IN THE HIGH COURT OF JUDICATURE AT PATNA CR WJC No 833 of 2011 1. Rajjan Lal Sri Lal Man Vill-Usarna, P.S-Itojha, Dist-Lucknow(U.P) 2. Durga Prasad Singh, son of Sri Ramashray Singh Resident Of Binda Nagar, Pone Road, Near Police Chowki, P.S-Shukla Ganj, Dist-Unnaw (U.P) Versus 1. The Union of India through Commissioner of Customs, 4th Floor Central Revenue Building, Birchand Patel Path, Patna-1 2. The Assistant Commissioner, Customs (P) Division, Imli Chatti Muzaffarpur 3. The Superintendent of Customs (Preventive) Cum Seizing Officer, Customs Division, Imli Chatti Muzaffarpur *** For the petitioners : Mr Prabhat Ranjan, Advocate For the Customs : Mrs Archana Meenakshee, Advocate Mrs Archana Sinha, Advocate *** 4 27.09.2011 This application is for a writ of habeas corpus. It was originally filed in respect of two persons but during pendency of the writ petition, petitioner No 2 Durga Prasad Singh was released on bail in a separate proceeding by this Court and, as such, his name has been deleted by order dated 07.09.2011. The writ petition survives only in respect of petitioner No 1. The question, involved in the present case, is as to what is the status of an accused person who is on judicial remand and the investigation being complete, the Magistrate being not in a position to take cognizance, whether the accused can be remanded to judicial custody or retained in judicial custody in such a situation where the case is for an offence under the Customs Act, 1962 (hereinafter referred to as the Act). Two public carrier trucks allegedly loaded with betel nuts of third country origin were seized under Section 110 of the Customs Act, 2 1962 by the customs authorities on 07.06.2011 at 6 pm. Two persons that is the petitioners were detained allegedly being custodians thereof. They were detained and questioned on the 07th and the 08th of June, 2011 purporting to be under Section 108 of the said Act. Allegedly, it was then found that the two persons were liable to be punished under Section 135 of the said Act and, as such, authorisation of the Commissioner (Customs), Patna to arrest them was sought for. The authorisation was granted by the Commissioner to arrest the said persons under Section 104 of the said Act and, as such, in view of the authorisation, the two petitioners, who were detained since 07.06.2011, were shown to be arrested on 09.06.2011 at 5.15 pm under Section 104 of the said Act and forwarded on the same day to the Court of Presiding Officer, Special Economic Offences, Muzaffarpur who, on the same day that is 09.06.2011, registered Custody Case No 2 of 2011 and remanded them to judicial custody. On 09.08.2011, on behalf of the two petitioners, application for bail in terms of Section 167 (2) of the Code of Criminal Procedure (hereinafter referred to as the Code) was filed. The learned Presiding Officer of the Court of Economic Offences noticing that upon completion of investigation, on 05.08.2011, a complaint was filed in the Court which was within 60 days of arrest of the petitioners, their application was rejected. They were then apparently remanded to custody and, as noticed above, petitioner No 1 apparently continues in custody. The complaint, as filed, is Annexure-2 to the writ application, though seeks prosecution of the petitioners under Section 135 3 of the Act, there is no mention of any sanction having been obtained from the Commissioner, the significance of this is that in terms of Section 137 (1) of the Act, the Court is not competent to take cognizance of the offence and proceed because the said Section provides that no Court shall take cognizance of offence punishable under Section 135 of the Act itself without previous sanction of the Commissioner. The result is that though the investigation is complete and there is no enquiry or trial pending before the Court and the Court being incompetent to proceed further, the petitioner is being detained, pursuant to remand order, in custody. Thus, the question whether there can be a remand in such a situation? In order to appreciate the legal position in this regard, reference to various provisions of the Code and the provisions of Act is necessary. We also have to deal with the judgment of Division Bench of this Court in the case of Nagendra Prasad and Another –Versus- State since reported in 1987 PLJR 310 [1987 Criminal Law Journal 215]. The contention, on behalf of the petitioner, is that no sooner the investigation, in so far as the petitioner was completed and the complaint was filed, the power to remand in terms of Section 167 (2) of the Code exhausts unlike in cases where such power can be found with reference to Section 209 and Section 309 (2) of the Code. In the present case, it is pointed out that Magistrate cannot do anything in the matter till sanction for prosecution is granted which, admittedly, is not being granted. The case can be tried summarily. To the contrary, initially a stand was taken by the Customs Department that in