MAHENDRA BHUSHAN SHARMA, J. - (1.) HEARD learned Counsel for the petitioner and the learned Public Prosecutor, for UOI.
(2.) IN support of this bail application two contentions have been raised (1) that the remand of the accused in judicial custody is illegal and (2) that there is no prima facie case against the accused petitioner under Section 135 of the Customs Act, 1962, here -in -after referred to as 'the Act'. So far as the first contention is concerned, learned Counsel for the petitioner has referred to Section 104 of the Act, and submits that under Sub -section (3) of Section 104 of the Act, only the powers of the Officer -in -charge, Police Station to release an accused person on bail have been conferred on the Custom Officer and he is not an Investigation Officer, under Chapter XII of the Cr. PC. It is contended by the learned Counsel for the petitioner that a Magistrate, cannot order for remand of the accused person arrested by a Custom Officer, to judicial custody. In support of his submissions he placed reliance on Dalam Chand Baid v. Union of India and Ors. 1982 Cr. LJ 747. In the aforesaid case referring to the provisions of Section 35(3) and 61 of the Foreign Exchange Regulation Act, 1973, which provisions are analogus to the provisions of Section 104 of the Act, it has been held that if the Enforcement Officer, arrests a person of an offence punishable under the Foreign Exchange Regulations Act 1973, and that person is produced before the Magistrate and after the bail application of the accused was rejected, the Magistrate has no power to remand him to any custody. Order remanding him to judicial custody is not valid. His detention is without authority of law. In talcing the aforesaid view with due respect to the learned Judge in Dalamchand v. Union of India (supra) they did not take into consideration the provisions of 473 Cr.PC. A look on Section 104(2) of the Act, will show that every person arrested under Sub -section (I) of Section 104 shall without unnecessary delay be taken to the Magistrate. There is no provision as to what is to be done by the Magistrate there after. Whether the accused person be released on bail and if not released on bail what is to be done to him? The Kerala High Court considered this matter in the Superintendent of Coustoms, CIU Cochin v. PK Ummerkutty and Ors. 1983 Cr. LJ 1860 and held that a person arrested by a Custom Officer, on suspicion of commission of offences under Section 135 of the Act, can invoke the jurisdiction of the Magistrate under Section 437 Cr. PC by virtue of Section 4(2) of the Code. The same court has examined the matter in M.K. Ayoob and Ors. v. The Supdt. Customs Intelligence Unit Corpn. and Anr. 1984 Cr. LJ 949 and held that provisions of Section 167 of the Act, of Cr. PC are applicable and the Magistrate has power to remand the accused to any custody if he rejects the application for bail.
(3.) I agree with the reasoning contained in the aforesaid cases of the Kerala High Court. I am, therefore, of the opinion that the provisions of Sections 437 and 167 Cr. PC are applicable to a person who is arrested of being suspected or having committed on offence under Section 135 of the Act, and as such a person can be released on bail or can be remanded into judicial custody under Section 167, Cr. PC. Coming to the merits of the case the contention of the learned Counsel for the petitioner is that there is no evidence against the accused petitioner. The accused petitioner was not caught at the spot and the evidence against him is said to be his own statements and the statements of the two more witnesses. It will not be proper to deal with them in detail and suffice it to say that I feel this is a fit case in which the accused petitioner should be released on bail.;