Magistrates have the implied power to refuse bail and order an accused to be taken into custody under Section 104 of the Customs Act, 1962.

( 1 ) SANKARLAL Saraf, the petitioner before us is alleged to have committed offences punishable under Section 135 of the Customs Act, 1962 by importing huge quantities of stainless steel from U. S. A. and other countries by under-invoicing the consignments and thereby indulged in smuggling as defined in the Customs Act. The period of activities of smuggling is alleged to be from 1981-1983. It is alleged that he has wide connections and has a large number of accessories. The Customs Authorities had suspicions regarding the nature of smuggling activities carried on by Sankarlal Saraf only recently for which litigations before various forums are continuing. However, to come to grips with the relevant facts we may say that the Assistant Collector, Customs, Calcutta produced him in custody for offences alleged under the Customs Act before the learned C. M. M. , Calcutta on 24-4-1985 and the learned Advocate for Customs Authorities prayed for rejection of the prayer for bail and remand of Sankarlal to jail custody and also made further prayer for permission to interrogate Sankarlal in jail. The learned C. M. M. , Calcutta by his order of the same date directed the accused to be remanded to jail custody till 2-5-1985 and expressly ordered that the I. O. may interrogate him in jail. Aggrieved with that order the accused has come up before us with an application under Section 439 read with Section 482 of the Cr. P. C. At the time of hearing of the application for the purpose of an interim order Mr. Bholanath Sen, learned Counsel for Sankarlal Saraf cited before us a Division Bench decision of the Delhi High Court in Dalam Chand Baid v. Union of India reported in 1982 Criminal Law Journal 747 and contended that under the Customs Act a magistrate had no power to order the accused to be taken in jail custody. Relying on the decision principally, although we did not cite the decision in our order, we took a view that the learned Magistrate was wrong in passing the order. However, we did not take a final decision. We granted Sankarlal Saraf an interim bail subject to the condition of his furnishing sureties of Rs. 10,000/- with two sureties of Rs. 5,000/- each to the satisfaction of the learned C. M. M. , Calcutta and ordered issuance of notice on the Customs Authorities for entering appearance, and they have filed an affidavit-in-op-position. We may add subsequent to our interim order of bail with the consent of the learned Advocate for the Customs Authorities Sankarlal Saraf was permitted to continue on bail with slight relaxation of the conditions of bail. The matter is being taken up for hearing today.

( 2 ) MR. Jatin Ghosh, learned Advocate on behalf of the Customs Authorities argued elaborately regarding the gravity and magnitude of the offences and its ramifications adverse to the economy of the country and various other things. We need not discuss of those features. Coming to the points of law Mr. Jatin Ghosh contends that the Delhi High Court Division Bench case on which Mr. Sen relied on was not under the Customs Act of 1962 and the said decision was on the Foreign Exchange Regulations Act, 1973. Mr. Jatin Ghosh concedes that provisions of Section 35 of the last-mentioned Act are almost similar to provisions of Section 104 of the Customs Act. After making above concession Mr. Ghosh argues that the Delhi High Court decision cannot apparently be an authority on a case under the Customs Act. Further, he points out that in the Delhi case there was an application for bail and refusal of the prayer, but in the present case there was no formal application for bail or refusal of the prayer by the learned C. M. M. Next he points out that for very cogent reasons Kerala High Court refused to accept the reasons given by their Lordships of the Delhi High Court in their decision. In this connection Mr. Ghosh refers to the case of the Superintendent of Customs, C. I. U. , Cochin v. P. K. Ummerkutty reported in 1983 Crimina