DEEPAK MAHAJAN Vs. DIRECTOR OF ENFORCEMENT

JUDGEMENT

(1.) The petitioner herein, Deepak Mahajan, was arrested by Officers of the Enforcement Directorate for an offence punishable under the Foreign Exchange Regulation Act, 1973 on 13th March, 1989. As per the mandate of sub-section (2) of Section 35 of the Foreign Exchange Regulation Act (hereinafter called the FERA), he was produced before the Chief Metropolitan Magistrate, New Delhi, the next day. An application under Section 167(2) of the Code of Criminal Procedure (for short the Code) was moved by the Enforcement Officer seeking petitioner's remand to judicial custody for 14 days mainly on the ground that it was necessary to complete the investigation. On that very day, the petitioner's application to be admitted to bail was also heard.

(2.) The learned Magistrate dismissed the bail application. The application on behalf of the Enforcement Officer was, however, allowed and the petitioner remanded to judicial custody for 14 days. Subsequently the remand of the petitioner was extended from time to time. The plea of the petitioner that the order of remand was without jurisdiction has been rejected by the Magistrate on the ground that a Full Bench of this Court in Cri. Writ Petition No." 116 of 1984 (Union of India v. O. P. Gupta), decided on 19th July, 1985 has held that the Magistrate is empowered under Section 167(2) of the Code to remand a person produced before him in accordance with Section 35(2) of FERA. It is that order of the Magistrate, which is impugned herein.

(3.) The petition was admitted by a Division Bench on 10th May. 1989, In view of the decision of the Supreme Court holding that the powers of remand vested in a Magistrate become exercisable only after an accused is prodluced before him in terms of sub-section (1) of Section 167 of the Code in re : Chaganti Satyanarayana and Others v. State of Andhra Pradesh, AIR 1986 SC 2130(1), the petition was referred to be heard by a larger bench. Before the Full Beach, the contention urged by counsel for the parties was that O. P Gupta's case (supra) requires reconsideration. The matter was referred to a Bench of five Judges.