( 1 ) THE petitioner herein, Deepak Mahajan, was arrested by Officers of the Enforcement Directorate for an offence punishable under the Foreign Exchange Regulation Act, 1973 on 13th March, 1989. As per the mandate of sub-section (2) of Section 35 of the Foreign Exchange Regulation Act (hereinafter called the FERA), he was produced before the Chief Metropolitan Magistrate, New Delhi, the next day. An application under Section 167 (2) of the Code of Criminal Procedure (for short the Code) was moved by the Enforcement Officer seeking petitioner s remand to judicial custody for 14 days mainly on the ground that it was necessary to complete the investigation. On that very day, the petitioner s application to be admitted to bail was also heard.

( 2 ) THE learned Magistrate dismissed the bail application. The application on behalf of the Enforcement Officer was, however, allowed and the petitioner remanded to judicial custody for 14 days. Subsequently the remand of the petitioner was extended from time to time. The plea of the petitioner that the order of remand was without jurisdiction has been rejected by the Magistrate on the ground that a Full Bench of this Court in Cri. Writ Petition No. " 116 of 1984 (Union of India v. O. P. Gupta), decided on 19th July, 1985 has held that the Magistrate is empowered under Section 167 (2) of the Code to remand a person produced before him in accordance with Section 35 (2) of FERA. It is that order of the Magistrate, which is impugned herein.

( 3 ) THE petition was admitted by a Division Bench on 10th May. 1989, In view of the decision of the Supreme Court holding that the powers of remand vested in a Magistrate become exercisable only after an accused is prodluced before him in terms of sub-section (1) of Section 167 of the Code in re : Chaganti Satyanarayana and Others v. State of Andhra Pradesh, AIR 1986 SC 2130 (1), the petition was referred to be heard by a larger bench. Before the Full Beach, the contention urged by counsel for the parties was that O. P Gupta s case (supra) requires reconsideration. The matter was referred to a Bench of five Judges.

( 4 ) THE arguments which have been addressed before five of us postulate that the arrested person is not being produced by the police officer under Section 167 (1) of the Code. The question is whether the Magistrate before taking cognizance of the offence has power to remand under Section 167 (2) of the Code, the arrested person produced before him in accordance with Section 104 (2) of the Customs Act or Section 35 (2) of the FERA? The related question is whether the Magistrate has implicit or implied power to do so under sub-section (1) read with sub-section (5) of Section 437 of the Code.

( 5 ) BEFORE adverting to the rival contentions. I may notice that the word "remand" does not occur either in Section 167 (2) or in Section 437 of the Code. As far as I have been able to ascertain, this word is mentioned only in Section 309 of the Code. Under that provision, the Court after taking cognizance of an offence is vested with power of postponing the commencement of an inquiry or trial and also for adjourning the case from time to time. While doing so, the Magistrate is authorised by warrant to remand the accused if in custody to continue in custody (at that stage judicial custody) but not for a term exceeding 15 days at a time. This provision, in its context, means "to send a person charged with a crime back into custody by a Court order" (Webster Dictionery ). The Courts have also held "remand" to connote "a re-committal to custody of a person who has been brought up in custody".

( 6 ) IT is apparent that the re-comnnittal to custody, i. e. , remand is to be directed by a warrant. An explicit order with in the purview of the Section has to be passed remanding the accused to judicial custody which order is to be executed by a warrant. At any rate this provision is not sought to be brought into play as the complainant has not been