S.RATNAVEL PANDIAN - (1.) THE salient and indeed substantial legal question which looms for determination in this appeal may be formulated as follows:- Whether a Magistrate before whom a person arrested under sub-section (1) of S. 35 of the Foreign Exchange Regulation Act of 1973 which is in pari materia with sub-section (1) of S. 104 of the Customs Act of 1962, is produced under sub-section (2) of S. 35 of the Foreign Exchange Regulation Act, has jurisdiction to authorise detention of that person under S. 167(2) of the Code of Criminal Procedure?
(2.) AS a preclude to the judgment, we would like to state that though the appellant in the present case has been arrested under sub-section (1) of S. 35 of Foreign Exchange Regulation Act, 1973 (hereinafter referred to as the 'FERA') and taken to the Magistrate under sub-section (2) thereof, we while disposing the legal questions posed for determination, are inclined to deal with the corresponding provisions under the Customs Act also for the reasons -(i) that the scheme for both the FERA and the Customs Act is more or less the same; (ii) the provisions relating to the arrest and production of the arrestee before the Magistrate are identical; (iii) the arguments by both the parties have been advanced pertaining to provisions of both the Acts; and (iv) almost all the decisions cited relate to the provisions of both the Acts. There is a vertical cleavage of opinion amongst the various High Courts on the above legal question which has come up for adjudication in the present appeal. This appeal, by special leave is directed against the judgment of the High Court of Delhi dated 6/04/1990 rendered by a five-Judges Bench in Criminal Writ No. 316 of 1989 overruling the decision of the same High Court in Union of India v. O. P. Gupta, 1990 (2) Delhi Lawyer 23 (FB) rendered in Criminal Writ Nos. 104 and 116 of 1984 by a three-Judges Bench reversing an earlier decision in Dhalam Chand Baid v. Union of India, 1982 Cri LJ 747 (Delhi) which was decided by a Division Bench of the same High Court holding that a Magistrate has no power to remand a person accused of an offence punishable under the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as 'FERA') to judicial custody.
(3.) THOUGH normally, it may not be necessary to make any reference about the constitution of a particular Bench which is the prerogative right of the Chief Justice of the High Court concerned, yet regrettably in this case, it has become unavoidable to make reference concerning the constitution of the Bench since during the course of the arguments, a diatribe, though not justifiable was made about the formation of the Bench, presided over by Charanjit Talwar, J. who gave a dissenting judgment in the case of O. P. Gupta ((1990) 2 DL 23 (FB)). In Gupta's case ((1990) 2 DL 23 (FB)) the Bench was presided over by Yogeshwar Dayal, J. (as he then was)-and two other learned Judges, namely, Charanjit Talwar and Malik Sharief-ud-din, JJ. of whom Charanjit Talwar, J. gave his dissenting judgment.;