems fit" in this sub-clause. These words did not appear in section 344, and were contained only in section 167(2) with minor variations as follows :
"Authorize the detention of the accused in such custody as such Magistrate thinks fit."
160. A careful comparison of the words in the sub-clause sought to be introduced and section 167(2) of the old Code would, therefore, clearly go to show that while saying that the incorporation of the sub-clause would merely be a repetition of the provisions of the Criminal Procedure Code, 1898, the Select Committee had in mind only section 167 and not section 344.
161. The provisions of section 167 as it stands now are the same as were contained in the old Code except to the extent that section 167 of the old Code gave power to the Magistrate to authorize the detention in custody for a total period of 15 days, whereas the proviso to section 167(2) of the new Code enables the Magistrate to authorize the detention of an accused person otherwise than in the custody of the police up to a period of 90 days in case of offences punishable with imprisonment for life or imprisonment for a term of not less than ten years, and 60 days where the investigation relates to any other offence. We do not have to fall upon the explanation to section 309 now for testing the powers of the Magistrate for grant of custody beyond the period of 15 days.
162. Therefore, I am of the view that it cannot be said that the Select Committee had in mind the provisions of section 344 of the old Code while making their recommendations for omission of sub-clause III in the Bill.
163. Section 4(2) of the Code clearly shows that the provisions of this very Code will apply to investigations, inquiries and trials, etc. But exception has been made of the application of the Code in those matters where the enactment provides for regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences. Both these Act, i.e., the Customs Act and the Foreign Exchange Regulation Act give power to an empowered officer to arrest a person against whom they have reason to believe that he has been guilty of offence under those Acts. Thereafter they are required under section 104(2) of the Customs Act and section 35(2) of the Foreign Exchange Regulation Act to produce such an arrested person without unnecessary delay before a Magistrate. Since there is no provision made in these Acts for obtaining the remand of an arrested person we may say that these Acts are silent in this respect. Therefore, if no provision is made in these Acts about certain situations then immediately by the application of section 4(2) of the Code such provision of the Code will come into play which prescribes methods for securing remand of such an arrested person. It may also be noted that in these two main Acts, there is no provision as to in what manner such an arrested person will be tried after a complaint is filed before the Magistrate under section 137 of the Customs Act and section 56 of the Foreign Exchange Regulation Act. There is also no provision that the Magistrate can permit the release of such a person after he is produced by an empowered officer before him. If, therefore, I was to hold that the Magistrate has no powers under section 167(2) of the Code, I may also have to say that he has no power even to try an accused person under these Acts when a complaint is filed before him. He also has no power to release such a person after his production in court because no such power is given to the Magistrate in these Acts. In fact, it is only such types of situations which are sought to be covered by section 4(2) of the Code. The matters in respect of which these Acts are silent will obviously be taken over by bringing into play section 4(2) of the Code. It is only in that situation that it can be said that the Magistrate has the power to try him in accordance with the procedure prescribed under the Code for the various offences against him. It is only with the aid of section 4(2) of the Act that we would be able to say that if the Magistrate thinks fit that such a person should not be sent to judicial custody, that he will be able to exercise the power of release or discharge of such a person.
164. There is no provision in these Acts which may require such officer to prepare diaries like those prepared by the police in the investigation of offences under the Indian Penal Code. Therefore, such an officer cannot be expected to maintain any such diary and produce it along with the arrested person before a Magistrate. These officers carry on the inquiries under these Acts basically to come to a conclusion whether such persons are involved in any smuggling and with a view to adjudge penalty and confiscation. If during the course of that inquiry such an officer makes up his mind that besides adjudging penalty and confiscation such a person should also be prosecuted for the commission of offences under those Acts, he is empowered to file a complaint also before a competent Magistrate.
