Mewa Singh, Assistant Collector, Customs vs Arun Kumar

Jai Singh Sekhon, J.

Arun Kumar respondent was intercepted on the night intervening 12th and 13th May, 1990 near Pundri while travelling in his blue Maruti van bearing Registration No. CHF 1499 by a party of customs officials headed by Mewa Singh Assistant Collector. The van was, however, not searched at Pundri due to security reasons and the respondent was brought to Customs Headquarters at Ambala. Ten gold biscuits weighing about 10 tolas each with markings of Swiss Bank Corporation, and 10 chains of gold were recovered from a cavity of panel of left side doors of the van. An amount of Rs. 15,000/ in Indian currency was also recovered from the van. On interrogation of the respondent,51/2 biscuits of gold of foreign markings weighing 614.430 gms besides Indian currency worth Rs. 80,000/ were recovered, from the bedroom of the respondent. Thereafter, the respondent was arrested by the Assistant Collector, Customs under section 135 of the Customs Act, 1962. On the basis of the clues provided by the respondent during the investigation, the Customs officials conducted search of the house and business premises of one Bhim Sen Sukhija of Delhi. Because the respondent was required by the Customs officials for further interrogation, he was produced before the Chief Judicial Magistrate, Ambala on 1451989 at about 1 p.m. with a prayer for the grant of police remand for ten days for purposes of interrogation. The learned Chief Judicial Magistrate, however, declined this request and sent the accused to judicial custody vide impugned order, by holding that the recovery of the incriminating articles having already been effected, the accused was no longer required for interrogation by the Customs officials. It was also held that the Customs officials had procured the addresses of the persons from the accusedrespondent and they are at liberty to raid the premises of those persons in accordance with law, The factum that the Customs officials did not search the van of the respondent at Pundri or that no case diaries were prepared also weighed with the Chief Judicial Magistrate in concluding that there were not sufficient reasons for remanding the accused to the further custody of the customs officials.

Feeling aggrieved, Shri Mewa Singh, Assistant Collector Customs has filed this petition under section 482 of the Code of Criminal Procedure for quashing the said order of the Chief Judicial Magistrate and directing the latter to remand the respondent to the custody of the customs authorities.

Notice of the application was given to the respondent and the proceedings before the trial Court were stayed.

Arun Kumar respondent has filed Cr. M. No. 5125M of 1990 under section 439 of the Code of Criminal Procedure for his release on bail during the pendency of the trial, contending that due to the staying of the proceedings before the trial Court, the application for bail could not be disposed of by the latter Court. Both these petitions shall be disposed of by this order.

I have heard the learned counsel for the parties besides perusing the English translation of the statements of Arun Kumar respondent. Vijay Kumar driver of the said Maruti van and Suresh Kumar, cotraveller of the respondent in that car and Ishwar Chander, father of the respondent recorded by the customs officials. The very factum that the gold biscuits bore foreign markings "Swiss Bank Corporation" and the purity of the gold was 24 carats clearly shows that the customs officials rightly believed that it was gold of foreign origin. Under section III of the Customs Act, improperly imported goods are liable. to be confiscated. It is not the case of the respondent that he or somebody on his behalf had imported these gold biscuits on payment of requisite customs duty etc. Therefore under these circumstances; the respondent has indulged in keeping imported gold in his custody and exfacie is liable under clause (b) of subsection (1) of section 135 of the Customs Act. Thus, the contention of Mr. J.N. Kaushal, Senior Advocate, appearing on behalf of the respondent that due to the repeal of the Gold Control JUDGMENT the carrying of any quantity of gold is no offence unless it is of foreign origin is of no consequence as the gold biscuits in the case in hand appear to be of foreign origin.

