The provisions of Section 438 CrPC can be invoked in cases of apprehended arrest under the Customs Act, and Customs Officers have the same powers as Police Officers to release persons on bail under Section 104(3) of the Customs Act.

1. - This is a criminal Misc. bail application under Section 438 Cr.P.C arising out of F.I.R. No. 80/1991, Police Station Pratapnagar, District Udaipur for offence under Section 411 Indian Penal Code which was subsequently transferred to Central Excise and Customs Department, Jaipur whereuoen the Superintendent (Prevention), Central Excise and Customs, Jaipur registered a case No. 1 under Section 135 of Customs Act, against the present petitioner Abdul Rehman for which the inquiry is pending.

2. The facts giving rise to the present case are that on 4th May, 1991, 3 persons namely Mohd. Parid, Mohd. lqbal and Mohd. Ashraf were searched by the team of Police Station, Pratap Nagar, Udaipur. This search resulted in the recovery of 200 Kg. of silver. Initially a case under Section 411 was registered against the aforesaid 3 persons at the Police Station, Pratap Nagar and latter on the police found it to be a case covered by the Customs Act. Therefore, the Silver as well as the arrested persons were handed over to Superintendent (Prevention), Central Excise and Customs Jaipur who registered the case under Section 135 of the Customs Act and the regular inquiry was initiated. The aforesaid 3 arrested persons were produced before the Special Magistrate, (Economic Offences), Jaipur. The accused persons were remanded from time to time by the Special Magistrate and the bail application of the aforesaid 3 persons was rejected by the Special Magistrate (Economic Offences) Jaipur City. All the aforesaid 3 persons then moved for hail before the Sessions Judge, Jaipur City and the bail was accepted on 14th May, 1991 by the Sessions Judge, Jaipur City. It is alleged that the Customs Authorities recorded the statements of the aforesaid accused persons Mohd. Parid, Mohd. Igbal and Mohd. Ashraf under Section 8 of the Customs Act. On the basis of such statements, the Customs Authorities also apprehended the present petitioner Abdul Rehman as be accused for the offence under Section 135 of the Customs Act. The present petitioner Abdul Rehman apprehending his arrest by the Superintendent (Prevention), Central Excise and Customs for the offence under Section 135 of the Customs Act moved the bail application under Section 438 Criminal Procedure Code before the Additional Sessions Judge No. 1, Jaipur City who rejected the same by his order dated 19th June, 1991. Thereupon, the petitioner moved the present bail application under Section 438 Criminal Procedure Code before this Court on 29th June, 1991. When the matter came up before the Court on 10th July, 1991, the copies of the papers were directed to be supplied to the Special Public Prosecutor, the matter was posted for 19th July, 1991 and it was ordered that in the meantime the petitioner shall not be arrested. The interim order was extended from time to time and now the matter has come up for final orders.

3. The learned Special Public Prosecutor submitted that such application under Section 438 Criminal Procedure Code was not maintainable because the customs officers are not the police officers and therefore, no' direction can be issued under Section 438(3) Criminal Procedure Code against the arrest of the present petitioner. It was also submitted by the Special Public Prosecutor Shri K.N. Shrimal that it has already been held by the Supreme Court in AIR 1970, S.C.P. 1065 in Illias v. The Collector of Customs , Madras that even though under the new Customs Act of 1962 a Customs Officer has been vested with many powers which were not to be found in the provisions of the old Sea Customs Act of 1878, he cannot be regarded as a "Police Officer". Shri Shrimal has further submitted with reference to 1991 R.C.C. p. 415, Swaroop Singh v. State of Rajasthan a decision of the Co-ordinate Bench of this Court that it has been held that the provisions of Sections 437 and 439 do not apply before cognizance has been taken of an offence by the Court and therefore, Shri Shrimal has argued that once it has