ORDER
S.S. Sandhawalia, C.J.
1. Does Section 104 of the Customs Act, 1962 read with Sections 4(2), 436 and 437 of Code of Criminal Procedure, 1973, empower a Magistrate to remand to custody a person suspected of the commission of any non-bailable offence under the aforesaid Act is the question in this criminal miscellaneous case admitted to hearing by the Division Bench in view of the significance of the issue involved.
2. The facts are not in dispute and lie in a narrow compass. On 24th of Nov. 1985 the two petitioners were arrested by a Customs Officer for allegedly having in their possession foreign goods, namely, Chinese primary gold weighing 1122 grams valued at Rs. 2,42,352, which had apparently been smuggled into India from Nepal. The prosecution Under Section 135 of Customs Act (hereinafter to be referred to as the ‘Act’) having thus been initiated, the two petitioners were thereafter produced in person before the court of the Chief Judicial Magistrate, Patna. By his order (annexure 2) the learned Chief Judicial Magistrate noticed that the petitioners had been produced in connection with the case Under Section 135 of the Act and Section 8 of the Gold Control Act read with Section 13 of the Foreign Exchange Regulation Act and directed their remand to the Central Jail, Patna, till the 6th of Dec. 1985 awaiting prosecution report. The remand of the two petitioners was thereafter extended and on the 9th of Dec. 1985 an application for bail on their behalf was moved. On 23rd of Dec. 1985 the learned Chief Judicial Magistrate recorded a detailed order rejecting the said application. The case of the petitioners was later transferred to the court of Mr. N. K. N. Sinha, Presiding Officer of the Special Court (Economic Offences) at Muzaffarpur for disposal. Before him another bail application was preferred which also met the same fate of rejection (vide order dt. the 7th of Feb. 1986). The matter was thereafter carried before the Sessions Judge, Muzaffarpur who, on the 3rd of Mar. 1986, declined the prayer for bail as well.
3. In this criminal miscellaneous petition at the motion stage itself it was sought to be urged that the Magistrate had no power to remand the petitioners to custody for offences under the Customs Act and further that the provisions of Section 167(2) of the Code of Criminal Procedure, 1973 (hereinafter to be referred Court to as the ‘Code’) would also be attracted to criminal prosecutions thereunder. Noticing the significance of the issues involved, the matter was directed to be heard by a Division Bench.
4. As stands noticed at the outset, the issue herein would turn on the language of Section 104 of the Act and Sections 4(2) and 437 of the Code, the relevant parts whereof may be read in the beginning :
Customs Act
104. power to arrest.-(1) If an officer of customs empowered in this behalf by general or special order of the Collector 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 135, 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 (5 of 1898).
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), an offence under this Act shall not becognizable.
Code of Criminal Procedure
4(1)….
4(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 investigation, inquiring into, trying or otherwise “dealing with such offences.
437(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought beforefor a Court other than the High Court or of Session, he may be released on bail, but –
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life’
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previousiy convicted on two or more occasions, of a non-bailable and cognizable offence;
Provided further….
Provided further that….
Provided also that….
(2)….(3)….
(4) An officer or a Court releasing any person on bail under Sub-section (1) or sub- (2) shall record in writing his or its reasons or special, reasons for so doing
(5) Any Court which has released a person on bail under Sub-section (1) orSub-section (2) may, if it considers it necessary so to do, direct that suchbe arrested and commit him to custody
(6)….(7)….
5. To clear the decks for the true appraisal of the issue, one may first notice and disposeof certain aspects on which there is no controversy and, indeed, with regard to which learned Counsel for both the parties werethemselves agreed. A reference to Section 135 ofthe Act would show that apart from other
penalties, the evasion of duty, or of any prohibition is also made serious criminal offences. By virtue of Section 135(1)(b)(i) and Sub-section (2) thereof the punishment for such offences may extend to seven years and fine in graver offences whilst in other cases the imprisonment may extend to three years or with fine or with both,.