The question then arises whether the provisions of section 172 of the Code of Criminal Procedure regarding the preparation of the zimnis are applicable to the customs officials while conducting search under section 104 of the Customs Act or arresting a person for violation of sections III and 135 of the Customs Act. Section 172 of the Code figures in Chapter XII which deals with information to the police and their powers to investigate. The provisions of section 104 of the Customs Act confer power upon the customs officials to arrest any person guilty of an offence under section 135 of the Act and further provide that the custom officer for the purpose of releasing such person on bail or otherwise has the same power and be subject to the same provisions as the officer incharge of a police station has and is subject to the provisions of the Code of Criminal Procedure, 1973. Subsection (4) of this section further provides that an offence under this Act shall not be cognizable. Thus, by no stretch of imagination, the customs official duly empowered under section 104 of the Customs Act to arrest a person can be said to be acting as a police officer although some power akin to the police officer figuring in the relevant portion of the Code of Criminal Procedure had been conferred upon him. Similarly under section 105 of the Customs Act, all the powers conferred on a police officer for searching the premises etc. have been conferred upon the customs officials. Section 172 of the Code only enjoins upon the police officer making investigation under this Chapter. i.e., Chapter XII to prepare a daytoday inventory regarding the proceedings of the investigation in a diary. Thus, under these circumstances, the approach of the Chief Judicial Magistrate in not granting the remand of the respondent to the customs officials for farther interrogation on the ground of the customs officials having failed to prepare the case diary is certainly erroneous and illegal.

The contention of Mr. J.N. Kaushal on the strength of the Division Bench decision of the Delhi High Court in State (Delhi Administration) v. Dharampal, 1982(1) Cr. LJ 1103, that the judicial remand of the respondent to custody of the customs officials cannot be granted beyond the period of 15 days under section 167(2) of the Code of Criminal Procedure, is. not tenable as the provisions of section 167 of the Code are not applicable to the customs officials while conducting investigation of the case under section 135 of the Customs Act. Admittedly, before the Delhi High Court, the controversy related to the remand of the accused under section 167(2) of the Code in a case for offences under sections 392, 397 and 302 read with (sic).

On the other hand, regarding the powers of the customs official 9 and non application of the provisions of section 167 of the Code of Criminal Procedure, a Division Bench of the Patna High Court in Nagendra Prasad and another v. State, 1987 Cri. LJ 215, after elaborate discussion regarding the provisions of sections 104 and 135 of the Customs Act and relying upon two decisions of the Supreme Court mentioned therein had observed in paragraph 6 of the judgment as under :

"Again it was not now in dispute at all that a Customs Officer, though he has the power to 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. State of West Bengal, AIR 1970 SC 940 (1970 Cri. LJ 863) (see paras 14 & 25 of the report) which, in turn, has been unhesitatingly followed thereafter in Illias v. Collector of Customs, Mad., AIR 1970 SC 1065 (1970 Cri. LJ 998). Now, once it is held that a Customs Officer, is not a Police Officer, it would necessarily follow that S. 167 of the Code which clearly & imperatively refers to an investigation by the Officerincharge 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 petitioner, and Mr. Pandey for the State were unanimous that the provisions of the said section cannot be invoked herein".

It was further held that the Magistrate had power under section 437 read with section 4(2) of the Code of Criminal Procedure to remand a person suspected of the offence under section 135 of the Customs Act.

The conduct of the Customs official in not searching the van near Pundri where it was apprehended but instead taking it to the Customs headquarters at Ambala and searching it there, even if taken to be exfacie illegal, is of no consequence in view of the observations of the apex Court in State of Maharashtra v. Natwarlal Damodardas Soni, AIR 1980 SC 593. In para 10 of the judgment, it was remarked as under :

"Taking the first contention first, it may be observed that the police had powers under the Code of Criminal Procedure to search and seize this gold if they had reason to believe that a cognizable offence had been committed in respect thereof. Assuming arguendo, that the search was illegal, then also, itwill not affect the validity of the seizure and further investigation by the Customs Authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs".

Although in the facts and circumstances of the case, the conduct of the customs officials in conducting search at Ambala is well justifiable on account of the security reasons yet all the same, even if it is taken that the search is irregular, it would be of no consequence in vitiating the entire proceedings.