165. Learned counsel for the petitioner has cited the case of Changanti Satyanarayana v. State of Andhra Pradesh for the proposition that section 167(2) of the Code is applicable only when an accused is produced under section 167(1). He particularly relies on the observations of the Supreme Court in para 11 wherein it has been held as follows (at p. 2134) :
"In fact the powers of remand given to a Magistrate become exercisable only after an accused is produced before him in terms of sub-section (1) of section 167."
166. Learned counsel has developed this argument by saying that for attracting section 167(2), the requirements of section 167(1) should first be complied with. Those requirements are that the arrest and production should be by a police officer, the arrested person should be an accused, and that the case diaries prepared by the police officer should also be produced. Unless all these conditions are satisfied section 167(1) will not come into play and, therefore, section 167(2) also cannot be applied. I am unable to accept these arguments. The question involved in the case of Changanti Satyanarayana was as to from which date the period of remand of 90/60 days should be reckoned. On the one hand, the argument was that the period should be counted from the date of initial arrest of the accused while on the other hand it was argued that it should be counted from the date of his production before the Magistrate. It is well known that earlier the police did not file a charge-sheet for very long periods so that the citizens used to languish in jail for indefinite periods. The Legislature, therefore, provided the maximum period of detention in custody so that there is an obligation on the police to present the charge-sheet within a specified period. No question was involved before the Supreme Court about the interpretation of section 167 of the Code vis-a-vis other Acts and whether section 167(2) could be invoked with the aid of section 4(2) vis-a-vis the other Acts. Therefore, we are of the view that this authority does not at all overrule the dictum of the Full Bench in Union of India v. O. P. Gupta.
167. As stated earlier, the Customs Act and the Foreign Exchange Regulation Act are silent about the manner of dealing with a person produced before the Magistrate by a duly empowered officer. Immediately, therefore, with the aid of section 4(2) of the Code the provisions of section 167(2) will become applicable. In our opinion, it is not necessary at that stage that the Magistrate could exercise his powers under section 167(2) only if simultaneously with the production of the arrested person a formal complaint is also filed against him.
168. At this stage, I may notice the case of State of Maharashtra v. Nainmal Punjaji Shah [1970] SCC (Crl.) 170, decided by a Division Bench comprising Hon'ble Mr. Justice G. K. Mitter. This case was decided on October 31, 1969, while the cases of Ramesh Chandra Mehta and Illias , were disposed of on October 18, 1968, and October 31, 1968, respectively. The case of Nainmal Punjaji Shah [1970] SCC (Crl.) 170, was, therefore, disposed of after about a year of the decision of the aforesaid two cases. Hon'ble Mr. Justice G. K. Mitter was one of the five Judges in the cases of both Ramesh Chandra Mehta and Illias . In the case of Nainmal Punjaji Shah [1970] SCC (Crl.) 170, the business premises of the firm of which he was a partner were searched on April 13, 1969. Three silver bars were recovered along with some incriminating documents. 71 silver bars were found in the godown of the firm. A cursory scrutiny of the documents revealed that Nainmal was concerned in illegal transactions in foreign wrist watches, textiles, metallic yarn, gold, etc., running into about Rs. 100 crores. He was arrested on the following day, i.e., April 14, 1969. He even offered a bribe to one Officer of the Revenue Intelligence. This fact was, however, not mentioned in the remand application filed on April 14, 1969. He was remanded to custody by the learned Additional Chief Presidency Magistrate till April 28, 1969. On April 22, 1969, Nainmal applied for bail. The application was rejected. His remand was further extended on April 28, 1969. The bail application moved by him was rejected on May 6, 1969. Another remand application was moved on May 12, 1969. But the application was dismissed and bail granted. The order of bail was not to be effective till May 21, 1969. In the meantime, the Investigating Agency was able to locate some more co-conspirators who were arrested on May 17, 1969. The order of bail was challenged by a revision petition in the High Court and it was set aside and the High Court remanded him to custody. The consideration for setting aside the bail order was that at that stage of the investigation it was necessary to detain him. Ultimately, the High Court granted bail vide order dated August 1, 1969, subject to the direction that the order of confirmation of bail shall operate after expiry of two months. An under-taking was also given before the High Court on behalf of the Customs that the