NAGENDRA PRASAD Vs. STATE

JUDGEMENT

(1.) Does S.104 of the Customs Act, 1962 read with Ss.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 S.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 S.135 of the Act and S.8 of the Gold Control Act read with S.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. 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 S.167(2) of the Code of Criminal Procedure, 1973 (hereinafter to be referred 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.