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High Court Of Calcutta
GITESH RANJAN BHATTACHARJEE,
BIJAN HALDER - Appellant
Versus
STATE OF WEST BENGAL - Respondent
CRIMINAL REVISION 2407 Of 1992
Decided On : 05/14/1993
CUSTOMS ACT - SECTION 104 - POWER TO ARREST - SECTION 137 - SANCTION FOR PROSECUTION - SECTION 167 - INVESTIGATION - SECTION 437 - BAIL - SECTION 309 - REMAND - INTERPRETATION - HELD, that the provisions of Section 167 of the Code of Criminal Procedure, 1973 are not attracted in cases where a person is arrested and produced before a Magistrate under Section 104 of the Customs Act, 1962.
Fact of the Case:
The petitioners, who were arrested by customs officials under Section 104 of the Customs Act, 1962, were produced before the Magistrate and remanded to judicial custody. Thereafter, on the basis of a complaint filed by the Superintendent of Customs, the Magistrate took cognizance of the offence punishable under Section 135(1)(b)(ii) of the Customs Act, 1962. The petitioners challenged the cognizance taken by the Magistrate on the ground that the complaint was filed after the expiry of the period prescribed in Section 167(5) of the Code of Criminal Procedure, 1973, and that Section 167 of the Code was applicable to the case.
Finding of the Court:
1. Section 167 of the Code of Criminal Procedure, 1973 is not attracted in cases where a person is arrested and produced before a Magistrate under Section 104 of the Customs Act, 1962. 2. The Magistrate has no power to remand a person arrested under Section 104 of the Customs Act, 1962, either under Section 167 or Section 437 of the Code of Criminal Procedure, 1973. 3. The Magistrate has no inherent power to remand a person arrested under Section 104 of the Customs Act, 1962.
Issues: 1. Whether the provisions of Section 167 of the Code of Criminal Procedure, 1973 are attracted in cases where a person is arrested and produced before a Magistrate under Section 104 of the Customs Act, 1962? 2. Whether the Magistrate has the power to remand a person arrested under Section 104 of the Customs Act, 1962, either under Section 167 or Section 437 of the Code of Criminal Procedure, 1973? 3. Whether the Magistrate has the inherent power to remand a person arrested under Section 104 of the Customs Act, 1962?
Ratio Decidendi: 1. The provisions of Section 167 of the Code of Criminal Procedure, 1973 are not attracted in cases where a person is arrested and produced before a Magistrate under Section 104 of the Customs Act, 1962, because: (a) Section 167 of the Code applies only to cases where a person is arrested by a police officer and not by a customs officer. (b) Section 104 of the Customs Act, 1962 does not confer on a customs officer the same powers as a police officer under the Code of Criminal Procedure, 1973. (c) The provisions of Section 167 of the Code are not applicable to a person arrested under the Customs Act, 1962, by virtue of Section 4(2) of the Code. 2. The Magistrate has no power to remand a person arrested under Section 104 of the Customs Act, 1962, either under Section 167 or Section 437 of the Code of Criminal Procedure, 1973, because: (a) Section 167 of the Code applies only to cases where a person is arrested by a police officer and not by a customs officer. (b) Section 104 of the Customs Act, 1962 does not confer on a customs officer the same powers as a police officer under the Code of Criminal Procedure, 1973. (c) The provisions of Section 167 of the Code are not applicable to a person arrested under the Customs Act, 1962, by virtue of Section 4(2) of the Code. (d) Section 437 of the Code does not confer on the Magistrate any implied power to remand a person arrested under the Customs Act, 1962. 3. The Magistrate has no inherent power to remand a person arrested under Section 104 of the Customs Act, 1962, because: (a) The power to remand is a statutory power and not an inherent power. (b) The Magistrate has no inherent power to do anything which is not authorized by law.
Final Decision: The revisional application was allowed. The cognizance taken by the Magistrate was quashed.
( 1 ) IN this revisional application several important questions of law have been raised which will be discussed later. On 16/09/1988 the petitioners, who were earlier arrested on the 15/09/1988 by customs officials under S. 104 of the Customs Act, 1962, were produced before the learned Sub-Divisional Judicial Magistrate, Ranaghat, Nadia and they were remanded to jail custody after rejection of their prayer for bail. Thereafter on 30/09/1988 the petitioners were released on bail by the learned Sub-Divisional Judicial Magistrate. Subsequently on the basis of a complaint filed by the Superintendent of Customs in respect of offence punishable under Section 135 (1) (b) (ii) of the Customs Act, 1962, the learned Magistrate took cognizance.
( 2 ) THE first point argued before me by Mr. Ghosh on behalf of the petitioners is that the cognizance taken by the learned Magistrate in this case is bad in law of the fact that the complaint on the basis of which the cognizance was taken was filed, on completion of investigation, after the expiry of the period prescribed in S. 167 (5), Cr. P. C. as applicable to the case. This in turn raises the question whether S. 167, Cr. P. C. will be attracted to a prosecution for an offence punishable under S. 135 of the Customs Act. Section 100, Section 101, Section 105, Section 106 and Section 110 of the Customs Act provide for search and seizure by appropriate customs officials. Section 107 authorises the empowered customs officer, during the course of an inquiry in connection with the smuggling of any goods, to require any person to produce or deliver any document or thing relevant to the enquiry and also to examine any person acquainted with the facts and circumstances of the case. Section 108 empowers a gazetted officer of customs to summon any person whose attendance he considers necessary either to give evidence or to produce a document or thing in any enquiry which such officer is making in connection with the smuggling of any goods. Section 106a gives power of inspection to an authorised Customs Officer. Sub-Section (1) of S. 104 of the Customs Act authorises an empowered customs officer to arrest any person if such officer has reason to believe that such person has been guilty of an offence punishable under S. 135 of the Customs Act. Sub-Section (2) of S. l04 requires the person so arrested to be taken to a Magistrate without unnecessary delay. Sub-Section (3) of the said Section provides that an officer of customs arresting any person under Sub-Section (1) shall 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, for the purpose of releasing such person on bail or otherwise. For better appreciation Section 104 of the Customs Act is reproduced below :"s. 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 S. 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. 4) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence under this Act shall not be cognizable. "
( 3 ) IT is therefore evident that an offence under the Customs Act being non-cognizable the police, on their own authority, cannot investigate any offence under the Customs Act and also cannot a
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