complaint would be filed within six months. The Supreme Court ultimately held that the accused persons should be kept in custody for six months from the date of the order of the High Court dated August 1, 1969. Thus it will be seen that Nainmal was kept in custody from the date of his arrest on April 14, 1969, till the end of January, 1970. A few facts emerge quite clearly. No complaint against Nainmal and others was filed at least up to the end of January, 1970, from the date of his arrest on April 14, 1969. He and his other conspirators were kept in custody under remand orders which must have been passed by the Addl. Chief Presidency Magistrate. The case against him and others was under the Customs Act. One of the Hon'ble judges deciding the cases of Ramesh Chandra Mehta and Illias , was a member of the Supreme Court Bench in the case of Nainmal Punjaji Shah [1970] SCC (Crl.) 170. If actually the provisions of remand under section 167(2) (then covered by section 344 of the old Code) of the Code did not apply in a case under the Customs Act, it was not possible for the Supreme Court in that case to permit the remand of Nainmal and others for such a long period without filing a complaint. In the case of Ramesh Chandra Mehta , it was conceded by his counsel in para 10 that a customs officer had the power to detain, to arrest, to produce the person arrested before a Magistrate, and to obtain an order for remand and keep him in his custody with a view to examine the person so arrested and other persons to collect evidence. On the basis of these concessions also, it can be said that the powers of the customs officer to apply for remand and those of the Magistrate to grant remand was not at all challenged. If such a power to grant remand did not vest in the Magistrate, the Supreme Court would have made it clear in that very authority that since such an arrested person is not an accused, the Magistrate had no power to remand him to such custody as he deemed fit. But no such observation was made by the Hon'ble Supreme Court. Therefore, in view of Nainmal Punjaji Shah's case [1970] SCC (Crl.) 170, as well as the concession in the case of Ramesh Chandra Mehta , we are unable to hold that a Magistrate has no power to remand a person produced before him by a Customs Officer or Enforcement Officer to such custody as he deems fit unless he files a complaint simultaneously with his production before the Magistrate.
169. 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. As approved by the Supreme Court in the case of K. P. Varghese , that the office of all judges is always to make such construction as shall suppress the mischief and advance the remedy, we should keep in mind the effect of such an interpretation upon the economy of our country. There is no doubt that by placing such a strict interpretation, we will be jeopardizing the detection of such economic offences committed by sophisticated people in a very planned manner. It may generally not be possible for the concerned officers to obtain complete information from the arrested persons about the complicity of various other persons in smuggling activities in a short period of 24 hours. It is only on receipt of such information that other contraband consumer articles, foreign exchange, gold, etc., can be unearthed by the empowered officers. These Acts have been brought on the statute book because of the large scale smuggling of silver out of the country and of various consumer articles and gold, etc., into the country, so that the smuggled goods and attempts at smuggling can be effectively and expeditiously dealt with. If no restraint is put on the liberty of such a person for a reasonable time many such socio-economic crimes would go undetected which is likely to imperil and shatter the economy of our country. At the cost of too much emphasis on the liberty of an individual, the larger interests of the country and, therefore, of the whole nation cannot be sacrificed. Article 19(2) of our Constitution empowers the State to impose reasonable restrictions on the freedom of an individual in the interest of the State or of public order, etc. In the backdrop of such facts, I am of the view that we should interpret section 167 in a manner which shall help the empowered officers to effectively discharge their functions of weeding out smuggling activities and thus prevent the mischief instead of encouraging it.
170. A Constitutional Bench of the Supreme Court spoke thus in the case of Mohinder Singh v. Chief Election Commissioner .
"Law transcends legalism when life is baffled by surprise situations. In this larger view and in accordance with the well-established doctrine of implied powers, we think the court can - and if justified, shall - do, by its command, all that is necessary to repair the injury and make the remedy realisable. Courts are not luminous angels beating their golden wings in the void but operational authority sanctioning everything to fulfill the trust of the rule of law. That the less is the inarticulate part of the larger is the jurisprudence of power."
