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SUPREME COURT OF INDIA
S. Ratnavel Pandian and K. Jayachandra Reddy, JJ.
Directorate of Enforcement - Appellant
versus
Deepak Mahajan & Anr. - Respondents
Criminal Appeal No. 537 of 1990
Decided on 31.1.1994
Held, that the word 'accused' or 'accused person' is used only in a generic sense in Section 167(1) and (2) denoting the "person" whose liberty is actually restrained on his arrest by a competent authority on well-founded information or formal accusation or indictment. Therefore, the word 'accused' limited to the scope of Section 167(1) and (2) - particularly in the light of Explanation to Section 273 of the Code includes 'any person arrested'. The inevitable consequence that follows is that 'any person is arrested' occurring in the first limb of Section 167(1) of the Code takes within its ambit 'every person arrested' under Section 35 of FERA or 104 of the Customs Act also as the case may be and the 'person arrested' can be detained by the Magistrate in exercise of his power under Section 167(2) of the Code. In other words, the 'person arrested' under FERA or Customs Act is assimilated with the characteristics of an 'accused' within the range of Section 167(1) and as such liable to be detained under Section 167(2) by a Magistrate when produced before him. (Para 57)
Further held: In our considered opinion, the view taken in O.P. Gupta and M.K.S. Abu Bucker and also of the Kerala High Court and Gujarat High Court is the logical and Collect view and we approve the same for the reasons we have given in the preceding part of this judgment. We, indeed, see no imponderability in construing Section 35(2) of FERA and 104(2) of Customs Act that the said provisions replace Section 167(1) and serve as a substitute thereof substantially satisfying all the required basic conditions contained therein and that consequent upon such replacement of sub-section (1) of Section 167, the attested person under those special Acts would be an accused person to be detained by the Magistrate under subsection (2) of Section 167. In passing, it may be stated that there is no expression 'police officer' deployed in Section 167(1) nor does it appear in any part of Section 167(2). The authority for detaining a person as contemplated under Section 167(2) is in aid of investigation to be carried on by any prosecuting agency who is invested with the power of investigation. " (Para 58)
Consequently held: In the result, we hold that sub-sections (1) and (2) of Section 167 are squarely applicable with regard to the production and detention of a person arrested under the provisions of Section 35 of FERA and 104 of Customs Act and that the Magistrate has jurisdiction under Section 167(2) to authorise detention of a person arrested by any authorised officer of the Enforcement under FERA and taken to the Magistrate in compliance of Section 35(2) of FERA. (para 81).
(ii) Criminal Procedure Code, 1973. Section 167(1) - Foreign Exchange Regulation Act, 1973. Section 35(2) - Customs Act, 1962 Section 104(2) - Whether Section 35(2) of FERA or 104(2) of the Customs Act serves as a substitute to Section 167(1) the Code? (No) (Para 58)
(iii) Criminal Procedure Code, 1973 Section 2(h) - FERA, 1973 - Section 35(2) Customs Act, 1962 - Section 104(2) - Whether the authorised or empowered officer under FERA or Customs Act exercises all or any of the powers of a police officer outlined under Chapter XII of the Code and conducts any investigation within the meaning of Section 2(h) of the Code? . (Yes, it cannot be said that the officer is not empowered with the power of investigation though not with the power of filing a final report as in the case of a police officer). (Paras 70 & 71)
(iv) Criminal Procedure Code, 1973. Sections 4(2) and 167(2) - Applicability of provisions of Section 167(2) of the Code in relation to Section 4(2) to a person arrested under FERA or the Customs Act and produced before a Magistrate.