5A. Admittedly the Act itself does not provide for the procedure of criminal trials or the grant of bail and consequently the issue whether offences Under Section 135 of the Act would be non-bailable is governed by Schedule I of the Code. Part II thereof relating to classification of offences against laws other than the Indian Penal Code makes it manifest that all these offences punishable with three years’ imprisonment and upwards would be non-bailable and triable by a Magistrate of the first class. However, by virtue of Sub-section (4) of Section 104 of the Act all offences under the said Act shall not be cognizable.
6. Again it was not now in dispute at all that a Customs Officer, though he has the power of arrest and other analogous powers, is yet not a Police Officer stricto sensu. Earlier this question was not entirely free from doubt but all controversy on this aspect have been set at rest by the Constitution Bench judgment in Ramesh Chandra v. The State of West Bengal (see paras 24 and 25 of the report) which, in turn, has been unhesitatingly followed thereafter in Illias v. Collector of Customs, Madras , Now, once it is held that a Customs Officer is not a Police Officer, it would necessarily follow that Section 167 of the Code which clearly and imperatively refers to an investigation by the Officer-in-charge of a police station or other Police Officers would not be attracted. All argument on this score is thus obviated, and both Mr. Braj Kishore Prasad, learned Counsel for the petitioners, and Mr. Pandey for the State were unanimous that the provisions of the said section cannot be invoked herein.
7. The sheet-anchor of Mr. Braj Kishore Prasad’s contention on behalf of the petitioners is that herein there exists a serious lacuna in the law and the same is of a nature which cannot be bridged by any interpretative exercise. Taking his cue from the observation in Natabar Parida v. State of Orissa the Court will have no inherent power of remand an accused to any custody unless the power is conferred by law, learned Counsel submitted that herein both the Act and the Code were silent on the particular situation of the production of the petitioners by the Customs Officer before a Magistrate. It was the stand that under the present Code Under Section 309 (2) (unlike the corresponding provisions of the earlier Section 344 of the old Code) the power to remand an accused by warrant to custody is conferred only after taking cognizance. Since in the present case as yet no complaint had been and, indeed, even now has been filed, no cognizance has been or could possibly be taken and, therefore, it was submitted that the Magistrate was denuded of any power to remand the petitioners to custody even after rejecting the application for bail. As a matter of fact, learned Counsel had to go to the logical extreme of contending that even though the Magistrate Under Section 437 may expressly reject the prayer for bail on behalf of the accused persons, yet he must set the persons accused at liberty forthwith thereafter because of the want of any provision authorising such detention at the pre-cognizance stage. Whilst conceding that this would be utterly illogical, counsel submitted that the Courts have no choice but to fold their hands in face of what was termed as a legislative casus omissus. Basic reliance for this somewhat curious stand is on the Division Bench judgment of the Delhi High Court in Dalam Chand Baid v. Union of India 1982 Cri LJ 747.
8. Ere one turns to precedent, it is inevitably refreshing to first examine the issue on principle and then on the language of the statute. The larger purpose of the Customs Act is to protect the fiscal and the commercial interests of the nation. The sanction provided therefore is two-fold, namely, confiscation and imposition of penalties provided in the Act and also to make serious violation thereof as criminal offences, which the statute views with great disfavour and makes them punishable with heavy hand. Undoubtedly, these offences sometimes go to the root of the very material sources of revenue derived by the State from customs. As already noticed,certain offences Under Section 135 are of a gravity which are now prescribed to be punishable with imprisonment up to seven years. Not only that, both sub-sections (1) and (2) in the particular cases lay down that in the event of a conviction the imprisonment shall not be for less than one year except for special and adequate reasons. Even the discretion of the Court with regard to the special and adequate reasons is then severely fettered by Sub-section (3) which lays down that the ordinary considerations of imposing a lenient sentence shall not in such a case be considered as special and adequate reasons for awarding sentence of imprisonment for a term of less than one year. It is thus patent that the law views the offences under the Act with great seriousness and it is equally necessary that the State must be able to find out the ramifications of such smuggling or other activities which eat into the coffers of the State. There can thus be no doubt that the instant release of persons involved in serious revenue crimes would hamper the investigation and act as a damper to further attempts to collect information and evidence. The basic interpretative approach to the penal provisions of the Act, therefore, has to be governed by the aforesaid background.