view of the Division Bench judgment of this Court in the case of Nagendra Prasad (supra), 4 the provisions of Section 167 (2) of the Code was not applicable to Customs cases and if petitioner wanted to be released on bail then he had to apply in terms of Section 437 of the Code. His remand, without cognizance being taken, was, thus, valid. It is correctness or otherwise of these two rival contentions that have to be decided. First, we may notice the Division Bench judgment of this Court in the case of Nagendra Prasad (supra). In that case, what was decided by this Court was that the provisions of Section 167 (2) of the Code are wholly inapplicable in respect of customs cases. Once a person is arrested for a customs offence then he has a right to apply for bail in terms of Section 437 of the Code and it follows from that if a Court has a power to grant bail under that provision, it has inherent power to refuse bail and consequently remand the accused to judicial custody. Normally, we would be bound by the said Division Bench judgment and consequently dismiss this application but learned counsel for the petitioner has drawn our attention to a later judgment of the Apex Court directly on the issue in the case of Directorate of Enforcement –Versus- Deepak Mahajan and Another since reported in AIR 1994 Supreme Court 1775 [(1994) 3 Supreme Court Cases 440]. In the said decision, the question squarely for consideration was whether Section 167 (2) of the Code is applicable in case of customs offences and, in particular, in respect of persons arrested under Section 104 of the Act. The said case arose from a Full Bench judgment of the Delhi High Court of five Judges which has held that the provisions of Section 167 of the Code were not applicable to customs cases. The said Full Bench of five Judges of the 5 Delhi High Court had overruled a Full Bench decision of the Delhi High Court of three Judges in the case of Union of India –Versus- O P Gupta. The Apex Court, in no uncertain terms, held that provisions of Section 167 (2) of the Code applied to customs offences with all rigours. Thus, in our view, the Division Bench judgment of this Court in the case of Nagendra Prasad (supra) looses its binding precedent. Therefore, we have now to see what the consequence is. First, we may notice that Customs Act is a special Act dealing with special subject and has various provisions with regard to enforcement of the provisions of the said Act including arrest and prosecution for contravention of the provisions of the said Act. Thus, in terms of Section 4 (2) of the Code read with Section 5 thereof, if there is provisions in the special Act, to the contrary, the provisions of the Code would not apply and consequently if the provisions of the Code are not in conflict with the provisions of the special Act in regard to investigation, enquiry or trial of offences, the Code would apply. Section 4 (2) and Section 5 of the Code reads as under: “4. Trial of offences under the Indian Penal Code and other laws.-(1) … … … (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 5 Saving.-Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law 6 for the time being in force.” Now we may refer to Section 104 of the Act which is quoted hereunder: “104. Power to arrest.- (1) If an officer of customs empowered in this behalf by general or special order of the Commissioner of Customs has reason to believe that any person in India or within the Indian Customs waters has been guilty of an offence punishable under section 132 or section 133 or section 135 or section 135A or section 136, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested under sub-section (1) shall, without unnecessary delay, be taken to a Magistrate. (3) Where an officer of customs has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer- in-charge of a police station has and is subject to under the Code of Criminal Procedure, 1898. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence under this Act shall not be cognizable.” A reference to sub-section (1) of Section 104 of the Act would show that it authorises an empowered officer of the Customs in certain circumstances to arrest a person. Sub-section (2) of the Act provides that he must be produced before the Magistrate without unnecessary delay. Here, we may point out that though there is no period fixed for his production does not mean that he could be detained at will because the said period is prescribed by Article 22 (2) of the Constitution of India itself. The person arrested must be produced before a Magistrate within 24 hours. Then we have sub-section (3) of the Act thereof which provides that the empowered officer of the Customs would have the same powers as Officer-in-charge of Police Station has in terms of Code. What 7 will happen to the arrested person after he is taken to a Magistrate is not provided under the Act. Therefore, we have now to refer to sub-section (2) of Section 167 of the Code because in