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2011 (3) GCD 2516 (Guj) (DB)
Hon’ble Mr. Justice Anant S. Dave
Kalpesh Navindchandra Daftary
Versus
State of Gujarat
Special Criminal Application No. 550 of 2011—Decided on 13/06/2011
Customs Act, 1962 (Central Act 52 of 1962) — Section 135 — [Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 406, 420, 466 to 468, 471, 472, 474, 120-B and 34 — Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Sections 71, 67(1) and (2) and Proviso — Release on default bail for offences under IPC — Application for — Not admissible because for offences under IPC Petitioner was arrested on 15.09.2010 on remand application for offences — While charge sheet for the said offences was filed on 13.12.2010 within the period of 90 days from the date of arrest — His earlier period of arrest and custody under Custom Act can not be considered being separate and distinct.
Held :
Issuance of ‘transfer warrant’ by the learned Judicial Magistrate, First Class, Waghra Link Court, Bharuch, cannot be said to be a direction issued by the learned Magistrate to any authority or court, but it was an order passed permitting the Investigating Officer of first information report being C.R. No. I-45 of 2010 registered with Dahej Police Station to submit a request letter to the learned Metropolitan Magistrate, Ahmedabad, who had earlier passed an order authorizing judicial custody of the petitioner pursuant to the case registered under Section 135 of the Customs Act and the petitioner was sent to Sabarmati Central Prison, at Ahmedabad. The events took place on 14th September 2010 would go to show that for producing the petitioner before the learned Judicial Magistrate, First Class, Waghra Link Court, Bharuch, the formalities were completed in accordance with law and, for all purposes, the petitioner was arrested on 15th September 2010 and was physically produced before the learned Judicial Magistrate, First Class, Waghra Link Court, Bharuch, who authorized police remand upon an application submitted on the same day. Therefore, the powers came to be exercised by the learned Magistrate as envisaged under Sub-section (2) of Section 167 of the Code on 15th September 2010 only. [Para 11]
Law Laid Down :
Under proviso to Section 107(2) Magistrate may authorise detention of the accused otherwise than the custody of the police for a period of not exceeding 90 days where investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years and 60 days where investigation relates to any other offence.
Anant S. Dave, J.—This Special Criminal Application/Writ Petition is preferred by the petitioner [original accused] under Article 226 and 227 of the Constitution of India and in the matter of the provisions of Section 167(2) of the Code of Criminal Procedure, 1973 [for short, ‘the Code’] with a prayer to release the petitioner on ‘default bail’ in connection with first information report being C.R. No. I-45 of 2010 registered with Dahej Police Station, District Bharuch, on 18th July 2010, for the offences punishable under Sections 406, 420, 466, 467,468, 471, 472, 474, 120B and 34 of the Indian Penal Code.
2. It is not in dispute that earlier the petitioner came to be arrested by the Directorate of Revenue Intelligence under Section 135 of the Customs Act being DRI/AZU/INQ-03/00 on 14th July 2010 and the petitioner was sent to judicial custody and since then the petitioner was in Sabarmati Central Prison, at Ahmedabad.
3. It is alleged in the first information report being C.R. No. I-45 of 2010 registered with Dahej Police Station that the petitioner and other co-accused have in connivance with each other forged licences and such licences were transferred through different traders which were ultimately utilized by M/s. Hindalco Industries Limited, Dahej, while importing certain goods. The said forged licences were obtained by the complainant through the accused and were transferred to M/s. Hindalco Industries Limited, Dahej, and the petitioner and other accused had submitted forged licences from 1.4.2008 to 31.3.2010 and collected Rs. 41,94,81,068/-. Before filing of the charge sheet, an application under Section 439 of the Code was preferred before the learned Sessions Judge, at Bharuch, which came to be rejected and the said order came to be challenged before this Court but, ultimately, the above application for bail came to be withdrawn on 26th November 2010.
4. In the above back-drop of the facts, it is the case of the petitioner that the petitioner was in Sabarmati Central Prison, at Ahmedabad, pursuant to the order of judicial custody passed in the earlier offence registered under Section 135 of the Customs Act by the Directorate of Revenue Intelligence. That, the Investigating Officer of first information report being C.R. No. I-45 of 2010 registered with Dahej Police Station for the offences punishable under the Indian Penal Code submitted an application before the learned Judicial Magistrate, First Class, Waghra Link Court, Bharuch, seeking custody of the petitioner by ‘transfer warrant’ from Sabarmati Central Prison, at Ahmedabad. Accordingly, on 14th September 2010, the learned Judicial Magistrate, First Class, Waghra Link Court, Bharuch, passed an order of ‘transfer warrant’ requesting the learned Additional Chief Metropolitan Magistrate, Ahmedabad, to hand over the petitioner to the Investigating Officer of first information report being C.R. No. I-45 of 2010 registered with Dahej Police Station. The Investigating Officer, accordingly, submitted an application and requested the learned Additional Chief Metropolitan Magistrate, Metropolitan Court, Gheekantha, Ahmedabad, to hand over custody of the petitioner on the basis of ‘transfer warrant’ issued by the learned Judicial Magistrate, First Class, Waghra Link Court, Bharuch. The above application was preferred by the Investigating Officer on 14th September 2010 and, accordingly, on the very same day, the learned Additional Chief Metropolitan Magistrate, Ahmedabad, passed an order intimating the Superintendent, Sabarmati Central Prison, at Ahmedabad to hand over the custody of the petitioner to the Investigating Officer of first information report being C.R. No. I-45 of 2010 registered with Dahej Police Station. The Superintendent, Sabarmati Central Prison, at Ahmedabad, complied with the above order and addressed a communication to the learned Judicial Magistrate, First Class, Waghra Link Court, Bharuch, handing over the custody of the petitioner to the Invest
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