The main legal point established in the judgment is that in the absence of sanction from the Commissioner of Customs, the Magistrate is incompetent to take cognizance of offences under the Customs Act, and the power to remand the accused persons under Section 167(2) of the Code of Criminal Procedure expires.

By the Court.- This application is for a writ of habeas corpus. It was originally rued in respect of two persons but during pendency of the writ petition, petitioner No.2 Durga Prasad Singh was released on bail in a separate proceeding by this Court and, as such, his name has been deleted by order dated 07.09.2011. The writ petition survives only in respect of petitioner No.1.

2. The question, Involved in the present case, is as to what is the status of an accused person who is on judicial remand and the investigation being complete, the Magistrate being not in a position to take cognizance, whether the accused can be remanded to judicial custody or retained in judicial custody in such a situation where the case is for an offence under the Customs Act. 1962 (hereinafter referred to as the Act).

3. Two public carrier trucks allegedly loaded with betel nuts of third country origin were seized under Section 110 of the Customs Act, 1962 by the customs authorities on 07.06.2011 at 6 pm. Two persons that is the petitioners were detained allegedly being custodians thereof. They were detained and questioned on the 07th and the 08th of June.2011 purporting to be under Section 108 of the said Act. Allegedly, it was then found that the two persons were liable to be punished under Section 135 of the said Act and. as such, authorisation of the Commissioner (Customs), Patna to arrest them was sought for The authorisation was granted by the Commissioner to arrest the said persons under Section 104 of the said Act and. as such. in view of the authorization, the two petitioners. who were detained since 07.06.2011, were shown to be arrested on 09.06.2011 at 5.15 pm under Section 104 of the said Act and forwarded on the same day to the Court of Presiding Officer, Special Economic Offences. Muzaffarpur who, on the same day that is 09.06.2011, registered Custody Case No.2 of 2011 and remanded them to judicial custody.

4. On 09.08.2011, on behalf of the two petitioners, application for bail in terms of Section 167 (2) of the Code of Criminal Procedure (hereinafter referred to as the Code) was filed. The learned Presiding Officer of the Court of Economic Offences noticing that upon completion of investigation, on 05.08.2011. a complaint was filed in the Court which was within 60 days of arrest of the petitioners, their application was rejected. They were then apparently remanded to custody and. as noticed above petitioner No.1 apparently continues in custody.

5. The complaint, as filed, is Annexure-2 to the writ application, though seeks prosecution of the petitioners under Section 135 of the Act, there is no mention of any sanction having been obtained from the Commissioner, the significance of this is that in terms of Section 137 (1) of the Act, the Court is not competent to take cognizance of the offence and proceed because the said section provides that no Court shall take cognizance of offence punishable under Section 135 of the Act itself without previous sanction of the Commissioner. The result is that though the investigation is complete and there is no enquiry or trial pending before the Court and the Court being incompetent to proceed further, the petitioner is being detained, pursuant to remand order. in custody, Thus, the question whether there can be a remand in such a situation?

6. In order to appreciate the legal position in this regard, reference to various provisions of the Code and the provisions of Act is necessary. We also have to deal with the judgment of Division Bench of this Court in the case of Nagendra Prasad and Another v. State since reported in 1987 East Cr C 169 (Pat) : 1987 PLJR 310; 1987 Cri LJ 215.

7. The contention, on behalf of the petitioner, is that no sooner the investigation. in so far as the petitioner was completed and the complaint was filed, the power to remand in terms of Section 167 (2) of the Code exhausts unlike in cases where such power can be found with reference to Section 209 and Section 309 (2) of