9. Now, to give teeth to forces protective of revenue of the State, Section 104 confers a wide ranging power on an Officer of Customs to arrest any person whom he has reason to believe to have been guilty of an offence punishable Under Section 135. Once that is done, Sub-section (2) mandates that every such person shall, without unnecessary delay, be produced before a Magistrate. Apart from the Act, this is even otherwise imperatively provided by the Code and Article 22(2) of the Constitution itself. The core of the issue, therefore, is whether the Magistrate before whom such a person is produced has power to refuse bail to the suspected offender and in that event remand him to custody. Or, whether it is a pointless and purposeless exercise wherein a Magistrate has no choice but to forthwith set such person at liberty even after holding that there is no adequate reason to grant bail and rejecting the application.
10. The Customs Act does not itself prescribe any procedure whatsoever for the grant or refusal of bail to persons accused of offences Under Section 135 thereof or for their subsequent custody or trial thereafter. Undoubtedly in that situation Sub-section (2) of Section 4 of the Code would be attracted and all the procedural provisions of the Code would be applicable. Section 4(2) of the Code provides that all offences under any law other than the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code. This, however, is subject to the limitation that in case there is some enactment regulating the manner or place of investigating, inquiring into or trying or otherwise dealing with such offences, the provision contained in the special enactment would prevail as against the general corresponding provisions of the Code. In the matter of the provisions of bails and bonds, Chapter XXXIII of the Code would, therefore, be attracted straightway in regard to offences under the Act by virtue of Sub-section (2) of Section 4 of the Code. This is necessarily so because the provisions regarding bails and bonds have no place in the Act at all and the provisions of the Code cannot possibly be subject to any such corresponding provision. It could not be seriously contested before us that with regard to the subject of bails and bonds the provisions contained in Chapter XXXIII of the Code would automatically be attracted even with respect to offences under the Customs Act.
11. Once it is held as above, a fortiori the provisions of Sections 436 and 437 in Chapter XXXIII would become plainly applicable. As already noticed, so far as offences Under Section 135 are concerned, they are non-bailable in nature and consequently what comes directly into play are the provisions of the latter Section 437 itself. The narrower question, therefore, is whether the provisions of this section authorise the detention in custody of a person accused of an offence Under Section 135 before the Magistrate in the event of the latter rejecting the prayer for bail.
12. Now it is true that Sub-section (1) of Section 437 does not in terms employ the words “remand to custody”. This was sought to be made the kingpin of the argument on behalf of the petitioners by their learned Counsel, Mr. Braj Kishore Prasad. It was sought to be contended that in the absence of these words, the power to direct custody is necessarily denuded. Rather ingeniously it was sought to be contended that the legislature where so minded has employed the words “commit him to custody” in the subsequent Sub-section (5) thereof and it is only if such phraseology is employed that such a power can be read into the provision.
13. The aforesaid contention, despite the ingenuity with which it is sought to be advanced, has only to be noticed and rejected. Plainly enough the words “custody” and “liberty” are stark antonyms. A Magistrate cannot possibly first reject the prayer for bail of the person produced and also at the same time forthwith set him at liberty without restraint. That, in my humble opinion, would be a logical absurdity. It needs no great erudition, to hold that the refusal to grant bail is the imposition or continuance of custody. If there is an express power to refuse bail, there is necessarily a power to retain or place a person in custody as a consequence of that refusal. To hold that a Magistrate has the discretion to decline bail but has no power to remand to custody would thus be a contradiction in terms.