171. The Hon'ble court quoted with approval the doctrine of implied power from Black's Law Dictionary which explained the proposition thus :
"Implied powers are such as are necessary to make available and carry into effect those powers which are expressly granted or conferred, and which must, therefore, be presumed to have been within the intention of the constitutional or legislative grant."
172. In para 89 of the judgment in the case of Mohinder Singh , the court quoted Frank E. Horack on the doctrine of implied powers, "Necessary implications. - Where a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included by implication. Thus it has been stated, 'An express statutory grant of power or the imposition of a definite duty carries with it by implication, in the absence of a limitation, authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance of the duty ... That which is clearly implied is as much a part of a law as that which is expressed'."
173. The court then further said, "The rule whereby a statute, is by necessary implication extended has been most frequently applied in the construction of laws delegating powers to public officers and administrative agencies. The powers thus granted involve a multitude of functions that are discoverable only through practical experience."
174. I may also mention that I am also in respectful agreement with the reasoning of the Gujarat High Court in N. H. Dave, Inspector of Customs v. Mohd. Akhtar Hussain Ibrahim Abdul Kader Amad Wagher , of the Kerala High Court in Superintendent of Customs v. Ummerkutty [1983] Crl. LJ 1860, and of the Patna High Court in Nagendra Prasad v. State [1987] Crl. LJ 215, for holding that a Magistrate has implied powers of remand under section 437 of the Code when he refuses to release him on bail. Since our High Court in O. P. Gupta's case was of the firm view that a Magistrate had the power to remand a person arrested by a customs officer under section 167 of the Code and it could not be said to be a case of legislative lacuna, it did not go deeply into the doctrine of implied power writ large in section 437 of the Code.
175. I am also not in respectful agreement with the view of Talwar J. that the decision of the Patna High Court only covers situation No. 1 as spelled out in his judgment at page 6. So far as offences under the Indian Penal Code are concerned, there are express powers vested in the Magistrate for remand of an accused person under section 167(2). The various situations presumed by Talwar J. will be dealt with by the Magistrate only under section 167(2). It never happens in actual practice that the prosecution will not file an application under section 167. By the mandate of section 167(1), the prosecution has to file an application under this provision while forwarding the accused in custody. Therefore, with respect, the assumption of situation No. 3 is simply hypothetical. Similarly, situation No. 4 also never arises. Section 157 occurs earlier than section 167 in the Code. Under section 157, it is obligatory on the part of the police to transmit a copy of the F.I.R. to the Area Magistrate. If the police is guilty of violating the mandatory provisions of law, the Magistrate is not bound to remand the accused to custody. Similarly, in situation No. 4, if case diaries are not produced by the police the Magistrate will be entitled to raise a presumption that the case diaries, if produced, would not have supported the prosecution case and so the Magistrate may order his release on bail or release him even otherwise. In situation No. 5 if the prosecution offers some justifiable reason for not being able to commence the investigation, I do not see any reason why the Magistrate should not be able to grant police or judicial remand in the facts and circumstances of a particular case. In fact, section 437 itself visualizes many situations where the Magistrate will not release an accused on bail. This section even covers those situations where the accused merely appears which would clearly mean a situation that the police as yet are not aware of the appearance of the accused before the Magistrate. It also covers situations where the accused is only suspected of the commission of a non-bailable offence. If we interpret the provisions of this section in a natural manner, we can definitely say that in such a situation also, the Magistrate is entitled to take him into custody and give a notice to the prosecution to find out what are the specific charges against him and whether his continuance in judicial custody will be justified. If after taking into consideration an overall view of all the circumstances, the Magistrate is satisfied one way or the other, he is authorized to pass an order accordingly. His powers under section 437 are not limited or controlled by section 167. Implied powers of the Magistrate under section 437 to remand an accused to custody are to be seen only by keeping aside the provisions of section 167 and that too, in case of offences under the other Acts and not of offences under the Penal Code. So far as the offences under the Penal Code are concerned, there are specific powers of the Magistrate to remand an accused to custody under section 167. It is entirely a different question, whether in the facts and circumstances of a particular case, the Magistrate should exercise those powers or not. In all situations, he is to be guided by his judicial discretion and by no other consideration for remanding or not remanding an accused. I may further clarify with respect that in all the three cases Nagendra Prasad v. State [1987] Crl. LJ 215, N. H. Dave, Inspector of Customs v. Mohd. Akhtar Hussain Ibrahim Abdul Kader Amad Wagher , and Superintendent of Customs v. Ummerkutty [1983] Crl. LJ 1860, cited by Mr. Watel, there was an application for remand of the accused. Mr. Watel never advanced the argument that the Magistrate would be justified in remanding the accused to custody under section 437 even if there was no application for remand. The question of there being no such application and testing the implied powers under section 437, therefore, does not arise.
