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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S RATNAVEL PANDIAN, THE HONOURABLE MR. JUSTICE K.M. NATARAJAN & THE HONOURABLE MR. JUSTICE S. A. KADER
Roshan Beevi and Others - Appellant
Versus
Joint Secretary To The Government of Tamil Nadu, Public Department (Law and Order) and Others - Respondent
Case No : W.P. Nos. 5016, 5244, 6192, 6193 and 6800 of 1983
Decided On : 09 November 1983
The writ petitions challenge the validity of detention orders passed under Section 3(1) of the COFEPOSA Act. (!)
Detention by Customs officials for inquiry or interrogation does not constitute arrest, even if under the guise of such activities. [21000190610001][21000190610002]
Questions framed for consideration: (1) When is a person said to be under arrest? (2) Are 'custody' and 'arrest' synonymous? (3) Can Customs officials detain persons for inquiry under the Customs Act? (4) Does such detention amount to arrest? (5) Is detention beyond 24 hours without production before a Magistrate violative of Article 22? [21000190610004] (!) (!) (!) (!) (!)
The term 'arrest' derives from French 'arrester' meaning to stop or stay, signifying restraint of the person; legally, it involves deprivation of liberty by legal authority, often requiring seizure, touching, or detention understood by the person. [21000190610011][21000190610012] (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
'Custody' implies guardianship, safekeeping, confinement, or control, varying by context, and does not always equate to arrest. [21000190610013] (!) (!) (!) (!) (!)
Custody and arrest are not synonymous; every arrest involves custody, but custody does not always amount to arrest. [21000190610027]
Customs officers under Sections 107 and 108 of the Customs Act may require or summon persons for inquiry regarding smuggling, but this does not constitute arrest or custody equivalent to arrest; the person is not an accused at that stage. [21000190610005][21000190610007][21000190610009][21000190610017][21000190610021][21000190610025]
Arrest requires compliance with Section 46 CrPC: actual touching or confinement of the body, unless submission by word or action; mere words, gestures, or restraint without these modalities do not suffice. [21000190610028] (!) (!) (!) (!) (!) [21000190610029][21000190610030][21000190610031][21000190610032] (!) (!) (!) (!)
Statutory powers must be exercised in the prescribed manner; deviation renders the action invalid. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Detention under Sections 107 or 108 beyond reasonable time, or prolonged custody without formal arrest under Section 104, is unauthorized and may taint statements as involuntary; such actions risk violating personal liberty. [21000190610024][21000190610025] (!) [21000190610043]
Article 22(2) applies only after formal arrest and detention in custody; production before Magistrate must occur within 24 hours excluding journey time; Section 104(2) of Customs Act aligns with this. [21000190610014] (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Customs inquiries under Sections 107/108 are statutorily sanctioned procedures not violative of Article 21; statements are admissible unless proven coerced. [21000190610007][21000190610022][21000190610023]
Writ petitions remitted to Division Bench for merits consideration in light of this judgment. (!)
Ratnavel Pandian J.
The above five writ petitions under Article 226 of the Constitution of India have been filed challenging the legality and validity of the order of detention in the respective cases, passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act).
2.One of the main grounds raised in all these writ petitions on the strength of an observation made by a Division Bench of this Court consisting of Balasubrahmanyan J. and M.N. Moorthy J. inKaisar Otmarv.State of Tamil Nadu, 1981 L.W. Crl. 158, is that the detenu should be deemed to have been arrested from the moment they were taken into custody by the Customs officials, even if it be under the guise of any inquiry or interrogation, and that their subsequent custody with the Customs department without being produced before the Magistrate within 24 hours as envisaged in Article 22(2) of the Constitution of India, would amount to an illegal detention and any statement or statements recorded from those persons by the Customs Omciats during this prolonged period of custody should be held to have been made by the detenues not on their own volition or free will and hence such statements cannot be made use of by the detaining authorities for drawing the requisite subjective satisfaction for passing the orders of detention.
3.As two of us constituting a Division Bench viewed that the interpretation of the word 'arrest' and the observation regarding the formal mode of arrest, given by the earlier Division Bench of this court in Kaisar Otmar's case, are not in consonance with Section 46 Crl. P.C. and the view taken by a Full Bench of this court inCollector of Customsv.Kothumal, 1967 AIR(Mad) 263, and the decision of a Division Bench of the Bombay High Court inHarbans Singhv.State, 1970 AIR(Bom) 79, and that such an interpretation and observation need reconsideration by a Full Bench of this court, we placed the matter before the Hon'ble the Chief Justice for necessary orders. Accordingly this batch of writ petitions have now been referred to this Full Bench.
4.The relevant portion of the judgment in Kaisar Otmar's case, which led to this reference to this Full Bench, reads thus :-
"Our legal system does not require that an arrest should be attended with any ritual or even that it should be ostentatious. It is not necessary that a man in order to get arrested should be taken prisoner; nor does the law regard an arrest only the ceremonial hand-cuff or machine. An authority is said to arrest another man if it prevents the latter from willing his movements and moving according to his will. Under enlightened modern conditions it seldom becomes necessary for any police officer or other authority empowered to make arrests to actually seize or even though a person's body with a view to his restraint. Utterance of a guttoral word or sound, a gesture of the index finger or hand, the sway of the head or even the flicker of an eye are enough to convey the meaning to the person concerned that he has lost his liberty." *
In Kaiser Otmar's case, according to the detenu, he was taken for interrogation by the preventive officers of the Customs department on the evening of 15th January, 1981 and thence forward was under their custody continuously till 4 p.m. on 18th January, 1981, when he was produced before the Chief Metropolitan Magistrate and remanded to judicial custody, after 70 hours from the time of his being taken into custody i.e. his arrest. It was submitted on behalf of the respondents therein that the detenu was taken into custody on the 15th evening for inquiry and interrogation till 18-1-1981, during which he made a confessional statement leading to the recovery and seizure of smuggled goods and that he was actually arrested only at 11 a.m. on 18-1-1981, under Section 104(1) of the Customs Act, and that as the detenu was produced before the Magistrate on 18-1-1981 itself within
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