effect sub-section (1) of Section 167 of the Code is covered by the earlier provisions of Section 104 of the Act, as noticed above. As noticed earlier, the Apex Court has now settled the matter in the case of Directorate of Enforcement –Versus- Deepak Mahajan and Another (supra) that Section 167 (2) of the Code would apply. Thus, it authorises the Magistrate, before whom the arrested person is produced, to remand the person so arrested of customs offence to judicial custody in terms of Section 167 (2) of the Code. We would only like to add few things here to clarify the situation. Firstly, once a person is arrested of an offence then two things flow. Firstly, there must be a power to retain him in custody, either police or judicial. In other words, there must be power on an authority to remand him. Unless there is a power to remand and retain him in custody, there would be no question of the arrested person praying for bail. It is only if he is retained in custody pursuant to a judicial the cause to pray for bail under Section 437 of the Code would arise. We may only refer to what was said by the Apex Court in the case of Natabar Parida and others –Versus- State of Orissa since reported in AIR 1975 Supreme Court 1465 and, in particular, what is said in paragraph-5 thereof : “It may be emphasised here that the Court will have no inherent power of remand of an accused to any custody unless the power is conferred by law. In the order under appeal the High Court without reference to Section 344 of the old Code, seems to have assumed that such a power existed. That is not correct.” In our view, it would, thus, be seen that power to remand in 8 fact would not flow from Section 437 of the Code simpliciter. As held in the case of Deepak Mahajan (supra), it flows from Section 167 (2) of the Code. Now, we may refer to sub-section (4) of Section 104 of the Act which specifically states that offences under the Act would be non- cognizable offence. Then if we may refer to Section 138 of the Act which, inter alia, provides that all offences under the Act, except some exceptional cases with which we are not concerned, shall be tried summarily. Now, we may refer to Section 137 (1) of the Act which clearly provides that no Court shall take cognizance of any offence under, inter alia, Section 135 of the Act except with the previous sanction of the Commissioner of Customs. Thus, there is a total embargo on the jurisdiction of the Magistrate on taking cognizance unless sanction by the Commissioner is accorded. Section 104 (4) of the Act makes customs offences to be non-cognizable offences. At this stage, we may refer to Section 135 of the Act wherein generally there are two sets of punishment for certain specified offences with which we are not concerned. The punishment is minimum of one year upto seven years and in other cases it is upto three years and fine or both. But in either of the case, it is the same very Court which has to take cognizance and proceed with trial. There is no provision for enquiry or commitment. We are drawing this distinction again and again for a particular reason. The reason is that we are aware of cases of this Court and the Apex Court which have held that the power to remand does not cease with Section 167 (2) of the Code and once chargesheet is filed, the power to remand continues by virtue of 9 Section 209 and Section 309 (2) of the Code. In State of Uttar Pradesh – Versus- Laxmi Brahman and Another, (1983) 2 Supreme Court Cases 372, it has been held that after the filing of the police report under Section 170 of the Code, the proceedings before the Magistrate till the commitment is made under Section 209 of the Code, would be an enquiry under Section 2 (g) of the Code and although Section 167 (2) of the Code ceases to apply, the Magistrate can remand the accused under Section 309 of the Code. The Court was of the view that the view of the High Court that there being no power to remand, bail had to be granted was erroneous. The decision of this Court on this aspect of the matter is also there but, as noticed above, they are with regard to cases which are required to be committed to the Court of Session by a Magistrate after cognizance. They are not authority for cases where the provisions of Section 209 of the Code or for that matter Section 309 (2) of the Code is not applicable like the present customs case. In our view, the result would be that if the investigation is continuing in a customs offence beyond 60 days then by virtue of Section 167 (2) of the Code, it would be a case for compulsive bail or else if it is completed but in absence of sanction, the Magistrate, not being competent to take cognizance and, hence, incompetent to proceed further in the matter then bail has to be granted as it is not a case where Section 209 or Section 309 (2) of the Code would apply. It cannot be said that in absence of jurisdiction to take cognizance, complaint having been filed, there is any enquiry or