176. Implied power is not the same thing as inherent power. There is no doubt that a Magistrate has no inherent power as laid down by the Supreme Court in Matabar Parida v. State of Orissa . But at the same time, the court is not to lose sight of the fact that the offence is non-bailable. The Customs Act or the FERA do not prescribe any such procedure for grant or refusal of bail. We have to visualise a situation under section 437 of the Code wherein a person suspected of the commission of a non-bailable offence either appears or is brought before a court other than the High Court or Court of Session. If a Magistrate under section 437 has the power to release such a person on bail, it goes without saying that in a certain situation he also has the power to refuse bail. If the Magistrate refuses to grant bail, can it ever be said that he is helpless to restrict the movement of such a suspect by taking him in judicial custody ? This situation has been logically met in the case of Nagendra Prasad [1987] Crl. LJ 215, in para 13 at page 97 as follows :
"A Magistrate cannot possibly first reject the prayer for bail of the person produced and also at the same time forthwith set him at liberty without restraint. That, in my humble opinion, would be a logical absurdity. It needs no great erudition to hold that the refusal to grant bail is the imposition or continuance of custody. If there is an express power to refuse bail, there is necessarily a power to retain or place a person in custody as a consequence of that refusal. To hold that a Magistrate has the discretion to decline bail but has no power to remand to custody would thus be a contradiction in terms."
177. Then again in para 14, while explaining the true connotation of the phrase "shall not be so released" in section 437(1) of the Code the High Court held, "To my mind, it is nothing more than an express mandate that in the event of refusal of bail such a person shall be kept or continued in custody. The mandate of the law that he shall not be so released is only a negative form of couching the command that he shall be kept in custody. That being so, it is virtually explicit and in any case it is necessarily implicit in the statute that there inheres a power to remand to custody."
178. Therefore, taking into consideration the total perspective of this case, I am of the view that firstly there is an express power under section 167(2) of the Code, or alternatively, an implied or implicit power under section 437 of the Code vested in the Magistrate to remand a person to judicial custody, when such a person is produced before him either under the Customs Act or under the Foreign Exchange Regulation Act by duly empowered officers under those Acts and O. P. Gupta's case lays down the law correctly. Any other interpretation having the effect of denuding the Magistrate of such powers would, in my opinion, be in violation of the rule of interpretation spelled out by the Hon'ble Supreme Court in the case of K. P. Varghese v. ITO and Mohinder Singh v. Chief Election Commissioner .
ORDER
179. In view of the majority decision, we uphold the conclusion in Union of India v. O. P. Gupta (Criminal Writ Petitions Nos. 116 and 104 of 1984, decided on 19th July, 1985) that section 437 of the Code of Criminal Procedure does not confer implied power of remand on a Magistrate.
180. However, the view expressed in that case regarding the power available to a Magistrate under section 167(2) of the Code of Criminal Procedure to commit to custody a person produced before him by a Customs Officer under section 104 of the Customs Act is incorrect and is thus overruled.
181. The petition is allowed and the rule made absolute.