Regarding the refusal of the Chief Judicial Magistrate in remanding the accused respondent to the custody of the customs officials, it transpires that in economic offences like the smuggling of contraband articles such as foreign gold etc. the interrogation of the offender during investigation of the case is of immense importance in order to locate the kingpin behind the racket (of smuggling such goods into the country as such like acts are done in a secretive manner. In the case in hand, the perusal of the statement of the accusedrespondent recorded by the customs officials during the course of interrogation reveals that he had disclosed the names of certain persons with the qualification that their whereabouts can be ascertained from a chaukidar of a certain building at Delhi and admittedly on the information supplied by the respondent, search was in progress on the day of filing this petition at the premises of Bhim Sen Sukhija, resident of 5025, Gali Jaisi Ram, Pahari Dhiraj, Delhi. Thus, under the circumstances the custody of the respondent with the customs authorities was essential for pointing out the said Chaukidar and mansion in order to ascertain the indentity of the other persons involved in the racket of smuggling of gold of foreign origin. Thus, the impugned order of the learned Chief Judicial Magistrate, Ambala refusing to grant remand of the custody of the respondent to the customs authorities is certainly illegal and is hereby set aside by accepting this petition. The Chief Judicial Magistrate, Ambala is directed to reapply his mind to the facts and circumstances of the case and give remand of the respondent to the custody of the customs authorities to the extent justifiable.

Before dealing with the plea of the accusedrespondent for release on bail it would be useful to consider the authority of the Kerala High Court in this regard. The matter regarding granting of bail to an accused person suspected of commission of offence under section 135 of the Customs Act came under the consideration of the Kerala High Court in Superintendent of Customs CIU Cochin v. P.K. Umerkutty and others, 1983 Cri. LJ 1860. In that case, the Chief Judicial Magistrate had granted conditional bail to accused respondents Nos. I to 7 overruling the objections raised by the Superintendent of Customs, Customs Intelligence Unit, Cochin. The latter then filed petition under section 439(3) of the Code seeking cancellation of the interim bail as well as the regular bail ordered. While holding that the Magistrate had powers to release such persons on bail under section 437 read with section 4(2) of the Code of Criminal Procedure, had set aside order of granting bail and directed that if the respondents have been released already, be arrested and committed to custody in terms of the request made by the petitioner before the learned Magistrate. It was further clarified that the customs authorities have to move the learned Magistrate from time to time for extension of remand and such motions shall be disposed of by the learned Magistrate in accordance with law.

In the abovereferred case, the Kerala High Court had relied upon the observations of the apex Court in State of Maharashtra v. Nainmal Punjaji Shah, (1969)3 SCC 409. In para 19 of the judgment, it was observed as under :

"A case more or less similar in nature and of similar dimensions came to be considered by (sic) directed release on bail of the persons involved and imposed stringent conditions also. The High Court while confirming the order passed by the Magistrate, directed that the order shall operate after the expiry of two months from the date of the High Court order and in the meantime directed the prosecution to approach the Magistrate concerned for remand from time to time required by law. The High Court also made it clear that even after the expiry of two months, it would be open to the Magistrate to consider if the exgenices of investigation or any other important circumstance justifies the grant of further remand. The State was not satisfied with these directions and sought outright rejection of the request for bail. The State also contended that a direction should be issued that no bail should be granted during the pendency of the whole of the enquiry or investigation. Dealing with this request, the Supreme Court observed as follows :

"While we are impressed with the extraordinary nature of the facts of this case and that the investigations should proceed fairly and efficiently, it is impossible to say that no bail should be granted to the respondents during the pendency of the whole of the investigations. It was stated on behalf of the Customs before Gatne, J. that the complaint would be filed within six months from that date. We are of the view that the respondent cannot be detained in custody longer than that period... The third consideration is the larger interest of the State, as pointed out by the Court in State v. Jagjit Singh, AIR 1962 SC 2531: (1962(1) Crl. LJ 215. We feel that this interest was not adequately kept in view by the High Court and this required that the respondents should be in custody for six months from the date of the order of the High Court dated August 1, 1969.

Thus, in the light of the above observations, the application of Arun Kumar respondent (Crl. Misc. 5125M90) for grant of bail is declined.

JUDGMENT accordinly.