S.104 of the Customs Act, read with Ss.4(2), 436, and 437 of the Code of Criminal Procedure, 1973, empowers a Magistrate to remand to custody a person suspected of the commission of a non-bailable offence under the Customs Act and produced before him by the Customs Officer.

Headnote:
CUSTOMS ACT - S.104 - CODE OF CRIMINAL PROCEDURE, 1973 - SS.4(2), 436, 437 - POWER OF MAGISTRATE TO REMAND TO CUSTODY - PERSON SUSPECTED OF NON-BAILABLE OFFENCE UNDER CUSTOMS ACT - SCOPE AND INTERPRETATION.
Fact of the Case:

Two petitioners were arrested by a Customs Officer for allegedly possessing foreign goods, namely, Chinese primary gold, which had apparently been smuggled into India from Nepal. The petitioners were produced before the Chief Judicial Magistrate, Patna, who remanded them to custody till the 6th of December 1985 awaiting prosecution report. The petitioners' bail applications were rejected by the Chief Judicial Magistrate, the Presiding Officer of the Special Court (Economic Offences) at Muzaffarpur, and the Sessions Judge, Muzaffarpur. The petitioners challenged the remand order in a criminal miscellaneous petition.
Finding of the Court:

The court held that S.104 of the Customs Act, read with Ss.4(2), 436, and 437 of the Code of Criminal Procedure, 1973, empowers a Magistrate to remand to custody a person suspected of the commission of a non-bailable offence under the Customs Act and produced before him by the Customs Officer.
Issues: Whether S.104 of the Customs Act, read with Ss.4(2), 436, and 437 of the Code of Criminal Procedure, 1973, empowers a Magistrate to remand to custody a person suspected of the commission of a non-bailable offence under the Customs Act.
Ratio Decidendi: The court interpreted the relevant provisions of the Customs Act and the Code of Criminal Procedure and held that: * The power to arrest and produce a person suspected of an offence under S.135 of the Customs Act before a Magistrate is conferred by S.104 of the Act. * S.4(2) of the Code of Criminal Procedure makes all offences under any law other than the Indian Penal Code subject to the provisions of the Code, unless there is a special enactment regulating the manner or place of investigation, inquiry, trial, or otherwise dealing with such offences. * Since the Customs Act does not provide for the procedure of criminal trials or the grant of bail, the provisions of Chapter XXXIII of the Code, dealing with bails and bonds, are attracted to offences under the Act. * S.437 of the Code empowers a Magistrate to refuse bail and remand a person suspected of a non-bailable offence to custody. * The language of S.437, particularly the phrase "shall not be so released" in sub-section (1), implies a power to remand to custody in the event of refusal of bail. * Sub-section (5) of S.437 further supports the view that a Magistrate has the power to commit a person suspected of an offence under the Customs Act to custody. * The interpretation advocated by the petitioners would lead to illogical and mischievous results, as it would require the Magistrate to release a person suspected of a serious offence against the revenue and indulging in smuggling and subverting the commercial interest of the nation.
Final Decision: The court dismissed the criminal miscellaneous petition, upholding the Magistrate's order remanding the petitioners to custody.

JUDGEMENT

S.S. Sandhawalia, C.J. :- Does S.104 of the Customs Act, 1962 read with Ss.4(2), 436 and 437 of Code of Criminal Procedure, 1973, empower a Magistrate to remand to custody a person suspected of the commission of any non-bailable offence under the aforesaid Act - is the question in this criminal miscellaneous case admitted to hearing by the Division Bench in view of the significance of the issue involved.

2. The facts are not in dispute and lie in a narrow compass. On 24th of Nov. 1985 the two petitioners were arrested by a Customs Officer for allegedly having in their possession foreign goods, namely, Chinese primary gold weighing 1122 grams valued at Rs. 2,42,352, which had apparently been smuggled into India from Nepal. The prosecution under S.135 of Customs Act (hereinafter to be referred to as the 'Act') having thus been initiated, the two petitioners were thereafter produced in person before the court of the Chief Judicial Magistrate, Patna. By his order (annexure 2) the learned Chief Judicial Magistrate noticed that the petitioners had been produced in connection with the case under S.135 of the Act and S.8 of the Gold Control Act read with S.13 of the Foreign Exchange Regulation Act and directed their remand to the Central Jail, Patna, till the 6th of Dec. 1985 awaiting prosecution report. The remand of the two petitioners was thereafter extended and on the 9th of Dec. 1985 an application for bail on their behalf was moved. On 23rd of Dec. 1985 the learned Chief Judicial Magistrate recorded a detailed order rejecting the said application. The case of the petitioners was later transferred to the court of Mr. N.K.N. Sinha, Presiding Officer of the Special Court (Economic Offences) at Muzaffarpur for disposal. Before him another bail application was preferred which also met the same fate of rejection (vide order dt. the 7th of Feb. 1986). The matter was thereafter carried before the Sessions Judge, Muzaffarpur who, on the 3rd of Mar. 1986, declined the prayer for bail as well.

3. In this criminal miscellaneous petition at the motion stage itself it was sought to be urged that the Magistrate had no power to remand the petitioners to custody for offences under the Customs Act and further that the provisions of S.167(2) of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the 'Code') would also be attracted to criminal prosecutions thereunder. Noticing the significance of the issues involved, the matter was directed to be heard by a Division Bench.

4. As stands noticed at the outset, the issue herein would turn on the language of S.104 of the Act and Ss. 4(2) and 437 of the Code, the relevant parts whereof may be read in the beginning : -

Customs Act

"104. power to arrest. -(1) If an officer of customs empowered in this behalf by general or special order of the Collector of Customs has reason to believe that any person in India or within the Indian Customs waters has been guilty of an offence punishable under Sec. 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-sec. (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 (5 of 1898), an offence under this Act shall not be cognizable."

Code of Criminal Procedure

"4(1) ...........

4(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 investigation, inquiring into, trying or otherwi

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1986 Supreme(Pat) 240

PATNA HIGH COURTS. S. SANDHAWALIA, C. J. RAM NANDAN PRASAD, J. NAGENDRA PRASAD AND ANOTHERVERSUSTHE STATECriminal Misc. Case No.2856 of 1986, Decided on : 10-8-1986.

S.104 of the Customs Act, read with Ss.4(2), 436, and 437 of the Code of Criminal Procedure, 1973, empowers a Magistrate to remand to custody a person suspected of the commission of a non-bailable offence under the Customs Act and produced before him by the Customs Officer.

PATNA HIGH COURT
S. S. SANDHAWALIA, C. J. RAM NANDAN PRASAD, J.
NAGENDRA PRASAD AND ANOTHER
VERSUS
THE STATE
Criminal Misc. Case No.2856 of 1986,
Decided on : 10-8-1986.