Held: Section 4 is comprehensive and that Section 5 is not in derogation of Section 4(2) and it only relates to the extent of application of the Code in the matter of territorial and other jurisdiction but does not nullify the effect of Section 4(2). In short, the provisions of this Code would be applicable to the extent in the absence of any contrary provision in the Special Act or any special provision excluding the jurisdiction or applicability of the Code. In fact" the second limb of Section 4(2) itself limits the application of the provisions of the Code reading, 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." (Para 76)
Further held, that the operation of Section 4(2) of the Code ,is straightaway attracted to the area of investigation, inquiry and trial of the offences under the special laws including the FERA and Customs Act and consequently Section 167 of the Code can be made applicable during the investigation or inquiry of an offence under the special Acts also inasmuch as there is no specific provision contrary to that excluding the operation of Section 167. (Para 79)
Result: Appeal allowed.
JUDGMENT
S. Ratnavel Pandian, J. The salient and indeed substantial legal question which looms for determination in this appeal may be formulated as follows:
Whether a Magistrate before whom a person arrested under sub-Section (1) of Section 35 of the Foreign Exchange Regulation Act of 1973 which is in pari materia with sub-Section (1) of Section 104 of the Customs Act of 1962, is produced under sub-section (2) of Section 35 of the Foreign Exchange Regulation Act, has jurisdiction to authorise detention of that person under Section 167(2) of the Code of Criminal Procedure?
2. As a preclude to the judgment, we would like to state that though the appellant in the present case has been arrested under sub-section (1) of Section 35 of Foreign Exchange Regulation Act, 1973 (hereinafter referred to as the 'FERA') and taken to the Magistrate under sub-section (2) thereof, we while disposing the legal questions posed for determination, are inclined to deal with the corresponding provisions under the Customs Act also for the reasons - (i) that the scheme for both the FERA and the Customs Act is more or less the same; (ii) the provisions relating to the arrest and production of the arrestee before the Magistrate are identical; (iii) the arguments by both the parties have been advanced pertaining to provisions of both the Acts; and (iv) almost all the decisions cited related to the provisions of both the Acts.
3. There is a vertical cleavage of opinion amongst the various High Courts on the above legal question which has come up for adjudication in the present appeal.
4. This appeal, by special leave is directed against the judgment of the High Court of Delhi dated 6th April 1990 rendered by a five-Judges Bench in Criminal Writ No. 316 of 1989 overruling the decision of the same High Court in Union of India v. O.P. Gupta and others1 rendered in Criminal Writ Nos. 104 and 116 of 1984 by a three-Judges Bench reversing an earlier decision in Dhalam Chand Baid v. Union of India and Ors.2, which was decided by a Division Bench of the same High Court holding that a Magistrate has no power to remand a person accused of an offence punishable under the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as 'FERA') to judicial custody.
Though normally, it may not be necessary to make any reference about the constitution of a particular Bench which is the prerogative right of the Chief Justice of the High Court concerned, yet regrettably in this case, it has become unavoidable to make reference concerning the constitution of the Bench since during the course of the arguments, a diatribe, though not justifiable was made about the formation of the Bench, presided over by Charanjit Talwar, J. who gave a dissenting judgment in the case of D.P. Gupta.
In Gupta's case, the Bench was presided over by Yogeshwar Dayal, J. (as he then was) and two other learned Judges, namely, Charanjit Talwar and Malik Sharief-ud-din, JJ. of whom Charanjit Talwar, J. gave his dissenting judgment.
When the decision of Gupta's case was holding the field, the respondent No.1, namely, Deepak Mahajan was arrested on 13th March. 1989 by the officers of the Enforcement Directorate for an offence punishable under the provisions of FERA and taken before the Additional Chief Metropolitan Magistrate, New Delhi on the next date as per the mandate of sub-section (2) of Section 35 of the said Act. An application under Section 167(2) of the Code of Criminal Procedure (hereinafter referred to as 'the Code ') was moved by the Enforcement Officer seeking petitioner's detention under judicial custody commonly known in the legal parlance as 'judicial remand' on the ground that it was necessary to complete the investigation. On the very same day, the respondent unsuccessfully moved the Court for bail. The Magistrate remanded the first respondent to judicial custody for fourteen days and subsequently extended the detention period. The first respondent challenged the jurisdiction of th
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