14. It deserves highlighting that Section 437 visualises the situation where the suspected person has been arrested and is brought before the Magistrate in custody. The language of Sub-section (1) of Section 437 is, therefore, necessarily modulated to that situation. Consequently in the opening part of Sub-section (1) it provides that such a person may be released on bail and in Clauses (i) and (ii) it lays down the conditions where such person shall not be so released. It is thus obvious that the person produced being already in custody, the language would not direct a double custody by re-employing the said word. All that is required in such a situation is the continuance of such an arrest and custody thereafter or a release therefrom. That is why Sub-section (1) of Section 437 repeatedly employs the word ‘release’ in contradiction to custody in which the person already is. What, however, is further significant is that Clauses (i) and (ii) of Sub-section (1) provide in specific terms in which such a person produced in custody shall not be so released. What is the true connotation of the phrase “shall not be so released” in such a context? To my mind, it is nothing more than an express mandate that in the event of refusal of bail such a person shall be kept or continued in custody. The mandate of the law that he shall not be so released is only a negative form of couching the command that he shall be kept in custody. That being so, it is virtually explicit and in any case it is necessarily implicit in the statute that there inheres a power to remand to custody. Reading it otherwise, to my mind, would be doing plain violence to the language of the statute and equally to the purposes and the objects behind the same. It bears repetition that in the context of Sub-section (1) the positive command or mandate to keep in custody has necessarily been couched and modulated in the reverse by the direction that he shall not be so released.
15. Yet again reference must be made to Sub-section (4) of Section 437 mandating the recording of reasons or special reasons. Now it must be realised that since Section 437 empowers the Magistrate concerned to release a person on bail and also obliges him to record reasons in writing whenever Sub-section (4) is attracted and to impose conditions envisaged by Sub-section (3), it would follow as a logical necessity that the court has the power to remand the person suspected of the offence Under Section 135 of the Act who has been arrested and produced before the court to custody in a case where it does not consider it proper to release him on bail or where the person fails to furnish the bond or refuses to be released on bail. If the power to release on bail, as of necessity, includes the power to deny bail, then by necessary implication it confers on the Magistrate a power to remand him to judicial custody. This position is made abundantly clear by Sub-section (5) of Section 437, This confers on the Court a power to direct that any person earlier released on bail by it under Sub-section (1) or Sub-section (2) be arrested and committed forthwith to custody if it considers it necessary to do so. This power would be equally in respect of a person suspected of an “offence under the Act who has been arrested by the Officer of Customs produced before the Court. Thus, Sub-section (5) of Section 437 in terms contemplates that the Court has power to commit such a person to custody. The mere fact that such language in terms has not been employed in Sub-section (1) of Section 437 appears to be of little significance. It is a settled canon of construction that all the sub- sections of a section are to be construed harmoniously and not in isolation from each other. Sub-section (1) therefore is not to be narrowly construed as hermetically sealed in itself but along with other sub-sections including Sub-section (5), all of which have to be read together. When so done, indeed the hypertechnical reliance of the learned Counsel for the petitioners on Sub-section (5) would vanish and its provisions in fact boomerang on his stand.
16. Lastly one must hearken back to the golden rule that where two constructions are possible, one must necessarily avoid the one which leads to anomalous or mischievous results. learned Counsel for the petitioners was himself fair enough to concede that the stand which he was taking would lead to illogical results patently in so far as the Magistrate may refuse bail and yet be obliged to release such a person unconditionally. One must, therefore, obviously tilt against such an interpretation of Section 437 which in the context of the Customs Act would render it both pointless andpurposeless. This apart, to my mind, the construction advocated on behalf of the petitioners would lead to mischievous results. If persons accused of serious crimes against the revenue and indulging in smuggling and subverting the commercial interest of the nation have to be necessarily set at liberty by a Magistrate after they are produced before him by the Customs Officer, the dangers consequential from such an interpretation can be well imagined. For these additional reasons as well, the stand on behalf of the petitioners has necessarily to be rejected.
