The Magistrate has no power to remand an accused person to judicial custody under Section 309 of the Criminal Procedure Code, 1973, unless the Magistrate has taken cognizance of the offence.

( 1 ) IT is necessary to set out a few facts indicating how the present petition for a writ of habeas corpus has come to be moved in this Court. According to the facts set out in the affidavit of Shri Dcvinder Malhotra, Enforcement Officer in the Enforcement Directorate at New Delhi, the petitioner is a resident of Bombay, but he had been going abroad often. It is not necessary to give the details here. On 1st June, 1981, he left India on an Air-India Flight and arrived at Heathrow Airport, London, the same day. He was carrying a suit-case which was found to contain currency of various countries which was the equivalent of $ 2,38, 192. 00. Accordingly, the petitioner was refused entry into the United Kingdom and was directed to be deported. He appealed, but was unsuccessful; he was, therefore, deported and arrived at Palam Airport, New Delhi, on 20th July, 1981. He was thereupon asked to appear in the office of the Enforcement Directorate situated at Khan Market, New Delhi. He was questioned by the deponent who came to the conclusion that the petitioner was guilty of an offence punishable under the Foreign Exchange Regulation Act, 1973 (contravention of Section 8 (1 ). The petitioner was, therefore, arrested and produced before the Additional Chief Metropolitan Magistrate, New Delhi. A bail application moved by the petitioner was rejected and he was remanded to judicial custody till 4th August, 1981. Another bail application moved to the Additional District Sessions Judge was rejected on 7th August, 1981. The petitioner was again remanded to judicial custody and is still in custody. It was brought to our notice that the petitioner had been informed on 15th September, 1981, that he was no longer required for investigation and he could be released on bail if he moved an application, but he did not move any application.

( 2 ) THE case of the petitioner in this petition is slightly different. He claims that he was man-handled in the Enforcement Directorate and his Advocate was also not allowed to interview him ; he claims that his statements were recorded under torture, duress and mal-treatment. He claims that a statement recorded on 21st July, 1981, was recorded by a procedure otherwise than contemplated by law and Articles 20 (3) and 21 of the Constitution have been infringed.

( 3 ) AS regards the proceedings before the Additional Chief Metropolitan Magistrate, it is claimed that the petitioner was not an accused person and no judicial custody could be ordered by the Magistrate. It is also claimed that the remand to judicial custody is unlawful. Reliance is placed on the decision in Brian Bannett v. The Collector of Customs, etc. , Cr. Writ No. 3 of 1969, decided by Hardy J. (as he then was) on 27th February, 1969. The petitioner s case is that he is not an accused person until a complaint is filed and he could not be remanded to judicial custody. Alternatively, if the Enforcement Officer is to be treated as a police officer, then he claims that his statement is inadmissible in evidence.

( 4 ) THE attack re the legality of the petitioner s detention is based on three unreported judgments cited by learned counsel for the petitioner. They are Brian Bannett v. The Collector of Customs, etc. , Cr. 1. W. No. 3 of 1969, deci- ded on 27th February, 1969, by Hardy J. (as he then was) ; Munna Lal alias Vijai Kumar and others v. City Magistrate. , Agra and Others, Criminal Misc. No. 1678 of 1969, decided on 12th August, 1969, by a Division Bench of the Allahabad High Court, and finally, U. B. Singh v. Directorate of Enfoicement, Criminal Misc. (Main) No. 400 of 1981, decided by R. N. Aggarwal, J. , on 2nd September, 1981.

( 5 ) ON the other hand, the contention of learned counsel for the respondents has been that the petitioner can be kept in judicial custody because he is accused of a non-bailable offence and Section 437 of the Criminal Procedure Code allows the Magistrate to refuse bail, and therefore, permits the petitioner