BIJAN HALDER Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this revisional application several important questions of law have been raised which will be discussed later. On 16/09/1988 the petitioners, who were earlier arrested on the 15/09/1988 by customs officials under S. 104 of the Customs Act, 1962, were produced before the learned Sub-Divisional Judicial Magistrate, Ranaghat, Nadia and they were remanded to jail custody after rejection of their prayer for bail. Thereafter on 30/09/1988 the petitioners were released on bail by the learned Sub-Divisional Judicial Magistrate. Subsequently on the basis of a complaint filed by the Superintendent of Customs in respect of offence punishable under Section 135(1)(b)(ii) of the Customs Act, 1962, the learned Magistrate took cognizance.

(2.) The first point argued before me by Mr. Ghosh on behalf of the petitioners is that the cognizance taken by the learned Magistrate in this case is bad in law of the fact that the complaint on the basis of which the cognizance was taken was filed, on completion of investigation, after the expiry of the period prescribed in S. 167(5), Cr. P.C. as applicable to the case. This in turn raises the question whether S. 167, Cr. P.C. will be attracted to a prosecution for an offence punishable under S. 135 of the Customs Act. Section 100, Section 101, Section 105, Section 106 and Section 110 of the Customs Act provide for search and seizure by appropriate customs officials. Section 107 authorises the empowered customs officer, during the course of an inquiry in connection with the smuggling of any goods, to require any person to produce or deliver any document or thing relevant to the enquiry and also to examine any person acquainted with the facts and circumstances of the case. Section 108 empowers a gazetted officer of customs to summon any person whose attendance he considers necessary either to give evidence or to produce a document or thing in any enquiry which such officer is making in connection with the smuggling of any goods. Section 106A gives power of inspection to an authorised Customs Officer. Sub-Section(1) of S. 104 of the Customs Act authorises an empowered customs officer to arrest any person if such officer has reason to believe that such person has been guilty of an offence punishable under S. 135 of the Customs Act. Sub-Section(2) of S. l04 requires the person so arrested to be taken to a Magistrate without unnecessary delay. Sub-Section(3) of the said Section provides that an officer of customs arresting any person under Sub-Section (1) shall 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, for the purpose of releasing such person on bail or otherwise. For better appreciation Section 104 of the Customs Act is reproduced below :

(3.) It is therefore evident that an offence under the Customs Act being non-cognizable the police, on their own authority, cannot investigate any offence under the Customs Act and also cannot arrest any person for or in connection with an offence under the said Act. It is also seen that an empowered customs officer having reason to believe that any person has been guilty of an offence punishable under S. 135 of the Customs Act may arrest such person in which case however he is required to be informed of the grounds for such arrest and is also required to be taken to a Magistrate without unnecessary delay. The officer of customs arresting a person has been given power of an officer-in-charge of police station as is available under the Code of Criminal Procedure for the purpose of releasing such person either on bail or otherwise. In this connection what is significant to be noted is that the customs officials have not been given the same power as available to the officer-in-charge of a police station under the Criminal Procedure Code for the purpose of investigation or for other purposes except for the purpose of releasing the arrested person. There are however as we have seen, independent provisions made for search, seizure, inspection, arrest, examination of persons and even inquiry under the Customs Act which can be said to create independent powers for customs officials to deal with matters coming within the ambit of the Customs Act. Section 108 of the Customs Act contains provisions for summoning any person to give evidence and produce document in any inquiry in connection with the smuggling of any goods. Sub-Section(4) of S. 108 provides that every such inquiry shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code. The Customs Act also contains provisions for confiscation of goods, etc. and imposition of penalty by the appropriate customs officials, apart from prosecution of the offenders in court for commission of offence under the Customs Act. Sub-Section(1) of S. 137 of the Customs Act provides that no court shall take cognizance of an offence under Section 132, Section 133, Section 134 or Section 135, except with the previous sanction of the Collector of Customs. Section 138 provides that notwithstanding anything contained in the Code of Criminal Procedure an offence under Chapter-XVI other than an offence punishable under clause (i) of Sub-Section (1) of Section 135 or under Sub-Section (2) of that Section may be tried summarily by a Magistrate. The word may in this connection indicates that the exercise of the power of summary trial is optional.