- (1.) THE Deputy Director Enforcement, Enforcement Directorate Foreign Exchange Regulation Act, Government of India, 39-A, Green Park, Jalandhar, has filed this petition under Section 482 of the Code of Criminal Procedure against the order dated 6. 3. 1985 of the learned Additional Chief Judicial Magistrate, Jalandhar whereby he refused to remand the respondent to judicial custody.
(2.) THE facts which gave rise to this petition are that on 5-3-1985 the officers of Enforcement Directorate, Jalandhar, intercepted Anoop Kumar respondent and recovered foreign currency from his possession. The foreign currency was seized since it was found to be in the possession of the respondent in contravention of the provisions of the Foreign Exchange Regulation Act, 1973, and the respondent was arrested by the Enforcement Officer under Section 35 of the said Act. As required under Sub-section (2) of Section 35 of the aforesaid Act, the respondent was produced by the Enforcement Officer before the learned Additional Chief Judicial Magistrate before whom the Enforcement Officer made an application on 6-3-1985 praying therein that the respondent be remanded to judicial custody. The learned Magistrate declined this prayer of the Enforcement Officer and, while relying upon a Division Bench judgment of the Delhi High Court reported as Dalam Chand Baid v. Union of India, 1982 Criminal Law Journal 747, passed the impugned order dated 6-3-1985 in the following terms : "no complaint under the Foreign Exchange Regulation Act has been made before the Court, with the result that this Court cannot take cognizance of the offence claimed against the accused. The power to arrest the accused is no doubt there under Section 35 of the Act with the officer of Enforcement, then the power to release that person on bail or otherwise is also there under those very provisions of subsection (3) of Section 35 of that Act deals with those provisions. The. Division Bench authority of the Delhi High Court in the case of Dalam Chand Baid v. Union of India, 1982 Criminal Law Journal 747, elaborately deals with the point; involved and held that there are no powers with the Magistrate before whom such accused is produced, either to remand the accused to judicial custody or in any custody of whatsoever in nature. The only authority to release the accused on bail is the Enforcement Officer who has apprehended him. Returned in original. " Aggrieved by the order of the Additional Chief Judicial Magistrate the petitioner has come up to this Court under Section 482 of the Code of Criminal Procedure.
(3.) MR. Ashok Aggarwal, learned counsel for the petitioner, has placed reliance on a Division Bench judgment of the Gujarat High Court at Ahmedabad passed in Special Criminal Application No. 585 of 1982 [shri N. H. Dave, Inspector of Customs v. Shri Mohamed Akhtar Hussain Ibrahim and Ors.- 1984 (IS) ELT 353 (Guj. ). Their lordships of the Gujarat High Court, in their elaborate judgment in Shri Mohamed Akhtar Hussain Ibrahim's case (supra) came to a finding in the following terms : "we have no hesitation in reaching the conclusion that the Magistrate had the power to remand the arrested persons produced before him by the officer of Customs to judicial custody. " It may be appropriate to state here that the relevant provisions of Section 104 of the Customs Act, 1962, and those of Section 35 of the Foreign Exchange Regulation Act, 1973, are identical. Their Lordships of the Gujarat High Court took notice of the aforesaid judgment of the Delhi High Court and dissented with the same for good reasons. Their lordships in Shri Mohmed Akhtar Hussain Ibrahim's case (supra) further observed : "while Section 104 empowers an officer of Customs to effect an arrest and obliges him to take the person arrested before a Magistrate within the prescribed time limit. It does not make any provision as to how the Magistrate should deal with him when the arrested person is brought before him by the officer of Customs. It is because of the fact that Section 104 is silent in this behalf that the learned Magistrate has taken the view that he has no power to pass any order in regard to the custody of the arrested person when he is brought before him and all that he can do is to be a silent spectator of the fact that the person concerned is brought before him. Having taken a note of the fact that the person has been brought before him (such is his view) he has legal authority to pass any order in regard to the custody of the arrested person. It would also appear to be his view that he would have no power even to require the arrested person to furnish bail or even to execute a personal bond to appear before any authority when reguired. It may be stated that if this view were to hold the field, Section 104 would be robbed of all efficacy and the power conferred by the said section to effect arrest of a person in respect of whom the officer of Customs has reason to believe that he has been guilty of an offence punishable under Section 135 would be rendered meaningless and purposeless. What purpose would be served by merely effecting arrest of the person in respect of whom there is reason to believe that he has been guilty of an offence punishable under Section 135 of the Customs Act, if he can arrest him only for the purpose of taking to the Magistrate and releasing him from his custody forthwith without anything more? The power to arrest would be a power to arrest for no purpose and the obligation to produce will also be superfluous requirement of law or an empty formality to be completed with, for, after producing him before the Magistrate, the arrested person cannot be subjected to any restriction but would be required to be released forthwith. Why then arrest him? Why then produce him before the Magistrate? These are questions which would remain unanswered if the view taken by the learned Magistrate were to be accepted as the correct view of law. So also the arrest of such a person would be a meaningless exercise. ";