N H DAVE Vs. MOHMED AKHTAR HUSSAIN ALIAS IBRAHIM ALIAS IQBAL ALIAS KADAR AMAD WAGHER BHATTI
HIGH COURT OF GUJARAT
N H Dave
Mohmed Akhtar Hussain Alias Ibrahim Alias Iqbal Alias Kadar Amad Wagher Bhatti
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(1.)Purposeless and Pointless is a phrase the existentialist philosophers may unhesitatingly employ in connection with their views on life. But a Court of law would be extremely reluctant to employ such a phrase in the context of a provision of law enacted by the Parliament in its wisdom. Considerations regarding respect for the law-makers apart the Court itself would be understandably anxious to interpret a provision in a meaningful manner rather than construe it in a manner which renders it meaningless. And if this approach is made it is impossible to assent to the proposition that the whole purpose of empowering a Customs Officer to arrest a person reasonably believed to have committed an offence under the Customs Act is to enable. the Magistrate (before whom he is required to be produced within twentyfour hours) to see his face and permit him to go without anything more.
(2.)The Customs Officer it is said has the power to arrest and release on bail. If he refuses to release him or the arrested person refuses to be released the only power is to produce him before a Magistrate within twenty-four hours. But thereafter he has no power to do anything but to release him. The Magistrate concerned has no power to release on bail or even on personal bond. Nor the power to keep him in judicial custody. The order passed by the learned Chief Metropolitan Magistrate on 23/05/1982 as per Annexure D below application marked as M/48 made by respondent No. 7 herein (Shri Jayantilal Maneklal Soni) wherein such a view has been taken and the learned Magistrate has ordered release of the said respondent No.7 who was produced by an officer of customs before him has been challenged by way of the present petition under Article 227 of the Constitution of India instituted by the Inspector of Customs (P) Ahmedabad. So also the order as per Annexure C passed by the learned Chief Metropolitan Magistrate simultaneously with the impugned order as per Annexure D whereby even the persons who had not made any request for being released from custody regardless of whether or not bail was applied for and/or was granted or not were released has also been challenged before us by way of the present petition.
(3.)On 15/04/1982 the customs officers of Headquarters (Preventive) Ahmedabad effected a seizure of contraband gold valued at about Rs. 1.40 crores. In connection with this seizure respondents Nos. 1 to 3 and 5 to 8 and one other person were arrested by the customs officers. They were arrested on different dates. We do not propose to give the particulars pertaining to the dates of arrest which are specified in paragraph 3 of the petition as nothing turns on the dates and we do not propose to burden the record with unnecessary details. Each of the arrested persons was taken to the learned Chief Metropolitan Magistrate and produced before him before the expiry of 24 hours. The officer of customs who produced the arrested persons made a request to the learned Chief Metropolitan Magistrate to remand the persons so arrested by him and produced before the learned Magistrate to Judicial custody instead of releasing the persons arrested by him on bail in exercise of his powers under sec. 104 (3) of the customs Act 1962. Out of the seven persons who were arrested and produced before the learned Magistrate three were remanded to judicial custody. Three were released on bail by the learned Chief Metropolitan Magistrate. One was already detained under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act (COFEPOSA) and accordingly he was not physically produced before the learned Chief Metropolitan Magistrate but a report about his arrest was made within 24 hours to the learned Chief Metropolitan Magistrate for the sake of technical compliance with the requirement of law (to produce the arrested persons before the Magistrate within 24 hours. Respondent No. 7 herein Jayantilal Soni was one of the three persons who were remanded to judicial custody by the learned Chief Metropolitan Magistrate. He made two applications to the learned Chief Metropolitan Magistrate. One was an application for being released on bait. Another (which was made simultaneously with the application for bail) which was marked as M/48 was for being released forthwith without being required to furnish bail or being required to execute a personal bond. It is this application which has given rise to the present petition in view of the fact that the learned Chief Metropolitan Magistrate upheld his contention that he had no power or authority to remand the arrested person produced before him by an officer of customs to judicial custody or require him to furnish bail or to execute a bond and that in point of fact the Magistrate had no power but to direct that the person so arrested shall be released forthwith without anything more as soon as such a person was produced before the learned Magistrate. And it is the legality and validity of this order which has been called in question by the petitioner in the present petition.
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