17. It remains to advert to the Division Bench judgment in Dalam Chand Baid v. Union of India 1982 Cri LJ 747 (Delhi) (supra) which, as already noticed, is the corner stone of the learned Counsel for the petitioners. Undoubtedly it lends firm support to their contentions. However, a very close analysis of the judgment would indicate that the larger approach to the problem was somewhat warped by not noticing the crucial provisions of Section 4(2) of the Code and brushing away somewhat brusquely the counsel’s reliance on Section 437 of the Code which, in my view, substantially covers the issue. It is unnecessary to advert in detail to the individual reasoning of Dalam Chand Baid’s case. This judgment was later considered by a Division Bench judgment Of Gujarat High Court in N. H. Dave, Inspector of Customs v. Mohmed Akhtar Hussain Ibrahim Iqbal Kadar Amad Wagher (Bhatti) and expressly dissented from. Chief Justice M. P. Thakkar (as his Lordship then was) in taking a contrary view was somewhat categoric in these terms:
There is therefore no escape from the conclusion that the Magistrate before whom the person suspected by the officer of Customs, upon the officer concerned entertaining a reasonable belief that he has committed an offence Under Section 135, is produced, has the power to commit such a person to judicial custody. Unless the provision contained in Section 104 of the Customs Act to arrest the person and to produce him before the Magistrate is to be considered to be meaningless, purposeless and a futile exercise undertaken for no purpose and unless we shut our eyes to Section 4(2) and Section 437, no other view is possible.
Yet again with regard to the broad approach to the issue, he opened his judgment with the following colourful observation:
Purposeless and Pointless’ is a phrase the existentialist philosophers may unhesitatingly employ in connection with their views on ‘life’. But a Court of law would be extremely reluctant to employ such a phrase in the context of a provision of law enacted by the Parliament in its wisdom. Considerations regarding respect for the lawmakers apart, the Court itself would be understandably anxious to interpret a provision in a manner which renders it ‘meaningless’. And if this approach is made it is impossible to assent to the proposition that the whole purpose of empowering a Customs Officer to arrest a person reasonably believed to have committed an offence under the Customs Act is to enable the Magistrate (before whom he is required to be produced within twenty-four hours) to see his face and permit him to go without anything more.
18. Yet again the Kerala High Court in Supdt. of Customs, C.I.U., Cochin v. P. K. Umberkutty 1983 Cri LJ 1860, after expressly noticing Dalam Chand Baid’s case (supra), dissented therefrom and preferred to follow the Gujarat view in N. H. Dave’s case (supra) and concluded as follows:
Thus, it is clear that the Magistrate dealing with the person arrested by virtue of the power Under Section 104(1) of the Act and produced before a competent Magistrate Under Section 104(2) of the Act has power to commit him to custody.
19. I am in respectful agreement with the view expressed by the Gujarat and the Kerala High Courts and with the deepest deference must record my dissent from the observations in Dalam Chand Baid’s case (1982 Cri LJ 747) (Delhi).
20. Lastly it may be noticed that the stand taken on behalf of the petitioners again envisages a stage of compulsory bail in the case of offences under the Customs Act till cognizance of crime is taken upon the complaint. Such a notion of compulsory bail has also been authoritatively ruled out by their Lordships of the Supreme Court in a somewhat analogous context of commitment proceedings and the power of the Magistrate to remand to custody thereunder. Reversing the Allahabad High Court’s view their Lordships observed as follows in State of U.P. v. Lakshmi Brahman 1983 All LJ 419 : 1983 Cri LJ 839 (SO :
The view taken by the High Court introduces a stage of compulsory bail not envisaged by the Code and, therefore, also the view of the High Court cannot be upheld. According to the High Court after the accused is brought before the court along with the police report, the Magistrate must forthwith commit the accused to the Court of Session because the Magistrate would have no jurisdiction in the absence of any provision to remand the accused to custody till the order committing the case to Court of Session is made. The view with respect is wholly untenable and must be set aside.
It is plaint that the aforesaid observation by way of analogy lends the strongest assurance to the stand taken on behalf of the respondent.
21. To finally conclude, the answer to the question posed at the outset is rendered in the affirmative and it is held that Section 104 of the Customs Act read with Sections 4(2) and 437 of the Code of Criminal Procedure clearly empowers a Magistrate to remand to custody a person suspected of the commission of a non-bailable offence under the said Act and produced before him by the Customs Officer.
22. Once it is held as above, the major and indeed the sole plank of the petitioners’ stand disappears. The criminal miscellaneous case is thus without merit and is hereby dismissed.
Ram Nanoan Prasad, J.
23. I agree.