trial pending. We may add a caveat here. We are cognizant of cases 10 decided by various Courts including the Apex Court which have held that cognizance without sanction is not barred. They are cases which do not deal with Customs Act. They are cases primarily dealing with Section 197 of the Code or the provisions of the Prevention of Corruption Act where the question of requirement of sanction is dependent upon facts to be ascertained which can be ascertained in course of enquiry or trial but in a case like this of customs offence, the complaint itself, can only be for a customs offence like Section 135 of the Act and if that be so, there cannot be any doubt whatsoever about requirement of prior sanction. It is a customs offence requiring sanction. The statutory embargo is clear from Section 137 (1) of the Act. Thus, in absence of sanction, the Magistrate is incompetent to take cognizance in the matter. Therefore, once a complaint is filed for an offence under Section 135 of the Act, the Magistrate cannot proceed either with enquiry or trial in any respect unless sanction is accorded which, in the facts of the present case, has been withheld by the Commissioner. We may notice one thing here that the whole object of providing for such a contingency of obtaining sanction for prosecution under the Act is that before the Department take steps to prosecute a person, a senior officer like the Commissioner of Customs must have opportunity to apply his mind whether it is a fit case for sanction or not. Regrettably, the facts of the present case show that the other authorities of the Customs have pre-empted the Commissioner. As noticed above, the petitioners were detained on 07.06.2011 and virtually subjected to custodial interrogation. On 09.06.2011, the officers sought authorisation 11 for arrest because in terms of Section 104 (1) of the Act, it is only an empowered officer who could arrest. Thus, the petitioner had been virtually in custody from 07.06.2011 to 09.06.2011 when they were produced before Magistrate. This is highly unsatisfactory position. Then again, without proper sanction, only to defeat the right of the arrested persons, a complaint is filed effectively denying them right under Section 167 (2) of the Code. Then having effectively denied the right of bail under Section 167 (2) of the Code, the officers apply for sanction. Here, we may refer to the counter affidavit filed on behalf of the Customs Department and in particular to what is stated in paragraphs- 7 and 8 thereof. We would note that the Commissioner of Customs (Preventive), Patna observed that investigation should be completed as fast as possible and the investigations should clearly bring out the evidences which could be used in prosecution. The aim of investigation, inter alia, should also be to get the main smugglers in addition to the drivers and the khalasis. The Assistant Commissioner (Customs) Preventive Division, Muzaffarpur was directed to complete the investigation first in all aspects and then to submit the proposal for sanction of the prosecution against the alleged persons. Thus, sanction to prosecute was withheld. It is apparent that realising the situation, in paragraph-8 of the counter affidavit, the respondent-Department surrenders. It is clearly stated therein that the Department will not contest application of the petitioner for orders by the Hon’ble High Court of Judicature at Patna for grant of bail to them. Thus, we have no option but to hold that sanction has been 12 consciously withheld in the present case and that being so, the Magistrate being incompetent to take cognizance of offences under Section 135 of the Act till sanction is accorded, it cannot be deemed that there is any enquiry or trial pending for the time being as against the accused petitioner. If that be so then the power under Section 167 (2) of the Code to remand having expired with completion of investigation in respect of the petitioner, there is no further power to remand the accused persons as Section 209 or for that matter, Section 309 (2) of the Code is inapplicable to the customs case. Of course, the position would be different if the Department had filed the complaint alongwith sanction which it was expected to do. In that case, thereafter one could legitimately refer to Section 437 of the Code for bail or refusal thereof pending trial.. In the result, it has got to be held that the detention of the petitioner in judicial custody is without authority of law. He must be released forthwith on his furnishing bonds of Rs 20,000/- (Rupees Twenty Thousand) with two sureties of the like amount each to the satisfaction of Presiding Officer, Special Economic Offences, Muzaffarpur subject to the conditions as may be reasonably specified by the Court concerned. The writ application is allowed. Let the order of this Court be communicated to the Court concerned by FAX at the cost of the petitioner. M.E.H./ (Navaniti Prasad Singh) (Ashwani Kumar Singh)