BIJAN HALDER AND ANR. VS STATE OF WEST BENGAL AND ORS. ON 14 MAY, 1993

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BIJAN HALDER AND ANR. VS STATE OF WEST BENGAL AND ORS. ON 14 MAY, 1993

FACTS OF THE CASE

• There was a revisional application with questions raised. The petitioners were arrested by the customs officials under Section 104 of the Customs Act, 1962.
• The case was presented before the Sub-Divisional Judge Magistrate at Nadia. Petitioners were rejected in getting bail and they were under jail custody. Then the petitioners were released on bail before the Sub-Divisional Judicial Magistrate. 
• Further there was a complaint filed by the Superintendent of Customs which was punishable for the offence under Section 135(1)(b)(ii) of the Customs Act, 1963, and took up the case as a cognizable offence.

ISSUES RAISED

1. Whether  Section 167 of CrPC attracts prosecution for an offence that is punishable under Section 135 of the Customs Act?
2. Whether the Magistrate before whom a person arrested under Section 104 of the Customs Act is produced can exercise the power of remand in respect of such person?
3. Whether Section 167, Cr. P.C. is attracted to such a case, as has been raised in this criminal revision, has been considered earlier by different High Courts on different occasions?
4. Whether bail should be granted to the person arrested and produced or not?

CONTENTIONS OF PARTIES

The petitioner’s counsel said that the Magistrate’s cognizance was improper since the complaint was filed after the deadline specified in Section 167(5) of the CrPC as it applied to the case and after the inquiry had been completed.  In accordance with Section 107, the authorised customs officer is permitted to demand that anyone produce or deliver any documents or items that are relevant to the investigation, at the same time it is ongoing and to question anyone who is familiar with the facts and circumstances of the case. A gazetted customs officer is authorised under Section 108 to call any individual whose presence he deems relevant for an investigation into the smuggling of any commodities, either to give testimony or to present a document or object. An approved Customs Officer is granted inspection authority under Section 106A. An authorised customs officer is permitted to make an arrest under Section 104(1) of the Customs Act if the officer has grounds to think that the individual has committed a crime subject to Section 135 of the Customs Act which discusses penalties. The individual who has been arrested must be transported to a magistrate without undue delay, according to Section 104 subsection (2). According to subsection (3) of the cited section, an officer of customs who detains a person pursuant to subsection (1) shall have the same authority and be subject to the same rules under the Code of Criminal Procedure as the officer-in-charge of a police station, whether for the purpose of releasing the detainee on bail or otherwise. It is obvious that because a violation of the Customs Act is not legally punishable, neither can the police independently investigate a violation of the law nor detain someone in connection with one. It is also known that an empowered customs officer who has reason to believe that someone has committed an offence that is punishable under Section 135 of the Customs Act may make the arrest; in this case, the person must be informed of the reason(s) for the arrest and must also be taken without delay to a magistrate. In accordance with the Code of Criminal Procedure, the customs officer who makes an arrest has all the authority of an officer-in-charge of a police station to release the individual, whether on bond or otherwise. The important thing to note in this regard is that the customs officials do not have the same authority as the officer-in-charge of a police station under the Criminal Procedure Code for the purpose of an investigation or for any other purpose other than the release of the arrested person. 

Although more than 4 years have passed since the petitioners’ arrest in September 1988, they are eligible for release under Subsection (3) of Section 245 of the Code of Criminal Procedure as it currently reads after being amended by the Code of Criminal Procedure (West Bengal Amendment) Act, 1988. This is because no witness for the prosecution has yet been cross-examined. A prosecution that is initiated based on a complaint for an offence that can be tried using the warrant procedure is subject to Section 244 of the Criminal Procedure Code.

PROVISIONS REFERRED

• Section 104 of the Customs Act deals with the power to arrest. A customs officer who is empowering on behalf of the collector of customs. That official had to believe that any person in India or within Indian Customs Waters had committed any offence which is punishable under Section 135. The official may arrest that person very soon after informing him about the details or grounds of his/her arrest. Every person is arrested under Sub-section 1 without delay and taken to the Magistrate. 
• Section 167 deals with what to do when an inquiry takes more than twenty-four hours to complete. The officer in charge of the police station or the police officer who makes the investigation, if that officer is below the rank of sub-inspector, can transmit to the nearest Judicial Office whenever any person is arrested and held in custody and it appears that the investigation cannot be completed within the twenty-four hours set forth in Section 57 and there are grounds that are believed that the accusation made against a person or information which is well-founded.
• The evasion of duty or restrictions is addressed under Section 135 of the Customs Act of 1962. Without affecting any actions taken under this Act,
  • if a person is knowingly involved in misreporting the value of any goods, fraudulently avoiding or attempting to evade paying any duty due on them, or violating any prohibition currently in place under this Act or any other law currently in force with respect to those goods; or 
  • If a person acquires goods that are subject to confiscation under section 111 or section 113, as the case may be, or is otherwise involved in carrying, removing, depositing, harbouring, keeping, concealing, selling, buying, or otherwise dealing with any such goods;

JUDGEMENT

According to the judge’s independent logical analysis, which was within the purview of the Supreme Court of India, there was no room for substituting a customs officer for a police officer or the person in charge of the police station when conducting Section 167 investigations. Any provision of Section 167 CrPC that is applicable to an investigation or action involving an offence under the Customs Act is inapplicable. The judge disagreed with the Patna High Court’s and the Delhi High Court’s majority opinion that Section 167 of the Criminal Procedure Code is not applicable when a person is detained and given legal protection before a magistrate under Section 104 of the Customs Act.

The revisional application is therefore dismissed. In determining whether Section 167 is even somewhat relevant to the matter, the view of the Court is completely immaterial. The issue must be resolved as a matter of law and in light of the legal provisions, not based on how a customs officer conducting an inquiry or an investigation may characterize it. Again, it should be noted that Section 245(3) will not be attracted in this instance if Section 167, Cr. P. C. is attracted by importing the principle of mutatis mutandis. In that case, one would have to read “report of Customs Officer” in place of “police report” in Section 244(1), Cr. P. C. However, as was already mentioned, it is not a legal position. Given that this is a complaint-based prosecution, the judge has previously determined that Section 167 of the Criminal Procedure Code is not attractive in this matter and that the timing is not yet right to apply Section 245 Subsection (3) of the Criminal Procedure Code. 

REFERENCES

• https://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=503991012000&CaseId=503991012000 
• https://indiankanoon.org/doc/1445178/ 

This Article is written by B. Michael Shriney of Sathyabama Institute of Science and Technology, Intern at Legal Vidhiya.

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