Decided on June 08,1983

Mohmed Akhtar Hussein Appellant
STATE Respondents


MEHTA, J. - (1.) FEW facts are to be noticed in order to appreciate the relevant circumstances under which this group of Misc -Criminal Applications has been placed before us.
(2.) THE Customs Officers of Ahmedabad effected seizure of gold worth Rs. 1.40 crores besides miscellaneous foreign goods worth about Rs. 40,000/ - Indian currency of Rs. 72,766.00 ps. and a pistol of American made with six live cartridges and a couple of vehicles from bungalow No. 3, at Shwethpark Society, Budharpura, in the city of Ahmedabad on 15/16 April, 1982. In connection with this seizure several persons suspected to have been connected with the case were arrested and produced before the Chief Metropolitan Magistrate, Ahmedabad, from time to time. Mohamad Akhtar Hussain, alias 'Kadar Ahmed Vagher Bhatti', applicant herein in this group of applications who is alleged to be the chief culprit in this case was arrested at about 18.30 hrs. on April 20, 1982 by the Customs Officers as they suspected him to be guilty of the various offences under the Customs Act, 1962 and the Gold Control Act. It appears that before he should be produced by the Customs Authorities before the Chief Judicial Magistrate, he was sought to be detained at about 18.45 hours on the same day i.e. 20th April, 1982 under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, (hereinafter known as COFEPOSA) with the result that in order to comply with the provisions contained under section 104(2) an intimation was given to the Chief Metropolitan Magistrate, Ahmedabad, on April 21, 1982 that that the authorities were not capable of producing the accused before the Chief Judicial Magistrate for the above reasons. It appears further that he was formerly arrested on different dates for having been suspected to commit on offence under the Arms Act, Foreigners Act and Indian Passport Act viz. on April 26, 1982, June 16, 1982 and December 15, 1982. Five prosecutions were, therefore, launched against the applicant and other persons. The complaints have been filed by the Customs Authorities under the various aforesaid Acts. The complaint under the Gold Control Act has been filed on September 21, 1982, that under the Customs Act was filed on January 6, 1982, that under the Arms Act on August 2, 1982 that under the Foreigners Act on August 18, 1982 and under the Passport Act on January 29, 1983. Two facts of some significance should be referred to at this stage. When the Customs Authorities reported their inability to produce the applicant before the Chief Metropolitan Magistrate on April 21, 1982, within 24 hours of his arrest, the learned Magistrate did not pass any order on this report. He, however, by his order on May 28, 1982 discharged all the other eight persons arrested in connection with the aforesaid offences under the Customs and Gold Control Acts holding that he had no power to send them to judicial custody. The Customs Authorities, therefore, moved this Court by a special criminal application No. 585 of 1982 for appropriate writ, order and direction to quash and set aside the said order of the learned Magistrate dated May 28, 1982. The Division Bench of this Court consisting of M.P. Thakkar, C.J. (as he then was) and R.J. Shah, J., by its order of August 20, 1982 allowed the criminal application holding that the Magistrate had the power to remand the arrested persons produced before him by the Customs Officers for having committed offences under the Customs Act to the judicial custody having regard to section 437 of the Code of Criminal Procedure and also for having committed offences under the Gold Control Act in view of the specific provisions contained in section 68 of the said Act authorising a Magistrate to detain a person produced before him to custody beyond the period of 24 hrs. The impugned order of the Chief Metropolitan Magistrate was quashed and set aside.
(3.) IT appears that pursuant to the quashing of the aforesaid order by this Court an application was made on behalf of the Customs Authorities on September 16, 1982, that accused may not be released on bail and be kept in judicial custody. The Chief Metropolitan Magistrate did not pass any order for remanding them to custody, but only made an endorsement to the effect that since the accused has not applied for bail the Department would be heard only if and when such an application is made. Another application appears to have been made by the Customs Authorities on September 16, 1982 in the Court of Chief Metropolitan Magistrate that the jail custody. The Chief Metropolitan Magistrate directed in Yadi to be issued to the Jailor that the applicant was in the custody of his Court and in case of his release under COFEPOSA his direction should be sought before releasing him from Court Custody. As stated above the Assistant Collector (P), one Shri D.N. Anerao, filed criminal complaint against the applicant and two other persons on September 23, 1982 for daving committed offence under the Gold Control Act, 1968 being Criminal Complaint No. 1674 of 1982. Nan -bailable warrant in sum of Rs. 10 lakhs was directed to be issued so far as the applicant was concerned. On September 26, 1982, the applicant moved an application in the Court of Chief Metropolitan Magistrate for releasing him on bail which was, however, rejected by the order of October 12, 1982. Similarly, the Assistant Collector (P), Shri Anerao, filed Criminal Complaint against the applicant and 22 other persons for having committed offence under section 35 of the Customs Act read with Section 120(b) of the Indian Penal Code on January 6, 1983 in the Court of Chief Metropolitan Magistrate vide Criminal Case No. 639 of 1983. Before this complaint was filed the applicant had moved the Chief Metropolitan Magistrate for releasing him on bail from judicial custody on November, 26, 1982 which was rejected by his order of December 28, 1982. It appears that on the complaint filed for the offences under the Customs Act the learned Magistrate directed the issue of process against other persons while issued non -bailable warrant so far as the applicant was concerned.;

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